Brazendale v The King

[2025] NZHC 693

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000685

[2025] NZHC 693

BETWEEN

DANIEL GEOFFREY BRAZENDALE

Appellant

AND

THE KING

Respondent

Hearing:	25 March 2025
Counsel:	STL Teppett for Appellant A Lin for Respondent
Judgment:	31 March 2025

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 31 March 2025 at 12 pm

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Manukau. STL Teppett, Auckland.

BRAZENDALE v R [2025] NZHC 693 [31 March 2025]

The appeal

[1]    Daniel Brazendale received a sentence of two years and five months’ imprisonment on charges of discharging a firearm in a public place; possessing a firearm except for a lawful, proper, and sufficient purpose; and cultivating cannabis.1 Mr Brazendale appeals. He contends the sentence is wrong and home detention should have been imposed.

[2]    The appeal must be allowed if there is an error in the sentence and a different sentence should be imposed.2 The test is typically expressed as whether the sentence is manifestly excessive.3

Background

[3]Judge J C Moses helpfully captured the facts:

[2]        The brief facts as agreed are that at the time of this offending in June 2022 you were 66 years old and living at an address in Mangere Bridge. You knew the two victims. You do not hold a firearms licence.

[3]        On 10 June, the victims were in a two door Toyota motor vehicle driving down Church Road in Mangere [Bridge]. Mr Dickey was driving and Mr Edwards was in the front passenger’s seat. They also had a dog in the back seat of the vehicle. As they drove down Church Road they saw you walking on the left side of the footpath. They slowed down beside you and you approached the passenger’s seat pulling out a firearm. The dog in the back seat lunged at you causing you to step back which allowed them to drive off. One of the victims then called police to report that you had pointed a firearm at them.

[4]        The victims then circled back to Woodward Avenue to see where you had gone. You saw them and pulled out your firearm and then fired one shot at the victim’s vehicle which connected with the left rear pillar close to the back passenger’s seat window. That caused a small dent on the vehicle. One of the victims again called police to report that you had fired a shot at them. You were then seen running towards your address on Woodward Avenue.

[5]        The following day police executed a search warrant at your address. The police located a metal barrelled pistol outside the address in a hedge next to the driveway. It was found to have a .22 case in its chamber which appeared to have been discharged, namely without any projectile. They searched bedroom 1 of the address and discovered it had been modified into a sophisticated cannabis cultivation room. They located six cannabis plants

1      R v Brazendale [2024] NZDC 26334.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

approximately 40–50 centimetres tall and 30–40 centimetres wide weighing just over two kilograms. There were cannabis offcuts weighing 375 grams. There were LED lights fitted around the plants an air filter, extractor fan and ducting and unused heat shields attached to the ceiling along with fans and a shelving unit with power transformers, plugs and other items. In the living room of the address, police also located 24 cannabis seedlings in an incubator with a grow light. They then searched another bedroom and located a Samurai sword, a black crossbow, a black air pistol 4.5 millimetre and another black air pistol with a red dot sight and another jar containing 18 grams of cannabis. There was also a glasshouse outside the address which appeared to be an unused cultivation set up which included items such as a carbon light, ducting, a large wooden box and a fan.

[4]    The Judge adopted a three-year starting point for the firearms offending, and added six months for the cultivation of cannabis. The Judge deducted 15 percent in recognition of Mr Brazendale’s guilty pleas, and a further 15 percent because of age and ill-health.

A précis of the case on appeal

[5]    On behalf of Mr Brazendale, Mr Teppett contends the three-year starting point for the firearms offending was excessive. Mr Teppett relies on cases I shall come to. Mr Teppett also argues the uplift for the cannabis offending was excessive. Finally, Mr Teppett contends the sentence should be mitigated for personal circumstances.

Analysis

[6]    The contention the three-year starting point is excessive is founded on three cases, two of which are first instance sentencing decisions of this Court: R v Holes,4 and R v Kane.5 In Holes, the defendant discharged the firearm “to warn off” a threatening male.6 Mr Brazendale’s discharge was not defensive in nature. Kane involved no discharge: the offending weapon was found under a bed. The third decision — Waipouri v Police — is also distinguishable in that the gun was not discharged either.7

4      R v Holes [2017] NZHC 2898.

5      R v Kane [2017] NZHC 340.

6      R v Holes, above n 4, at [5].

7      Waipouri v Police [2022] NZHC 2134.

[7]    More apt are the decisions identified by Ms Lin on behalf of the respondent: Campbell v R;8 Torea v R;9 and Ewens v R.10 In Torea, the defendant went to the home of a friend to collect belongings, including a gang patch, a pistol and ammunition. Police were called. The defendant was arrested. The pistol was under a cushion, loaded. The Court of Appeal upheld the starting point of two years, six months’ imprisonment given the nature of the firearm, that it was loaded and ready to use, and the gang overtones.

[8]    In Ewens, Police were called to the defendant’s home. He aimed a loaded rifle at them. After three hours, the defendant surrendered himself. In that time, he fired three shots, albeit seemingly not at Police. The sentencing Judge adopted a starting point of three years’ imprisonment. On appeal, van Bohemen J considered a starting point of two years and six months’ imprisonment, appropriate.

[9]    This leaves Campbell, in which the Court of Appeal said possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment.

[10]   Mr Brazendale’s offending involved a pistol; the weapon was on him in a public place; and he discharged that weapon at others. The combination is serious, especially given increasing public concern about the apparent ubiquity of firearms in public places. The three-year starting point was, therefore, unremarkable.

[11]   The argument in relation to the cannabis  uplift  essentially  rests  on Needham v Police.11 A search of that defendant’s home revealed 10 potted cannabis plants growing under heat lamps. Police also discovered 236 grams of dried cannabis, four large drying plants and other cannabis indicia. Mr Needham was 57 years old, disabled, and a life-long drug user. The sentencing Judge adopted a starting point of six months’ imprisonment. Mr Needham’s sentence appeal was dismissed.

8      Campbell v R [2022] NZCA 579.

9      Torea v R [2011] NZCA 96.

10     Ewens v R [2023] NZHC 2159.

11     Needham v Police [2013] NZHC 688.

[12]   Needham is factually similar, but the issue was whether the Judge erred in declining home detention (which he didn’t). There was no discussion of the starting point.

[13]   Mr Brazendale’s offending has some similarity to Devereux v Police, which involved six cannabis plants being grown under lights, three trays of soil containing cannabis seeds and a variety of equipment.12 The defendant admitted to selling modest quantities of cannabis to supplement his income. A starting point of two years’ imprisonment was reduced on appeal to 15 months.

[14]   Perhaps most helpful is the guideline judgment of R v Terewi, which divides cannabis offending into three categories, the first two of which are relevant:13

Category 1: consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a Class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s 6(1)(e) and (f).)

Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between 2 and 4 years but where sales are infrequent and of very limited extent a lower starting point may be justified.

[15]   I accept Ms Lin’s submission the offending lies between the two categories. The operation presents as reasonably sophisticated, but not quite commercial. All of which is to say the uplift of six months’ imprisonment was also unremarkable.

[16]   This brings me to discount for personal circumstances. Mr Brazendale’s pre-sentence report, cultural report and other material reveal a dysfunctional upbringing, which included sexual abuse within state care.14 The cultural report (which presents as thorough) also suggests dependence on alcohol and other drugs.

12     Devereux v Police [2017] NZHC 167.

13     R v Terewi [1999] 3 NZLR 62 (CA) at [4].

14     Absent  objection,  I  received  additional  material  in  the   interests  of  justice  concerning    Mr Brazendale’s personal circumstances.

The combination is mitigatory, especially in relation to the cannabis offending. The extent of any discount would, however, be confined by the firearms offending and attendant need for public protection. For reasons that remain unclear, this mitigatory mix does not appear to have been brought to the attention of the Judge. Instead, attention was  invited  to  what  were  said  to  have  been  medical  difficulties  on Mr Brazendale’s part (and his age). The Judge deducted 15 percent under that head.

[17]   Cases giving rise to a discount for ill-health (and age) tend to involve unusual phenomena, particular to the defendant, such that he or she suffers disproportionately severely in prison. Zheng v R is illustrative.15 Ms Zheng had various medical conditions, which affected her health. She spoke little English. She suffered poor mental health and was the sole caregiver for her two adolescent children.  The   Court of Appeal received uncontested evidence from a clinical psychologist Ms Zheng was suffering more in prison “than the average offender” because of her various afflictions.16

[18]   No evidence was placed before the Judge in relation to Mr Brazendale’s situation, and none was offered on appeal.17 The 15 percent deduction presents as benevolent for this reason. As foreshadowed at [16], Mr Brazendale’s background warranted a discount in the region of 10 percent or perhaps marginally higher. But that unsought discount is a little less than the discount for alleged ill-health (and age). It follows the deductions, overall, were within the margin of appreciation that attaches this area.

[19]No issue arises then of a different sentence.

Result

[20]The appeal is dismissed.

……………………………..

Downs J

15     Zheng v R [2015] NZCA 451.

16 At [71].

17     The pre-sentence report records Mr Brazendale referred to a heart condition, which affected his energy levels and hospitalised him in 2023. The report adds the condition had not been verified.