COURT OF APPEAL FOR ONTARIO

DATE: 20040630

DOCKET: C36043

RE: HER MAJESTY THE QUEEN (Respondent) – and – HOWARD RICHARD ATKINSON (Appellant)

BEFORE: ROSENBERG, FELDMAN and SHARPE JJ.A.

COUNSEL: John Norris for the appellant Nick Devlin for the respondent

HEARD & ENDORSED: June 29, 2004

On appeal from sentence imposed by Justice Ormston of the Ontario Court of Justice on February 18, 1999.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, this sentence including the period of parole ineligibility was fit and there were no errors in principle.

1. The agreed statements of fact was unambiguous that the appellant conspired to import 100 kilograms. We see no reason to go behind that statement and the trial judge was entitled to act upon it.

2. Together with the unexpired remanet the appellant is subject to a very lengthy sentence. However, the circumstances of this case are so unusual that a lengthy consecutive sentence was required given the appellant’s record, the breadth of the conspiracy and the need for deterrence and to protect the public.

3. The disparity with the other co-accused was fully justified. Gumbs was a person of otherwise good character. Mr. Cain played only a minor role in all of the offences. By contrast, the appellant was a career criminal and the mastermind of these offences.

4. This was such a remarkable case that the period of parole ineligibility was appropriate. The fact that the appellant has consistently violated probation, parole and interim release was an appropriate factor to consider. See R. v. Goulet (1995), 97 C.C.C. (3d) 61 (Ont. C.A.) at 67. The order was required for purposes of deterrence and denunciation.

[2] Accordingly, while leave to appeal is granted the appeal from sentence is dismissed.