R. v. Albay
The trial judge erred in principle by rejecting the uncontradicted pre-sentence report based on its sources; the court admitted and relied on fresh evidence from the Immigration Appeal Division which confirmed rehabilitation prospects, and therefore the appropriate disposition was to set aside the sentence and...
Source-derived case information.
- Citation
- C42496
- Parties
- Respondent: Her Majesty the Queen; Appellant: Paul Christian Albay
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 7 February 2005
- Procedural Posture
- Criminal Appeal From Sentence / Court of Appeal Decision on Appeal From Sentence
- Outcome
- Appeal allowed; original sentence set aside and replaced with a conditional sentence totaling ten months structured as six months concurrent on each fraud and possession under $5,000 counts and four months consecutive on the possession over charge; sentence to run from date of decision and subject to conditions in...
- Legal Topics
- Conditional Sentence, Pre Sentence Report, Fresh Evidence, Rehabilitation, Sentence Calculation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Paul Christian Albay
Appellant
Procedural Posture
Criminal Appeal From Sentence / Court of Appeal Decision on Appeal From Sentence
Legal Issues
- 1 Whether the trial judge erred in rejecting the pre-sentence report because of the sources of its information
- 2 Whether fresh evidence (Immigration Appeal Division reasons) could be considered on appeal
- 3 Whether a conditional sentence was appropriate given the appellant's prospects for rehabilitation and the public interest
Ratio Decidendi
The trial judge erred in principle by rejecting the uncontradicted pre-sentence report based on its sources; the court admitted and relied on fresh evidence from the Immigration Appeal Division which confirmed rehabilitation prospects, and therefore the appropriate disposition was to set aside the sentence and impose a conditional sentence totalling ten months under the specified concurrency and consecutivity structure.
Court Disposition
Appeal allowed; original sentence set aside and replaced with a conditional sentence totaling ten months structured as six months concurrent on each fraud and possession under $5,000 counts and four months consecutive on the possession over charge; sentence to run from date of decision and subject to conditions in...
Orders
- Appeal allowed and sentence set aside
- Appellant sentenced to a conditional sentence of six months concurrent on each count of fraud and possession of stolen property under $5,000 and four months consecutive on the charge of possession over, for a total of ten months
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Albay Collection Decisions of the Court of Appeal Date 2005-02-07 Docket numbers C42496 Judges Laskin, John Ivan; Rosenberg, Marc; LaForme, Harry Smith Subject Criminal Decision Content DATE: 20050207 DOCKET: C42496 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – PAUL CHRISTIAN ALBAY (Appellant) BEFORE: LASKIN, ROSENBERG and LaFORME JJ.A. COUNSEL: Victor Giourgas for the appellant Deborah Krick for the respondent HEARD & ENDORSED: February 4, 2005 On appeal from sentence by Justice Norman Douglas of the Ontario Court of Justice dated July 26, 2004. APEAL BOOK ENDORSEMENT [1] The trial judge erred in principle in his treatment of the pre-sentence report by rejecting it because of the sources of the information. That information was uncontradicted. See R. v. Cleaveley, [1997] O.J. No. 2390 (C.A.). We have been provided with fresh evidence. Most helpful are the reasons of the Immigration and Refugee Board (Immigration Appeal Division) which confirms the information in the pre-sentence report but also contains more information about the appellant’s background and the context in which some of offences were committed. This material shows that this relatively young man has good prospects for rehabilitation and he is in a stable relationship and has employment prospects. [2] In the circumstances, the public interest would best be served by placing the appellant on a conditional sentence for the remainder of his sentence. [3] Accordingly, the appeal is allowed. The sentence will be set aside and the appellant will be placed on a conditional sentence of six months concurrent on each count of fraud under, possession of stolen property under $5,000 and four months consecutive on the charge of possession over. This sentence of ten months will run from today’s date on the conditions in the draft orders.