29-year-old Marco Muzzo appeared at the Newmarket Superior Court of Justice, before Justice Fuerst for sentencing on four counts of impaired driving causing the deaths of 65-year-old grandfather Gary Neville, 9-year-old Daniel Neville-Lake, 5-year-old Harrison Neville-Lake, and 2-year-old Milagros Neville-Lake, and two counts of impaired driving causing serious bodily harm to Josefina Frias and Neriza Neville.
Following a bachelor party (for his marriage scheduled in October, 2015) in Miami, 29-year-old Marco Muzzo flew to Toronto on a private jet. His plane landed in Toronto on September 27, 2015, at 3:15 p.m. at Toronto’s Pearson Airport. He walked to his Jeep Grand Cherokee and left Pearson’s parking lot at 3:27 p.m with the intention to drive to his home in Vaughan.
Marco Muzzo who was driving with a blood-alcohol content, nearly three (3) times the legal limit, would never reach his home that day.
Around 4:00 p.m. he was driving northbound on Kipling Avenue, approaching Kirby Road.
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.
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.
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.
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.
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.
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.
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.
He was subsequently charged with numerous serious criminal charges.
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.
In the Court
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.
Mr. Muzzo had no previous criminal record. He does have a history of Highway Traffic Act 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.
Marco Muzzo had his doctor, Dr. Glancy’s conduct an assessment on him.
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.
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.
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.
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.
Sentencing Submissions by the Crown Attorney & Defence Attorney
The Crown Attorney:
The Crown Attorney, Mr. Paul Tait, contends that the paramount objectives of sentencing in this case are denunciation and general deterrence.
Mr. Tait submitted that Justice Fuerst 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,less the time spent in pre-sentencing custody credited 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.
Mr. Tait stated that this case is without precedent. A sentence exceeding the eight years upheld by the Court of Appeal for Ontario in R. v. Kummer is justified.
The Defence Attorney:
Defence Attorney, Brian H. 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.
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.
The Objectives of Sentencing
Justice J. Fuerst considered the following:
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.
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.
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. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. 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.
Justice J. Fuerst considered the following:
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.” 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.
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.
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.
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.
In the Newmarket Superior Court of Justice, Justice J. Fuerst made the following ruling in the sentencing of Marco Michael Muzzo:
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.
The just and appropriate sentence is one of ten years.
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.
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.
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.
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.
I order you to pay the applicable victim surcharge, within 90 days.
Marco Muzzo will be released on Full Parole, after a third of his 9 year and 4 month sentence (3 years, 1 month or 37 months).
Full Parole is a form of conditional release that allows an offender to serve part of a prison sentence in the community. The offender is placed under supervision and is required to abide by conditions. Under full parole, the person does not have to return nightly to an institution, but must report regularly to a parole supervisor, and in certain cases, to the police.
Offenders are eligible to apply for Full Parole after serving either one-third of their sentence, or seven years, whichever is less.
Statutory Release requires federally sentenced offenders to serve the final third of their sentence in the community, under supervision and under conditions of release similar to those imposed on offenders released on full parole. Offenders serving life or indeterminate sentences are not eligible.
Offenders on statutory release are inmates who either did not apply for release on parole, or who were denied release on full parole. Though statutory release is legislated (i.e. it is not ‘conditional’ and is not granted by the Parole Board), the Parole Board of Canada (PBC) can keep an offender in the institution after his/her statutory release by issuing a detention order. This occurs if there are reasonable grounds to believe that the offender is likely to commit an offence causing serious harm or death, a sexual offence involving a child or a serious drug offence. By issuing a detention order, the offender remains incarcerated after his/her statutory release.
Madam Justice Fuerst was appointed a judge of the Ontario Superior Court of Justice in 2002. Prior to her appointment, she was a partner with Gold & Fuerst where her main area of practice was criminal law.
Madam Justice Fuerst received a Bachelor of Laws from Osgoode Hall Law School in 1979 and was admitted to the Bar of Ontario in 1981.
Madam Justice Fuerst is a past president of both the Canadian Bar Association (Ontario) and the Criminal Lawyers’ Association (Ontario). She is co-chair of the Federation of Law Societies’ annual National Criminal Law Program, a co-author of The Annotated Tremeear’s Criminal Code, a co-author of the third edition of The Law of Evidence in Canada, and a co-author of The Trial of Sexual Offence Cases. She is a member of the Education Committee for the Superior Court of Justice, and a Director of the Ontario Superior Court Judges’ Association. She is currently Senior Chair of the Canadian Bar Association’s Judges’ Forum.