Date: 19961202
Docket: CA020732
Registry: Vancouver


COURT OF APPEAL FOR BRITISH COLUMBIA



ORAL REASONS FOR JUDGMENT:


Before:

The Honourable Mr. Justice Hinkson December 2, 1996
The Honourable Mr. Justice Gibbs
The Honourable Madam Justice Rowles Vancouver, B.C.



BETWEEN:


R E G I N A 

APPELLANT

AND:

ARNE SIGHOLT BJORDAL 

RESPONDENT


E. Bennett, Q.C. appearing for the (Crown) Appellant

D. Pothecary and 
E. Ferbey appearing for the Respondent



[1] HINKSON, J.A.: At trial the appellant was convicted
of sexual assault involving sexual intercourse with an 11 year
old female. Earlier today we heard his conviction appeal and
dismissed it. The Crown has sought leave to appeal the
sentence imposed by the trial judge. That sentence was a term
of 90 days intermittent to be followed by a period of two years
probation.

[2] The Crown sought a sentence in the range of one to three
years at trial while the defence argued special circumstances
which would reduce the degree of seriousness the offence and
limit the extent of the term of punishment. The Crown has
taken us through a number of authorities seeking to establish
the appropriate range and as well counsel for the respondent on
this appeal has indicated a number of authorities in this
Court. 

[3] The appellant was 33 years at the time of the offence. He
had an alcohol problem at that time and on the occasion in
question he was severely intoxicated but the trial judge
nevertheless found that the defence in Daviault did not apply
and that he was guilty of the offence charged. 

[4] In my opinion, in the circumstances disclosed here,
namely, rape of an 11 year old girl, a sentence of 90 days
intermittent is not a fit sentence. While counsel for the
respondent has made reference to special circumstances, the
kinds of special circumstances discussed in the authorities
deal with offences that occurred many years before sentencing
which has resulted in a lower sentence than otherwise would be
imposed. Those considerations do not apply here. In my
opinion, as I have indicated, this sentence was unfit and I
would grant leave to appeal, set aside the sentence, and impose
a sentence of one year imprisonment and two years probation.

[5] GIBBS, J.A.: I would dismiss the appeal. 

[6] It appears to me that the overriding consideration to be
undertaken in the circumstances of this case is the justice of
the matter. For whatever reasons and I do not think the reason
matters, the case has dragged on too long before being heard. 
No one can be said to have been culpably dilatory but time has
gone by to the point where, in my opinion, the justice of the
matter must be taken into account.

[7] The circumstances now as we are advised by Crown Counsel
are that the sentence of imprisonment imposed on this appeal
was completed a year ago. As well as the sentence of
imprisonment, the appellant was sentenced to two years of
probation. One year of the probation is now over so that he
has remaining only one year of probation and then he will have
paid his debt to society. It appears to me that to increase
this sentence now is almost equivalent to imposing a second
sentence. I know that in law it is not and it is probably
extreme to express it in that fashion but that is the way it
appears to me. In any event, I would say on this appeal that
because of the passage of time justice requires that the
sentence imposed by the trial judge be left in peace and the
sentence appeal dismissed.

[8] ROWLES, J.A.: I would grant leave to appeal and allow the
appeal for the reasons given by Mr. Justice Hinkson.

[9] HINKSON, J.A.: The appeal is allowed with Mr. Justice
Gibbs dissenting.

"The Honourable Mr. Justice Hinkson"

"The Honourable Mr. Justice Gibbs"