R. v. F, 2004 ABCA 351, 2004 ABCA 336
F was convicted of assault causing bodily harm and robbery arising out of the same incident, and the acts were continuous. Mr. Royer was retained for the conviction and sentence appeal and was not the trial lawyer.
Nature of Application? Is assault causing bodily harm an included offence in the robbery? Should the sentence be reduced?
F was sentenced to 22 months for the robbery and 12 months concurrent for the assault. The submissions of counsel at trial were confusing and the decision of the sentencing judge was difficult to understand.
Ruling:
The court of appeal said the conviction on the assault causing bodily harm should be stayed. “The second charge should have been conditionally stayed, we grant leave to appeal, allow the appeal and enter a stay on the charge of assault causing bodily harm under s. 267(b) of the Criminal Code.”
The court of appeal reduced the sentence. “It is clear that the judge intended to give him credit on a two for one basis for his pre-sentence custody. Based on the submissions, he gave credit for only one month when the actual custody time had been five months.”
“For the sentence imposed we substitute a sentence of 15 months to properly reflect the time served before sentencing.”
This set of two cases shows how a conviction appeal on a single count can result eventually in a reduced sentence.