Freedom or your home - you choose

The Woodward Ave house in Mangere Bridge was adjudged an 'instrument of crime' and seized after 62 cannabis plants were found growing there. Photo / Dean Purcell

A $465,000 house has been seized from a commercial cannabis grower as punishment instead of an 18-month prison sentence.

In what is believed to be a legal first, Justice Mark Cooper convicted and discharged Daniel Geoffrey Brazendale in the High Court at Auckland after he pleaded guilty to cannabis cultivation at his home.

Police found 62 cannabis plants at the Mangere Bridge property in October, half in a sophisticated hydroponic grow house, half in a glasshouse on the back lawn.

But Justice Cooper told Brazendale he was free to go and instead ordered his house to be forfeited to the Crown.

Recent changes to sentencing laws meant the property could be seized under an "instrument forfeiture order", which Crown prosecutor David Johnstone asked the court to consider after Brazendale admitted his guilt.

Under the Sentencing Amendment Act passed last September, a property can be forfeited if considered an "instrument of crime", although a judge can decline the application if the seizure would cause undue hardship to an offender or their family.

The new law also means a judge must take into account the financial loss from a frozen property and consider a lighter sentence, or even a discharge.

The law is different from the recently passed Criminal Proceeds (Recovery) Act, in which assets can be restrained unless alleged criminals have to prove they were paid for with legitimate money.

In this case, the home was not paid for by criminal profits. Brazendale bought the property in May 2000 for $197,000 from his father.

He borrowed $97,000 from his father to pay for it, a loan which was recorded in a deed of acknowledgement.

Brazendale denied the cannabis cultivation was for commercial profits, saying it was for pain relief from injuries suffered in a motorcycle crash.

Justice Cooper said the sophisticated nature of the hydroponic set-up inside the house - and the presence of a dedicated glasshouse - suggested the cannabis was a commercial operation.

Indoor growing systems shorten the crop cycle from four to six months to between 40 and 45 days.

"I do not accept that he would have gone to the trouble and expense of modifying the bedroom so substantially for a hydroponic growing operation were he not intending to derive the benefits of fast crop rotation."

Justice Cooper said Brazendale owned a second house where he could live if the Woodward Ave home was seized, so he could not claim grounds of undue hardship.

Three of Brazendale's daughters also opposed the forfeiture application on hardship grounds. But Justice Cooper said none of the daughters lived at that home and ignored their submissions.

If the $465,000 home was not seized, Justice Cooper said a prison sentence of 18 months was appropriate.