Date: 19971030
                                               Docket: CA021718
                                            Registry: Vancouver


             COURT OF APPEAL FOR BRITISH COLUMBIA




ORAL REASONS FOR JUDGMENT:


Before:

The Honourable Mr. Justice Lambert             October 30, 1997
The Honourable Madam Justice Newbury
The Honourable Madam Justice Proudfoot          Vancouver, B.C.




BETWEEN:

                         R E G I N A 

                                                     RESPONDENT

AND:

                    JERZY GEORGE MACZYNSKI 

                                                      APPELLANT




G.P. Delbigio                       appearing for the Appellant
C. Deedman                 appearing for the (Crown) Respondent



[1]  LAMBERT, J.A.:      This is an appeal from a number of
sentences imposed for offences committed against young boys at
an Indian Residential School.  

[2]  The appellant was a supervisor at the school from 1952 to
1961 and from 1965 to 1967 and all of the offences relate to
one or other of those two periods.  There were about 30 counts
in the indictment.  He was convicted on all but one of them. 
There were 11 counts of indecent assault and he received five
years on each of those counts to be concurrent with each other
but consecutive to the other sentences on the other types of
offences.  There were six convictions entered on counts of
buggery.  He received seven years on each of those counts which
were to be consecutive to the sentences on other types of
offences.  He was convicted of one count of attempted buggery
for which he received a sentence of three years and six months
which was concurrent with the other terms of imprisonment.  He
was convicted of nine counts of gross indecency.  He received
sentences on each of those counts of four years concurrent with
each of the other counts of gross indecency but consecutive to
the sentences for indecent assault and buggery.  He was
convicted of one count of attempted gross indecency and
received a sentence of two years to be served concurrently with
the other sentences.  The totality of the sentences on all the
counts is 16 years.

[3]  It is relevant as part of the appellant's own
circumstances that, in addition to those sentences which I have
described and which are the subject of this appeal, he was
sentenced in November 1996 to other counts in the Yukon for
offences committed in the Yukon Territory and was given a
sentence of seven years on those counts as a total, and on each
count, but those sentences were to be concurrent with other
sentences being served.  He was also sentenced in August 1997
to four years on a number of counts committed in the Northwest
Territories and that four years was made consecutive to any
other sentences he was serving.  In effect the totality of the
sentences he is now facing was presented to us as 20 years
imprisonment.

[4]  He is now a man of 67 years of age and is at the present
time serving his sentence at William Head.

[5]  The sentencing judge said that the appellant exploited and
manipulated the atmosphere and systems at the residential
school at the Yukon/British Columbia border where these
offences occurred.  He referred to the Victim Impact Statements
and described them together as indicating how wretched this man
had made the lives of those against whom he committed these
offences.  They were committed, in many cases with threats of
punishment, or accompanied by punishment, or in fear of
punishment.  

[6]  The sentence that was imposed of a totality of 16 years
was at the low end of the range suggested by the Crown and just
above the range suggested by the defence.  Those ranges
depended upon a categorization of the offences, but since this
trial took 31 days the sentencing judge clearly had a long
opportunity to consider the category into which they fitted,
based upon the detailed evidence at the trial.  The sentencing
judge said that this man who by then was in his 60s could not
be ruled out as a possible reoffender on this type of offence
and the sentencing judge said that the offender exhibited no
remorse and no understanding of the horrific nature of his
offences.

[7]  A submission was made on behalf of the appellant that the
sentencing judge was influenced by the political and social
structure which gave rise to the residential schools but on
reading his reasons the only conclusion I can draw is that the
sentencing judge said that those conditions created a situation
which this man could exploit and did exploit.  In my opinion,
there was no indication that the sentence was in anyway
increased by the sentencing judge because of what has now come
to be realized about the horrors inflicted on many young people
at the residential schools.

[8]  The principal and indeed I might say the only other
submission advanced on behalf of the appellant relates to the
fact that the appellant is in very poor health.  The sentencing
judge in his reasons quoted from a physician from the Greater
Vancouver Mental Health Society and from a diagnosis made in
early October 1995 in these terms:


Major depression in partial remission, dysthymia,
organic mental disorder, dementia secondary to head
trauma, manipulative and antisocial personality
traits.  Motor handicap, right eye prosthesis,
history of Myocardial Infarction, chronic obstructive
lung disease, enlarged prostrate with a prostectomy
in 1993.  A history of motor vehicle accident in 1964
with a severe head injury.  A fracture of the base of
skull in 1985.  Diabetes, mellitus and removal of
lumbar spinal disc.


[9]  This man's health has apparently deteriorated
significantly since October 1995.  He suffers from very poor
physical health and he is mentally unstable and suffers from
dementia.  

[10] The submission made by counsel for the appellant was not
that those conditions justify this man's release into society
on an immediate basis.  Steps are being taken, I understand, to
provide the best care that is possible, consistent with this
man's condition, within the institutional environment.

[11] The submission made by counsel for the appellant was that
the sentence should have been a sentence of 12 years
imprisonment if the sentencing judge had properly taken this
man's health into consideration and that no matter what the
health was at that time this court ought to take the present
health into consideration and decide that the sentence of 16
years has been revealed to be an unfit sentence and to impose a
sentence of 12 years in its place.  Similar submissions were
made to the sentencing judge and considered by him.  He said
that he understood that there were particular but rare
circumstances where a health condition could have an effect on
the sentence, and that is indeed so.  But the sentencing judge
decided that this case did not come within the type of cases
where health could be an appropriate sentencing factor.  

[12] Having regard to the submissions made by counsel for the
appellant I agree with the sentencing judge in this case that
the health of the appellant cannot be taken into account in
relation to this sentence.  Counsel for the appellant conceded
that the high probability is that this man will die in the
institutional environment in the course of serving his sentence
no matter whether the sentence is reduced from 16 years to 12
years or not.

[13] In my opinion, the sentences which were imposed in this
case were commensurate with the gravity of the offences and the
circumstances of the offender I do not consider that any
reduction should be made in what is otherwise a fitting
sentence because of the poor physical and mental condition of
this man.  

[14] I would grant leave to appeal but I would dismiss the
appeal.

[15] NEWBURY, J.A.:      I agree.

[16] PROUDFOOT, J.A.:         I agree.

[17] LAMBERT, J.A.:      Leave to appeal is granted.  The
appeal is dismissed.






                         "The Honourable Mr. Justice Lambert"