Chatachvilly v Director of Civil Aviation

[2019] NZHC 2746

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2019-425-000023

[2019] NZHC 2746

BETWEEN

YANNICK CHATACHVILLY

Appellant

AND

DIRECTOR OF CIVIL AVIATION

Respondent

Hearing:

17 October 2019

Appearances:

T J Mackenzie for Appellant

C H Macklin and M S Jenkins for Respondent

Judgment:

25 October 2019

JUDGMENT OF GENDALL J

This judgment was delivered by me on 25 October 2019 at 4:30 p.m.

Registrar/Deputy Registrar

Date:  25 October 2019

CHATACHVILLY v DIRECTOR OF CIVIL AVIATION [2019] NZHC 2746 [25 October 2019]

Introduction

[1]    The appellant, Mr Chatachvilly pleaded guilty in the District Court at Queenstown to a charge laid by the Civil Aviation Authority (“the CAA”) that on   15 August 2017 at Queenstown, he operated a Cessna 177 aircraft in a manner which caused unnecessary danger to its passengers.1 The aircraft had crashed shortly after take-off from Queenstown Airport. The appellant was carrying three passengers and all of the occupants of the aircraft were injured to varying degrees. The aircraft, too, was damaged. Particulars of the charge the appellant faced were that he “took off when the aircraft had ice or frost adhering to the wings”. The appellant says, however, that the principal cause of the aircraft crash was an engine failure which occurred.

[2]    On 3 April 2019, Judge Brandts-Giesen declined an application by the appellant to be discharged without conviction. On 24 July 2019, he sentenced the appellant to a fine of $2,600.00 plus court costs.

[3]    The appellant now appeals the decision of the District Court declining to grant a discharge without conviction, and appeals the sentence imposed as manifestly excessive.

Background

[4]    The appellant is aged 34 and has been flying since July 2000. His experience includes private, club, and commercial flying. He holds both private and commercial pilot licences and by late 2018 had flown almost 1500 hours.

[5]    On the morning of 15 August 2017, the appellant was to fly three passengers on a flight from Queenstown Airport in the Cessna 177, a light single-engine, high- wing aircraft. It was a cold morning at Queenstown Airport. Because the dew point and air temperature were close together there was a high risk of ice forming outside.

[6]    Before taking off, a pilot must be satisfied that an aircraft is in a condition for safe flight. That requires a thorough pre-flight inspection, including detecting and removing frost or ice. When the appellant went out to retrieve the Cessna 177 in the

1      Civil Aviation Act 1990, s 44.

morning, other pilots were working together to remove ice from an aircraft parked nearby. The appellant did not remove ice from his aircraft and taxied his away while those other pilots were still completing their de-icing.

[7]    Prior to collecting his passengers, the appellant parked the aircraft for a further 20 minutes. When he escorted the passengers to the aircraft, one of the passengers pointed out to the appellant the frost on the rear horizontal stabilisers of the aircraft. The appellant informed her that it was nothing to worry about and would “blow off” once airborne. Another passenger observed the frost on the upper wing surface and brought it to the appellant’s attention, whereupon he “dusted it off with his hands”, stating “that will come off after we take off”.

[8]    According to the Amended Summary of Facts, a number of matters were agreed between the parties. During take-off, the appellant experienced “what he perceived as a loss of engine performance”. He lowered the nose and made rudder and aileron control inputs and banked the aircraft towards the grass area at the side of the runway. The aircraft continued to lose altitude, and the situation became unrecoverable. The aircraft continued to sink and it crashed onto the grass at the side of the runway.

[9]    The high impact caused the engine (with propeller still attached), the nose, and the left main undercarriage to be broken from their mountings. The manner in which the propeller blades were bent indicated the engine was not operating when the aircraft impacted the ground.

[10]   The absence of the left main undercarriage then caused the aircraft to veer left and slide along the soft ground. The impact significantly deformed the cabin structure, the right-hand cabin door came open and the right front seat became detached from its floor mountings. One passenger was partially ejected from the aircraft and she suffered a cut to her head and a sprained ankle. Another passenger suffered bruising and whiplash, and the third passenger a neck sprain and an ankle sprain.

[11]   Following the crash, it was noted by attending emergency services (and photographed shortly after the accident) that there was frost (ice) on the wings of the

aircraft. It is accepted that ice and frost deposits on an aircraft wing disrupt and degrade the smooth flow of air over the aerofoil. This significantly reduces wing lift and increases drag.

[12]   The Civil Aviation Authority subsequently investigated the crash. The Director of Civil Aviation charged the appellant with operating an aircraft in a manner which caused unnecessary danger to those on board, pursuant to section 44 of the Civil Aviation Act 1990. This offence carries a maximum penalty of 12 months’ imprisonment or a $10,000 fine. Initially, particulars of the alleged offending were that:

(a)The appellant operated at more than the maximum certified take-off weight specified in the aircraft flight manual; and

(b)The appellant took off when the aircraft had ice or frost adhering the wings.

[13] Later, however, the first particular, noted at [12](a) above, was removed and the appellant pleaded guilty to the charge relating to the second. The appellant considered that the cause of the crash was an engine malfunction and initially he did not accept that ice and frost contamination of the wing surfaces had played any role. However, the appellant has since accepted that ice and frost contamination of the wing surfaces did contribute to the accident.

Refusal to grant a discharge

[14]   Judge Brandts-Giesen in his decision set out the test in s 106. The application for a discharge required the judge to consider the following three steps:

(a)The gravity of the offence.

(b)The direct and indirect consequences of conviction.

(c)The question of whether or not the consequences of a conviction are out of all proportion to the gravity of the offence.

[15]   In terms of the gravity of the offending, the Judge set out the paramountcy of safety when pilots operate. The Agreed Summary of Facts stated that prior to the flight ice had been pointed out to the appellant. This occurred after the passengers approached the plane or were onboard. The Judge said this must have been approximately 20 minutes after the appellant had inspected the plane before taxiing it to the terminal where he collected the passengers. At that time of the day, temperatures in Queenstown can change rapidly in either direction. The appellant should have checked his plane again, immediately before take-off. The Judge said he could not categorise the appellant’s mistake as being anything less than serious, as it involved aircraft and passenger safety.

[16]   The Judge found that the ice contributed significantly to the accident, an accident which caused much damage to the plane, and significant injuries to the passengers. That there were no more serious injuries was probably attributable to the relatively low speed of the impact, and to a high level of luck. Despite that, the Judge in his decision concentrated more on the appellant’s failure to take precautions, rather than on the outcome of his mistake.

[17]   The appellant’s conduct fell short of the minimum standards set out in the Civil Aviation Regulations and of accepted safety procedures. He should have addressed the ice and frost contamination. From the point of view of the appellant’s conduct and the outcome, the Judge concluded that the gravity of the offending was moderately serious.

[18]   As to the consequences of the offending, the appellant had suggested he may not have been able to retain residency if a conviction was entered. The Judge said the reality is that, as a permanent resident, he can remain in New Zealand indefinitely. Nor did the judge accept issues as to citizenship would affect employment.

[19]   The crux of the appellant’s argument in the District Court appeared to be that a conviction would limit his career options. The Judge accepted that an incident such as the one in which the appellant was involved would adversely affect his career advancement. However, the Judge did not see that, in the professional world of being a pilot, a conviction would significantly exacerbate the record of this aircraft accident.

A discharge without conviction would not expunge the fact that an accident happened. The Judge reasoned that aircraft authorities are professional organisations who are looking for the best pilots. In doing so, they will take safety records into account and treat them as rather more important than whether or not a person has been discharged without conviction, or indeed has a conviction. At the same time, those employing pilots generally will be pilots or recent ex-pilots. They will understand what the appellant did and what went wrong here.

[20]   Accordingly, the Judge was not convinced that the consequences of conviction were out of all proportion to the gravity of the offence and he dismissed the application for a discharge without conviction.

Sentencing decision

[21]   The maximum sentence for the charge here, as I have noted, is 12 months’ imprisonment or a fine not exceeding $10,000. In his decision, the Judge said from the outset that imprisonment was not an option.

[22]   The Judge concluded that the appellant’s conduct was cavalier and not of a standard one would expect of a commercial pilot with passengers on board. This was mid-level offending, he said, so a starting point of $5,000 was appropriate.

[23]   This was then discounted by  five  percent  for  previous  good  record, and 20 percent for remorse, for a positive restorative justice, and some voluntary work done by the appellant, as well as the course valued at $1,000 the appellant provided for the principal victim.

[24]   That initial 25 per cent reduced the fine to $3,750. The judge then gave full credit for the appellant’s guilty plea and reduced the sentence by 25 percent. That brought it to $2,812.50, which was rounded down to $2,800.

[25]   The Judge then made a further reduction because he acknowledged this accident has had an enormous effect on the appellant who has moved with his family to Christchurch but he had still not found satisfactory employment. He also noted that

as far as this type of small aircraft was concerned, the appellant was relatively inexperienced. The fine was reduced to $2,600 plus Court costs.

Principles on appeal

[26]   An appeal against a refusal to discharge a appellant without conviction is characterised as an appeal against both conviction and sentence.2

[27]   Section 232 Criminal Procedure Act 2011 provides that the Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any other reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3 R v Sungsuwan defines a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”4

[28]   The procedure for discharges without conviction is governed by ss 106 and 107 of the Sentencing Act 2002. The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, according to the s 107 guidance, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.5 This is assessed by reference to a three-step test: (1) identifying the gravity of the offending; (2) identifying the consequences of conviction; and (3) determining whether the consequences of a conviction would be out of all proportion to the gravity of the offending.6 When assessing gravity at the first step, the Court needs to take into account the aggravating and mitigating factors relevant to both the offending and the offender.7

2      Jackson v R [2016] NZCA 627.

3      Section 232(4).

4      R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.

5      Sentencing Act 2002, s 107.

6      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] – [17]; Z (CA447/2012) v R [2012]

NZCA 599, [2013] NZAR 142 at [8]; A (CA747/2010) v R [2011] NZCA 328 at [25].

7      Z, above n 6, at [27]–[28] adopting A, above n 6, at [25].

[29]   Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.8 If a discharge without conviction should have been granted but this did not occur, then there will have been a material error by the sentencing Judge, or if it could be said that a miscarriage of justice will have occurred for any other reason, then the appeal against conviction must be allowed.9

[30]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.11

Submissions

Appellant

[31]   Mr Mackenzie for the appellant maintains that the Judge here overstated culpability. The appellant says the Judge’s entire consideration of culpability was heavily influenced by the engine failure (and the consequent crash landing).

[32]   Mr Mackenzie says that this was a case where an old aircraft had an engine failure. He noted the cause may or may not have been an iced carburettor but that did not matter for the purposes of this proceeding. He submitted no culpability flows from the cause of or the fact of the engine failure. The expert evidence on both sides is speculative as to the exact reason for the engine failure and the crash landing. The appellant maintains that at most, the aircraft came down harder during the emergency landing due to the reduced wing airflow than might otherwise have been the case (without the frost and ice).

8      H v R [2012] NZCA 198 at [35]-[36].

9      Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].

10     Criminal Procedure Act 2011, ss 250(2) and 250(3).

11     Ripia v R [2011] NZCA 101 at [15].

[33]   What the appellant pleaded guilty to was only of taking off with ice and frost on the wings. The appellant contends the Judge erred in finding the offence could not be categorised as “anything less than serious”.

[34]   The appellant suggests that, had the crash not occurred, this incident could equally have been seen as an act of careless operation for failing to remove the ice. A more precise offence here, he says might have been one provided for in the Civil Aviation Rules at Rule 91.315 as follows:12

Operating in snow and ice conditions

No pilot-in-command of an aircraft shall perform a take-off under VFR in an aircraft that has snow, ice, or frost, adhering to the wings, stabilisers, or control surfaces.

[35]   He noted that breach of this Rule 91.315 can be prosecuted either by charge or infringement. The maximum fine on conviction (on this charge) is $5,000 or $2,000 if proceeded with by infringement.

[36]   Overall Mr McKenzie contended that this should have been considered as an offence of low seriousness. The very fact that the aircraft, fully loaded, was able to take off, the appellant says, goes some way to demonstrating that the icing was at the lower end. It also explains, Mr McKenzie suggests, why the appellant did not deal with it prior to the flight, but instead exercised his judgment that it was minor frost that would blow off.

[37]   Counsel submits therefore that the Judge’s decision in determining where this offending should be placed by concluding it was unable to be described as “anything less than serious”, in relation to the most serious of available offences, was wrong. It was, according to the appellant, a significant overstatement of the actual offending and it conflated the engine failure and the crash landing with the separate incident for which he was prosecuted.

[38]   Against what he submits, therefore, is relatively minor offending, the appellant says he faces significant consequences. The error that the Judge made, he says, was to

12     Civil Aviation Act 1990 s 100, Civil Aviation (Offences) Regulations 2006 r 4 & schedule 1.

fail to appreciate that the conviction will create a real and appreciable risk that the appellant will never have an opportunity on any future aviation job application to try and explain the offending, because he will likely be screened out on the basis of his initial application.

[39]   The evidence of Mr Eastlake, the appellant says, is to the effect that a conviction could result in the appellant not progressing to an interview and having no opportunity to explain the offending. And, that evidence, he says, was not challenged in the District Court. The appellant contends, too, that the approach of the Judge to issues over disclosure of the offending was overly simplistic. While the appellant acknowledges he would have to disclose the offending, he says again the Judge failed to appreciate that he may well not make it past any initial screening/application process where conviction histories are asked for.

[40]   Similarly, whilst the Judge noted that an airline may “understand what the defendant did and what went wrong” that again ignores that the appellant may never have an opportunity to explain the actual facts and seek that understanding.

[41]   Mr Mackenzie submits there is also a related immigration consequence in that he says the appellant cannot apply for New Zealand citizenship for three years after this conviction was entered. New Zealand citizenship is a pre-requisite for employment with Jetstar. And, Jetstar here is the most suitable potential employer for the appellant (given his experience in flying Airbus A320 aircraft in Europe which is Jetstar’s principal aircraft flown in this country).

[42]   Ultimately the appellant contends that he has made a huge investment in time and money for his flying career and this will be sacrificed because of the immediate reaction that the conviction brings. That is, the appellant submits, an unfair and severe outcome for him.

[43]   In sum, the appellant says it is hugely unfair that he should lose this career over what is said to be merely a lack of appreciation and a simple error of judgment over the extent of ice and frost on his aircraft here.

Respondent

[44]   In response, Mr Macklin for the respondent addresses an initial point first. This is what he maintains is the fact that the appellant cannot seek to amend the Agreed Summary of Facts at this point and that is what he is trying to do. The “Amended Summary of Facts” was reached by negotiation and agreement between the parties. Resolution was reached on the specific basis that the appellant confirmed that he accepted that ice and frost contamination of the wing surfaces contributed to the accident. Correspondence with the appellant’s previous counsel specifically confirmed this point “for the avoidance of doubt”.

[45]   The respondent submits that the appellant is attempting now to revisit this specific point, a point that was addressed in resolution discussions between the parties. The agreed “Amended Summary of Facts” on which the appellant was sentenced following his guilty plea, and on which is discharge application was considered, must prevail. The respondent maintains that if the appellant sought to dispute that the taking off with ice and frost did not contribute to the accident, then the appropriate way forward was through a not guilty plea and subsequent trial or by way of a disputed facts hearing. Neither of these occurred here.

[46]   The respondent also disputes any attempt to question the gravity of the offending itself. Mr Macklin addresses the respondent’s submission that, as the aircraft was able to take off, this may go some way to demonstrating that the icing was at the lower end. This submission, he says, ignores the point that the aircraft, through the presence of ice with its drag and extra weight, required a much longer take-off roll than was usually required and a decreased rate of climb after take-off.

[47]   Further, this is not a case, Mr Macklin says, where the appellant was permitted to simply “exercise his judgment”. Civil Aviation Rule 91.315 is entirely clear: no pilot shall perform a take-off in any aircraft that has snow, ice or frost adhering to the wings, stabilisers or control surfaces. Similarly, under the heading ‘Pre-flight Checks’, the manual requires pilots to “remove even small accumulations of frost, ice or snow from wing, tail and control surfaces”. No room is left for discretion or judgment. The rule, Mr Macklin notes, is absolute.

[48]   The appellant’s failure to address the ice and frost contamination in the present case, the respondent suggests, is significantly aggravated by the fact that two different passengers specifically alerted him to the presence of frost on the stabilisers and wing surfaces. He was on notice. The passengers were concerned enough to raise the point with the appellant as their pilot. He nonetheless disregarded these concerns and simply stated that the ice would probably blow off while airborne.

[49]   The respondent submits that Judge Brandts-Giesen was right to conclude that this was a significant mistake and that the appellant’s conduct was somewhat cavalier and not of a standard one would expect of a commercial pilot with passengers on board.

[50]   In terms of the consequences of conviction, the respondent reiterated that Judge Brandts-Giesen had held the conviction would have little impact on the appellant’s immigration status given that he was a permanent resident.

[51]   On the citizenship question, the respondent notes that the appellant is not currently a New Zealand citizen and thus it seems he cannot seek employment at Jetstar here because of their citizenship rules, whether or not he is convicted. Further, the appellant does not have a right to New Zealand citizenship. The respondent contends that, where a conviction may have consequences for an offender’s immigration status in New Zealand, the Court has generally concluded that it is appropriate for that issue to be resolved by the Immigration Service, rather than by the Court.

[52]   As to employment consequences, the respondent maintains that, on any airline aviation job application, in any event, the appellant would be required to disclose the circumstances of the accident, whether or not he was convicted. As such, it is suggested, the appellant would be expected to disclose both the number and the nature of any incidents or accidents that he may have been involved in. Such disclosures would be a factor in determining if the appellant as a potential pilot should progress to the next stage of the recruitment process. The respondent further submits that it is entirely appropriate that the conviction here remains and is required to be declared to potential aviation employers, given the context of the conviction. The requirement to

declare a conviction is common to all convicted persons and does not represent some unusual or disproportionate detriment.

[53]   In his submissions for the appellant, Mr McKenzie  stated “as opined by     Mr Eastlake, it is likely that commercial airlines would immediately decline a pilot who presented with that conviction. That  is  a real and appreciable risk”. To  this,  Mr Macklin replies that, Mr Eastlake in his affidavit does not say that it is likely that commercial airlines would decline the appellant. The highest Mr Eastlake puts it is that, “It is possible having such a conviction would prevent [the appellant] from even reaching the panel interview stage of the airline pilot recruitment process.”

[54]   Further, before me Mr Macklin referred to an Air New Zealand declaration form relating to employment applications annexed to the appellant’s affidavit. In this form, space is left for an applicant to specifically explain and provide detail as to any previous convictions. The respondent also does not accept that it is likely the appellant will never have the opportunity to explain the circumstances of a conviction. Again, the only evidence on point, Mr Macklin says, is that it is possible that a conviction might prevent the appellant from reaching the interview stage.

Analysis

[55]   I turn first to consider the gravity of the offending here. The appellant has pleaded guilty to operating an aircraft in a manner which caused unnecessary danger to its passengers. This is, by itself a serious offence. For present purposes I accept the argument for the appellant that the main cause of the accident might well have been engine failure. Despite that, the appellant does accept that a failure to properly de-ice the aircraft contributed to the crash. Indeed, in his own 5 February 2019 affidavit before the Court, at para [13] the appellant accepted that he made a “gross error in regard to the frost assessment”.

[56]   The reason for removing ice is to remove the risk of a possible accident which, particularly in the case of an aircraft carrying passengers, could have widespread and catastrophic consequences. A wing covered in ice has poor lift and is considerably less stable. The appellant’s actions severely compromised the safety margin within which the aircraft could operate. When an engine fails mid-flight, a pilot will need to use

their skills to safely land the plane. With a wing or other surfaces covered in ice, the prospect of this being done is significantly reduced.

[57]   Had the circumstances been different and the Cessna here had reached a higher altitude when the failures occurred, the consequences and the injuries to the appellant’s passengers could even have been far more significant. Although this is speculation it was perhaps fortuitous that the aircraft did not reach a substantial height where the manoeuvrability and lift of the wings could have been the determining factor for possible injuries or even fatalities.

[58] Before me, Mr Mackenzie said Judge Brandts-Giesen erred in finding that the appellant “contributed significantly to the accident, causing much damage to the plane, and considerable injuries to the passengers”. The Respondent, on the other hand, argues that the appellant has accepted this explicitly. I find that the appellant must be taken to have accepted he caused danger by his actions. That is inherent in the fact he pleaded guilty to the specific charge against him on the basis of the particular noted at [12](b) above.

[59]   And, in any event, whether that danger contributed to the crash is not the issue to be determined. It is the risk of the danger in question that is the offence. I accept that Judge Brandts-Giesen, in his decision, acted properly in that in viewing the seriousness of the appellant’s offending, he was not guided by what the overall outcome was (being the crash of the aircraft) but rather he focussed on the appellant’s failure to take the required precautions. Arguments that a lower offence might have been appropriate are of little moment here. The appellant may not have been apprehended had the aircraft not crashed, but he would have committed the offence either way.

[60]   It is clear here that the appellant and the respondent both made concessions prior to the entry of the guilty plea. A lesser offence might have been charged, but it would have been just as open to the CAA to not withdraw in its prosecution the particular of exceeding the maximum take-off weight (which it did withdraw).

[61]   I accept this is serious offending. I accept the submission for the respondent the appellant’s failure to address the ice and frost contamination is significantly aggravated by the fact that two different passengers specifically alerted the appellant to the presence of frost on the stabilisers and the wing surfaces. He was on notice. The passengers were concerned enough to raise the point with him. He nonetheless disregarded these concerns in simply stating that the ice would probably blow off while airborne.

[62]   As to the appellant’s immigration status arguments, I agree with the respondent that where a conviction may have consequences for an offender’s immigration status in New Zealand, the Court has generally concluded that it is appropriate for that issue to be resolved by the Immigration Service rather than by the Court.

[63]   In terms of job opportunities, I accept Judge Brandts-Giesen’s reasoning here. A conviction might be likely to some extent to adversely affect the appellant’s career. However, the issue for the court is whether this is disproportionately so. The appellant will face scrutiny when applying for jobs because of this conviction. However, that is not an unjust consequence of being involved in a crash of an aircraft. A discharge will not stop scrutiny. Airlines are sophisticated employers and should give the appellant an opportunity to explain the incident when applying for employment.

[64]   And, as to the direct and indirect consequences of the offending, in my view there is some substance in the Judge’s comment that the general stigma of the conviction here was really “no more or less than what offending against legislation does in any case”, and that the Criminal Records (Clean Slate) Act 2004 would operate after a period of time.

[65]On this aspect, the Court of Appeal has said in R v Smyth:13

It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the Court has jurisdiction to grant a discharge without conviction.

In my judgment, this is not a case where, in carrying out the required balancing

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

exercise, the consequences of a conviction could be said to be out of all proportion to the seriousness of the appellant’s offending. I accept too that a conviction, although a hurdle to overcome, will not create an impenetrable barrier to the appellant operating as a pilot.

[66]   I conclude that Judge Brandts-Giesen did not err either in his assessment of the gravity of the appellant’s offending and the consequences of the conviction, or in concluding that these consequences were not out of all proportion to the seriousness and gravity of the offending.

[67]   I find that the Judge was correct to refuse the application by the appellant for a discharge without conviction.

Sentence

[68]I turn now to the Judge’s sentencing decision which simply involved a fine of

$2,600 plus court costs. I simply do not find this sentencing decision manifestly excessive. I agree with the Judge’s view that the appellant’s conduct was somewhat cavalier and not of a standard one would expect of a commercial pilot with passengers on board. This was mid-level offending and the starting point adopted of $5,000 was within a proper range. Similarly, the discounts were appropriate and the end fine of

$2,600 was not excessive. This sentence appeal also fails.

Conclusion

[69]For all the reasons I have outlined above, this appeal is dismissed.

...................................................

Gendall J

Solicitors:

Tim Mackenzie, Barrister, Christchurch Gordon & Pilditch, Rotorua