Donald Strowbridge successful on appeal
He may have been convicted of selling knock-off trademark products, but Donald Strowbridge doesn’t have to pay the fine for it.
© — Telegram file photo
Donald John Strowbridge is led out provincial court in St. John’s.
Strowbridge was convicted Feb. 21, 2013 and sentenced for seven offences — two counts of fraud under $5,000, three breaches of court orders, selling copyrighted products and selling trademark goods.
His total sentence was 15 months in prison, three years’ probation with a restitution order of about $1,700 and a $5,000 fine for selling copyrighted products.
Strowbridge appealed the order to pay restitution as part of his probation, the six-month jail term he received for the trademark and copyright offences and the $5,000 fine.
In a decision handed down by the Newfoundland Supreme Court of Appeal Tuesday, the three-member panel reduced the sentence by four months and quashed the fine. The restitution order stands.
Strowbridge argued the judge should have given him a restitution order separate from probation because “the sentencing judge has set him up for a charge of breach of probation” if he doesn’t pay the fraud victims back.
“Mr. Strowbridge maintains that his prospects for gainful employment are dim and that, even if he finds work, he would not likely earn more than minimum wage, which would not give him the financial ability to pay the restitution ordered,” wrote Justice Lois Hoegg.
She noted he said he already owes $17,845 in fines and/or restitution orders for previous frauds and for income tax as well as a civil debt of $49,000 and the $5,000 fine imposed for the copyright offence.
The panel said an offender’s means to pay must be considered when a judge is thinking about ordering restitution, and in this case that was done.
Strowbridge testified at his sentencing hearing and when he was asked by the judge if he felt he would be able to pay the victims back, he said, “My God, yes of course, Your Honour. First and foremost is to get all and any money back to those victims.”
“Mr. Strowbridge’s position that this court should quash the term of probation requiring him to pay restitution and substitute a stand-alone restitution order on the basis of his anticipated difficulty in paying it, is effectively a plea for not having to pay restitution at all,” Hoegg wrote.
Strowbridge — who operated a business called NFLD Imports — was first warned by the RCMP federal enforcement section to stop selling the products Jan. 24, 2010, when he was based at the Avalon Mall.
Eight months later, he was seen at another location selling baseball caps, backpacks and clothing, all bearing logos such as Fox Racing, DC, Hurley and Nike and the logos of NHL teams.
Hoegg noted the value of the goods seized at that time, from the back of his van, was about $500.
“Mr. Strowbridge’s operation, while economically motivated, as all such operations are, was marginal and unsophisticated,” she said.
“It is my view that the six-month custodial sentence for Mr. Strowbridge’s trademark and copyright offences is disproportionately long for the gravity of the offences he committed and his level of moral blameworthiness.”
The decision says under the law, a judge is required to be satisfied an offender has the ability to pay a fine before imposing it. In failing to do so here, Hoegg said, the judge committed an error in principle, and she quashed the $5,000 fine imposed on Strowbridge.
Strowbridge was released on bail pending the outcome of his appeal, so he will have to serve more time before he will be in a position to earn money in order to pay the restitution.
“Payment of $100 per month for 18 months would more than discharge the debt. This is not too much to ask of Mr. Strowbridge, even if he is not earning a lot of money. He took this money from two trusting customers whose circumstances do not appear to be much better than his own.”