Date: 19980123
Docket: VI03113
Registry: Victoria


COURT OF APPEAL FOR BRITISH COLUMBIA



ORAL REASONS FOR JUDGMENT:


Before:

The Honourable Mr. Justice Goldie January 23, 1998
The Honourable Madam Justice Rowles
The Honourable Mr. Justice Finch Vancouver, B.C.


BETWEEN:

R E G I N A

RESPONDENT

AND:

JAMES CHRISTOPHER BURNETT

APPELLANT


G. Botting appearing for the Appellant
R.A. Mulligan appearing for the (Crown) Respondent


AN ORDER HAS BEEN MADE IN THIS CASE PROHIBITING
PUBLICATION OF ANY INFORMATION THAT COULD
DISCLOSE THE IDENTITY OF THE COMPLAINANTS PURSUANT
TO SECTION 486(3) OF THE CRIMINAL CODE.

[1] GOLDIE, J.A.: This is an application for leave to
appeal a sentence of two years less a day with a probationary
period following of two years and a life time order made under
s.161(1)(b) of the Criminal Code. 

[2] The applicant was charged on two counts involving the same
complainant within the two year period of 1 November 1968 and 1
November 1970 of firstly, buggery contrary to what was then
s.147 of the Criminal Code and secondly, indecently assaulting
a male person contrary to what was then s.148 of the Code. The
applicant pleaded guilty to the indecent assault charge. 
Subsequent statements of the complainant made if obvious that
the offence alleged in the first count could not be proved and
it was stayed. 

[3] The complainant was five or six years of age when the
incident occurred. The applicant was then about 18. The
complainant described in some detail the nature of the
incidents which consisted of kissing, fondling by both, and, on
the applicant's part, simulated anal intercourse. No anal
penetration was ever completed. 

[4] Upon his arrest the applicant made a statement which was
admitted as a exhibit in the sentencing proceeding. This was
in March 1996. In it the applicant admitted knowing the
complainant in his capacity as a babysitter. He was warned but
provided information thereafter of a highly inculpatory nature. 
It was apparent there were a number of incidents at a number of
locations. 

[5] Subsequent convictions were alleged, one in Canada in 1979
for gross indecency involving a young boy for which the
applicant received a probation period of 18 months and one in
the United States in 1985 involving a child under 14 for which
he was sentenced to ten years imprisonment. Of this term he
served some six to seven years. He was then deported to Canada
in 1991 and has lived in Canada since then without further
difficulty with the law. 

[6] Crown Counsel's submission was that the applicant was
paedophile and that the overriding sentencing principle was
protection of the public. On behalf of the applicant it was
submitted a conditional sentence was appropriate as the
complainant had learned a painful lesson from his experience in
the United States. 

[7] The sentencing judge, after considering the sections in
the Criminal Code which have been recently introduced involving
sentencing principles and conditional sentences to be served in
the community and after reviewing the judgment in the case at
bar, rejected the contention that a conditional sentence served
in the community would be appropriate in these words:



The only conclusion I can draw from all of this,
including the criminal history, is that Mr. Burnett
was, and remains, a risk to the public and for these
reasons a conditional sentence is not appropriate.

[8] Section 742.1(b) of the Criminal Code states the threshold
test which is to be considered before a conditional sentence
served in the community is appropriate. I set out here for
convenience the terms of subsection (b) of s.742.1:



IMPOSING OF CONDITIONAL SENTENCE

742.1 Where a person is convicted of an offence,
except an offence that is punishable by a minimum
term of imprisonment, and the court
(a) . . .
(b) is satisfied that serving the sentence in
the community would not endanger the safety
of the community, . . . 

[9] Additionally, as I have mentioned, the applicant was
subjected to the lifetime prohibition set out in s.161(1)(b) of
the Criminal Code. This was very recently introduced into the
Code and of course long after the offences in question took
place. Mr. Mulligan has very properly drawn to our attention
this fact and we are all in agreement that leave to appeal must
be granted and the appeal allowed to the extent of expunging
that portion of the sentence imposed upon the applicant. As to
the balance I would dismiss the appeal.

[10] ROWLES, J.A.: I agree.

[11] FINCH, J.A.: I agree.

[12] GOLDIE, J.A.: Leave is granted, the appeal is
allowed to the extent of expunging the sentence imposed under
s.161(1)(b) otherwise the appeal is dismissed.



"The Honourable Mr. Justice Goldie"