



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Riach,









2010 BCCA 38




Date: 20100120

Docket:
CA034846

Between:

Regina

Respondent

And

Harvey
Riach

Appellant




Before:



The Honourable Chief Justice Finch





The Honourable Madam Justice Prowse





The Honourable Madam Justice D. Smith




On
appeal from: Provincial Court of British Columbia, September 22, 2006,
(
R. v. Riach
, Vancouver Registry 173632-1-D)

Oral Reasons for Judgment




Counsel for the Appellant:



P.D.
  Angly





Counsel for the (Crown) Respondent:



A.
  Budlovsky, Q.C.





Place and Date of Hearing:



Vancouver,
  British Columbia

January
  20, 2010





Place and Date of Judgment:



Vancouver,
  British Columbia

January
  20, 2010








[1]

FINCH C.J.B.C.
: Mr.
Riach applies for leave to appeal, and if leave is granted, appeals from a
sentence of eight years imprisonment imposed in Provincial Court on 22
September 2006 on one count of aggravated assault. In the circumstances of this
case, the Crown agrees with the submission of appellants counsel, which is
that the sentence should be reduced by giving credit for time served in custody
before trial, on a two-for-one basis.

[2]

At trial, the appellant was convicted on one
count of robbery and one count of aggravated assault. The trial judge imposed a
sentence of 12 years for the robbery conviction, but gave the appellant credit
for 18 months in recognition of the 9 months he had served in pre-trial custody.
The net sentence for the robbery was therefore 10 1/2 years. For the aggravated
assault conviction, the judge imposed a sentence of eight years imprisonment
concurrent.

[3]

The appellant appealed his convicted to this
Court. On 10 October 2009, the Court allowed the appeal against the robbery
conviction, and ordered that conviction be set aside, and an acquittal entered.
The appeal against the conviction for aggravated assault was dismissed: See
2009 BCCA 442.

[4]

The two charges arose from one incident on 30
December 2005 when the appellant stabbed one of two victims whom he was
evidently trying to rob. This Court held that the evidence could not support
the robbery charge, because there was no evidence of an assault on the person
alleged to have been robbed. In imposing the global sentence of 10 1/2 years,
it is clear that the judge intended to give the appellant credit for time
served. The result of the successful appeal against the robbery conviction is
that the appellant is left with an eight year sentence for the aggravated
assault, against which no credit for pre-trial custody has been given.

[5]

It is not contended that the eight year sentence
for the aggravated assault was unfit. However, the appellant submits, and the
Crown agrees, that the eight year sentence should be reduced by 18 months to
give credit for the time served in pre-trial custody.

[6]

I would grant leave to appeal and would allow
the appeal by reducing the eight year sentence to one of 6 1/2 years.

[7]

PROWSE J.A.
: I
agree.

[8]

D. SMITH J.A.
: I
agree.

[9]

FINCH C.J.B.C.
:
So ordered.

The Honourable Chief Justice Finch


