The Queen v Clinton Wright Brazendale

[2003] NZCA 71

IN THE COURT OF APPEAL OF NEW ZEALAND

CA349/02

THE QUEEN

v

CLINTON WRIGHT BRAZENDALE

Coram:Keith J
McGrath J
Glazebrook J

Appearances:  P T Eastwood for Appellant

A Markham for Crown

Judgment (on the papers):       3 April 2003 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

1. Mr Brazendale was convicted, following a guilty plea in the Manukau District Court, of the following offences:

(a)Cultivation of cannabis;

(b)      Possession of cannabis for supply;  and
(c)       Theft of electricity.

1. Mr Brazendale was sentenced on 22 July 2002 to concurrent terms of two years imprisonment on each charge.  He appeals against the refusal of the District Court Judge to grant him leave to apply for home detention.  Originally Mr Brazendale had also appealed against his sentence but that ground of appeal has been abandoned.

2. The appeal is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions, which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001 have been considered by members of the Court who have conferred and agreed upon this judgment.

Facts

1. The charges arose from a police search on 17 December 2001 of a warehouse in East Tamaki leased by Mr Brazendale.  During the search the police found, in an upstairs mezzanine floor, a room containing a growing operation for 21 approximately two foot high cannabis plants lit by twelve 400 watt light bulbs operating on a timer, and a number of fans to assist with the growing.  Downstairs they found 14 small cannabis plants being grown in a small container under similar lighting conditions and 28 cannabis seedlings hidden under a couch in a living area.  A field technician for Mercury Energy inspected the power box at the address and noted that it had been tampered with resulting in approximately $1000 worth of power owned by Mercury Energy being supplied to the warehouse without the usage being recorded on the meter.

The sentence

1. The sentencing Judge considered that the operation was sophisticated.  The premises had been custom-made for cannabis cultivation.  The large number of plants, their value of at least $17,000, and the circumventing of the power switchboard suggested to the Judge that there was a commercial element to the operation, notwithstanding the submission that Mr Brazendale was a heavy cannabis user and intended to use the plants himself and give the rest away to friends.

2. The case was put as within category two in R v Terewi [1999] 3 NZLR 62. A starting point of three years imprisonment was assessed taking into account the nature of the operation, the probation officer’s report indicating a high risk of re-offending, the lack of success of previous community-based sentences, the negative impact on the community of this type of activity, and the need for denunciation and deterrence. This was reduced to two years in light of the mitigating circumstances; Mr Brazendale’s guilty plea, a supportive partner and the possibility of full time employment.

3. After imposing the sentence of imprisonment the Judge said that home detention was not an issue because this was a sentence of two years imprisonment.

Appellant’s submissions

1. Mr Eastwood for Mr Brazendale submits that the District Court Judge was wrong when he said that home detention was not an issue, given the terms of s97 of the Sentencing Act 2002.  He submits that, pursuant to s97(3), the Judge was required to grant Mr Brazendale leave to apply for home detention, unless he was satisfied that it would be inappropriate taking into account a number of factors including the nature and seriousness of the offence, the circumstances and background of the offender, and any other factor the court considered relevant.  In his submission the threshold for leave to apply for home detention should not be set too high because the final determination is for the Parole Board and it is not for the Court to usurp that role.  The fact that the conviction relates to cannabis should not of itself disqualify Mr Brazendale and Mr Eastwood points in this regard to the cases of R v Husband (2000) 18 CRNZ 229 and Peihopa v The New Zealand Police [2000] BCL 865, both of which involved appellants convicted on cannabis related offences who were granted leave to apply for home detention.

2. In Mr Eastwood’s submission a number of factors support Mr Brazendale’s application for leave to apply for home detention.  This was not a case where home detention was clearly inappropriate.  Mr Brazendale has a stable address to live at, with the father of his partner who has no criminal record and is supportive of Mr Brazendale.  Furthermore, Mr Brazendale had been granted home leave from prison for some 72 hours where he resided at that address.  This clearly shows that the prison authorities thought he could be trusted with home leave at this address and supports the submission that home detention not clearly inappropriate, as does the fact that Mr Brazendale had also been deemed appropriate by the prison authorities for work outside the prison environment.

Crown submissions

1. The Crown accepts that, pursuant to s97 of the Sentencing Act 2002, the sentencing Judge was obliged to grant leave to apply for home detention in this case unless he had been satisfied that it would be inappropriate having regard to the matters set out in s97(3).

2. In the present case the Crown submits that leave should be declined for the following reasons:

(a)The offending is serious, falling within category two in R v Terewi [1999] 3 NZLR 62. The cultivation set-up was sophisticated and clearly designed as a commercial enterprise. It was aggravated by the theft of electricity. Given that the annual warehouse rental was $15,600 it is reasonable to infer that returns significantly greater than this were expected.

(b)As the sentencing Judge noted, deterrence must be an important feature of the sentence imposed.  Here a deliberate risk was undertaken for purely commercial reasons.

(c)The probation officer assessed Mr Brazendale as posing a high risk of re-offending with low motivation to change.  His response to previous sentences was described as “variable.”  He has previous convictions for cultivation and possession of cannabis in 1998 for which he received periodic detention and therefore the present offending represents an escalation in seriousness.  Furthermore Mr Brazendale’s repeat drink-drive convictions and convictions for breaches of periodic detention and court bail suggest a willingness to ignore court orders.

Discussion

1. The judge was clearly in error when he stated that home detention was not an issue.  As the matter was not considered by the judge it is necessary to deal with the matter afresh. 

2. Leave to apply for home detention should be granted unless the Court is satisfied that it would be inappropriate to grant leave taking into account the nature and seriousness of the offence, the circumstances and background of Mr Brazendale and any other relevant factors.  We agree with Mr Eastwood that the threshold should not be set too high.

3. In this case, however, the offending was serious.  The operation cannot be seen as other than a commercial one with the expectation of significant returns.  It was aggravated by the theft of the electricity.  Turning next to the circumstances and background of Mr Brazendale, we note his submission that he has a stable address to live at, the possibility of work and that he has been granted home leave from the prison authorities.  However this must be weighed against the fact that he has a previous conviction for cultivation and possession of cannabis in 1997, has been assessed as posing a high risk of re-offending with low motivation to change and that the current offending represents an escalation in seriousness over earlier offending. 

4. The circumstances of the offenders in R v Husband and Peihopa v Police are clearly distinguishable.  In the case of Mr Husband, he had no previous drug-related convictions, had a stable home environment with a partner and dependent children and no strong indicators pointing towards him re-offending.  In Peihopa v Police the appellant given leave to apply for home detention was successful only “by a fine margin” because of her medical condition, family circumstances and efforts at rehabilitation.  Her husband, whose sentence arose out of the same offending involving the manufacture and sale of cannabis oil and sale of cannabis plant, was not granted leave.

Result

1. The Court is satisfied that it would be inappropriate to grant Mr Brazendale leave to apply for home detention.  The appeal is dismissed accordingly.

Solicitors:

Crown Law Office, Wellington