Canada Judgment

British Columbia Court of Appeal

R. v. Kambo

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Source document

01

Holding and result

The appeal was allowed in part because Condition #6 was based on an incorrect factual assumption about cohabitation; the Court varied Condition #6 to the revised terms proposed by the Crown as they remedied the impracticability.

Court disposition

Appeal allowed in part; Condition #6 of the conditional sentence order varied as set out by the Court.

Orders

  • Appeal allowed in part.
  • Condition #6 varied to read: You must remain in your residence daily under house arrest except as follows: (a) to report to the conditional sentence order supervisor (the supervisor); (b) for travel and attendance related to your search for employment and for employment when obtained; (c) for medical emergencies for yourself or your spouse; (d) for medical or dental appointments, with the advance written permission of your supervisor; (e) for one four hour occasion per week, to be arranged in advance with your supervisor, to purchase food and other necessities.

02

Material facts

Parties

Regina

Respondent Counsel: J. Duncan

Joginder Singh Kambo

Appellant Counsel: H. Stevenson

Amounts and remedies

  • Length of Conditional Sentence: months 6

03

Procedural history

  1. Posture

    Criminal Appeal Sentence / Appeal From Provincial Court Sentencing (court of Appeal Decision)

04

Questions and positions

Legal issues

Party arguments

Applicant
Appellant submitted that Condition #6 was premised on the assumption he would be living with his girlfriend who would perform grocery shopping and other necessities on his behalf; that arrangement no longer existed making the condition impracticable.
Respondent
Crown agreed the condition should be varied and proposed revised Condition #6 specifying permitted exceptions including reporting, employment travel, medical emergencies, medical appointments with permission, and one four hour weekly outing for necessities arranged in advance with the supervisor.

05

Court’s reasoning

  1. 01

    Criminal Code and sentencing jurisprudence

    Conditions of a conditional sentence must be reasonable and tailored to the offender's actual circumstances.

  2. 02

    Appellate practice and sentencing law

    An appellate court may vary terms of a conditional sentence order when circumstances change and a condition is impracticable or based on a false assumption.

06

Ratio, limits and disposition

Ratio decidendi

The appeal was allowed in part because Condition #6 was based on an incorrect factual assumption about cohabitation; the Court varied Condition #6 to the revised terms proposed by the Crown as they remedied the impracticability.

Court disposition

Appeal allowed in part; Condition #6 of the conditional sentence order varied as set out by the Court.

  • Appeal allowed in part.
  • Condition #6 varied to read: You must remain in your residence daily under house arrest except as follows: (a) to report to the conditional sentence order supervisor (the supervisor); (b) for travel and attendance related to your search for employment and for employment when obtained; (c) for medical emergencies for yourself or your spouse; (d) for medical or dental appointments, with the advance written permission of your supervisor; (e) for one four hour occasion per week, to be arranged in advance with your supervisor, to purchase food and other necessities.

Source and reliance status

British Columbia Court of Appeal · 20 October 2003

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Judgment reading view

Judgment text

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Source document

British Columbia Court of Appeal

Judgment· 20 October 2003

2003 BCCA 566

2003BCCA0566 COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Kambo, 2003 BCCA 566 Date: 20031020 Docket: CA031114 Between: Regina Respondent And Joginder Singh Kambo Appellant Before: The Honourable Chief Justice Finch The Honourable Madam Justice Southin The Honourable Madam Justice Newbury Oral Reasons for Judgment H. Stevenson Counsel for the Appellant J. Duncan Counsel for the (Crown) Respondent Place and Date: Vancouver, British Columbia October 20, 2003 [1] FINCH, C.J.B.C.: This is an appeal from sentence imposed in Provincial Court on 1 August 2003. The sentence was a six month conditional sentence imposed in respect of the offences of obtaining money by false pretences and attempting to commit that offence. One of the conditions the learned sentencing judge imposed was premised on the assumption that the appellant would be living with his girlfriend and that she would be able, or some other person would be able, to do grocery shopping and attend to other necessities of a like nature on his behalf. It turns out, in the event, that that is not possible because the two are no longer living together. [2] The variation that the Crown agrees to with respect to that condition is as follows: Condition #6: You must remain in your residence daily under house arrest except as follows: (a) to report to the conditional sentence order supervisor (the supervisor); (b) for travel

and attendance related to your search for employment and for employment when obtained; (c) for medical emergencies for yourself or your spouse; (d) for medical or dental appointments, with the advance written permission of your supervisor; (e) for one four hour occasion per week, to be arranged in advance with your supervisor, to purchase food and other necessities. [3] Counsel for the appellant agrees those revised terms meet the difficulty that the earlier condition presented. [4] I would allow the appeal to the extent of varying Condition #6 as set out above. [5] SOUTHIN, J.A.: I agree. [6] NEWBURY, J.A.: I agree. "The Honourable Chief Justice Finch"

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