



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Steele,







2007 
          BCCA 12



Date: 20070104





Docket: CA032810

Between:

Regina

Respondent



And

Andre 
    Steele

Appellant










Before:


The 
          Honourable Madam Justice Prowse




The 
          Honourable Mr. Justice Mackenzie




The 
          Honourable Madam Justice Kirkpatrick



Oral Reasons for Judgment




P. 
          Rankin


Counsel for the Appellant




M. 
          Ainslie


Counsel for the (Crown) Respondent




Place 
          and Date:


Vancouver
,
British Columbia




4 January 2007



[1]

MACKENZIE, J.A.
: This is an application for leave to appeal 
    sentence and, if leave be granted, an appeal from an effective sentence of 
    three years imprisonment for breaking and entering a dwelling house contrary 
    to s. 348(1)(a) of the
Criminal Code
.

[2]

The trial judge imposed the five year sentence for that offence before 
    allowing a credit of two years for time spent in pre-trial custody.  The appellant 
    received an additional one year consecutive sentence for use of a firearm 
    contrary to s. 85(1) of the
Code
.  The s. 85(1) conviction is 
    the subject of an appeal to the Supreme Court of Canada and it is not an issue 
    on this appeal.  Three sentences of one year imprisonment for possession of 
    prohibited weapons and attempted break and enter concurrent with the five 
    year sentence are also not in issue.

[3]

The appellant accepts that a four year sentence was not unfit but he 
    contends that the trial judge erred in determining the credit he should have 
    been given against the sentence for time spent in pre-trial custody.  He contends 
    that while the trial judge intended to give the appellant double time credit 
    for the time served in pre-trial custody the sentence actually imposed does 
    not reflect the full double time credit.  The appellant spent 486 days in 
    pre-trial custody.  He argues that the trial judge failed to reflect her intention 
    to give him a two-for-one credit by fixing the credit at two years or 730 
    days.

[4]

At the time of his arrest on these charges the appellant was on parole 
    for an earlier sentence of robbery.  His parole was revoked with 101 days 
    remaining on that sentence.  The appellant submits that the trial judge failed 
    to give him any credit for the fact that those 101 days were spent in a remand 
    centre rather than a penitentiary where programs are available.  After deducting 
    the 101 days the pre-trial custody was 385 days.  Doubling that number is 
    770 days or 40 days more than the 730 days allowed by the two year credit.  
    Crown counsel at sentencing submitted that the appellant should be given a 
    770 day credit.

[5]

The appellant submits that the credit allowed for pre-trial custody 
    should have been increased by a total of 141 days and the trial judge erred 
    in failing to reflect that additional credit in the sentence imposed.

[6]

Time spent in pre-trial custody is dead time, usually recognized through 
    a two-for-one credit at sentencing, although the formula is not rigid and 
    the sentencing judge retains the discretion to vary the credit in particular 
    circumstances:
R. v. Wust
[2001] 1 S.C.R. 455, paras. 44  
    45.  Rounding down the 385 days of pre-trial custody, after deducting 101 
    days for the earlier offence, to 365 days for the purpose of pre-trial credit 
    would not have been outside the range of the trial judges discretion if that 
    is what she intended.  Her reasons are not entirely clear as to her intention 
    in this respect and the submission of the appellants counsel may have contributed 
    to some confusion.  However, as I read the reasons, I think that the trial 
    judge did intend a full two-for-one credit and she simply did not appreciate 
    at that point in her reasons that the two year credit she allowed would not 
    give effect to her intention, resulting in the 40 day shortfall.

[7]

The second issue involving the 101 days attributable to the revoked 
    parole on the earlier sentence was not advanced before the sentencing judge 
    as it is framed here.  Counsel at sentencing argued that the appellant should 
    receive a triple time credit because of harsh conditions in the remand centre.  
    The trial judge rejected that submission and stated that the credit should 
    be less the time spent serving the balance of your sentence for robbery.  
    In my view, that decision was within her sentencing discretion.

[8]

The Crown submits that no credit should be given for the 101 days because 
    s. 719(3)
of Criminal Code
limits credit to time spent in custody 
    as a result of the offence and the 101 days related to a different offence.  
    The distinction has been recognized and applied in several cases, most recently 
    in
R. v. Rupchand
(2006), 220 B.C.A.C. 285, 2006 BCCA 11 at 
    paras. 10  11.  The appellant submits that when his parole was revoked on 
    the earlier sentence he was required to serve that time in the remand centre 
    rather than a penitentiary because he was awaiting trial for the present offence.

[9]

I think it is questionable whether the interconnection between the 
    earlier and later offences in terms of the effect on the appellants place 
    of incarceration is sufficient to permit crediting remand centre custody on 
    the 101 day remnant as resulting from the present offence.  In any event, 
    the trial judge rejected any credit for the time spent serving the balance 
    of the earlier sentence.  She did so in the exercise of her discretion and 
    I do not think we can disturb her decision, even if we were to assume that 
    credit for the time could be allowed under s. 719(3) in the circumstances 
    of this case.

[10]

In the result, I would grant leave to appeal and allow the appeal to 
    the extent of reducing the sentence imposed on the appellant for breaking 
    and entering by 40 days.

[11]

PROWSE, J.A.
: I agree.

[12]

KIRKPATRICK, J.A.
: I agree.

[13]

PROWSE, J.A.
: Leave to appeal is granted and the appeal 
    is allowed to the extent of reducing the sentence on the breaking and entering 
    count by 40 days.

The Honourable Mr. Justice Mackenzie


