Judge sets aside conviction, sentence in Surrey case

NEW WESTMINSTER — A B.C. Supreme Court judge has set aside the conviction and sentence of a man who apparently pleaded guilty to criminal charges while  maintaining his innocence.

The judge also sent the case back to Surrey provincial court to be properly dealt with.

On June 14, 2012, Rogelio Emmang Malaggay was charged with assault with a weapon on Letiticia Malaggay and Ruby Malaggay, assault on Ruby Malaggay, uttering a threat to Ruby Malaggay to cause death or bodily harm, and uttering a threat to Letiticia Malaggay to cause death or bodily harm to Ruby, Herbie and April E. Malaggay.

He attended Surrey provincial court on June 29, 2012 with his lawyer at the time.

He had a different lawyer at appeal.

Justice Miriam Maisonville presided over Malaggay’s appeal hearing this month, in New Westminster.

At his June 29, 2012 court appearance, the reading of the information was waived and guilty pleas were entered on Malaggay’s behalf, on counts one and four.

No facts were read and the judge adjourned the matter to Sept. 13, 2012 for pre-sentence and psychiatric reports to be prepared.

Malaggay told the reports’ authors an account inconsistent with his guilty pleas, however.

“In fact, he denied his guilt,” Maisonville noted in her reasons for judgement. “He denied acting violently towards his daughters and claims he was gentle when handling his daughter, Ruby, during the course of the events.”

The psychologist who prepared the psychiatric report asked Malaggay if he had done anything wrong.

“He said he was innocent,” the psychologist reported. “I asked why he pleaded guilty if he was innocent of any wrongdoing. He said he pleaded guilty just to make his family feel better. Overall, Mr. Malaggay denies any guilt.”

The sentencing hearing was held Sept. 13, 2012 and Malaggay’s lawyer made brief submissions.

“However, a description of Mr. Malaggay’s version of the events was not offered,” Maisonville noted, “and no comments were made to the judge in regards to the inconsistent information in the pre-sentence report or the psychiatric report.”

When the sentencing judge invited Malaggay to address the court, Malaggay had replied, “Yes, your Honour. I have committed (indiscernible) to my wife. Please forgive me and so with my children I want to ask their forgiveness for what I’ve done to them. Whatever you tell me I’m gonna follow diligently.”

The judge then sentenced him to one more day in jail as he’d already served three months. The Crown then stayed the remaining charges.

“Again, no remarks were made at all relating to the appellant’s comments concerning his professed innocence,” Maisonville noted. “His version of events was not placed before the learned judge apart from the reports that were filed but not commented on.”

At the appeal hearing, the Crown invited Maisonville to find there had been a miscarriage of justice.


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