Daniel Geoffrey Brazendale v The Queen

IN THE SUPREME COURT OF NEW ZEALAND

SC 111/2011
[2011] NZSC 149

DANIEL GEOFFREY BRAZENDALE
EMILY-JADE BRAZENDALE
NICKI EVA BRAZENDALE
MICHELLE GWENDOLYN BRAZENDALE

THE QUEEN

Court: Elias CJ, Blanchard and McGrath JJ

Counsel: P J Kaye for Applicants
B F Fenton for Crown

Judgment: 5 December 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

The proposed appeal concerns an order for forfeiture of a house, where Mr Brazendale lived, used for cannabis cultivation. It does not raise any point of public or general importance. The issues are essentially factual: whether the cultivation was for a commercial purpose (on which the applicants’ argument is quite hopeless); whether forfeiture would cause undue hardship to Mr Brazendale or to his daughters (on which the argument is weak because he owns another house and the daughters’ connection with the house is now somewhat distant); and that total forfeiture was a disproportionate response.
This last argument would have to overcome the fact that because there was a forfeiture of the house, Mr Brazendale totally escaped imprisonment for a not insubstantial commercial cultivation of cannabis. Between the sentencing and the decision of the Court of Appeal,[1] that Court had decided in Elliot that the legislation enacted in 2009 altered the previous law and enabled a forfeiture of part of the property.[2] The Court accordingly considered whether it should substitute partial forfeiture for total forfeiture and decided against it. That was, again, based on its factual assessment rather than any legal principle. We are not persuaded that further review of this aspect of the Court of Appeal’s decision is required. There is no appearance of any substantial miscarriage of justice in the level of forfeiture, when the value of the unencumbered property is considered against its unlawful use by Mr Brazendale and the fact that he is suffering no penalty other than the forfeiture.
[1] Brazendale v R [2011] NZCA 494.
[2] Elliot v R [2011] NZCA 386.

Solicitors:
Crown Law Office, Wellington

CaseChat Overview and Summary

The Supreme Court of New Zealand, comprising Elias CJ, Blanchard and McGrath JJ, has dismissed an application for leave to appeal by Daniel Geoffrey Brazendale against an order for the forfeiture of his house, which was used for cultivating cannabis. The primary issue before the Court was whether the appeal raised a point of public or general importance, as required by section 5 of the Supreme Court Act 2003 (NZ). The applicants contended that the order for total forfeiture was disproportionate and would cause undue hardship, given the commercial nature of the cannabis cultivation and the applicants' ownership of another property. Additionally, they argued that partial forfeiture would have been a more appropriate remedy.

The Court was not persuaded that the appeal raised any significant legal issues of public or general importance. The central arguments hinged on factual assessments rather than legal principles. The Court concluded that the argument regarding undue hardship was weak, as Mr Brazendale owned another house and the connection of his daughters to the forfeited property was now somewhat distant. Moreover, the Court noted that Mr Brazendale escaped imprisonment for his commercial cultivation of cannabis, which was a substantial factor in their decision. The Court of Appeal had previously ruled in Elliot v R that the 2009 legislation enabled forfeiture of part of the property, but chose not to substitute partial forfeiture for total forfeiture based on factual assessments. The Supreme Court found no substantial miscarriage of justice in the Court of Appeal's decision when considering the value of the property, its unlawful use, and the absence of any penalty for Mr Brazendale other than the forfeiture.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established