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Brazendale v R

Brazendale v R

Case [2011] NZCA 494 29 September 2011

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA645/2010
[2011] NZCA 494

BETWEEN DANIEL GEOFFREY BRAZENDALE
Appellant

AND THE QUEEN
Respondent

CA646/2010

AND BETWEEN EMILY-JADE BRAZENDALE, NICKI EVA BRAZENDALE AND MICHELLE GWENDOLYN BRAZENDALE
Appellants

AND THE QUEEN
Respondent

Hearing: 2 August 2011

Court: Ellen France, Heath and Lang JJ

Counsel: P J Kaye for Appellants
D G Johnstone for Respondent

Judgment: 29 September 2011 at 2.30 pm

JUDGMENT OF THE COURT

A The application for leave to admit further evidence is dismissed.

B The appeals are dismissed.

REASONS OF THE COURT
(Given by Ellen France J)

Table of Contents

Para No.

Introduction  [1]
Background  [3]
The High Court decision  [7]
The statutory scheme  [13]
Issues on appeal  [18]
Finding that cultivation was for substantial commercial purpose                  [19]
         The Judge’s approach  [20]
         Discussion  [23]
Undue hardship to Mr Brazendale  [30]
Was the making of a forfeiture order a disproportionate response?              [37]
Effect of instrument forfeiture order on Mr Brazendale’s daughters            [41]
Partial forfeiture  [45]
Disposition  [51]

Introduction

Daniel Brazendale pleaded guilty to a charge of cultivating the class C drug cannabis. As part of sentencing Mr Brazendale, Cooper J made an order under s 142N of the Sentencing Act 2002 forfeiting Mr Brazendale’s property at 4 Woodward Avenue, Mangere Bridge, Auckland.[1] The Judge then convicted and discharged Mr Brazendale. Without the instrument forefeiture order, Cooper J would have imposed a term of imprisonment of 18 months.
[1]R v Brazendale HC Auckland CRI-2009-092-17133, 20 August 2010. Mr Brazendale was sentenced in the High Court after the District Court declined jurisdiction.
Mr Brazendale appeals against the imposition of the forfeiture order. Mr Brazendale’s three daughters also appeal against the Judge’s dismissal of their application for relief from the forfeiture order. The appeals raise issues about one aspect of Cooper J’s approach to the facts and whether forfeiture was unduly harsh to Mr Brazendale or to his daughters.

Background

The police executed search warrants at two properties on 16 October 2009. The first property was 4 Woodward Avenue and the second 12 Waterfront Road, Mangere Bridge. Mr Brazendale owns both properties together with Mr Charles Withers. Both Mr Withers and Mr Brazendale are trustees of the D G Brazendale Family Trust. According to Mr Brazendale, both properties have been trust property since 2000.
When the police searched the properties, Mr Brazendale was residing at the Woodward Avenue property. Police found 30 cannabis plants growing hydroponically beneath grow lamps in one of the two bedrooms at Woodward Avenue. A further 32 younger cannabis plants were found in the glasshouse at the property. In addition, a variety of cannabis related equipment was found at Waterfront Road.
One of the two bedrooms in the Woodward Avenue property had been substantially altered for the purpose of cultivating cannabis. Cooper J explained what had been done in this way:[2]
One of the bedrooms had been substantially modified for the purpose of cultivating the cannabis. There was plywood panelling covering the windows, the room was lined with polythene. An…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brazendale v R

Details

AGLC: Brazendale v R [2011] NZCA 494
Case: [2011] NZCA 494
Decision Date: 29 September 2011

CaseChat Overview and Summary

Daniel Brazendale pleaded guilty to cultivating cannabis at his property at 4 Woodward Avenue, Mangere Bridge, Auckland. In sentencing, the High Court made an order under s 142N of the Sentencing Act 2002 forfeiting the property. Mr Brazendale and his three daughters appealed against the making of the forfeiture order. The Court of Appeal dismissed the appeals. In sentencing, the High Court Judge, Cooper J, concluded that Mr Brazendale's cultivation of cannabis was for a substantial commercial purpose. Cooper J also concluded that making a forfeiture order would not cause undue hardship to Mr Brazendale. The daughters sought relief from the forfeiture order on the basis that it would cause undue hardship. Cooper J dismissed the application on the basis that the daughters did not have any proprietary interest in the property. The Court of Appeal found that the Judge's conclusion that the cultivation was for a substantial commercial purpose was correctly reached. The Court of Appeal also found that the Judge's conclusion that making a forfeiture order would not cause undue hardship to Mr Brazendale was correct. The Court of Appeal further found that the daughters were not entitled to relief from the forfeiture order because they did not have a proprietary interest in the property. Finally, the Court of Appeal found that it was not possible to order partial forfeiture of the property.

Orders