[1] ESSON, J.A.: The appellant seeks leave to appeal a sentence imposed upon him by Judge Palmer. He pleaded guilty to two counts of robbery and one of aggravated assault. The sentence imposed was five years on each count to be served concurrently.

[2] The charges arose out of incidents on the late evening of March 3 and the early morning of March 4, 2001. The accused was a cocaine user. He met one Barker, who was also a cocaine user, and they made some joint efforts to inject themselves with cocaine. Then the accused launched, apparently without any kind of provocation, an attack upon Barker with a table leg. It apparently was a very substantial piece of wood, which had sticking out of the end of it some kind of a bolt or spike, which could have made it an extremely deadly weapon, although it appears, on this assault, that he used the other end to strike Barker. But, he did succeed in causing extremely serious injuries. The eye socket was smashed. The bone was driven into the eye of Barker who had to have serious surgery involving removing bone from his hip to repair a fracture of the cheekbone.

[3] The accused having ceased his attack and Barker having escaped after giving up some money, some hours passed before, about 4:00 a.m., the appellant entered a hotel lobby and demanded money from the night clerk.

[4] He told the clerk that he was there to rob him and that he wanted to go back to jail. The clerk offered to assist him in that endeavour by phoning the police, but the accused said that he did not want to take that step until after he had spent the money. He assaulted the clerk in a similar way, although he did not cause serious injuries. He then left the hotel with money, which the clerk had yielded up to him, and was soon apprehended. He has been in prison since.

[5] The aggravated assault charge relates to the first of the two incidents.

[6] The accused pleaded guilty in May and the matter first came on for sentencing hearing on July 10. A pre-sentence report had been ordered. I will quote from it at some length in order to set out the history and the circumstances of the appellant:

[7] The position of the Crown on sentencing was that an appropriate sentence would be seven to nine years. The proposal by defence counsel that was a sentence of two years less a day plus three years probation be imposed. The suggestion of two years less a day was intended to make it possible for a conditional sentence to be imposed. That proposal was tied to a specific plan which was put forward by defence counsel on behalf of a group of organizations which exist to assist aboriginal offenders. That includes such names as the Foundation House, Victoria Life Enrichment Society, John Howard Society, Spirit of the People Aboriginal Support and Healing Centre. There were letters from some of those organizations and representatives of at least one was present at the sentencing hearing. Perhaps the most encouraging aspect of the case is that there are people interested in solving the problems of aboriginal people in trouble with the law, who have taken an active interest of Mr. Leaney.

[8] The judge, after hearing the submissions of defence counsel, heard at some length from Mr. Leaney, who sought to explain his own position, and, essentially, urged the court to accept the proposal that was being put forward on his behalf. He produced a story, which he had written. The hearing was a fairly lengthy one on that day.

[9] To get the flavour of what was said by Mr. Leaney on his own behalf I will quote from the transcript:

[10] The judge heard from a representative of one of the societies interested in the matter. After adjourning, as he said, to think about what he had heard, he said the court that he would not impose sentence that day, that he was going to have to take considerable time to obtain more information about the proposals that had been made, the facilities that would be available, and so on. He said this:

[11] The sentencing hearing resumed on July 18, and at that time the judge received further submissions from counsel, a further letter from Mr. Leaney, and adjourned again for a time to read that letter and to consider the position. When court resumed, this was said:

[12] The appellant in this Court seeks to adduce fresh evidence relating to a variation of the plan that was put forward, and which the sentencing judge decided could not be accepted. That plan is a variation in that it would start with the premise of a two-year sentence which, of course, would be served in a federal institution and would rule out a conditional sentence, to be followed by three years probation with similar arrangements to those which had been proposed at trial, although with some variations which were intended to make them more reliable.

[13] The other matters which are put forward as grounds of appeal are that the sentencing judge failed to take into account the four and one-half months pre-trial custody. It does not appear that either counsel or the judge made any reference to it during the sentencing hearing.

[14] It is suggested that the trial judge failed to have adequate regard to the principles laid down in R. v. Gladue (1999), 171 D.L.R. (4^th) 385 (S.C.C.) with respect to aboriginal offenders and, in particular, that insufficient weight was given to the principle of restraint. With all respect to the very able submissions we have received, I find no merit in that. It is difficult to imagine that any judge could have more fully considered the particular aspects of this aboriginal person's difficulties and the degree of restraint shown was surely very high. The sentence by ordinary standards, given the record, given the extreme violence, and the rather alarming aspect that those attacks were carried out expressly in order to get back to prison. The sentence, by ordinary standards, appears unfit as being too low. However, the Crown does not now suggest that it was unfit in this particular case.

[15] The essence of the matter that the trial judge gave the lowest sentence he considered to be consistent with the protection of the public. He sought to balance that with rehabilitation, with careful regard to aboriginal status. In my view, there is no ground for holding that he committed any error of principle of which the accused can complain other than the matter of dead time to which I will come.

[16] With respect to the new evidence, the Supreme Court of Canada has spoken recently on the subject of new evidence in criminal cases in R. v. Levesque, [2000] 2 S.C.R. 487, 148 C.C.C. (3d) 193. I need not deal with that at any length. But it is clear that the Supreme Court has made it clear that the somewhat casual attitude often taken in appellate courts to receiving evidence on sentence matters must be subjected to a rather more refined analysis than has often been the case in the past.

[17] In any event, I can see no good reason for receiving fresh evidence here. The sentencing judge was in a position to give, and he gave, the most careful consideration to a detailed and complicated plan. This Court is simply not in a position, apart from all other objections, to properly deal with proposals of that kind.

[18] I turn, then, to the question of dead time. The principle has been more firmly established in recent years than it was in the past that, except in unusual cases, credit should be given for such time. The time in this case can be assumed was true dead time in that the pre-sentence time was served at the Wilkinson Road Institution. There is nothing in the record to indicate that any sort of program was available to this man during that period of time. At some other institutions the situation is different. The actual time was four-and-a-half months.

[19] We have been referred by Mr. McKinnon to the case of R. v. Perry, [2001] B.C.J. No. 990 (B.C.C.A.), in which it was held that if no reference is made to the matter of dead time and credit therefore that that is error. In this case there are circumstances which cause me to doubt that the judge can be truly be said to have overlooked that well established principle. It would appear that after the most careful consideration he came to the conclusion that five years from the date of sentencing was the appropriate length of time, and that no lesser period would be appropriate.

[20] Nevertheless, in the interests of consistency, I hold the view that it did constitute an error in principle to not deal with the matter and that we should give effect to that ground of appeal. In coming to that conclusion, I am somewhat influenced by the very recent decision of this Court in R. v. Mack [2001], B.C.J. No. 2567, B.C.C.A 688. In that case, in somewhat similar circumstances as they related to the offence and to the aboriginal offender, the majority of the Court held that the principle should prevail and that credit should have been given. In that case I took a contrary view, but must give effect to the view of the majority insofar as it is applicable.

[21] I would therefore grant leave to appeal and allow the appeal to the extent of reducing the sentence from five years to one of four years and three months.

[22] There is one other irregularity which was touched on by the Crown but, in the circumstances of this offender, it is of no consequence. In all other respects I would dismiss the appeal.

[23] HALL, J.A.: I agree.

[24] SMITH, J.A.: I agree.

"The Honourable Mr. Justice Esson"