The Crown appealed a conditional sentence of two years less a day imposed for robbery.
The sentencing judge had determined a penitentiary sentence was warranted but used pre-sentence custody to reduce the sentence to under two years, thereby making a conditional sentence available.
The Court of Appeal held this was an error under R. v. Fice, as pre-sentence custody should be treated as a credit against the appropriate sentence, not a mitigating factor to alter the sentence type.
The appeal was allowed, and a three-year penitentiary sentence was deemed appropriate, resulting in 16 months and two weeks remaining to be served in custody.
