Court of Appeal for Ontario

Date: 20230719 Docket: C70575

Fairburn A.C.J.O., Simmons and Trotter JJ.A.

Between:

His Majesty the King Respondent

and

Jerome Derby Appellant

Counsel: Jerome Derby, acting in person Margaret Bojanowska, appearing as duty counsel Frank Au, for the respondent

Heard and released orally: July 6, 2023

On appeal from the sentence imposed by Justice R. Cary Boswell of the Superior Court of Justice on April 12, 2022, with reasons reported at 2022 ONSC 2266.

Reasons for Decision

[1] The appellant pled guilty to discharge of a firearm with intent to endanger life, possession of a loaded, prohibited firearm, occupying a motor vehicle knowing there is a prohibited firearm therein, and possession of a firearm while prohibited.

[2] The appellant was sentenced to a nine-and-a-half-year global sentence, which was reduced by presentence custody credit to a net sentence to be served of five years and three months. The global sentence was made up of an eight-and-a-half-year sentence on the discharge firearm count, with a one-year consecutive sentence on the possession while prohibited count. All other sentences ran concurrently.

[3] The appellant raises numerous issues on his sentence appeal and asks that his net sentence ultimately be reduced by one year. We need only address one issue. The trial judge in his otherwise very comprehensive and thoughtful reasons imposed the one-year consecutive sentence for the possession while prohibited count, after already having taken into account as an aggravating factor that the appellant possessed a firearm while prohibited.

[4] In our view, and read in its whole context, this erroneous approach constituted double counting. It falls to us to remedy this situation. In the highly unusual circumstances of this case, including the sincere expression of remorse given today in court, we substitute a one-year concurrent sentence, for the one-year consecutive sentence. All other terms of the sentence remain in full force and effect.

"Fairburn A.C.J.O."

"Janet Simmons J.A."

"G.T. Trotter J.A."