Appeal court rejects appeal in Fort McPherson manslaughter case

The territory’s highest court has quickly rejected the Crown’s contention that a judge made an error resulting in a too-lenient sentence in a manslaughter case.

On Tuesday, the Crown appealed the prison sentence handed out last year to Darcy Nerysoo, arguing the sentencing judge “misunderstood” aspects of a fatal drunken brawl between cousins on June 29, 2018 in Fort McPherson.

Davey Firth Stewart died after a consensual fight crossed the line into culpable conduct, resulting in his brain being damaged, the court heard.

On Wednesday, the NWT Court of Appeal rejected the Crown’s call for a sentence of about five years. Nerysoo received three years in prison followed by three years of supervised probation, including a ban on possessing or consuming alcohol.

“Realistically, neither the sentencing judge nor this court could ascertain exactly how the events ran. In our respectful view, the Crown’s characterization is not unreasonable and thus the sentencing judge may have erred in relation to precisely when the respondent punched the deceased in the head,” stated the appeal court’s decision.

“At least some of such blows could well have occurred while the deceased was on the floor and likely did. The real issue on appeal is whether there is juridical significance to any such error.

“Even assuming that the sentencing judge may have misconceived the sequence of events somewhat, it is not entirely clear what effect, if any, the misconception would have had on the actual sentence imposed.”

The sentencing judge was able to impose a period of probation in this case – the appeal court noted this meant six years of “social control” – because Nerysoo built up enough pre-trial custody to bring his remaining time under the two-year cutoff for such orders.

Nerysoo was also given a firearms ban with a sustenance exemption. He was ordered to take counselling and residential treatment if required, and must perform 200 hours of community service.

“This was a case of a pointless altercation between two highly intoxicated cousins who were friends,” stated the appeal court’s decision. “The respondent got the advantage and then pummelled his cousin in the head, probably when the latter was on the floor. There can be no doubt that a penitentiary sentence was appropriate. 

“The question for this court comes down to whether – even assuming an error of characterization by the sentencing judge – the circumstances are such as to make the disposition of six years of social control of the respondent, including three years of imprisonment [of which he has done 24 months], unfit.

“We are not persuaded that it is unfit.”

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.