CITATION: R. v. Rising, 2008 ONCA 45

DATE: 20080123

DOCKET: C47227

COURT OF APPEAL FOR ONTARIO

DOHERTY, GILLESE and EPSTEIN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

RICHARD RISING

Appellant

Counsel:

John R. Mann III for the appellant

Sara Egan for the respondent

Heard: January 18, 2008

On appeal from the sentence imposed by Justice R.G.E. Hunter of the Ontario Court of Justice dated August 28, 2006.

APPEAL BOOK ENDORSEMENT

[1] We are satisfied that the appeal should be allowed and the sentence varied to time served. The common intention was that the appellant should receive ninety days for these charges and sixty days for the subsequent offence. It was also common ground that the time in custody should be attributable to one sentence or the other, but not both. On those assumptions, the appellant should have two days left on the sentence. The Crown quite properly does not ask for the appellant’s re-incarceration for two days.

[2] Consequently, the appeal is allowed and the sentence is varied to time served. The proceedings in the Superior Court are moot and should be discontinued.