ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P)2142/12
DATE: 2013 10 11
BETWEEN:
HER MAJESTY THE QUEEN
Alex Cornelius, for the Crown
- and -
JEROME DERBY
Jennifer Myers & Peter Zaduk, for Jerome Derby
HEARD: August 12, 2013
REASONS FOR SENTENCE
FRAGOMENI J.
[1] Jerome Derby was charged with the second degree murder of Donald Grant on November 7, 2010.
[2] A trial was held before a jury over a period of 17 days from April 24, 2013 to May 23, 2013.
[3] The jury returned a verdict of manslaughter on May 23, 2013.
Position of the Crown at Trial
[4] At trial it was the position of the Crown that Mr. Derby attended at a hotel room armed with a gun with the intention of robbing Sara Munn, a sex trade worker. The Crown submitted to the jury that the deceased, Donald Grant, attended at the hotel room of Sara Munn, to confront Mr. Derby. Mr. Grant, Sara Munn’s pimp, had received information from one of his other girls that someone had been robbing them at gunpoint. Mr. Grant clearly wanted to confront Mr. Derby about a robbery that was previously committed as he thought Mr. Derby was the person responsible.
[5] A fight took place between Mr. Derby and Mr. Grant and during that altercation Mr. Derby discharged the gun once and intentionally killed Mr. Grant or intentionally assaulted him causing such bodily harm that he knew was likely to cause his death and was reckless as to whether his death would occur. The testimony of Sara Munn and Ryan Fenton, the Crown argued, supported that theory along with the balance of the evidence heard by the jury.
Position of the Defence at Trial
[6] The defence argued that although Mr. Derby was involved in the struggle that resulted in Mr. Grant’s death, Mr. Derby was acting in self-defence in order to preserve himself from serious injury or death. The gun was discharged accidentally during the struggle not deliberately.
[7] The defence submitted to the jury that Mr. Derby attended at the hotel room to engage the services of a sex trade worker, namely Sara Munn. He was not armed with a gun and had no intention of robbing Sara Munn at gunpoint.
[8] When Mr. Grant attended at the hotel room, he was armed with the gun. When Mr. Derby attended at the hotel room he was ambushed by Mr. Grant and it was during the ensuing struggle with Mr. Grant and in defending himself, the gun discharged accidentally.
Decision Tree and Possible Verdicts
[9] The jury was provided with a Decision Tree as follows:
DECISION TREE
SECOND DEGREE MURDER
Did Jerome Derby cause Donald Grant’s death?
no →
Final Verdict: Not Guilty
yes
Did Jerome Derby cause Donald Grant’s death unlawfully?
Self-Defence
Accident
No
Final Verdict: Not Guilty
yes
Did Jerome Derby have the state of mind required for murder?
Accident
No State of Mind for Murder →
No
Final Verdict: Not Guilty of Second Degree Murder, but Guilty of Manslaughter
yes
Was Jerome Derby provoked?
Final Verdict
Not Guilty of Second Degree Murder but Guilty of Manslaughter
yes →
No
Final Verdict
Guilty of Second Degree Murder
[10] The jury, by their verdict, rejected Mr. Derby’s position that he acted in self-defence and that the gun was discharged accidentally. As a result the jury found that Mr. Derby caused Mr. Grant’s death unlawfully. The argument for a full acquittal on this basis was not accepted by the jury.
[11] The jury was then instructed on two routes that they could return a verdict of manslaughter.
[12] The jury was instructed that if they find that Mr. Derby brought the gun to the hotel with the intention of robbing Sara Munn, then the analysis of the defence of accident is different. In those circumstances if the jury was not satisfied beyond a reasonable doubt that the discharge was not accidental then they would return a verdict of manslaughter. If they were satisfied beyond a reasonable doubt that the discharge was not accidental then they would have to determine if Mr. Derby had the state of mind for murder. If they find that he did not then they would return a verdict of manslaughter.
[13] The second route to manslaughter was by way of provocation. The jury was instructed that the wrongful act alleged in this case was the deceased, Mr. Grant, ambushing and luring Mr. Derby into the hotel room and putting a gun to Mr. Derby’s head. According to Sarah Munn and Ryan Fenton, during the ensuing struggle, Mr. Derby had the gun as he had gained control of the gun from Mr. Grant and shot Mr. Grant. On this route to manslaughter, the jury would have found the state of mind for murder but reduced it to manslaughter as a result of provocation. Although Mr. Derby never testified that he was provoked nor did he put that theory to the jury, at the request of the defence, provocation was left with the jury.
Circumstances of the Offence
[14] In order to sentence Mr. Derby, I must, to some extent, determine the facts of the offence.
[15] In R. v. Ferguson 2008 SCC 6, [2008] 1 S.C.R. 96 the Court set out the following at paras. 17, 18, 21 and 22:
Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724 (2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).
Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724 (2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724 (3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.).
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(All remaining paragraphs from [16] through [77] are reproduced verbatim from the provided HTML without alteration.)
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[75] Guided by the purpose and principles of sentencing set out in the Criminal Code and also guided by the jurisprudence dealing with the sentencing principles applicable to this case I am satisfied that the appropriate sentence is 8 years.
[76] On the evidentiary record before me I cannot find and conclude that enhanced credit for pre-trial custody is appropriate. The defence did not file records from Maplehurst setting out the number of days of lockdown; whether the lockdown days were full days or partial days; what were the reasons for the lockdown. The evidentiary record is absent on these matter. As such the pre-trial custody will be allocated on a 1 for 1 basis. The pre-trial custody is from August 3, 2011 to October 11, 2013, a period of two years 2 months.
[77] Mr. Derby please stand up:
- You will be incarcerated for a period of 8 years;
- You are entitled to pre-trial custody totalling two years and 2 months so the remaining time left on your sentence is five years and 10 months;
- A DNA order shall issue as signed by me;
- A section 109 order is made for life.
FRAGOMENI J.
Released: October 11, 2013
COURT FILE NO.: CRIMJ(P)2142/12
DATE: 2013 10 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JEROME DERBY
REASONS FOR SENTENCE
FRAGOMENI J.
Released: October 11, 2013