Caling v Director of Civil Aviation

[2023] NZHC 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2023-404-000118

[2023] NZHC 2017

BETWEEN

STUART ROBIN CALING

Appellant

AND

DIRECTOR OF CIVIL AVIATION

Respondent

Hearing:	6 June 2023
Appearances:	G J Cameron for the Appellant C H Macklin for the Respondent
Judgment:	31 July 2023

JUDGMENT OF TAHANA J

This judgment was delivered by me on 31 July 2023 at 3.00 pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Garth Cameron Law, Dunedin

Crown Solicitor. Gordon Pilditch, Rotorua

CALING v DIRECTOR OF CIVIL AVIATION [2023] NZHC 2017 [31 July 2023]

INTRODUCTION

[1]    Mr Stuart Caling appeals the District Court decision of Judge A G Mahon convicting Mr Caling of knowingly operating an aircraft without an appropriate and current airworthiness certificate.1 The Judge declined Mr Caling’s application for a discharge without conviction under s 106 of the Sentencing Act 2002, entered a conviction, and ordered him to pay a fine of $6,500.2

Background

[2]    Mr Caling has been a pilot for 25 years and is the director of Global Ferrying Services Pty Ltd, an Australian company.

[3]The charge relates to two separate flights that Mr Caling piloted:

(a)on a New Zealand registered Britten-Norman Islander aircraft (ZK-

DBV) from Ardmore to Fiji in November 2018; and

(b)on a New Zealand registered Britten-Norman Islander aircraft (ZK- MCE) from Ardmore to Vanuatu in March 2019.

[4]    The maximum flight range of a Britten-Norman Islander aircraft is less than 1,400 km with a standard fuel reserve. The flight distance from Ardmore to Fiji is 1,980 km, and from Ardmore to Vanuatu is 2,032 km.

[5]    Mr Caling fitted a 360-litre tank (known as a ferry fuel system) to each aircraft in Ardmore. On each occasion he then flew the aircraft to Kerikeri before departing to Fiji and Vanuatu respectively.

[6]    Mr Caling knew that the installation of the ferry fuel system required certification from an engineer but proceeded to undertake the two flights without obtaining that sign off.

1      Civil Aviation Act 1990, s 46(1)(a). Maximum penalty (in the case of an individual) of 12 months’ imprisonment or $10,000 fine.

2      Director of Civil Aviation Authority v Caling [2023] NZDC 3624.

Charge

[7]    Mr Caling was charged under s 46 of the Civil Aviation Act 1990 with knowingly operating an aircraft without the appropriate and current aviation document.3

[8]    Rule 91.603(a)(7) of the Civil Aviation Rules (issued under s 100(1)(b) of the Civil Aviation Act) requires that the operator of an aircraft ensure the aircraft is certified for release-to-service under Part 43 of the Civil Aviation Rules after the performance of any maintenance on the aircraft.

[9]    Civil Aviation Authority (CAA) Advisory Circulars contain information about standards, practices, and procedures that the Director of Civil Aviation (the Director) has found to be acceptable for compliance with an associated rule. AC21-5 relates to approval of modifications covering aircraft ferry fuel systems and overweight operation. Any design change to an aircraft must be installed in accordance with acceptable technical data, as listed in AC21-5. A certified design organisation may approve a modification that meets the guidelines in AC21-5. AC21-5 provides that a ferry fuel system installation would normally be classified as a major modification and requires a conformity certificate. A certified maintenance organisation may issue a conformity certificate.

[10]   It is accepted that Mr Caling was not certified to provide the necessary aviation document and that he knew approval from a certified engineer and the appropriate and current aviation document was required.

GROUNDS OF APPEAL

[11]Mr Caling says that the Judge erred by:

(a)misunderstanding the expert evidence regarding the travel consequences of a conviction, in that he gave no or insufficient weight to evidence of the consequences  that a conviction would have on    Mr Caling;

3      Civil Aviation Act 1990, s 46(1)(a).

(b)incorrectly relying on an affidavit filed by Mr Richard Andrews on behalf of the CAA;

(c)giving insufficient weight to Mr Caling’s cooperation with the CAA;

(d)giving insufficient weight to Mr Caling’s qualifications, experience and skill when assessing the seriousness of the offending; and

(e)not properly assessing the level of risk caused by the offending.

[12]   Mr Cameron for Mr Caling also says that the Director obtained Mr Caling’s guilty plea by deception by failing to disclose that there was a policy of never “not opposing” an application for discharge without conviction.

DECISION UNDER APPEAL

[13]   The Judge considered that the gravity of Mr Caling’s offending was medium to serious, and that the following were aggravating factors of his offending:

(a)Mr Caling knowingly failed to obtain the necessary aviation documentation on two occasions;

(b)Mr Caling offended in his professional capacity, and his decision to do so was motivated by profit; and

(c)the offence created a significant risk of harm to himself and others.

[14]   Against that, the Judge acknowledged that Mr Caling had a low likelihood of reoffending and had no previous convictions. He noted that he was otherwise of good character and had fully cooperated with the CAA.

[15]   The Judge considered Mr Caling’s knowledge and experience placed a higher obligation on him to comply with the law. The Judge rejected the contention that because Mr Caling was the sole occupant of the aircraft, any risk to others was mitigated. The Judge referred to Mr Caling’s acknowledgement that the lives of

members of any search and rescue team would have been in danger had his plane gone down in the sea.

[16]   The Judge then considered that the immigration consequences for Mr Caling’s employment were not as serious as he claimed.   The Judge was not satisfied that   Mr Caling would be unable to work as a pilot. The Judge referred to the expert evidence called by Mr Caling which concluded that he may not be affected in a significant way in obtaining visas for the countries to which he most frequently flies.

[17]   The Judge did not consider that the consequences were out of proportion to the gravity of the offending and declined the application.

APPROACH ON APPEAL

[18]   This is an appeal under s 232(2)(b) and (c) of the Criminal Procedure Act 2011. The Court must allow an appeal if satisfied that the Judge erred in assessing the evidence to such an extent that a miscarriage of justice has occurred, or in any case, a miscarriage of justice has occurred for any reason.4 The appeal must be dismissed if no miscarriage of justice has occurred.5

ANALYSIS

Relevant law

[19]   Sections 106 and 107 of the Sentencing Act govern applications for discharge without conviction:

106Discharge without conviction

(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)A discharge under this section is deemed to be an acquittal.

(3)A court discharging an offender under this section may—

4      Criminal Procedure Act 2011, s 232(2)(b) and (c).

5      Criminal Procedure Act 2011, s 232(3).

(a)make an order for payment of costs or the restitution of any property; or

(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i)loss of, or damage to, property; or

(ii)emotional harm; or

(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c)make any order that the court is required to make on conviction.

…

107Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[20]   Section 106 permits a court to discharge an offender without conviction if the disproportionality test in s 107 is met. Assessing whether the conviction would be disproportionate requires a three-step process:6

(a)First, identify the gravity of the offending, taking into account all aggravating and mitigating factors;

(b)Second, identify the direct and indirect consequences of conviction; and

(c)Third, determine whether those consequences are out of proportion to the gravity of the offence.

[21]   Only if that the threshold is met can the court move on to consider the discretion in s 106. If not satisfied it is met, the court cannot exercise its discretion to discharge without conviction.7

6      See for example Scott v R [2019] NZCA 261 at [79]; Prasad v R [2018] NZCA 537 at [11]; and A (CA747/2010) v R [2011] NZCA 328 at [22].

7      R v Hughes [2008] NZCA 546 at [22]–[23]; R v Blythe [2011] NZCA 190 at [9]; and Z

(CA447/2012) v R [2012] NZCA 599 at [27].

[22]   For an appeal to be successful, the appellant must show that a miscarriage of justice has occurred as a result of a material error by the Judge in entering a conviction, or that a miscarriage of justice has occurred as a result of an error by the Judge in applying the correct principles in s 107.8 Ordinary principles governing general appeals apply and the appeal court must reach its own conclusion on the merits.9

Gravity of offending

[23]   Mr Cameron says the Judge failed to consider the following mitigating features when considering the gravity of the offending and that overall, the offending was at the low end:

(a)Mr Caling’s good character;

(b)Mr Caling’s experience;

(c)Mr Caling’s safety record;

(d)The fact that the aircraft would have been deemed airworthy if registered in Australia; and

(e)Mr Caling’s cooperation with the CAA.

Character and cooperation

[24]   The Judge did consider Mr Caling’s character and cooperation. This is clear when he stated:10

[46] Mr Caling has no previous convictions and I accept there is a low likelihood of reoffending. He is otherwise of good character and co-operated fully with the Civil Aviation Authority after instructing Mr Cameron to represent him.

8      Walker v New Zealand Customs [2021] NZHC 3380 at [46] citing Jackson v R [2016] NZCA 627 at [12].

9      Walker v New Zealand Customs [2021] NZHC 3380 at [48] citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103.

10     Director of Civil Aviation Authority v Caling [2023] NZDC 3624.

[25]   Mr Cameron submits  that  more  should  be  done  to  properly  recognise  Mr Caling’s cooperation, which in turn will encourage quicker resolution of cases and a safer aviation industry. He says a 20 per cent discount applied to the maximum fine is not an incentive to plead guilty and cooperate.

[26]   Enforcement of compliance with the Civil Aviation Rules promotes a safer aviation industry. Section 107 of the Sentencing Act requires the Court to consider whether the consequences (direct and indirect) of Mr Caling’s offending are out of all proportion to the gravity of his offending. While Mr Caling’s cooperation is a relevant mitigating factor, it does not automatically follow that persons who cooperate should be granted a discharge without conviction. Mr Caling’s cooperation must be considered in the context of all the factors relevant to assessing the seriousness of his offending. While his cooperation reduced the seriousness of his offending, it needs to be considered alongside Mr Caling’s conduct of non-compliance.

Experience and safety

[27]   The Judge also considered Mr Caling’s experience and found that his knowledge and experience placed a higher obligation on him to comply with the law as he should have been a role model to others.11 The Judge also noted that the gravity of Mr Caling’s offending is greater than that in Director of Civil Aviation v Neylon, which concerned an offence of omission (rather than an offence of commission), and which created no actual risk of harm.12 I accept that Mr Caling’s experience was an aggravating feature of his offending as he should have known better than to ignore Civil Aviation  safety  requirements  given  his  extensive  experience  as  a  pilot.  Mr Caling chose to ignore those safety requirements despite his significant experience.

[28]   Mr Caling’s experience was also relevant to the extent of the risk to the safety of others.

[29]   Mr Caling had provided a statement dated 11 May 2022 (May 2022 statement) stating:

11 At [47].

12     Director of Civil Aviation v Neylon DC Invercargill CRI-2011-025-2939, 2 July 2012 at [47].

11.I can confirm that I am not a licenced maintenance engineer, authorised person or associated with an approved design organisation for the purpose of being authorised or approved to install a ferry fuel system in an Australian aircraft or New Zealand registered aircraft.

12.I do however have significant experience with how these ferry fuel systems work. I have to be satisfied they are safe, my life depends on it. However I can confirm that I have no personal legal authority to sign a ferry fuel system installation.

[30]   Mr Caling’s evidence was that he had personally fitted the ferry fuel system in both November 2018 and in February 2019 while at Ardmore Airport:

54.I did ask an engineer based locally at Ardmore … to have a look over the ferry fuel system just to make sure everything was installed correctly, and that there were no obvious issues with where the system had been routed.

…

56.I asked if he could have a look at the ferry fuel system. I explained that I had installed it in accordance with an Australian Engineering Order, and was going to get the ferry tank system signed off.

57.After undertaking a check [the engineer] made a few suggestions, for instance the installation of a couple of zip ties just to make sure everything was secured and out of the way. However he was not engaged in terms of actually approving the system.

58.Since this, I have engaged [the engineer’s] services on quite a few occasions, and the work has been signed off, either loose leaf or directly in the aircraft logbooks.

[31]   Mr Caling also explained what occurred after he had fitted aircraft ZK-DBV with the ferry fuel system and requested another engineer at Ardmore to sign it off:

91.Once I had installed the Turtle-Pac ferry tank in ZK-DBV, and after [the engineer] had inspected the aircraft fuel system I had installed, I approached a local Ardmore Engineer to request that he sign this work off.

92.As highlighted earlier, when I arrived at Ardmore ZK-DBV was already in the DTIL hangar. I put the ferry tank system in the aircraft. This was on the basis of the Australian Engineering Order. [The engineer referred to earlier (who gave advice about zip ties)] was the engineer who was in the hangar and looked at the aircraft.

93.The other engineer I am referring to, who was the design person, did not look at ZK-DBV in the DTIL hangar.

94.In response to my request the design engineer told me that I would have to totally redesign the ferry fuel system to meet New Zealand legal requirements, and update the HF as well.

95.He provided an approximate cost, suggesting it would be $3000 to

$4000, just for the design and then I would have to have the new one installed.

96.I could quickly see this was starting to head towards a 5 figure sum, just to get the HF changed up. I felt the design engineer was looking to make as much money as he could.

97.I had already contracted to the customer GCH, I had already been paid by the customer, I determined this was going to cost a significant (and unexpected) sum of money before I even got wheels off the ground, let alone paying for the fuel or other related expenses.

98.The other consideration was weather. There may have been weather moving through. I cannot recall from that far back.

99.I ultimately made the decision to ignore the advice from the design engineer and depart from New Zealand in the Islander aircraft, ZK- DBV, without the necessary sign off having been completed.

[32]   Mr Caling provided the CAA with a copy of the “Engineering Order 350-134” (the Engineering Order) dated 12 November 2018, which states:

This Engineering Order authorizes the following Ferry Fuel System Installation on the abovementioned aircraft [ZK-DBV and ZK-MCE]. This approval is for Australian registered aircraft and for Ferry Flights only.

[33]   The Engineering Order notes that the  ferry fuel  system  was designed  by  Mr Caling and was approved by Mr Michael Punshon, an aeronautical engineer in Australia, pursuant to regulation 21.437 of the Civil Aviation Safety Regulations 1998 (Australia). Regulation 21.437 states:

Grant of modification/repair design approvals—grant by authorised person or approved design organisation

(1)This regulation applies if an application for a modification/repair design approval is made to an authorised person or approved design organisation.

(2)Subject to regulation 11.055, the authorised person or approved design organisation must grant the approval if the authorised person or approved design organisation is satisfied that:

(a)the requirements mentioned in subregulation (4) are met; and

(b)the design complies with the applicable airworthiness standards for the design.

(3)Subject to regulation 11.055, the authorised person or approved design organisation must grant the approval if:

(a)the authorised person or approved design organisation is satisfied that the requirements mentioned in subregulation (4) are met; and

(b)the authorised person or approved design organisation is not satisfied that the design complies with the applicable airworthiness standards for the design; but

(c)for each standard with which the authorised person or approved design organisation is not satisfied that the design complies:

(i)the authorised person or approved design organisation has made, and CASA has agreed with, a determination under paragraph 21.436(2)(a) that the non-compliance is compensated for by factors that provide an equivalent level of safety; or

(ii)CASA has made a determination under subregulation 21.436(6) that the non-compliance is compensated for by factors that provide an equivalent level of safety.

(4)For paragraphs (2)(a) and (3)(a), the requirements are that:

(a)the applicant has complied with regulations 21.420 and 21.425; and

(b)if the authorised person or approved design organisation has given notice to the applicant under subregulation 21.430(1)— the applicant has complied with subregulations 21.430(2), (3) and (4); and

(c)the technical data submitted under regulation 21.420 for the design has been approved under regulation 21.009; and

(d)no feature or characteristic of the design makes the relevant aircraft, aircraft engine, propeller or appliance unsafe for its intended use.

[34]   Mr Caling’s evidence was that if there is an engineering order for an Australian registered aircraft, he provides a copy of that order to the Australian Civil Aviation Safety Authority and then a special flight permit is issued within an hour or two. It appears he assumed that the same process could be used in New Zealand but was told otherwise when he asked the engineer at Ardmore to sign off the installation.

[35]   The Engineering Order was relevant to the potential risk to safety. It indicated that an Australian engineer had signed off the design of the ferry fuel system. While that indicates Mr Caling took steps to get the design signed off in Australia, his evidence indicates he disregarded the need to have the installation of the ferry fuel system signed off in New Zealand. His primary reason for doing so was the cost.

[36]   The requirements in New Zealand were set out in the affidavit of Mr Andrews, which states that:

In my experience of ferry fuel tank systems, NZCAA Advisory Circular (“AC”) 21-5 is the general basis of the design and certification for these systems. This advisory circular states all ferry fuel systems are major modifications. Therefore, a Licensed Aircraft Maintenance Engineer (‘LAME’) under CAANZ Part 145 Certificate of Inspection Authorised Engineer (‘IA’) under CAANZ Part 43 must fit and sign for the conformity of the installation to the approved modification data for the initial installation.

If a pilot were to remove or fit a ferry system post initial installation, they would have to be trained and authorised by a maintenance organisation to do so.

[37]   It appears that Mr Andrews was the design engineer that Mr Caling had spoken to at Ardmore. Mr Andrews does not include his conversation with Mr Caling in his affidavit. While Mr Andrews referred to the New Zealand CAA Advisory Circular AC21-5 (the Advisory Circular), he did not exhibit it to his affidavit. The Advisory Circular is publicly available and specifies its purpose and the relevant approval process:

Purpose

This AC describes an acceptable means of compliance with Civil Aviation Rule Part 21 Certification of Products and Parts in respect of the approval of aircraft ferry fuel systems and overweight operation modifications. Each reference to a number in this AC, such as 21.505, is a reference to a specific rule within Part 21.

…

Approval process

Any design change to an aircraft must be installed in accordance with acceptable technical data, as listed in Appendix D of Part 21. In accordance with Part 21, subparts C and N the Director of Civil Aviation may approve a locally developed modification. Either the CAA Aircraft Certification Unit or a Part 146 Certificated Design Organisation holding the appropriate delegation can grant this approval.

These modifications are frequently “one-off” approvals that rely on on-site inspection of the installation to determine compliance with the applicable airworthiness requirements.

A Part 146 Design Organisation is often in a better position to perform this work.

A Part 146 Organisation may approve a modification that meets the guidelines given in this AC without further referral to the CAA. …

However, the aircraft owner may have to contact the CAA to have the aircraft’s airworthiness certification re-categorised. See later section headed “Airworthiness Certificate”.

All of the conditions and limitations associated with the operation of aircraft with a ferry fuel system installed are contained in the flight manual supplement and are approved as part of the technical data for the modification. Appendix III gives an example of such a supplement. This should be carefully customised to suit the particular installation.

Additional conditions of approval may be required and should be included on the form CAA 337 (available from the CAA Certification Unit) or on a Part 146 equivalent approval certificate.

Examples of typical conditions of approval include:

a)Approved for a single installation in serial number xxxxx.

b)The re-classification of the aircraft’s airworthiness certificate to a Restricted Category when this modification is embodied in the aircraft.

Ferry fuel modifications need not always be “one-off” approvals. A modification approval for multiple installations may be granted provided the following criteria are met:

a)The modification is fully defined by drawings etc to a standard that is readily reproducible by the installer.

b)All required tests are specified. (E.g. Pressure tests of tanks, post-installation functional flight tests, removal instructions, etc.)

An approval for multiple installations only applies to installations embodied by the originator of the modification when approved under a form CAA 337.

Technical data

A ferry fuel system would normally be classified as a major modification and requires a conformity certificate. Part 43 Subpart E – prescribes the requirement for the issue of a conformity certificate by the holder of an Inspection Authorisation, or by a person authorised for that purpose under a Part 145 Certificated Maintenance Organisation.

The modification must be fully defined to enable such a conformity inspection.

For a one-off installation the technical data defining the modification may consist of marked-up photographs, sketches, etc.

Complete engineering drawings, a parts listing and installation instructions will be required for the approval of multiple installations.

A schematic diagram of the modified fuel system is required in all cases. (emphasis in original)

[38]   Mr Andrews reviewed the affidavit filed by Mr Caling in support of his application for a discharge without conviction and concluded that aviation safety was compromised for the following reasons:

(i)Communication by use of any non-aviation HF and/or satellite phone,

(ii)Design since no CAANZ Part 146 oversight,

(iii)Installation since no CAANZ Part 145 or Part 43 oversight,

(iv)Flight planning, ie. tight fuel reserves and no approved Flight Manual supplement.

[39]   The Engineering Order indicates that the design of the ferry fuel system that Mr Caling installed had been approved by an aeronautical engineer in Australia. That is relevant to the actual risk to safety. This does not appear to have been considered in Mr Andrews’ affidavit or by the Judge. While the fact of the Engineering Order does not indicate the aircraft was airworthy, it does indicate that an aeronautical engineer had reviewed and approved the design. The Engineering Order however, is only relevant to the design and not to the actual installation of the ferry fuel system.

[40]   Mr Cameron for Mr Caling challenged Mr Andrews’ expertise and the admissibility of parts of his evidence.

[41]   Mr Andrews’ experience is set out in his affidavit dated 27 August 2022 and includes a bachelor’s and a master’s degree in mechanical engineering from the University of Auckland. Mr Andrews has “approximately 30 years of aviation experience,” including “over 30 years’ experience of approving modifications for

aircraft and helicopters: including the approval of several major modification ferry fuel tank systems.”

[42]   I reject Mr Cameron’s submissions that parts of Mr Andrews’ affidavit were inadmissible, speculative, or of no probative value. Mr Andrews’ affidavit provided important evidence  as  to  the  requirements  of  AC21-5.  It  also  explained  how Mr Caling’s actions did not comply with the requirements of AC21-5. That was of probative value.

[43]   Mr Cameron also challenges the Judge’s acceptance of Mr Andrews’ evidence that the modification was major. Mr Andrews’ evidence referred to the requirements of AC21-5 and stated:

This advisory circular states all ferry fuel systems are major modifications.

[44]Mr Caling provided evidence of the modifications he made, as follows:

47.When installing this system in the Islander aircraft I ran the fuel lines through the wing, they exit out the top of the wing and then basically dump into the main tank on that side. The existing fuel system is not interfered with in any way.

48.It takes me about 1 to 1.5 hours to install the ferry fuel system in an aircraft. I take out some of the seats to help with the C of G, run some lines through the wings, remove two panels (describe), it is not a big job.

49.The way the system is used during a ferry flight is that we deplete the main tank, when it gets down to roughly half to a quarter capacity then I engage fuel pumps and transfer the fuel that is in the ferry system into that main tank, until it gets to about three quarters, or 80 percent full. I will then turn the pumps off and continue.

50.It is just a “top up” system, in my view it’s the simplest and safest system you can employ. I personally fitted the system into ZK-DBV during November 2018 and later in ZK-MCE during February 2019 whilst at Ardmore Airport, Auckland.

[45]   The fact that Mr Caling said “it is not a big job” does not refute the requirements in AC21-5 regarding ferry fuel systems. The CAA was entitled to call evidence setting out those requirements to assist the  Court in understanding how   Mr Caling’s actions did not comply with the requirements of the Civil Aviation Rules.

[46]   Further, I reject Mr Cameron’s submission that the CAA was estopped from calling expert evidence by reason of Mr Caling’s May 2022 statement. That statement did not address the requirements of AC21-5.

[47]   Finally, Mr Cameron submits that the CAA delayed filing Mr Andrews’ affidavit and Mr Caling therefore had insufficient time to provide expert evidence in response. I note that leave was granted to file further affidavit evidence regarding the consequences of the conviction after the 30 August 2022 hearing and there does not appear to have been any request for leave to file further expert evidence from an engineer. I do not accept that the timing of the filing of Mr Andrews’ affidavit unfairly prejudiced Mr Caling. Mr Cameron could have sought leave to file evidence in reply to Mr Andrews’ affidavit given that a further hearing was set down for 24 February 2023.

[48]The following factors were relevant to the issue of safety:

(a)Mr Caling’s experience with ferry fuel systems.

(b)On the face of it, the Engineering Order indicates that the design of the ferry fuel system was approved by an Australian aeronautical engineer.

(c)Mr Caling asked an engineer to have a look at the ferry fuel system and Mr Caling made the modifications the engineer had suggested.

(d)Mr Caling attempted to get a certified engineer to sign off the ferry fuel system.

[49]   I therefore accept that the actual risk to safety in so far as it relates to the design of the ferry fuel system was likely lower than found by the Judge. The fact the installation was not signed off however, is relevant to safety. Mr Caling is not an engineer and he is not certified to sign off the installation of ferry fuel systems. Even if Mr Caling had made the installation into an Australian registered aircraft, engineer sign off would still have been required. I therefore reject Mr Cameron’s submission

that  the  aircraft  were technically “airworthy.”    While the design may have been “technically” approved in Australia, the installation was not.

[50]   Mr Caling undertook the flights knowing that he had failed to obtain engineer sign off as was required. That this is an aggravating factor is consistent with Director of Civil Aviation Authority v Barr where the Court noted:13

[44] Offending in which knowledge is proved will  generally be more  serious than offending that has come about through ignorance or inadvertence. Cases where knowledge is proved will therefore be likely to attract more severe penalties than will be the case for offending involving ignorance or inadvertence.

…

[46] In serious cases involving individuals rather than companies, the sentencer will also be entitled to select a penalty from the wide range of non- custodial sentences that are now available. These include community work, community detention and home detention. One would therefore expect a conviction for a knowledge offence to attract a sentence towards the upper end of the range, whilst offences involving ignorance or inadvertence will generally attract lower penalties.

[51]   I agree with the Judge’s observation of Mr Caling’s experience being an aggravating feature of his offending. Mr Caling knew that engineer sign off was required but decided to proceed without it. This added to the seriousness of his offending.

[52]   Further, while the Judge referred to two charges when there were in fact one, the one charge was representative and related to the two separate flights. Those circumstances are relevant to the gravity of the offending. Mr Caling failed to comply with the Civil Aviation Rules on two occasions and knowingly did so both times. There was sufficient time after the first flight for Mr Caling to have taken steps to obtain sign off for the second flight. He however, failed to do so.

[53]   In the circumstances, while I do not consider that Mr Caling’s offending was as serious as held by the Judge, because he had obtained an Engineering Order for the design of the ferry fuel system, I do consider that his deliberate disregard for the

13     Director of Civil Aviation Authority v Barr HC Rotorua CRI-2008-463-39, 28 April 2009.

requirement to have an engineer sign off the installation of the ferry fuel system indicates the offending was serious.

Consequences

[54]   Where the adverse consequences relate to travel to other countries, the Court of Appeal has said:14

[26]      It seems to us, speaking generally, that a court will ordinarily expect to be satisfied that under the law and practice of the jurisdiction concerned:

(1)the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and

(2)in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and

(3)there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.

[27]      If all of these things can be established, a sentencing court must further be satisfied that the offence is not so serious that it would be wrong to allow the applicant to present himself or herself to foreign immigration authorities without disclosing it.

[55]   Mr Cameron submits that the Judge erred in considering Mr van Harselaar’s evidence as to the consequences on Mr Caling’s ability to travel. In this regard he says that the Judge did not consider that Mr Caling would not be required to disclose the offending if he received a discharge without conviction until such time as he applied for a renewal of his visa. By that time, Mr Cameron says Mr Caling would be in a better position to persuade the authorities to grant a visa because of the time since the discharge.

[56]   Mr Cameron says the Judge took the expert evidence of Mr van Harselaar out of context and refers to the following conclusion in Mr van Harselaar’s affidavit:

15.12 In the long term a long period of safe, compliant flying and non- offending and full compliance with visa conditions will be likely to enable Mr Caling to regain his existing visa status. This assumes that there is no substantial change to the United States rules in the long term.

14     Edwards v R [2015] NZCA 583.

[57]   Mr Cameron appears to be asserting that in the short-term the consequences will be out of proportion and refers to the following parts of Mr van Harselaar’s affidavit:

9.11.In the short-term, Mr Caling could fail at his first attempt at obtaining a visa if it is done within months of a possible conviction. If it is done in a few years, I can only provide my opinion that with less serious offending (in terms of the potential imprisonment period and actual sentence) a period of ‘good grace’ (in Canada it is called “deemed rehabilitation”) and character references is likely to eventually be successful.

…

11.5.Based on the information noted above and my experience with my clients who have criminal convictions my advice to a client in Mr Caling’s situation would be:

(a)The entry of a conviction since the grant of a visa constitutes a change of circumstances which must be disclosed before traveling to the United States.

(b)This disclosure would result in the immediate suspension or cancelation of the visa.

…

15.4. A current United States visa will signal to other countries (some of whom are allies of the United States) that Mr Caling is a reliable and inoffensive individual.

[58]   While it is accepted that there may be some short-term impact on Mr Caling’s ability to travel, the Court must further be satisfied that the offence is not so serious that it would be wrong to allow Mr Caling to present himself to foreign immigration authorities without disclosing it. Here, Mr Caling proceeded to fly knowing that he had not had the installation of the ferry fuel system signed off. He did this twice. I am not satisfied that it is appropriate for this Court to pre-empt information that may be relevant to immigration authorities.

Proportionality

[59]   To grant a discharge without conviction the court must be satisfied that the consequences are out of all proportion to the gravity of the offending.15 It is settled

15     R v Smyth [2017] NZCA 530 at [12].

law that an applicant for discharge need only point to a real and appreciable risk that adverse consequences will ensue.16

[60]   As discussed above, I have found that the offending was not as serious as the Judge considered it to be. However, I have nonetheless found that the offending was serious in circumstances where Mr Caling is an experienced pilot, he was aware of the sign off requirements, his decision not to comply was motivated by a desire to avoid costs, and he knowingly flew non-compliant aircraft twice.

[61]   I accept that having a conviction may have consequences for Mr Caling in obtaining visas. However, on the evidence provided it appears that this will be an issue that dissipates over time. I do not consider that the evidence of Mr van Harselaar discloses that the consequences are likely to be out of all proportion to the gravity of Mr Caling’s offending.

[62]   On that basis I do not consider the Judge erred in finding that the disproportionality test in s 107 was not met, so that the discretion to enter a discharge without conviction under s 106 was not engaged.

Alleged deception

[63]   Mr Cameron submits that Mr Caling’s guilty plea was obtained by deception. He says the Director acted in bad faith by failing to disclose an alleged policy that the Director never “not opposes” applications for discharge without conviction, regardless of a defendant’s personal circumstances.

[64]Mr Caling relies on the following as evidence of the deception:

(a)An email from counsel for the Director confirming that they could not recall an instance where the Director had not opposed an application for discharge without conviction.

16     Edwards v R [2015] NZCA 583 at [24].

(b)Without prejudice correspondence from counsel for Mr Caling’s co- defendant to the Director. Mr Cameron submitted that in circumstances where the Director did not consider that the co-defendant’s personal circumstances justified withdrawal of the charges, the Director would never consider personal circumstances as a justification for not opposing an application for discharge without conviction.

[65]   Mr Cameron submits that there was never any chance that the Director would not oppose the application for discharge without conviction. The guilty plea had been entered on the understanding that there was such a chance. It was therefore, deceptive of the Director not to communicate the he would never “not oppose” such applications.

[66]I reject this submission for the reasons below.

[67]   First, it is the Court’s, not the Director’s, decision as to whether to grant a discharge without conviction. The Court is required to apply the law and while the Director is entitled to make submissions and have a position, the decision is ultimately the Court’s to make.

[68]   Second, I accept that to form a considered view on whether to agree to a discharge without conviction, the Director requires sufficient information as to the consequences (direct and indirect) of the conviction on the defendant. It was reasonable for the Director to request that information before confirming the position. The evidence of Mr van Harselaar was not provided until after the initial hearing on 30 August 2022, and in the absence of that evidence the full consequences were not necessarily clear to the Director, who is not an expert in immigration issues.

[69]   Third, the fact that two prosecutors cannot recall an instance where the Director has not opposed an application for discharge without conviction is not evidence that the Director has a policy to never “not oppose” such an application. More is required for the Court to be satisfied that such a policy exists, and that the Director deceived Mr Caling into pleading guilty.

[70]   Fourth, the without prejudice communications between the co-defendant and the Director are not evidence of any deceit on the part of the Director. The individual circumstances of Mr Caling need to be considered separately from other co- defendants.

[71]   Fifth, there was always a risk that the Director would oppose any application for discharge without conviction. The Director had indicated he considered the offending was serious. The guilty plea was entered knowing that such a risk existed.

[72]   Sixth, the following correspondence indicates the reasons for the position the Director took and do not disclose the policy alleged by the appellant:

(a)In an email dated 28 April 2022, Ms McConachy, for the CAA, indicated that in respect of any application for discharge without conviction, the CAA had no information on which to base its position. It would be for Mr Caling to show the basis on which such an application would be made. If grounds were presented that could be capable of meeting the s 107 threshold, then the CAA would consider them. However, in the absence of any information at that stage, the CAA considered the offending to be serious, and given the gravity of the offence, the consequences would need to be significantly grave in order to ensure that a discharge without conviction was proportionate and appropriate.

(b)In a joint memorandum dated 3 May 2022, the parties agreed the Director would file a response after Mr Caling had filed an application for discharge without conviction. That indicates that the Director needed to see the basis for the application before confirming a position.

(c)In an email dated 29 May 2023, counsel for the CAA could not recall an instance where the CAA had not opposed an application for discharge without conviction. They indicated that they were relying on memory and that they do not act for the CAA in all prosecutions. They went on to explain that:

(i)Where a charge has been prosecuted to verdict, non-conviction options like resolution or diversion have already been ruled out or considered and rejected. That tends to indicate that a conviction is appropriate in the first instance.

(ii)Where the consequences of a conviction would be out of proportion to the seriousness of what had occurred, the Director and the defendant would likely recognise this early and seek to resolve the case, either without the Court’s intervention or by way of diversion or some similar outcome as appropriate in the circumstances.

(iii)The decision as to what position the CAA would take on a s 106 application is intricately related to the effect of the proposed consequences that the defendant puts before the Court. As such, the CAA would consider those stated consequences and determine its position at that point. It is not possible to predict what those alleged consequences are, how they relate to the s 106 test, and therefore, what the Director would consider is the correct course of action for any future matter. As such, a review of the Director’s decisions in the past could not be determinative of the Director’s position in the future.

[73]   For the above reasons, I am not satisfied that the evidence indicates that the Director deceived Mr Caling into making a guilty plea. Any position on whether to support or oppose an application for discharge without conviction requires consideration of both the nature of the offending and the consequences of a conviction. It is not unreasonable for the Director to not confirm a position until receipt of sufficient information as to the consequences of a conviction on the defendant. I am not satisfied that the evidence establishes bias and bad faith, or that the conviction was obtained by deception.

Result

[74]The appeal is dismissed.

Tahana J