Arson causing damage to property, Break and enter a place other than a dwelling-house

R. v. Gallagher

Sentence and the Crown's position

Crown asked3 years and 6 months in custody1
Judge imposed3 years and 9 months custody less 641 days credit (two years less a day remaining), then 3 years probation1

What the law allows

Maximum14 years
Crown asked3 years and 6 months in custody
Judge imposed3 years and 9 months in custody
Defence asked20 months in custody
For arson causing damage to property (CC 434), the Criminal Code currently allows up to 14 years, with no mandatory minimum. The sentence imposed is 27% of the maximum. Read the section.

Steven Marlo Gallagher was convicted after trial of breaking into a pharmacy in Oliver and setting it on fire. The Crown sought three and a half to four years in custody; the defence sought 20 to 26 months with three years of probation. Justice Crerar imposed three years and nine months before credit for pre-sentence custody, leaving two years less a day to serve, followed by three years of probation, finding the arson calculated and vengeance-based while giving weight to Gladue factors and his progress in custody.

In the judge's words

[31] I agree with the Crown that Mr Gallagher's moral culpability lies towards the upper end of the arsonist scale. Of the four Laforge categories, Mr Gallagher's crime most resembles a vengeance-based arson, triggered by the police visit and Mr Gallagher's long-simmering resentment of authority figures.

1

The record

Prior convictions
Not recorded
At the time of the offence
Not stated1
Defence asked for
20 months in custody1
Appeal
Not yet checked
Counsel
Crown: K.J. Short
Defence: N. Selamaj

Sources

  1. R. v. Gallagher, 2023 BCSC 1722 Court decision, CanLII, October 5, 2023[27] The Crown argues that the facts of the case, in light of the jurisprudence, indicate an appropriate sentence of three-and-a-half to four years' incarceration.[28] The defence, leaning heavily on the Gladue jurisprudence and Mr Gallagher's personal traumas, argues for a sentence in the range of 20 to 26 months, with three years of probation.[1] On May 12, 2023, in reasons indexed as 2023 BCSC 824 (the "Reasons"), Mr Gallagher was found guilty of breaking into and committing arson at the Remedys RX Pharmacy in Oliver just after 4 AM on May 15, 2021, contrary to ss. 348(1)(b) and 434 of the Criminal Code, R.S.C. 1985, c. C-46.[31] I agree with the Crown that Mr Gallagher's moral culpability lies towards the upper end of the arsonist scale. Of the four Laforge categories, Mr Gallagher's crime most resembles a vengeance-based arson, triggered by the police visit and Mr Gallagher's long-simmering resentment of authority figures.[43] Given all of the circumstances of the offence, your own circumstances, and Gladue considerations of moral culpability and fitting disposition, the Court finds that an appropriate sentence, apart from credit for pre-sentence custody, would have been three years and nine months in custody. [44] As set out above, you are entitled to credit of a total of 641 days representing the time that you have already spent in custody based on this offence. [45] Deducting that credit, the appropriate remaining and actual sentence the Court imposes on you is two years less a day. … the appropriate probation period is the maximum: three years.
  2. Criminal Code, s. 434 Record, Justice Laws Website
  3. R. v. Gallagher, 2023 BCSC 1722 Court decision, Courts of British Columbia

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