CITATION: R. v. Niganobe, 2010 ONCA 508
DATE: 20100712
DOCKET: C49605
COURT OF APPEAL FOR ONTARIO
Moldaver, Simmons and Juriansz JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
Jeanette Niganobe
Appellant
Jeffrey Milligan, for the appellant
Philip Perlmutter, for the respondent
Heard and released orally: July 6, 2010
On appeal from the sentence imposed on October 24, 2008 by Justice Larry Whalen of the Superior Court of Justice.
ENDORSEMENT
[1] The appellant appeals from the effective 5 year sentence imposed on her for impaired driving causing death and impaired driving causing bodily harm. She contends that in imposing this sentence the trial judge overemphasized deterrence and failed to give sufficient emphasis to the deprivation and hardship arising from her aboriginal background that led to her addiction to alcohol and the strides she has made since the accident toward rehabilitation through abstinence.
[2] We cannot accept these submissions. The sentencing judge adjourned the sentencing twice to collect additional information about the appellant's aboriginal background. He gave thorough and careful reasons in which he acknowledged the hardship suffered by the appellant as a result of her background. Nonetheless, having regard to the serious aggravating factors present in this case, he imposed an effective sentence of five years imprisonment less credit for pre-sentence custody.
[3] The aggravating factors in this case include:
• the death of one of the victims and the serious injury suffered by the other;
• the appellant needlessly left a place of safety having consumed a considerable amount of alcohol;
• the vehicle the appellant was driving was taken without the owner’s consent;
• the appellant’s high blood alcohol level readings;
• the appellant entered the intersection where the accident occurred against a red light;
• the appellant's prior criminal record including her conviction for impaired driving in 2003;
• the appellant had been seriously injured as a passenger in an impaired driving collision only six or seven months earlier; and
• the appellant did not have a driver’s licence and in fact had never been licensed to drive.
Of particular significance to the trial judge, are his findings that the appellant has not accepted responsibility for her conduct and therefore continues to pose a danger to the public.
[4] We are advised that the appellant is doing well and continuing her rehabilitation efforts for which she is to be commended. However, on our review of the sentencing judge's reasons, we are unable to identify any error in principle and we consider the sentence imposed to be fit.
[5] Leave to appeal sentence is granted but the appeal is dismissed.
Signed: “M. J. Moldaver J.A.”
“Janet Simmons J.A.”
“R. G. Juriansz J.A.”