The NWT Court of Appeal has determined that a Fort McPherson man sent to prison for three years for manslaughter isn’t deserving of a lengthier sentence for a more serious offence, as sought by the Crown.
The offence occurred on June 28, 2018, when Nerysoo and his cousin Davey Stewart, 32, were drinking at their friend Calvin Francis’ residence in Fort McPherson.
Francis recounted that the cousins got into an “abrupt” argument and they “were not making any sense.” Though Francis encouraged them to stop, the argument escalated. Nerysoo, 33, admitted to punching Stewart several times in the head and that after the victim fell to the ground he then “stomped on his stomach a couple of times” until he “felt it was good enough.”
The fight was apparently sparked when Nerysoo “lost it” after he thought his cousin had “sucker punched him.”
Francis said the incident lasted about five minutes. Nerysoo left afterwards.
Francis helped Stewart to his feet and sat with him on the couch, where Stewart lied down and eventually passed out. Francis later noticed that Stewart appeared to not be breathing and called 911. He performed CPR until RCMP arrived.
Stewart was pronounced dead the next day of traumatic brain injury from blunt force.
Nerysoo turned himself in to the police and was immediately admitted into custody. At the time of sentencing in June 2019, he told the judge, “I take full responsibility for what happened and I plan on turning my life around.”
Mahar noted that Nerysoo “seems to be very contained,” but was crying at the time of the hearing.
“He was clearly very upset about what is happening and very sorry, and that has been clear the whole way through this,” the judge said.
Mahar sentenced Nerysoo to three years imprisonment, which would equate to 560 days when credited for time served in remand. The judge added three years of probation, whereby Nerysoo is required to serve 200 hours of community service, abstain from alcohol and seek counselling and treatment as required.
Terms of appeal
In appealing, the Crown submitted that Mahar erred in interpreting the agreed statement of facts, and subsequently “sentenced for a lesser crime than was committed.”
The Crown sought a sentence for Nerysoo that was towards the middle range of possible imprisonment of five to seven years. Crown lawyer Blair MacPherson placed greater emphasis on the beating that continued after Stewart had fallen when the fight was “effectively over.” It demonstrated a lack of consent in the later stages of the assault, according to MacPherson.
The Court of Appeal can only intervene if the sentence is “demonstrably unfit,” or if the sentencing judge made an “error in principle” that had an impact on the sentence. Examples of an error in principle would include: failure to consider a relevant factor, error of law, or erroneous consideration of an aggravating or mitigating factor.
‘A very sad case’
In response to MacPherson’s submissions over the continued beating, the Court of Appeal said the Crown’s “characterization is not unreasonable.” Nevertheless, in the written judgement issued Wednesday, the court said the real issue on appeal is “whether there is juridical significance to any such error.” Even if the sentencing judge did somewhat misconceive the sequence of events, the memo stated, “it is not entirely clear what effect, if any, the misconception would have on the actual sentence imposed.”
Ultimately, the Court of Appeal called Mahar’s original decision “intelligible, defensible and accountable.”
“Even having regard to the alleged error by the sentencing judge,” the memo stated, “this case would not be in the middle or higher levels of gravity for manslaughter.”
The Court of Appeal acknowledged the need to protect the public, deter others from such acts and hold the offender to account, but contended that the imposed sentence does not “fall short of serving those objectives.”
In the written decision, the court acknowledged that “as with all manslaughter cases, there is nothing that the law can do to reverse what happened.”
“This is a very sad case.”