Calling the impact of Marco Muzzo s crime monumental , Justice Michelle Fuerst laid out the case against the convicted drunk driver and the factors she considered in deciding his fate in a 16-page sentencing decision delivered Tuesday. Fuerst sentenced Muzzo to 10 years in prison for driving drunk on his way home from a bachelor party last fall when he killed three Brampton children and their grandfather. The judge s official reasons for her decision were immediately made available online on the Ontario court website, and are re-printed below:
CITATION: R. v. Muzzo, 2016 ONSC 2068
NEWMARKET COURT FILE NO.: CR-15-7521
DATE: 20160329
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
and
MARCO MICHAEL MUZZO
Defendant
Paul Tait and Kellie Hutchinson, for the Crown
Brian H. Greenspan and Seth P. Weinstein, for the Defendant
HEARD: February 4, 23 and 24, 2016
REASONS FOR SENTENCE
FUERST J.
Introduction
[1] On a clear fall day, six members of a family drove through York Region. Loving grandparents and a great-grandmother were taking three small children home to their parents, after an overnight visit in King City. It was a perfectly ordinary weekend event, the kind regularly engaged in by families in communities big and small all across the province. But in this sad case, a perfectly ordinary event was rendered catastrophic because of Marco Muzzo s decision to drink and then drive.
[2] More than thirty years ago, the Court of Appeal for Ontario declared that members of the public who travel the roadways of the province should not live in fear that they may meet with a driver whose faculties are impaired by alcohol.[1] But, as this case so tragically illustrates, the message that every drinking driver is a potential killer of innocent members of the community continues to go unheeded.
[3] Marco Muzzo is before me for sentencing on four counts of impaired driving causing the deaths of Gary Neville, Daniel Neville-Lake, Harrison Neville-Lake, and Milagros Neville-Lake, and two counts of impaired driving causing bodily harm to Josefina Frias and Neriza Neville.
[4] I appreciate that regardless of the length of the jail term that I impose today, the time will come when Mr. Muzzo will be released from custody. He will have the opportunity to return to his home, his work, and the company of those who love and support him. I am acutely aware that the Neville-Lake, Neville, and Frias families will be forever denied that opportunity. They will continue to serve the form of life sentence that Mr. Muzzo inflicted on them by his decision to drink and drive. The sad reality is that the sentence I impose today will not make whole the families who lost three children and their grandfather, nor will it return a grandmother and great-grandmother to good health. While the criminal justice system can deter and denounce, it is ill-suited to make reparation for harm of the magnitude involved in this case.
THE CIRCUMSTANCES OF THE OFFENCES
[5] Kirby Road and Kipling Avenue intersect in a less developed area of York Region. Kirby Road runs east to west with a single lane in each direction. The two lanes are divided by a solid yellow centre line. White fog lines mark the outer limits of each lane. The posted speed limit is 60 kilometres per hour.
[6] Kipling Avenue runs north to south with a single lane in each direction. The posted speed limit is 80 kilometres per hour.
[7] At the intersection of the two roads, there are stop signs for traffic travelling north and south on Kipling Avenue. There are no stop signs for traffic travelling on Kirby Road. Traffic on Kirby Road has the right of way.
[8] On September 27, 2015, the stop sign for northbound traffic on Kipling Avenue was visible and unobstructed. There were no weather or traffic conditions that would prevent a northbound vehicle from stopping safely at the intersection.
[9] At 3:15 p.m. that day, Mr. Muzzo arrived at Toronto s Pearson Airport on a private jet. He was returning from his bachelor party in Miami. After clearing Customs, he walked to his Jeep Grand Cherokee and left the parking area at 3:27 p.m. He was alone in his vehicle. He began travelling to his home in Vaughan.
[10] Around 4:00 p.m. he was driving northbound on Kipling Avenue, approaching Kirby Road.
[11] At that time, 64 year old Neriza Neville was driving westbound on Kirby Road in her daughter s new 2016 Dodge Grand Caravan. She had five passengers. Her mother, 91 year old Josefina Frias, was in the front passenger seat. Behind them in the middle row were her grandsons, nine year old Daniel Neville-Lake and five year old Harrison Neville-Lake. Her 65 year old husband, Gary Neville, was in the back row with the youngest grandchild, two year old Milagros Neville-Lake.
[12] Ms. Neville slowed down as she approached the intersection with Kipling Avenue, even though she had the right of way. As Mr. Muzzo approached the same intersection, he applied his brakes, but he entered the intersection without stopping for the stop sign. He did so as Ms. Neville was driving through.
[13] Mr. Muzzo s Jeep struck the driver s side of the Grand Caravan. The impact sent the Grand Caravan into the northwest corner of the intersection, where it came to rest in a ditch after striking the stop sign facing southbound traffic.
[14] The Jeep rotated counter-clockwise and continued northbound. Its rear end rotated into the southbound lane of Kipling Avenue on the other side of the intersection, where it struck an almost stopped Mercedes on the front driver s side. The occupants of the Mercedes were not injured.
[15] Several members of the public who were travelling in other vehicles witnessed the collision. They remained at the scene until the police arrived. One of the witnesses noticed that Mr. Muzzo had glossy eyes. She believed that he was under the influence of drugs or alcohol.
[16] The first officer on scene spoke to Mr. Muzzo. He observed that Mr. Muzzo was unsteady on his feet, had glossy eyes, attempted to use people to keep his balance, and was having a difficult time comprehending directions. The officer also observed that Mr. Muzzo urinated himself, and that a smell of alcoholic beverage was emanating from his breath.
[17] The officer cautioned Mr. Muzzo. Mr. Muzzo admitted to being the driver of the Jeep. He was arrested at 4:30 p.m. for impaired driving causing bodily harm. A demand for samples of his breath was made, and he was taken to a police station.
[18] Shortly after arriving at the station, the police learned of the deaths of Gary Neville and Daniel Neville-Lake. Mr. Muzzo was told that he was facing additional charges.
[19] Mr. Muzzo spoke with counsel of choice. He then provided two breath samples. The first, taken at 6:13 p.m., resulted in a reading of 192 milligrams of alcohol in 100 millilitres of blood. The second, taken at 6:34 p.m., resulted in a reading of 204 milligrams of alcohol in 100 millilitres of blood.
[20] Mr. Muzzo s blood alcohol concentration at the time of the collision would have been between 190 and 245 milligrams of alcohol in 100 millilitres of blood.
[21] After the breath samples were taken, the police learned that Harrison Neville-Lake and Milagros Neville-Lake had died. Mr. Muzzo was advised of the additional charges.
[22] Mr. Muzzo again spoke to counsel of choice. He then provided a videotaped statement, in which he again admitted to being the driver of the Jeep.
[23] Data files from the Airbag Control Modules from both the Grand Caravan and Mr. Muzzo s Jeep were examined. The data files showed that at 5 seconds prior to impact, the Grand Caravan was travelling at 54 kilometres per hour with the brake on. During the next 5 seconds, the brake was off and at impact, the van was travelling at 47 kilometres per hour. The data files showed that Mr. Muzzo s Jeep was travelling at an excessive rate of speed before the impact. At 3.7 seconds before impact, the brakes were being applied, and the Jeep s speed was dropping significantly, but at impact it was still travelling at a speed of 85 kilometres per hour.
[24] Gary Neville, Daniel Neville-Lake, Harrison Neville-Lake, and Milagros Neville-Lake all died on September 27 from injuries they sustained as a direct result of the collision.
[25] Neriza Neville suffered injuries that included non-displaced fractures to her right lateral ribs, minimally displaced fractures to two left anterior ribs, a left knee hematoma, liver hematoma, right adrenal hematoma, and abrasions to her neck, chest and legs. She has ongoing neck and shoulder pain, fatigue, and anxiety.
[26] Josefina Frias suffered fractures to her seventh cervical vertebrae, sternum, and right clavicle. She spent about two weeks in hospital, followed by five weeks in a residential rehabilitation centre. She continues to suffer from a brain bleed. She has significant memory loss issues.
THE VICTIM IMPACT INFORMATION
[27] Victim Impact Statements were provided by ten family members and friends. Those statements poignantly express that Mr. Muzzo s actions produced a tragedy almost beyond comprehension. The lives of innocents were lost. A life sentence has been inflicted on the Neville-Lake, Neville, and Frias families. Happy, positive people have been robbed of their reasons for being.
[28] To attempt to summarize the Victim Impact Statements would do an injustice to their authors. But reference to some brief passages opens a window to the magnitude of the loss suffered by the families.
[29] Neriza Neville lost not only all her grandchildren, but also her husband. She wrote, Now I have no more grandchildren to look forward to on the weekends I have no one to grow old with anymore You took everything from me.
[30] Edward Lake, who is described by a cousin as a committed, loving and hands-on father, wrote of all the everyday activities with his children that he will miss, from getting them ready for school, to cleaning up their toys, to playing video games with them, to listening to them both laughing and arguing, to tucking them into bed at night. But most importantly, I will miss being a dad.
[31] Jennifer Neville-Lake, a woman who others say was born to be a mother, wrote of the roaring silence and painful emptiness that now envelops their house: I am listening in vain for my kids to call out my name and I don t hear them. I don t have anyone left to call me mom. Not one left .Where there was once joy in waking up and greeting the day there is only despair and heartache. The soothing night time sounds of my children s gentle breathing, of their little footsteps coming into my room are all gone…When you killed my children you took away my identity as a mother and without my kids, I m nothing anymore When I begin to cry over one of my dead, I feel so guilty because I am crying for one and not the other. I don t know how to even begin to sort out the grief for my dad, my rock, my protector [E]very waking moment is haunted by what was and what can never be again.
[32] Community Impact Statements were provided by the Mayor of Brampton, the President and CEO of Jennifer Neville-Lake s employer, the Catholic School Board Trustee for the Ward in which the Neville-Lake family lives, and a representative of the Scouting Group in which the children participated. In these statements, members of the community to which Edward Lake and Jennifer Neville-Lake belong express feelings of sadness, fear and distress over the senseless loss of the lives of the children and their grandfather.
Other Evidence
[33] Crown counsel filed an affidavit of Wendy Duncan, who is a statistician with York Regional Police. She sets out the number of charges laid by York Regional Police in relation to impaired driving incidents for each calendar year from 2011 to 2015. In that period, charges were laid in relation to a total of 4,708 impaired driving incidents, as follows: 992 in 2011; 802 in 2012; 795 in 2013; 979 in 2014; and 1,140 in 2015.
THE CIRCUMSTANCES OF MR. MUZZO
[34] The defence filed 92 letters of support from Mr. Muzzo s family members, friends, neighbours, co-workers, business associates, and others who know him. In addition, Dr. Graham Glancy, who is an experienced forensic psychiatrist, conducted a psychiatric assessment and prepared a report. These materials provided both biographic and character information about Mr. Muzzo.
[35] Mr. Muzzo is 29 years old. He is the eldest of three children. He grew up enjoying close relationships with his parents, siblings, and extended family members. He continues to have strong support from his mother, siblings, uncle, and other relatives, many of whom have maintained contact with him while he has been in custody.
[36] The Muzzo family is well-known in the greater Toronto area because of its long-standing involvement in the construction and development industry. Notwithstanding the family s financial success, Mr. Muzzo s grandfather, father and uncle instilled in him the importance of hard work and effort. From the time he was a child, Mr. Muzzo spent weekends and summers at the family business, where he was put to work sweeping floors, hauling garbage, and unloading drywall. He was taught that nothing would simply be handed to him, and that he would have to earn his position.
[37] When Mr. Muzzo was 17, his father died of cancer. On his father s death, Mr. Muzzo became the male figure in the household. He took responsibility for the well-being of his mother and younger sisters. Both his paternal and maternal grandfathers passed away within the next two years. At a young age, Mr. Muzzo became the person on whom his grandmothers also relied for help.
[38] Mr. Muzzo graduated from high school and then obtained a certificate in Construction Engineering Management from Fanshawe College. With his education completed, he joined one of the family companies. He is one of its Directors. He is responsible for estimating drywall contracts, and for managing the property where his office is located.
[39] The support letters repeatedly describe Mr. Muzzo as a hard-working and conscientious person. He is respected for his strong work ethic. He typically arrives at work early in the morning to open the office, and works a twelve hour day. He is said to be a humble and genuine person who treats others, including co-workers and employees, respectfully. He does not flaunt his family wealth.
[40] The letter writers consistently speak of Mr. Muzzo as a compassionate and kind person who goes out of his way to help others. The letters are replete with examples of small, everyday acts of kindness done by him for others, ranging from cleaning off employees cars after a snowfall, to helping a neighbour change a flat tire in the dark. The letters also reference his participation in charitable events.
[41] Mr. Muzzo was to have been married in October 2015. He has known his fianc e since they were in high school. She and her parents continue to stand by him.
[42] The authors of the letters were uniformly shocked by Mr. Muzzo s offences. They consistently express, however, that his decision to plead guilty did not surprise them, as taking responsibility for his actions is reflective of his character as they know it.
[43] Mr. Muzzo has no previous criminal record. He does have a history of Highway Traffic Act[2] violations, beginning in 2003. On ten occasions, he was found guilty of speeding, most recently in August 2013. On two other occasions, in November 2012 and May 2015, he was found guilty of other driving infractions.
[44] Dr. Glancy s assessment included interviews of Mr. Muzzo, Mr. Muzzo s mother, his fianc e, and a close friend, and the results of a battery of psychological tests performed and interpreted by a psychologist.
[45] Dr. Glancy questioned Mr. Muzzo about his state of mind in the hours leading up to the crash. Dr. Glancy summarized the information as follows:
The evaluee reports that he travelled to Miami with ten or twelve of his friends and relatives on September 24, 2015, for a pre-marriage party. They spent a few days in a hotel in Miami. He reports that they went out for nice dinners, went to the lobby bar, and sat by the pool during the day. He reports that it was very low-key and easy-going. He reports there were no particular incidents during the trip. He reports that on the Saturday night before he left he stayed up until approximately 3:00 am [sic] in the morning and consumed alcohol. He reports that they had a late dinner. He denies using any illicit drugs during this weekend or at any time. He reported that he set his alarm but woke the next morning before it rang. He then showered and packed. He reports that he had a bit of a headache and felt a bit dazed. He did not take any medication for the headache. He then checked that he had not left anything behind and went on a bus to the airport. During the flight, he watched some movies. He reports that he had three or four alcoholic drinks. He reports that he felt good and was walking and talking without difficulty. He did not perceive himself as being drunk. He then proceeded to the car which he had parked at the airport to drive home.
[46] Dr. Glancy found that Mr. Muzzo has no history of alcohol abuse or problem drinking. There was no evidence of antisocial personality disorder or psychopathy. The psychological testing suggested a capacity for remorse. Mr. Muzzo displayed considerable remorse during the assessment, and expressed an appreciation that his actions ruined the family of his victims.
[47] Dr. Glancy concluded that the risk of repetition of behaviours before the court is minimal, and that Mr. Muzzo is a low risk for recidivism. Dr. Glancy observed that although there is no pattern of alcohol abuse by Mr. Muzzo, treatment programs for substance abuse that are available within the federal correctional system will help reaffirm Mr. Muzzo s intention to abstain from alcohol in the future.
[48] In the courtroom, Mr. Muzzo told the family of his victims,
I am tortured by the grief and the pain that I have caused your entire family and the tragic effect that this has had on so many others and its impact upon the community.
I could never have imagined the degree of suffering and pain I have caused. If I could reverse the hands of time, I would without hesitation. I want nothing more than to attempt to bring some peace to your hearts and minds.
[49] Mr. Muzzo expressed his intention to atone for his conduct by devoting himself to educating the public about the disastrous consequences of drinking and driving.
[50] Mr. Muzzo has been in custody since his arrest on September 27, 2015, with the exception of approximately three weeks. After he entered his guilty pleas on February 4, 2016, Crown counsel consented to his release on bail until his sentencing hearing on February 23, 2016. Mr. Muzzo surrendered back into custody on that date and remained in custody.
THE POSITIONS OF THE PARTIES
[51] On behalf of the Crown, Mr. Tait submits that I should impose a sentence of ten to twelve years in jail, concurrent on each count of impaired driving causing death, and four to six years concurrent on each count of impaired driving causing bodily harm. He acknowledges that Mr. Muzzo should receive credit, meaning a deduction from the time to be served in jail, for his time in pre-sentencing custody, calculated on a one and a half to one basis. He seeks a driving prohibition of eight to twelve years, to take effect after the expiration of the jail term, and imposition of the mandatory victim surcharge.
[52] Mr. Tait contends that the paramount objectives of sentencing in this case are denunciation and general deterrence. The Crown accepts that Mr. Muzzo is remorseful and pleaded guilty at an early stage, that he is a first offender who has a dedicated job history and a supportive family, and that he is a low risk to re-offend. But, the aggravating factors are significant, and Mr. Muzzo s moral blameworthiness is high. Specifically, Mr. Tait points to the devastation caused to the Neville-Lake, Neville and Frias families by Mr. Muzzo s impaired driving; the extremely high blood alcohol concentration at almost three times the legal limit; the manner of driving that involved both speeding and failing to stop despite a visible stop sign; and the prior related driving record with ten convictions for speeding. The affidavit evidence shows an increase in drinking and driving offences, and the jurisprudence reflects an upward trend in sentences for such offences. Mr. Tait says that driving while impaired was an act of extreme selfishness on Mr. Muzzo s part. Mr. Muzzo could have taken a ride home from the airport, but instead he made the choice to drive after drinking. The result of that choice, most particularly the deaths of three children under the age of ten, and the impact of the loss on those left behind, is profound. This case is without precedent. A sentence exceeding the eight years upheld by the Court of Appeal for Ontario in R. v. Kummer[3] is justified.
[53] On behalf of Mr. Muzzo, Mr. Greenspan submits that the sentence on each of the impaired driving causing death counts should be eight years in the penitentiary concurrent, less the time spent in pre-sentencing custody credited on a one and a half to one basis. The driving prohibition should not exceed the bottom end of the Crown s range at most, since it will not commence until Mr. Muzzo is released from custody.
[54] Mr. Greenspan characterizes Mr. Muzzo s conduct as a terrible decision made by a very good person. The many letters of support verify that Mr. Muzzo has led virtually an exemplary life, that he is regarded as a person of character, and that he has made positive contributions to the community. His driving record shows that he had no demerit points at the time of the collision. Mr. Muzzo made a decision to plead guilty at the earliest opportunity, and he has carried through with extraordinary speed. His acceptance of responsibility and his remorse and sense of guilt are all honest. The authors of the letters confirm that this is in keeping with his character. Dr. Glancy concluded that there was no pattern of alcohol abuse, and that the risk of repetition of the behaviour is minimal. Mr. Greenspan contends that a relevant consideration is that this is a first sentence of imprisonment for Mr. Muzzo. He says that there is no reason to depart from the sentence of eight years in jail which the Court of Appeal for Ontario considered appropriate in Kummer, a recent case involving multiple fatalities. The affidavit of Ms. Duncan shows that impaired driving continues to be a problem in York Region, but is not evidence that it is on the rise.
[55] Both Crown and defence counsel advanced positions that were supportable by the authorities that govern the imposition of sentence in cases such as this. Neither over-reached.
THE OBJECTIVES OF SENTENCING
[56] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
[57] Section 718.1 sets out the principle of proportionality in sentencing. It provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 enumerates a number of other sentencing principles. In particular, it provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances relating to the offence or the offender. Section 718.2 also requires that there be parity in sentencing. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[58] In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives. Denunciation refers to the communication of society s condemnation of the conduct.[4] General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future.[5] General deterrence is particularly important in cases of impaired driving. Drinking and driving offences are often committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties.[6]
SENTENCING PARAMETERS
[59] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is, in the words of the Supreme Court of Canada, a highly individualized exercise that goes beyond a purely mathematical calculation. [7] The gravity of the offence, the offender s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge.[8]
[60] One measure of the seriousness of a particular kind of offence is its maximum penalty. The maximum penalty for impaired driving causing death was increased by Parliament in 2000, from fourteen years in jail, to life imprisonment. The fact that a life sentence is, as the Court of Appeal for Ontario put it, within the realm of possibility for the offence of impaired driving causing death signals Parliament s intention that offences of impaired driving causing death be treated severely by the courts.[9]
[61] Of course, it does not follow that the maximum penalty will be imposed in a given case. None of the previous decisions to which counsel referred me involved the imposition of a life sentence, even where the offender s impaired driving resulted in more than one fatality.
[62] While experienced Crown counsel have made it very clear that this case is a most serious instance of impaired driving causing death, they do not seek a sentence of life imprisonment for Mr. Muzzo. To be clear, Mr. Tait specifically stated that the Crown is not asking me to impose a sentence of life imprisonment on Mr. Muzzo.
Analysis
[63] Trial judges typically look to sentences established by appellate courts, for assistance in identifying an appropriate sentence for a particular offence. Because the offence of impaired driving causing death can be committed in an almost infinite variety of circumstances, the Court of Appeal for Ontario concluded that there is no identifiable range of sentence that applies to the crime.[10] The Supreme Court of Canada recently cautioned that even where sentencing ranges are identified, they are guidelines and not hard and fast rules.[11]
[64] Nonetheless, recent decisions of the Court of Appeal for Ontario provide some guidance as to the just and appropriate sentence in this case. In particular, two propositions emerge from those decisions.
[65] The first is that the offence of impaired driving causing death will attract a substantial penitentiary sentence, even for first offenders of good character. Three cases are particularly relevant.
[66] In R. v. Ramage,[12] the offender s car crossed four lanes of traffic and struck two oncoming vehicles. His passenger was killed, and a driver in another car was injured. At the time of the collision, the offender s blood alcohol concentration was two to three times the legal limit. He was convicted at trial. He had no prior criminal record, was described as an outstanding member of the community, and was deeply remorseful. He lived and worked in the United States, but would be barred from re-entry because of the convictions. The family of his deceased passenger forgave him and asked that he not be incarcerated. A sentence of four years in the penitentiary and a five year driving prohibition was upheld on appeal.
[67] In R. v. Junkert,[13] the offender drove at a high rate of speed and failed to negotiate a turn in a residential neighbourhood. His car went onto the sidewalk, where it struck a car and a lamp pole before re-entering the roadway. In the course of its travel, the car struck and killed a jogger. The offender s blood alcohol concentration at the time was well above the legal limit. He was convicted at trial. He was a first offender. A sentence of five years in the penitentiary and a ten year driving prohibition was upheld on appeal.
[68] In Kummer, the offender drove at an extreme speed. He ignored a passenger who told him to slow down. After failing to stop at a stop sign, he entered the intersection. He slammed on his brakes, but struck a pick-up truck. Both vehicles caught fire. The driver of the pick-up truck was badly injured, but was able to get out of the vehicle. However, his young son and the son s friend remained trapped in the burning truck and died. A passenger in the offender s vehicle also died. The offender had a blood alcohol concentration more than twice the legal limit, which represented the consumption of fifteen to twenty beers. He had no prior criminal record, and there was evidence of his good character. He had been convicted previously of careless driving and failing to report an accident caused when he drove onto an airport runway after he had been drinking. The Court of Appeal for Ontario upheld a sentence of eight years in the penitentiary and a twelve year driving prohibition, imposed on the offender s guilty pleas.
[69] The second proposition that emerges from the jurisprudence is that sentences for impaired driving causing death have increased in recent years. This reflects society s abhorrence for the often tragic consequences of drinking and driving, as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists.[14] For this reason, sentencing decisions that pre-date Ramage, Junkert, and Kummer have diminished value as guidelines.
[70] With that background, I turn to consideration of the aggravating and mitigating circumstances in this case. The presence of aggravating and mitigating factors is important in determining where a case falls on the spectrum of available sentences.
[71] There are a number of significant aggravating factors in this case. They include the following:
1. Mr. Muzzo made the choice to drink and then drive. When he walked off the private jet at a large metropolitan airport, he had an array of transportation options readily available to him. He could have travelled home by limousine or taxi. He could have called a family member or friend to pick him up. He made the decision to get behind the wheel of his vehicle. He took the risk that his driving would put other users of the roadway in danger.
2. Mr. Muzzo drove his vehicle at an excessive rate of speed as he approached the intersection where the collision occurred. While he braked before impact, his vehicle was still travelling above the speed limit at impact.
3. Mr. Muzzo failed to stop at a stop sign marking the intersection. The stop sign was large, unobstructed, and clearly visible. It gave the right of way to the van driven by Neriza Neville, who was entirely blameless in the collision that followed.
4. Mr. Muzzo s blood alcohol concentration at the time of the collision was alarmingly high. It was well over twice the legal limit, and within the range of three times the legal limit. This is a statutorily aggravating factor. There is no evidence before me of the amount of alcohol that Mr. Muzzo would have had to consume to reach a blood alcohol concentration between 190 and 245 milligrams of alcohol in 100 millilitres of blood, but it is a reasonable inference that he drank excessively.
5. Mr. Muzzo killed four people, three of them children, and caused serious injuries to two others, all members of the same family group.
6. The impact on the Neville-Lake, Neville, and Frias families is monumental. Additionally, the impact has been felt in the community.
7. Mr. Muzzo has a lengthy prior record for driving infractions, including ten convictions for speeding. This indicates an irresponsible attitude toward the privilege of driving. His previous convictions for speeding should have deterred him from driving above the speed limit on September 27. They did not.
[72] There are important mitigating factors that I must consider. They include the following:
1. Not only did Mr. Muzzo plead guilty, he did so at a very early stage, without having had a preliminary inquiry. This is an indication of both his deep remorse and his willingness to accept responsibility for his conduct. Additionally, his guilty pleas avoided the need for a trial, and the uncertainty of its outcome.
2. Mr. Muzzo has no previous criminal record. This will be his first jail sentence.
3. It is clear that Mr. Muzzo is a person of good character. The many letters of support evidence that he is a hard worker who has shouldered family and business responsibilities, and made a positive contribution to the community.
4. Mr. Muzzo has expressed deep and genuine remorse, in private discussions with people close to him, and also in his public statement in the courtroom. I accept that he appreciates the enormity of the harm he caused.
5. There is no evidence that Mr. Muzzo has substance abuse, or mental health issues. Dr. Glancy concluded, through a comprehensive psychiatric assessment, that the risk that Mr. Muzzo will re-offend is minimal.
6. Mr. Muzzo has very strong support from family members, friends and others in the community who are well aware of his situation. This bodes well for his reintegration to society on his release from the penitentiary.
[73] I am unable to conclude from the affidavit of Ms. Duncan that impaired driving is on the increase in York Region. Her affidavit does not include information necessary to interpret the raw numbers provided, such as population figures or numbers of drivers checked for possible impaired driving in the relevant years. Her affidavit does show, however, that impaired driving remains a persistent problem in York Region. While this is not an aggravating factor, it underscores the need to impose a sentence that denounces and deters drinking and driving.
Conclusion
[74] Any loss of life caused by an impaired driver is tragic. In this case, however, the enormous harm caused by Mr. Muzzo is extraordinary. Mr. Muzzo made victims of four generations of one family. He took the lives of three children under the age of ten and that of their grandfather, and left their grandmother and great-grandmother with lasting injuries. In one fell swoop, he decimated an entire generation of the Neville-Lake family, its legacy and its future. Three members of the most vulnerable segment of our society sacrificed their lives to Mr. Muzzo s decision to drink and drive. The impact on the parents of the children is immense, and possibly beyond alleviation. They no longer see a purpose to their own lives. Those closest to them despair that there can be a way forward for what remains of the family.
[75] The effect of Mr. Muzzo s actions extends beyond the Neville-Lake, Neville, and Frias families. Through its representatives, the community expressed not only its profound sorrow, but also its sense of vulnerability and fear that this disaster could befall other innocent families, as long as there are drinking drivers on the roads.
[76] For as long as Mr. Muzzo has been alive, courts have warned about the consequences of impaired driving. Yet the message escaped him. It is important that it does not escape others.
[77] The high degree of Mr. Muzzo s moral blameworthiness, combined with the enormous and far-reaching consequences of his offences, sets this case apart from others. Notwithstanding the many positive aspects of Mr. Muzzo s background and character, and the fact that this is a first jail sentence for him, a lengthy penitentiary term is necessary.
[78] The just and appropriate sentence is one of ten years.
[79] Crown and defence counsel agree that under s. 719(3.1) of the Criminal Code, Mr. Muzzo is entitled to credit for the time that he has spent in pre-sentencing custody, calculated on the basis of one and a half days for each day spent in custody. I concur, based in particular on my knowledge of conditions at the detention centre. Mr. Muzzo will be credited with eight months of pre-sentencing custody, which has been calculated on a one and a half to one basis excluding the three weeks that he was on release.
[80] In light of the nature of Mr. Muzzo s driving on September 27 and his driving record, it is just and appropriate that he be prohibited from driving for twelve years in addition to the period of imprisonment.
[81] Mr. Muzzo, please stand. I sentence you as follows:
On Count 1, impaired driving causing the death of Gary Neville, to ten years in jail less credit for the equivalent of eight months of pre-sentence custody, leaving a sentence to be served of nine years and four months in the penitentiary;
On Count 2, impaired driving casing the death of Daniel Neville-Lake, to nine years and four months in the penitentiary concurrent;
On Count 3, impaired driving causing the death of Harrison Neville-Lake, to nine years and four months in jail in the penitentiary concurrent;
On Count 4, impaired driving causing the death of Milagros Neville-Lake, to nine years and four months in the penitentiary concurrent;
On Count 13, impaired driving causing bodily harm to Josefina Frias, to five years in the penitentiary concurrent;
On Count 14, impaired driving causing bodily harm to Neriza Neville, to five years in the penitentiary concurrent.
[82] On each of Counts 1, 2, 3 and 4 there is an order prohibiting you from driving for twelve years in addition to the period of imprisonment. The period of driving prohibition on each of Counts 13 and 14 is six years. The driving prohibition orders all run concurrently.
[83] I order you to pay the applicable victim surcharge, within 90 days.
FUERST J.
Released: March 29, 2016
NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record.
[1] R. v. McVeigh (1985), O.A.C. 345.
[2] R.S.O. 1990, c. H.8.
[3] 2011 ONCA 39.
[4] R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81.
[5] R. v. P.(B.W.), [2006] 1 S.C.R. 941, at para. 2.
[6] R. v. Lacasse, 2015 SCC 64, at para. 73.
[7] Lacasse, at para. 58.
[8] Lacasse, at paras. 58 and 143.
[9] Kummer, at para. 20.
[10] R. v. Junkert, 2010 ONCA 549.
[11] Lacasse, at para. 60.
[12] 2010 ONCA 488.
[13] 2010 ONCA 549.
[14] Junkert, at para. 46; Kummer, at para. 15.