Court of Appeal for Ontario

CITATION: R. v. Abad, 2007 ONCA 541

DATE: 20070726

DOCKET: C47026

WEILER, GILLESE and LAFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

JOSELITO NUGUID ABAD

Appellant

Counsel:

Paul Calarco for the appellant

Eliott Behar for the respondent

Heard: July 25, 2007

On appeal from the sentence imposed on March 30, 2007 by Justice David Salmers of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals a term of his conditional sentence, namely, that he not be allowed to work outside his home for the first ten months of his conditional sentence. He has already served almost four months of that ten month period.

[2] The trial judge thoughtfully and carefully crafted the detailed terms of the conditional sentence he imposed and we see no error in the conditions as he crafted them. However, after the sentence had been rendered, there are two bases on which the appellant asks us to reconsider the employment prohibition.

[3] First, the appellant asks us to consider a tragic event that occurred respecting his twenty year old daughter who is now living with him and needs his financial support. Second, his medical condition has worsened since the time of sentencing and we are satisfied that an amelioration of the employment condition would be beneficial to his health.

[4] The trial judge was concerned with deterring the offender. In our opinion that concern can be met by varying the no employment condition and the substitution of the following condition:

Mr. Abad is to be able to seek and maintain employment, other than self employment, and at a place approved of by his conditional sentence supervisor. The terms of the conditional sentence shall be amended accordingly.

[5] Accordingly, leave to appeal sentence is granted and the appeal is allowed as indicated.