Cannabis grower appeals confiscation of house

File photo / NZ Herald

A cannabis grower whose $465,000 house was confiscated as an alternative to an 18-month prison sentence is appealing against what he believes to be an unfairly harsh punishment.

Daniel James Brazendale, 54, was last year convicted by Justice Mark Cooper in the High Court at Auckland of cultivating cannabis.

Instead of imposing the 18-month prison sentence that he deemed appropriate, Justice Cooper ordered that Brazendale's house in Mangere Bridge, south Auckland, be forfeited to the Crown.

Changes to the Sentencing Act in 2009 mean property used to commit a crime can be forfeited as part of the sentencing process.

This was only the second time the law had been applied.

Brazendale maintains that his sophisticated cannabis growing operation - 30 plants were being hydroponically grown in a bedroom and 32 young plants were growing in a glasshouse - was to harvest cannabis for medicinal use to treat an old injury.

In the Court of Appeal at Auckland today, his lawyer Peter Kaye argued the sentencing judge had erred in his conclusion that the cultivation had a substantial commercial purpose and that he had failed to assess the potential yield of the crop.

"Counsel submits that this inability to quantify any commercial benefit also affected the judge's consideration as to whether the forfeiture was appropriate," Mr Kaye said.

Furthermore, there was no evidence that Brazendale ever sold cannabis, while there was uncontested evidence of significant personal consumption.

"His honour did not direct himself as to the relevant standard of proof of disputed facts and made no express finding that he was satisfied beyond reasonable doubt that there was a commercial purpose to cultivation.

"It is submitted that this was an error which has permeated the remainder of the decision making process."

Brazendale's three daughters were to have benefited from the property and were therefore caused undue hardship as a result of the forfeiture. However, Justice Cooper failed to properly consider this, Mr Kaye said.

If the house was not forfeited Brazendale would be serving a sentence of 18 months' imprisonment and would likely be released after serving nine months.

Cabinet guidelines indicated a payment of $100,000 per year was generally paid for time wrongly spent in custody, which illustrated how disproportionate the forfeiture was, he said.

Crown counsel David Johnstone said Justice Cooper had no option but to find that the cannabis was for commercial use, given that Brazendale had no regular income and refused to disclose where his money came from.

The house that was confiscated was one of two properties belonging to Brazendale, which mitigated the hardship.

Mr Kaye's complaint that the judge did not adequately reference the standard of proof when delivering his judgment was one of form rather than substance, he said.

Justices Graham Lang, Ellen France and Paul Heath reserved their decision.

Mr Kaye said his client understood that if the appeal was upheld he would have to be sentenced again.

- NZPA