



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Chaffey,









2012 BCCA 33




Date: 20120119

Docket: CA038553

Between:

Regina

Respondent

And

Ryan James Chaffey

Appellant




Before:



The Honourable Madam Justice Saunders





The Honourable Mr. Justice Lowry





The Honourable Madam Justice Bennett




On appeal from:
Provincial Court of British Columbia, June 21, 2004
(
R. v. Chaffey
, Port Coquitlam Registry 69116-2-C)

Oral Reasons for Judgment




Counsel for the Appellant:



D.C. King





Counsel for the Respondent:



J. Duncan





Place and Date of Hearing:



Vancouver, British
  Columbia

January 19, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 19, 2012








[1]

SAUNDERS J.A.
: Mr. Chaffey applies for an extension of time to
apply for leave to appeal, if granted, applies for leave to appeal, and if
leave be granted, appeals the sentences imposed upon him on June 21, 2004 on
two of three counts of robbery set out in Information 69916-2-C. The appeal
concerns an illegal sentence, and appropriately, the respondent does not oppose
an extension of time, or leave to appeal, and agrees in the circumstances of
the case, to the appellants proposed disposition. In the circumstances, the
extension of time sought is appropriate, in my view, as is leave to appeal. I
would extend the time to appeal to November 2, 2010, and give leave to appeal.

[2]

I turn to the substance of the appeal. Mr. Chaffey was sentenced to 10
months incarceration on one count of robbery, which was Count 3, and a
conditional sentence of two years less a day each on the other two counts of
robbery.

[3]

Mr. Chaffey has committed further offences since the ones in issue. In
particular on December 7, 2010 he pleaded guilty to five counts of robbery and
one count of theft under $5,000. He was sentenced to three years imprisonment
on each of the robbery charges, and two years imprisonment on the theft under
charge, all sentences to run concurrently. In the course of dealing with
corrections officials in the recent past, the matter of the illegal sentence imposed
in 2004 was drawn to his attention. This accounts for the late filing of his
application for leave to appeal sentence.

[4]

Simply describing the sentences imposed in 2004 reveals the error  the
combination of the sentences, referred to as a blended sentence, results in a
sentence that exceeds two years.

[5]

Section 742.1 permits a conditional sentence to be imposed only where,
in the words of the section, the court imposes a sentence of imprisonment of
less than two years. It is now well accepted that imposition of terms of
imprisonment and conditional sentences in which the aggregate sentence exceeds
two years is illegal as contrary to s. 742. 1. A useful compilation of the
cases on this issue is found in
R. v. Lyver
, 2007 ABCA 369.

[6]

The appellant suggests that the problem be rectified by setting aside
the conditional sentences of two years less a day and substituting a sentence
of imprisonment. Crown counsel, in the circumstances described in which the
problem is of long standing and has been uncorrected until now, agrees.

[7]

In my view, the sentencing solution proposed is appropriate. I would
allow the appeal by setting aside the sentences imposed on Counts 4 and 5 of
Information 69916-2-C and imposing on each of those counts a sentence of 22
months imprisonment, to run concurrent to each other and to the sentence of 10
months imposed on Count 3.

[8]

The parties are at liberty to return on this matter if this disposition
has unintended consequences.

[9]

LOWRY J.A.
: I agree.

[10]

BENNETT J.A.
: I agree.

[11]

SAUNDERS J.A.
: The appeal is allowed in the terms I have
indicated.

[12]

Since these reasons for judgment were delivered orally, I have located
this helpful and clear explanation of the availability of a blended sentence,
provided by Chief Justice Finch in
R. v. Joe
, 2005 YKCA 9:

[30]      I am persuaded that it
is not an error of principle to order both custodial and conditional sentences
for offences arising from the same circumstances, provided that: the global
sentence does not exceed two years less a day; the custodial and conditional
sentences are not ordered to be served concurrently; and the requirements of s.
742(1)(b) are satisfied in respect of one or more of the offences.

The Honourable Madam Justice Saunders


