R. v. Strowbridge, 2013 NLCA 57

Date: 20130909 Docket: 13/12 Citation: R. v. Strowbridge , 2013 NLCA 57 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DONALD JOHN STROWBRIDGE APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Barry J.A. Court Appealed From: Provincial Court of Newfoundland & Labrador St. John’s Appeal Heard: September 9, 2013 Decision Rendered: September 9, 2013 (Orally) Written Reasons Filed: September 13, 2013 Counsel for the Appellant: Derek Hogan Counsel for the Federal Crown: Neil Smith Counsel for the Provincial Crown: Frances Knickle REASONS FOR ORAL DECISION Barry J.A.: [ 1 ] Mr.

Strowbridge applies for Judicial Interim Release pending his appeal from sentence following his convictions for seven offences. He received a custodial sentence of 15 months plus 3 years probation, restitution orders totaling $1,724.88 and a fine of $5,000.00. [ 2 ] He acknowledges a prison term of 9 months was fit for two frauds and three breaches of probation. However, he argues that (

i) a 6 month consecutive prison term for copyright and trademark infringements was demonstrably unfit; (ii) the sentencing judge erred in imposing restitution as part of probation instead of a restitution order under section 738(1) of the Criminal Code ; and (iii) the

sentencing judge erred by imposing a $5,000.00 fine in light of the appellant’s means to pay. [ 3 ] Subsection 679(4) of the Criminal Code provides: In the case of an appeal referred to in paragraph (1)(b), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by a judge of the court of appeal if the appellant establishes that (

a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (

b) he will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest. [ 4 ] The Crown accepts that Mr. Strowbridge does not pose a flight risk. The Crown submits, however, that leave to appeal sentence should not be granted as the appeal does not have sufficient merit and, also, that it is not in the public interest to release him because he presents too high a risk to reoffend. [ 5 ] The appellant’s first ground of appeal is that the sentence does not fit within the appropriate range of sentence as established by prior cases with convictions for copyright and trademark infringements.

The appellant notes that the usual disposition in such cases has been a fine with or without a conditional sentence but not a prison term. [ 6 ] The Crown agrees that the cases show a range from fines up to a twelve-month conditional sentence, with most of the cases imposing six-month conditional sentences. The Crown points out that none of the offenders in the prior cases had a criminal record comparable to that of Mr. Strowbridge nor were they actually serving a sentence in the community at the time of the offences as was the case here. [ 7 ] Without being shown a prior case with circumstances similar to Mr.

Strowbridge where the sentence imposed involved a prison term, I am satisfied the appeal has arguable merit sufficient to warrant the granting of leave to appeal. See R. v. Perrier , 2009 NLCA 1 , 282 Nfld. & P.E.I.R. 171, at para. 13 .

Where no previous authoritative decision has established the need for a prison term and determined the range of sentence for a similar offence by a similar offender in similar circumstances, an appellant should not be prevented from proceeding with an appeal of a custodial sentence and making submissions as to the appropriate range. [ 8 ] I am also satisfied that in these circumstances Mr. Strowbridge’s appeal has sufficient merit to establish that it would cause unnecessary hardship if he were detained in custody since the detention for the offences appealed would commence before the appeal has been heard.

The appeal, at least to some extent, would be rendered nugatory. [ 9 ] On the issue of whether the public interest would be harmed by his release because of the risk he would reoffend, Mr. Strowbridge did not reoffend in the period between the laying of charges and conviction. On balance, considering the possibility of the appeal being rendered nugatory, I am satisfied that release pending appeal is appropriate. [ 10 ] Leave to appeal is granted, and Mr.

Strowbridge should be released, pending his appeal, on the following conditions: (1) he shall keep the peace and be of good behavior; (2) he shall notify the R.C.M.P. in Pleasantville, NL in writing of his address upon release; (3) he shall appear in Court as ordered by the court; (4) he shall not violate copyright or trademark law; and (5) he shall surrender himself into custody in accordance with the order of the court; and (6) he shall provide a recognizance of $500.00. _______________________________ L. D. Barry J.A.