



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Gallagher,









2013 BCCA 5




Date: 20130107

Docket: CA039883

Between:

Regina

Respondent

And

Robert John
Gallagher

Appellant




Before:



The Honourable Mr. Justice Low





The Honourable Madam Justice D. Smith





The Honourable Madam Justice A. MacKenzie




On appeal from British
Columbia Provincial Court, April 18, 2011
(
R. v. Gallagher
, Vancouver Registry 212421-4-C)

Oral Reasons for Judgment




Counsel for the Appellant:



S.G. Vyas





Counsel for the Respondent:



E. Campbell





Place and Date of Hearing:



Vancouver, British
  Columbia

January 7, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 7, 2013








[1]

A. MACKENZIE J.A.
:
On April 18, 2011,
Robert John Gallagher was convicted in Vancouver Provincial Court of breaking
and entering a dwelling house and committing an indictable offence therein,
contrary to s. 348(1)(d) of the
Criminal Code
. He committed the offence
on April 19, 2010.

[2]

At the time of sentencing, Mr. Gallagher was
serving an effective sentence of three years and seven months imprisonment (an
actual sentence of three years after credit for seven months of pre-sentence
custody), imposed on November 9, 2010, for a similar offence committed on
February 9, 2010.

[3]

The sentencing judge concluded an effective
sentence of six years for the two break and enter offences was appropriate.
However, rather than imposing a two-and-a-half year consecutive sentence to Mr.
Gallaghers previous three-and-a-half year sentence, the judge imposed a
concurrent sentence of six years to reflect the seriousness of Mr. Gallaghers
criminal record. The judge stated that a concurrent sentence of six years would
add roughly two-and-a-half years to the sentence that Mr. Gallagher is
presently serving.

[4]

Mr. Gallagher seeks an extension of time to appeal
and leave to appeal the six-year concurrent sentence on the basis the judge
made an error in calculation which resulted in a sentence that is 12 months
longer than the judge intended. He asks this Court to reduce the sentence by 12
months to reflect the original intention of the sentencing judge.

[5]

The Crown concedes the judge made the alleged
calculation error and agrees the sentence should be reduced from six years to
five years to reflect the intention of the sentencing judge.

[6]

Mr. Gallagher and Crown counsel are correct that
the concurrent sentence of six years imposed an additional sentence of
approximately three-and-a-half years, resulting in a total effective sentence
of seven years for the two offences, rather than a total effective sentence of
six years as the judge intended. It appears the sentencing judges calculation
did not take into account the fact that Mr. Gallaghers first sentence was an
actual sentence of three years (after credit for seven months of pre-sentence
custody) and that Mr. Gallagher had already served five months of that
sentence.

[7]

In order to achieve the intended effect of
adding two-and-a-half years to the sentence being served, the sentencing judge
would have had to impose a sentence of five years and 21 days, rather than six
years.

[8]

On that basis, I would grant the extension of
time and leave to appeal, allow the appeal, and reduce the sentence to five
years imprisonment concurrent to the sentence being served.

[9]

LOW J.A.
: I
agree.

[10]

D. SMITH J.A.
: I
agree.

[11]

LOW J.A.
: The
extension of time to appeal is granted. Leave to appeal is granted. The appeal
is allowed and the sentence is reduced to five years imprisonment concurrent.

The Honourable Madam Justice MacKenzie


