



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Frickey, 2017 ONCA 1024

DATE: 20171228

DOCKET: C60977

Sharpe, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tabitha Frickey

Appellant

Erec Rolfe, for the appellant

Jennifer McKee, for the respondent

Heard: December 21, 2017

On appeal from the sentence imposed on February 13, 2015
    by Justice Robert Reilly of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of dangerous operation of a motor vehicle
    causing bodily harm under s. 249(3) of the
Criminal Code
, which
    provides for a maximum term of imprisonment of ten years. She was sentenced to
    six months in custody, six months of probation, and a ten-year driving
    prohibition order. She has served her custodial sentence and completed
    probation. She appeals from the ten-year driving prohibition order.

[2]

The appellant submits that the ten-year driving prohibition was
    manifestly unfit and seeks a five-year driving prohibition. She contends that
    the trial judge erred in treating general deterrence and denunciation as the
    primary sentencing objectives when she was a young, first-time offender.

[3]

We disagree.

[4]

The principles of denunciation and deterrence are particularly relevant
    to dangerous driving offences that are often committed by first-time offenders
    and otherwise law-abiding citizens. In these circumstances, the driving
    prohibition serves as the most practical means to ensure the protection of the
    public.

[5]

Notwithstanding the appellants youth and lack of a criminal record, the
    sentencing objectives of general deterrence and denunciation were paramount
    because of the seriousness of the appellants offence and the aggravating
    factors of her previous poor driving record and the devastating harm caused to
    the victims of the accident.

[6]

The appellant had amassed three speeding convictions on her driving
    record prior to her commission of the index offence when she was 18 years old. 
    These convictions did not serve as a deterrent. The circumstances of this offence
    were egregious: the appellants vehicle hurtled across three lanes of traffic
    at an enormous speed, smashed into crash attenuation barrels, became airborne
    and landed on top of the victims car. The impact almost killed one of the
    victims, who remains severely disabled by his injuries. We also note that the
    appellant committed a fourth speeding offence, as well as a distracted driving
    offence, following the present offence.

[7]

Against these aggravating factors, the trial judge carefully considered
    the mitigating circumstances of the appellants youth, her sincere remorse, her
    otherwise unblemished character, her excellent academic and work record, and
    her pregnancy.

[8]

Crown counsel submitted that a custodial sentence of 18 months, plus
    probation, and a five-year driving prohibition order would be appropriate. Defence
    counsel argued that a custodial sentence capped at nine months and a five-year
    driving prohibition should be considered.

[9]

The trial judge indicated to the parties that he was considering
    imposing a longer driving prohibition, up to the ten-year maximum under s.
    259(2)(b) of the
Criminal Code
, and asked for submissions.  Defence
    counsel urged the trial judge to impose a shorter custodial sentence and a
    longer driving prohibition, in order to meet the objectives of deterrence and
    denunciation, and to facilitate the appellants rehabilitation and avoid her
    baby being born in custody. The trial judge followed the approach suggested by
    the defence.

[10]

In
    considering whether the sentence is manifestly unfit, the sentence must be
    considered as a whole. While the driving prohibition may have been longer than
    in the precedents provided by the parties, the custodial sentence was shorter. 
    In reducing the custodial sentence and lengthening the driving prohibition, the
    trial judge exercised the principle of restraint and took into consideration
    all available sanctions, other than imprisonment, that are reasonable in the
    circumstances, in accordance with s. 718.2(e) of the
Criminal Code
.
    The longer driving prohibition was necessary for the protection of the public. We
    see no error in the trial judges decision.

[11]

Accordingly,
    the appeal is dismissed.

Robert J. Sharpe
    J.A.

David Watt J.A.

L.B. Roberts
    J.A.


