R. v. Moscoso, 2019 ONCJ 227

CITATION: R. v. Moscoso, 2019 ONCJ 227

DATE: March 19, 2019

Information No. 18-31

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

MICHAEL MOSCOSO

PROCEEDINGS

BEFORE THE HONOURABLE JUSTICE B. PUGSLEY

on March 19, 2019 at ORANGEVILLE, Ontario

APPEARANCES:

L. Marcon Counsel for the Crown

L. Booth Counsel for Michael Moscoso

TUESDAY, MARCH 19, 2019

THE COURT: So what do you want to deal with next?

MS. MARCON: I thought the Moscoso matter might be quicker than, than the facts and, and submissions and sentencing of the other matter that Mr. Fetterly has, if you're so inclined to deal with that.

THE COURT: Well, okay. Are we ready to deal with...

MS. MARCON: Yes. Counsel is here.

THE COURT: ...Mr. Moscoso's matter?

MICHAEL MOSCOSO: Yes, I am prepared, Your Honour.

MS. BOOTH: Yes. Good, good afternoon, Your Honour. For the record it's Booth, B-O-O-T-H, initial L. Mr. Moscoso is in the body of the court.

THE COURT: Yes. If he could come forward, please?

MS. BOOTH: Come forward.

...INTERRUPTION RE UNRELATED MATTER

THE COURT: Yes. We'll deal with that matter first, Mr. Moscoso's matter. I should start, Ms. Booth, by asking your client to stand for a second. Is there anything that you'd like to say before sentencing? You don't have to, but now's your chance, if you wish.

MICHAEL MOSCOSO: Once again, I would like to say I'm sorry on my behalf of the mistake I have done. Honestly, it's one of the biggest mistakes I've done in my life, and it has really changed my life as the fact that I could've lost my life. I could've killed others. And I honestly - I am truly sorry. I know sorry is not going to do so much, but I am truly sorry for what I've done and - excuse me - and I do - sorry. I do accept the punishment that I am about to receive. I'm sorry. I wanted to say I'm, I'm truly sorry.

THE COURT: Thank you. You can have a seat, if you like. I'm not sure we made the psychological risk assessment documents an exhibit, Ms. Booth, and the submissions, did we?

MS. BOOTH: I, I don't recall. I have no issue if you make it an exhibit.

THE COURT: It's the package of material with the signature of Dr. Giorgio E. Ilacqua?

MS. BOOTH: Ilacqua, yes.

THE COURT: Ilacqua. That'll be the next exhibit, Madam Clerk. The psychological risk assessment will have some utility after sentence.

EXHIBIT NUMBER ?: Psychological Risk Assessment signed by Dr. Giorgio E. Ilacqua - produced and marked.

REASONS FOR SENTENCE

PUGSLEY, J. (Orally):

Michael Moscoso is before the court today for sentencing on two counts of impaired driving causing bodily harm. In spite of decades of public education and significant legal penalties regarding the dangers of driving while intoxicated, the facts here are distressingly common, particularly in this judicial area.

In the early morning hours of October 7th, 2017, Mr. Moscoso was driving northbound on Highway 10 in Caledon. At highway speeds, his vehicle crossed over the shared turn lane between northbound and southbound traffic and entered the southbound lanes still driving north. His SUV hit a southbound sedan on the driver's side rear, and then struck a southbound Jeep vehicle head-on. The driver of the sedan was not injured in the accident. The driver of the Jeep, Mr. Sherk, suffered bodily harm, as did his passenger, Ms. Riikhimaki.

The defendant was taken to a regional trauma centre after being extracted from his vehicle by attending fire fighters. He was found to have an odour of alcohol on his breath and alcohol was found inside his vehicle. A sample of the defendant's blood was seized pursuant to a search warrant and was analysed by a toxicologist at the Centre of Forensic Sciences. At the time of driving, the expert toxicologist put the defendant's blood alcohol concentration in a range between 155 and 200 milligrams of alcohol in 100 millilitres of blood. In that range, he would have been impaired by alcohol in his ability to operate a motor vehicle.

Mr. Sherk's bodily harm here consisted of internal bleeding, three intestinal perforations, herniated tissues and chronic back and hip pain. He required forty-seven surgical staples and seven stitches. Ms. Riihimaki had a broken clavicle and a broken foot as a result of the defendant's actions. Neither complainant has provided a victim impact statement.

A Highway Traffic Act driver's licence suspension had been made by the ministry of the defendant's licence before the date of the offence. The defendant has no criminal record.

A pre-sentence report was prepared to assist the court in the sentencing process. That report can properly be described as a generally positive one.

The Crown seeks a jail sentence in the range of 12 to 15 months in custody. By way of submission, the Crown notes the prevalence of drinking and driving offences in this court, and submits that in this case it was purely by luck that no one was killed in this accident.

In the approximately 34 years since the seminal decision in R. v. McVeigh of 1985, drunk drivers remain potential killers on the roads of this country. While the defendant is a youthful first offender, deterrence remains a key required element of sentencing in such cases according to the Crown.

The defendant submits that a range of sentence of six to eight months in custody is appropriate. The defendant is 24 years of age and has no prior record. He himself suffered serious physical and psychological consequences from the collision. His employment prospects for the future have been severely affected. He accepted responsibility for his actions. From soon after this occurrence, the matter was on a resolution track.

Both parties filed case law that supported the range of sentence suggested by their respective submissions.

While generally optimistic in character, there are some disquieting aspects to the pre-sentence report in my view. Most notably, the defendant's pre-offence level of alcohol consumption appears to have been hardly diminished at all by the calamity of his creation. Before the accident, he drank alcohol pervasively. Afterwards, he continued to drink, as it was said, to cope with his physical and psychological issues. He has had no effective alcohol treatment to date, but states that he is willing to take such treatment as part of his sentence.

It appears apparent to his family that he has an issue with alcohol that should be addressed.

As noted by the Crown's submission, drinking and driving remains a pervasive issue for this country, this province, and in particular, for this local community.

In spite of decades of public education, widely publicized enforcement initiatives and increasingly stern legal consequences, fully 60 percent of the charges placed before this court remain drink/drive related. This has changed little in the 15 plus years I have sat here as a criminal court judge.

The facts of this case underline the acute danger represented by highly impaired drivers operating two tonne vehicles at highway speeds on area roads.

Driving safely has always had a heavy aspect of a social contract to it. Let’s face it: large and powerful vehicles are driven at highway speeds separated only by lines painted on the pavement, and separating opposing lanes by a metre or two of empty space, rather than by physical barriers. All who drive or are driven on the roads trust that the drivers two metres away from their vehicle operating in the opposite direction are trained, capable and sober, such that they stay safely on their own side of the road.

Here, the defendant drank to the point where he was unable to remain on his side of the road. Indeed, he stated that he could not recall how much he drank before he drove that night. He crossed over a wide common turn lane and into oncoming traffic where he struck two vehicles, one head-on. The likelihood of fatal consequences to his impaired driving was high and death was avoided more by good luck and the effective safety engineering of modern motor vehicles than any action by the defendant. Even so, two persons besides the defendant were injured in the collision. This is not an accident, because it was not an accident but rather a collision caused by the defendant's criminal act.

The Criminal Code sets out at section 718 and following of the Code the factors to be considered on any sentencing. While there are several mitigating factors here and 718.2 of the Code suggests that jail is a last resort, case law, including case law binding on me, emphasizes the seriousness of this offence. Deterrence, and in particular, general deterrence, must be a significant feature of my sentence. It must be impressed upon this defendant and others that each drinking driver is a potential killer.

I agree that the defendant has stepped up and shown his remorse and acceptance of responsibility by his plea of guilt in this matter. This is indeed a positive factor in his favour. He acknowledges through counsel that he is willing to accept alcohol counselling and treatment as part of his sentence. Unfortunately, that willingness has not yet been given effect to in the 17 months since the date of the offence. Last fall, he was assessed for his psychological issues. As part of his comprehensive assessment, alcohol dependency has been identified as an issue requiring his attention. Perhaps because of his looming sentencing and his physical restrictions, the path towards mental wellness has been apparently prioritized over what appears to be his very apparent alcohol abuse issues.

It is said that the defendant is a good person with potential. I observe, however, that in my experience, drinking and driving offences is where many, if not most defendants, are persons of no previous record who are otherwise good citizens of Canada. Alcohol abuse is a medical malady requiring medical and mental health treatment. Being heavily impaired by alcohol and harming others because of driving in that state of intoxication turns a medical problem into a criminal act. The risks of driving while impaired are well-known. Yet here in the face of that notoriety, the defendant chose to do so and harmed both himself and others. That is what he is being sentenced for today, not his alcohol abuse condition.

I have reviewed the case law provided by counsel. In my view, the appropriate and necessary sentence balancing all of the facts here is as follows: Would you kindly stand up for a second, sir? Are you okay to stand?

MS. BOOTH: Yeah.

THE COURT: On the first count of impaired driving causing bodily harm to Mr. Sherk, the sentence is 12 months in jail. On the second count, impaired driving causing bodily harm to Ms. Riihimaki, the sentence is 12 months incarceration to be served concurrently for a total of 12 months. I recommend that the defendant serve his sentence at the Ontario Correctional Institute where treatment for his alcohol abuse condition may begin quickly if he is admitted to that program. That recommendation, Madam Clerk, will be reflected on the warrant of committal. Is it okay to send the psychological exhibit, Ms. Booth, to assist that assessment?

MS. BOOTH: Yes.

THE COURT: All right. That will be attached to the warrant of committal, Madam Clerk, the document we just made as an exhibit. At the end of the sentence, the defendant will be placed on probation for two years. The terms are keep the peace and be of good behaviour; return to court if required to do so; report as soon as you are released and thereafter as required to a probation officer; reside where directed by that probation officer and be amenable to the rules of that residence; take such counselling, assessment and treatment as may be directed by your probation officer; and assist the probation officer in finding out how you're doing with that counselling by signing any necessary releases. You are prohibited from operating a motor vehicle anywhere in Canada for three years. That starts today. There are two DNA sample orders to be made. That will be taken today. If the defendant has a driver's licence, Ms. Booth, it needs to be surrendered to my clerk in a minute. The other charges....

MS. MARCON: To be marked withdrawn, please.

THE COURT: The other charges are withdrawn at the request of the Crown. I would ask your client to step into custody, please, to begin serving his sentence. I thank everyone for coming here in support of the defendant today.

MS. MARCON: Thank you, Your Honour.

THE COURT: Here is the pre-sentence report as well. You may as well have that. Thanks for your help, Ms. Booth.

MS. BOOTH: Thank you, Your Honour.

...PROCEEDING ADJOURNED