Appeal court to decide if judge made manslaughter sentence mistake

A Supreme Court judge “misapprehended the evidence” in a manslaughter case, which led to a more lenient prison sentence for a Fort McPherson man late last year, a Crown prosecutor said in court on Tuesday.

When the Crown makes an appeal “there’s usually a steep hill to climb when we take issue with a sentence,” prosecutor Blair MacPherson admitted to the three judges on the NWT Court of Appeal, but “we are of the view there was an error here … that had significant impact on the sentence.”

In an agreement with the Crown – made in consultation with the RCMP and the victim’s family – Darcy Nerysoo pleaded guilty in April 2019 to manslaughter causing the death of cousin and good friend Davey Firth Stewart.

The incident happened on June 29, 2018 in Fort McPherson.

Both men were extremely intoxicated and had been brawling consensually before the fatal blows were struck by Nerysoo, 30, while Stewart, 31, was on the ground.

The court heard Nerysoo had been drinking for about a week before the incident, while an autopsy found Stewart had almost six times the legal blood alcohol limit.

The cause of death was multiple blunt force injuries consistent with a traumatic brain injury.

Sentencing took place in the community in June 2019. In his written reason for his decision, Supreme Court Justice Andrew Mahar stated the two men were at a mutual friend’s house when they got “into a pointless fight over nothing.” A friend said the two men were not even making sense at the point when the fight started.

“According to Darcy Nerysoo in his statement to police, he … lost his temper with his friend and cousin,” said Mahar at the time. “He punched Davey Stewart five times in the head and when he fell to the ground he stomped on Davey Stewart’s stomach a couple of times.

Nerysoo then ended the fight and left the house. The injured Stewart was conscious and was helped to the couch by the mutual friend, who then began to clean up the home.

“He believed that Davey Stewart had passed out on the couch,” stated Mahar. “He then noticed that Davey Stewart was not breathing. He tried to resuscitate him, without success, and Davey Stewart died.”

Original sentence

Mahar stated both young men were struggling with alcohol and trying to find their place in the world.

“They were good friends and a support for each other in the course of their struggles, which makes this case even sadder,” he said, noting Nerysoo was clearly remorseful.

“It is absolutely clear on the facts of this case that Darcy Nerysoo had no intention to kill Davey Stewart. I have to consider how this case fits with other cases of manslaughter to determine an appropriate sentence.”

Mahar decided the appropriate sentence was three years of imprisonment, followed by three years of probation, during which time Nerysoo must not possess or consume alcohol.

With his pre-trial credit, Nerysoo had 560 days left to serve. By law, most offenders must be released by the Correctional Service of Canada, with supervision, after serving two-thirds of their sentence.

Nerysoo was released in June this year, roughly two years after he killed Stewart, and returned to Fort McPherson before leaving to work in the Tuktoyaktuk area, his lawyer Charles Davison told the appeal court on Tuesday.

Judge ‘misunderstood key point’

Prosecutor MacPherson told the appeal court Nerysoo should stiil be behind bars, serving about a five-year prison sentence.

“The agreed statement of facts clearly sets out that the consent fight was over between these two men and that Mr Nerysoo … punched Mr Stewart [who was on the floor] over five times and stomped him a couple of times,” said MacPherson.

“We’re of the view that the sentencing judge … misapprehended or misunderstood this key point.

“It’s respectfully submitted that [the judge thought] it was very much a consent fight that went too far and that the fatal blows were administered in the context of that consent fight … and that the blows were administered when the two men were standing up.

“It’s clear this misapprehension had a significant impact on the [sentence] reasoning process. This is the beating of a man who was on the ground.”

MacPherson said had the judge understood the evidence, he would not have “been so quick” to place the sentence at the lower end of the accepted spectrum for manslaughter, but rather more in the middle.

Defence lawyer Davison told the appeal court the Crown’s appeal should be dismissed as no error was made.

“To overturn, or to find that a judge made an error of fact, you would have to find that he came to a conclusion that not only was wrong, or something that you disagree with, but in fact that it was an unreasonable result – that is a fairly high standard,” said Davison.

“At best, what we are talking about here is a detail of the positioning of the two men when certain blows were struck, not the overall substance.

“The ending of a consent fight is not as clear-cut as [the Crown] would like the court to understand.”

The three-judge panel reserved its decision.