ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-0146
DATE: 2013-02-20
B E T W E E N:
HER MAJESTY THE QUEEN
Gordon Fillmore, for the Crown
- and -
Darren Troy Treleaven and Vincent Raymond Allaire,
Mary Bird, for the Accused, Darren Troy Treleaven
Accused
Sentencing Submissions HEARD: January 25, 2013, at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Reasons For Sentence
Delivered Orally
[1] The accused, Darren Troy Treleaven, was found guilty of assault, contrary to s. 266 of the Criminal Code.
[2] Sentencing submissions were heard on January 25, 2013. The matter was adjourned to today for sentencing.
The Facts
[3] The conviction relates to an assault on Christopher Boswell on the evening of April 23, 2011, at the Prosvita Hall in Thunder Bay.
[4] The assault arose out of Mr. Boswell’s relationship with one Andrew Vukmanich. Mr. Boswell and Mr. Vukmanich had been friends for six or seven years. Mr. Boswell was also acquainted with a Tony Lento.
[5] In early 2011, Mr. Vukmanich and Mr. Lento were charged by the Thunder Bay Police with a number of offences, including extortion, uttering threats and conspiracy to traffic. Mr. Boswell provided information to the police, implicating Mr. Vukmanich. It was anticipated that Mr. Boswell and his girlfriend, Kerry Walsh, would testify as witnesses against Mr. Vukmanich and Mr. Lento. The charges were in fact disposed of without a trial and Mr. Boswell and Ms. Walsh were never called upon to testify.
[6] Mr. Treleaven knew Mr. Vukmanich. He had been fairly close with him for about five years. He also knew Mr. Lento.
[7] Mr. Vukmanich and Mr. Lento had ties with the Hell’s Angels. Mr. Treleaven knew some of the Hell’s Angels from working at a motorcycle shop and others from meeting them at bars.
[8] Mr. Boswell and Mr. Treleaven had briefly met or seen each other in about 2006.
[9] On the evening of April 23, 2011, Mr. Boswell, Ms. Walsh and a friend were in a line to get into a shag at the Prosvita. Ms. Walsh overheard Mr. Treleaven say to another man, “that’s the guy that put Andrew and Lento behind bars”. She saw Mr. Treleaven looking directly at Mr. Boswell when he said this. Mr. Boswell, Ms. Walsh and their friend went into the shag.
[10] During the evening, Mr. Boswell went to the men’s washroom at the back of the Prosvita Hall. No one else was in the bathroom when he entered. There was one stall with a toilet at the end of the bathroom. Mr. Boswell went into the stall and closed the stall’s door.
[11] Mr. Boswell finished using the toilet and was standing up in the stall when Mr.Treleaven grabbed the stall door and pulled it off its hinges. Mr. Treleaven was significantly bigger than Mr. Boswell, standing approximately 5’8” tall and 300 lbs. to Mr. Boswell’s 5’4” and 180 lbs.
[12] Without saying anything, Mr. Treleaven punched Mr. Boswell near his right eye. Mr. Treleaven then yelled, angrily, at Mr. Boswell about “ratting” on Andrew and words to the effect of “how could you do it and get him into trouble”. Mr. Boswell knew who Mr. Treleaven meant by “Andrew”, namely Andrew Vukmanich because Mr. Vukmanich had been a long time friend. Mr. Treleaven continued to hit Mr. Boswell six or seven times in the face and around the jaw. Mr. Boswell asked Mr. Treleaven “what would you do if your family had been threatened?” Mr. Boswell testified that Mr. Treleaven did not tell him that he better not testify or that he should recant his story. Mr. Treleaven did not threaten Mr. Boswell.
[13] Mr. Boswell testified he did not suffer any injuries other than a faint black eye.
[14] The assault ended after a friend of Mr. Boswell, who had come into the bathroom, heard the commotion in the stall, left and returned with two bartenders and Ms. Walsh. Ms. Walsh called to Mr. Boswell. He came out of the stall and left the washroom with her.
[15] Mr. Treleaven was charged with assault. He was also charged with using violence against a justice system participant with the intent to provoke fear in order to impede the administration of criminal justice, contrary to s. 423.1 of the Criminal Code.
[16] I found that Mr. Treleaven recognized Mr. Boswell when Mr. Boswell and Ms. Walsh were lined up to get into the shag, and that he knew Mr. Boswell was a justice system participant. I found that Mr. Treleaven used violence against Mr. Boswell, intending to provoke a state of fear in him. However, I was not satisfied that the Crown had proved beyond a reasonable doubt that Mr. Treleaven provoked a state of fear in Mr. Boswell in order to, or with the intent to, impede Mr. Boswell in the performance of his duties as a justice system participant.
[17] I found that a rational inference could be drawn from the evidence that Mr. Treleaven attacked Mr. Boswell, not with the intent of dissuading him from testifying or to cause him to tailor his evidence, but rather because Mr. Treleaven was angry that Mr. Boswell had informed on their mutual friend.
[18] Mr. Treleaven testified that he believes people who inform on friends are “rats” and that it offends his moral code to rat on someone else.
Circumstances of Mr. Treleaven
[19] Mr. Treleaven is 40 years of age. He has a 17 year old daughter whom he supports and visits every weekend.
[20] He is employed full-time at Bombardier, where he has worked since July 2011. He has received a promotion to supervisor of a crew. He recently purchased a home which he is renovating.
[21] Mr. Treleaven has no criminal record and has not been charged since this offence.
[22] He has been on strict bail conditions for 22 months since April 28, 2011, with a curfew from 9:00 pm to 6:00 am, with an exception for employment purposes.
[23] Mr. Treleaven turned himself in to the police when he learned that the police were looking for him. He spent four days in custody until he was released on bail.
[24] He did not deny that he assaulted Mr. Boswell.
[25] On the sentence hearing, the defence filed a letter from Margaret Klassen, who is Mr. Treleaven’s former fiancée and with whom he was involved for approximately ten years. The defence also filed letters from friends of Mr. Treleaven - Jessy Woods, Danielle Demianiuk, Crystal Rajala, Allan Jones and Melanie Russell.
[26] The letters describe Mr. Treleaven as a non-violent, non-aggressive man for whom this charge is quite out of character. They describe him as a hard worker, trustworthy, helpful, reliable and striving to improve the quality of his life and those around him. They speak to the difficulties which the conditions of his bail have presented, including contributing to the break-up of his relationship with Ms. Klassen and restricting his enjoyment of life. The letters observe that Mr. Treleaven has strictly observed his bail conditions. Mr. Woods, who is a co-worker at Bombardier, states that after Mr. Treleaven and Ms. Klassen broke up, he became Mr. Treleaven’s surety, pledging the amount of $10,000.00. Mr. Woods moved out of his home with his wife and two children to reside with Mr. Treleaven until this case is finalized.
Impact on the Victim
[27] At trial, the Crown asked Mr. Boswell about the emotional impact that the assault had on him. Mr. Boswell answered that he felt sore and angry, but that he did not feel anthing else emotionally.
Legal Parameters
[28] Assault under s. 266, where the matter proceeds by indictment, is punishable by a maximum of five years imprisonment.
Position of the Crown
[29] The Crown submits that the focus of the sentence in this case should be on deterrence, both specific and general, and on denunciation. The Crown seeks a custodial sentence of nine months to one year, to demonstrate that a witness is not to be held up to derision and violence for doing what the justice system requires.
[30] The Crown submits that Mr. Treleaven, as a large man, hunted Mr. Boswell down, as a smaller man, to cause him fear because Mr. Treleaven’s moral code was offended.
[31] The Crown submits that Mr. Treleaven’s testimony showed no remorse and that he tried to minimize and rationalize his actions.
[32] The Crown submits that although the court found that Mr. Treleaven did not have the specific intent to impede the administration of justice, the motive behind the assault was particularly aggravating.
[33] The Crown describes the assault as a fundamental attack on the justice system and a display of upside down morality, the result of which is to deter witnesses. The Crown submits that a custodial sentence is necessary to send an unequivocal message that this type of attack is wrong.
Position of the Defence
[34] The defence acknowledges that because Mr. Boswell was a justice system participant, the case goes beyond a simple assault. The defence submits that a suspended sentence, with probation for one year and a fine, would meet the deterrent and denunciation principles of sentencing.
[35] The defence points to the fact that Mr. Treleaven served four days in custody after his arrest, and was under strict bail conditions for 21 months as of the date of the sentencing submissions. The defence refers to the decision of the Court of Appeal in R. v. Spencer, 2004 5550 (ON CA), [2004] O.J. No. 3262 (C.A.), at para. 43:
“In deciding whether any delay in the completion of the process should mitigate sentence, it is appropriate to consider an offender’s bail terms. The more stringent those terms, the more likely it will be that any delay in completion of the process will have some mitigating effect on sentence.”
[36] The defence refers to the evidence that Mr. Treleaven made no threats against Mr. Boswell or his family during the assault and that the only discussion was about ratting out a mutual friend, Mr. Vukmanich.
Mitigating and Aggravating Factors
[37] The court must consider mitigating and aggravating factors as part of the sentencing deliberation.
(i) Mitigating Factors
[38] Mr. Treleaven is a first time offender. He is now 40 years of age, with only this one blemish on his record.
[39] He is gainfully employed with an employer who has been sufficiently impressed with his work to recently appoint him to the position of supervisor. This speaks to the characteristics of hard work, reliability and punctuality described in the letters of support filed in the sentencing submissions.
[40] Mr. Treleaven has a 17 year old daughter for whom he pays support and whom he sees on a regular basis.
[41] He has recently purchased his own home and is working on improving it.
[42] His friends describe him as a considerate, non-violent, helpful person. They describe this assault as uncharacteristic behaviour. Mr. Treleaven’s former fiancée speaks positively of his character.
[43] For almost two years he has been on bail, with a strict curfew and an alcohol prohibition, which he has honoured. Mr. Woods thinks enough of Mr. Treleaven that he moved out of his own home to reside with Mr. Treleaven as his surety.
[44] Mr. Treleaven has served four days in pre-sentence custody.
(ii) Aggravating Factors
[45] The most significant aggravating fact is that when he assaulted Mr. Boswell, Mr. Treleaven knew that Mr. Boswell was a witness and assaulted him because he was a witness.
[46] The assault started in an alarming manner when Mr. Treleaven ripped the door off the bathroom stall where Mr. Boswell was standing. Mr. Treleaven struck Mr. Boswell, unprovoked, in the face. He must have foreseen the substantial likelihood that his acts would provoke fear. Fortunately, the blows from Mr. Treleaven did not cause any injury beyond a faint black eye. Mr. Boswell did not have any emotional reaction beyond anger at what had happened. Mr. Boswell must have been alarmed at what had happened. However, there is no evidence that it was a traumatic event for him.
[47] Although Mr. Treleaven did not challenge the assault, he did not show any remorse, either at trial, or at any other time, for what he had done.
Discussion
[48] Were it not for the aggravating factors to which I have referred, a conditional discharge may have been within the range of appropriate dispositions, given the background of Mr. Treleaven and the fact that this assault resulted in only a minor, transient injury.
[49] I agree with the Crown that the principles of deterrence and denunciation take on a heightened significance because Mr. Boswell was a justice system participant. A conviction, not a discharge, is in order. As noted in R. v. Matteson, [2011], O.J. No. 982 (OCJ), at para. 35, a criminal conviction will be of little consequence to a person with a prior record. However, for a person of previous good character who has no prior involvement with the criminal justice system, the repercussions of a criminal conviction will be significant. The aggravating circumstances here make a discharge contrary to the public interest. However, it is important not to lose sight of the fact that Mr. Treleaven was found not guilty of the offence of intimidation of a justice system participant under s. 423.1(1). He is not being sentenced for that offence. The Crown did not prove that the violence used was intended to impede Mr. Boswell in his duties as a witness. I found that a rational inference could be drawn from the evidence that Mr. Treleaven assaulted Mr. Boswell because Mr. Treleaven was angry that Mr. Boswell had informed on a mutual friend. As the defence points out, Mr. Treleaven made no mention of Mr. Lento when he had his confrontation with Mr. Boswell. He made no threats about what would happen if Mr. Boswell testified. Although I did not accept Mr. Treleaven’s evidence that he just happened upon Mr. Boswell in the washroom stall, I did not reject his evidence that it offended his personal code of conduct that one should not inform on a friend. As misguided as this personal code is in the circumstances of this case, it should not attract the snactions that would be mandated by a conviction under s. 423.1(1)(b).
[50] Mr. Treleaven had been a law abiding citizen until this event. He is, by all accounts, a productive, stable, reliable member of society, who is well regarded by his employer and his friends. He is responsible for supporting his daughter.
[51] A period of incarceration as requested by the Crown would have serious effects. It would mean the loss of Mr. Treleaven’s employment. He would not be in a position to support his daughter. He would have no source of income to maintain his home. In my view, society would not benefit by putting Mr. Treleaven into that position.
[52] Under s. 718.2 of the Criminal Code, it is a principle of sentencing that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. It is also a principle of sentencing under s. 718.2(e) of the Code that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
[53] I considered the imposition of a conditional sentence. Mr. Treleaven’s situation meets the criteria under s. 742.1 of the Criminal Code. However, the conditions of a conditional sentence would, in many respects, resemble the bail conditions under which Mr. Treleaven has been living for the past 22 months. I have decided that a term of imprisonment, even though it would be served in the community, is not warranted in view of the 22 months of restrictive conditions which Mr. Treleaven has already faced and has honoured, awaiting trial on a charge of which he has been found not guilty. He has also spent four days in custody. Mr. Treleaven has paid a price which, together with the sentence I will impose, serves the objectives of deterrence and denunciation.
Mr. Treleaven, please stand:
[54] I am suspending the passing of sentence under s. 731(1) of the Criminal Code and placing you on probation for a period of one year, with the conditions that you do the following:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) notify this court or the probation officer in advance of any change of employment or occupation;
(d) report to probation officer within two weeks of this order and thereafter when required by the probation officer and in the manner directed by the probation officer;
(e) abstain from the consumption of alcohol or other intoxicating substances; and
(f) abstain from communicating with Christopher Boswell or Kerry Lynn Walsh.
[55] In addition, I am imposing a fine of $1,000.00, to be paid within one year.
[56] The Victim Fine Surcharge is to be imposed, to be paid within 30 days.
The Hon. Mr. Justice D. C. Shaw
Released: February 20, 2013
COURT FILE NO.: CR-11-0146
DATE: 2013-02-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and –
Darren Troy Treleaven and Vincent Raymond Allaire,
Accused
REASONS ON SENTENCING
Shaw J.
Released: February 20, 2013
/mls