DATE: 20050214

DOCKET: C39127

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – RICHARD McARTHUR (Appellant)

BEFORE:

ROSENBERG, SIMMONS and LANG JJ.A.

COUNSEL:

Joseph R. Jakabfy

for the appellant

Shelley Maria Hallett

for the respondent

HEARD & ENDORSED:

February 11, 2005

On appeal from conviction by Justice Gregory Rodgers of the Ontario Court of Justice dated April 5, 2002 and sentence imposed by Justice Rodgers on June 5, 2002.

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

[1] We would not admit the fresh evidence. The additional transcripts clearly show the appellant was aware he was facing a robbery charge before he entered a plea and chose not to attempt to obtain counsel. The fresh evidence from the appellant is not capable of belief.

[2] The trial judge repeatedly warned the appellant he should obtain counsel. He chose not to do so. The trial judge conducted the trial with scrupulous fairness and assisted the appellant during the trial.

[3] The verdict is not unreasonable. While the injuries were consistent with some of the appellant’s evidence the independent evidence accepted by the trial judge established the assault element of robbery.

[4] The trial judge did not expressly deal with the defence of intoxication. This is not surprising given that the appellant testified and admitted stealing most of the items alleged to have been taken and did not claim any loss of memory or incapacity.

[5] Accordingly, the appeal from conviction is dismissed.

[6] The appellant has served the custodial part of the sentence. This was a proper case for probation and we would not interfere with the probation order.

[7] While leave to appeal sentence is granted, the appeal is dismissed.