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.

A P P E A L B O O K E N D O R S E M E N T

[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.