R. v. Carvalho
The trial judge's credibility findings—preferring the testimony of the mother and daughter and finding the father was minimizing—were supported by the evidence, making the conviction for uttering threats reasonable; given the appellant's history the 2 year sentence with 50 days credit, while at the upper end, was...
Source-derived case information.
- Citation
- 2007 ONCA 614
- Parties
- Appellant: Victor Lawrence Carvalho; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 14 September 2007
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence (court of Appeal)
- Outcome
- Conviction appeal dismissed; leave to appeal sentence granted but sentence appeal dismissed; sentence of 2 years imprisonment with 50 days credit upheld.
- Legal Topics
- Uttering Threats, Assault, Sentencing, Appeal and Standard of Review, Credibility Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Lawrence Carvalho
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal / Appeal From Conviction and Sentence (court of Appeal)
Legal Issues
- 1 Whether the conviction for uttering threats was unreasonable on the evidence
- 2 Whether the sentence of 2 years imprisonment (with 50 days credit) was unfit or excessive
- 3 Whether the trial judge's credibility findings were entitled to deference
Ratio Decidendi
The trial judge's credibility findings—preferring the testimony of the mother and daughter and finding the father was minimizing—were supported by the evidence, making the conviction for uttering threats reasonable; given the appellant's history the 2 year sentence with 50 days credit, while at the upper end, was not unfit and was upheld.
Court Disposition
Conviction appeal dismissed; leave to appeal sentence granted but sentence appeal dismissed; sentence of 2 years imprisonment with 50 days credit upheld.
Orders
- Conviction appeal dismissed
- Leave to appeal sentence granted
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Carvalho Collection Decisions of the Court of Appeal Date 2007-09-14 Neutral citation 2007 ONCA 614 Docket numbers C46320 Judges Simmons, Janet M.; Blair, Robert Ashley; McKinnon, Colin Subject Criminal Decision Content CITATION: R. v. Carvalho, 2007 ONCA 614 DATE: 20070910 DOCKET: C46320 COURT OF APPEAL FOR ONTARIO SIMMONS AND BLAIR JJ.A. AND McKINNON J. (AD HOC) HER MAJESTY THE QUEEN Respondent And VICTOR LAWRENCE CARVALHO Appellant Richard Litkowski (duty counsel) for the appellant Lorna Bolton for the respondent Heard: August 21, 2007 On appeal from the conviction entered by Justice W. Brian Stead of the Ontario Court of Justice dated September 13, 2006 and from the sentence imposed by Justice Stead dated October 30, 2006. APPEAL BOOK ENDORSEMENT [1] The appellant was convicted of uttering threats and assault. He was sentenced to 2 years imprisonment in addition to 50 days credit for pre-sentence custody. He appeals against conviction and sentence. [2] In relation to the conviction appeal, the appellant contends that his conviction for uttering threats is unreasonable. In particular the appellant points out that the appellant's father who was the object of the threats testified that the appellant's voice was normal and that he (the father) was not afraid. [3] We reject the appellant's submission that the conviction for uttering threats was unreasonable. In contrast to the appellant's father's evidence, the appellant's mother and daughter testified that the appellant was speaking loudly. The appellant's mother said she thought the appellant was going to hurt them and that she was scared. Moreover, the appellant acknowledged in his evidence that he was upset. Various witnesses testified that the appellant had been drinking. The trial judge found that the appellant's father was minimizing his evidence. In these circumstances, in our view, the trial's judge's finding that the threats were meant to be intimidating was supported by the evidence and is not unreasonable. [4] As for the sentence appeal, given the appellant's history and criminal record the trial judge was entitled to place particular emphasis on the need for specific deterrence. While the sentence was at the upper end of the range, in our view, it was not unfit. Accordingly, the conviction appeal is dismissed. While leave to appeal sentence is granted the sentence appeal is dismissed.