



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Derby,
    2015 ONCA 222

DATE: 20150402

DOCKET: C59766

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerome Derby

Appellant

Paula Rochman, for the appellant

Michael Fawcett, for the respondent

Heard and released orally:  March 13, 2015

On appeal from the sentence imposed on October 11, 2013
    by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant, Jerome Derby, was tried by judge and jury on a charge of second
    degree murder. He was convicted of manslaughter and sentenced to eight years in
    custody, less credit for time served on a 1:1 basis.

[2]

The facts underlying the conviction are as follows. The appellant
    attended at the hotel room of a prostitute. The woman he was meeting identified
    him as the person possibly responsible for robbing other prostitutes at
    gunpoint. She called her pimp, Donald Grant, and he attended at the scene. A
    fight ensued between the appellant and Mr. Grant, which ended with the
    appellant fatally shooting Mr. Grant in the chest.

[3]

On this sentence appeal, the appellant raises two grounds of appeal: (i)
    he should have received enhanced pre-trial custody credit on a 1.5 to 1 basis;
    and (ii) the sentence was unfit given the sentencing judges findings of fact.

[4]

The pre-trial custody ground of appeal is conceded by the Crown. I note
    that the sentencing judge did not have the benefit of the Supreme Court of
    Canadas decision in
R
.
v.

Summers
[2014] S.C.J. No 26
    at the time of sentencing. Calculating pre-trial custody on a 1.5 to 1 basis
    increases pre-trial custody by 13 months to a total of 39 months.

[5]

On the issue of the fitness of sentence, the appellant submits that the
    sentencing judge failed to give sufficient weight to the fact that, although he
    fired the gun, he did not bring the gun to the hotel and only momentarily
    wrestled the weapon from Mr. Grant. He argues that this fact attenuates the
    aggravating features of the offence. In these circumstances, the appellant
    submits, a fit sentence should have been five years incarceration less
    pre-trial custody.

[6]

We would not give effect to this ground of appeal.

[7]

The Crown sought a sentence in the range of 12 years incarceration,
    less pre-trial custody credit. The defence sought a sentence of 4 years
    incarceration, less pre-trial custody credit.

[8]

The issue of who brought the gun to the hotel was an important factual
    determination on sentencing. The Crown sought to rely on the appellants
    bringing the gun to the hotel as an aggravating factor.

[9]

In very thorough and careful reasons for sentence, the sentencing judge
    found that the appellant did not bring the gun to the hotel. Rather, he
    concluded that Mr. Grant brought the gun to the hotel as part of a plan to
    ambush the appellant. He explicitly rejected the Crowns much higher position
    on sentence because he found that: the aggravating features that the Crown
    urged the Court to find, namely that Mr. Derby attended at the hotel with a
    loaded gun to commit a robbery, are absent.

[10]

In
    our view, therefore, in fashioning an appropriate sentence, the sentencing
    judge took into account the fact that the appellant did not bring the gun to
    the hotel room.

[11]

With
    respect to the fitness of the sentence generally, we note that the custodial
    sentence imposed was mid-way between the positions of the parties. The sentence
    also accords with sentences imposed in comparable manslaughter cases. In the
    circumstances of this case, including aggravating factors such as the
    appellants criminal record, the fact that he was on probation at the time of
    the shooting, and the fact that the shooting took place in a public place, we
    are of the view that the sentence imposed is fit subject to an adjustment in
    the credit for time spent in pre-sentence custody.

[12]

Accordingly,
    leave to appeal sentence is granted and the sentence is varied to increase the
    amount of credit for pre-trial custody to a total of 39 months. The appeal is
    otherwise dismissed.

David Watt J.A.

P. Lauwers J.A.

C.W. Hourigan J.A.


