Director of the Civil Aviation Authority v Bach
[2019] NZHC 2062
•22 August 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-201
[2019] NZHC 2062
BETWEEN THE DIRECTOR OF THE CIVIL AVIATION AUTHORITY
ApplicantAND
MICHAEL EDWARD BACH
Respondent
Hearing: 6 August 2019 Appearances:
C Macklin for the Applicant F Pilditch for the Respondent
Judgment:
22 August 2019
JUDGMENT OF GORDON J
This judgment was delivered by me
on 22 August 2019 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Rotorua
AMC Legal Services, Invercargill
Counsel: F Pilditch, Auckland
DIRECTOR OF THE CIVIL AVIATION AUTHORITY v BACH [2019] NZHC 2062 [22 August 2019]
Introduction
[1] The respondent, Michael Bach, pleaded guilty to a single charge of operating an aircraft in a careless manner contrary to s 43A of the Civil Aviation Act 1990. The maximum penalty is a fine of no more than $7,000.1 Mr Bach was discharged without conviction in the District Court under s 106 of the Sentencing Act 2002.2
[2] The Director of the Civil Aviation Authority (the Director) seeks leave to appeal the s 106 discharge on questions of law under s 296 of the Criminal Procedure Act 2011. The two proposed questions of law are:
(a)Did the Judge err in the Court’s assessment of the gravity of the offending; and/or
(b)Did the Judge err in the Court’s assessment of the consequences of a conviction, as distinct from the consequences of the respondent’s admitted conduct?
[3]The application for leave to appeal and the appeal were heard together.
Background
[4] Mr Bach was formerly a B category flight instructor at the North Shore Aero Club. He led a group of pilots and three students travelling to Ashburton to attend the national flying championships. There were three aircraft. Mr Bach was in the company of a student who had recently started learning to fly. They were leading the two other aircraft, each with a pilot and student. Mr Bach was the only instructor in the group. The other two pilots were members of the North Shore Aero Club.
[5] Prior to leaving, Mr Bach discussed the weather conditions with the group. He noted the weather they would likely encounter during the flight could be challenging.
1 Civil Aviation Act 1990, s 43A(2)(a).
2 Director of Civil Aviation v Kirby [2019] NZDC 7644 [Decision on appeal]. The copy of the District Court decision provided to this Court by counsel referred to the appellant by his real name, Michael Bach. It appears that in the published version, a fictitious name, Glenn Kirby, is adopted and identifying particulars are anonymised. There was no submission made on behalf of Mr Bach that his name should be anonymised in this judgment, and I see no reason to do so.
However, at the time they left the North Shore aerodrome, the weather conditions were not such that the flight ought to have been cancelled.
[6] As the flight progressed, the weather deteriorated. The pilots flew towards an area of cloud ahead. Mr Bach had an opportunity to safely turn back. But he did not. Mr Bach and one other pilot flew above the cloud. But that started to compromise their ability to maintain visibility. Mr Bach determined the safest option would be to get below the cloud. He took the controls from the student and performed a steep spiral turn through a hole in the cloud layer. He rapidly descended below the cloud. The other aircraft was following closely.
[7] Mr Bach then determined it was safest to track along the coast rather than inland. He descended further below the weather. At one point, he was forced to descend below the minimum height of 500 feet under the visual flight rules to avoid the clouds.
[8] Upon landing, Mr Bach asked his student not to post any footage of the flight (taken with a Go-Pro) online without his permission.
[9] Mr Bach had originally faced two alternative charges: a charge of causing unnecessary endangerment which carries a maximum penalty of 12 months’ imprisonment and the charge in this appeal. The Director agreed to abandon the more serious charge conditional on Mr Bach pleading guilty to the less serious charge.
[10] The charge to which Mr Bach pleaded guilty contained a number of particulars and was expressed as follows:
[That he] Operated an aircraft, namely a Robin 212OU registration ZK-TZL, in a careless manner
Particulars:
a.Flew pursuant to visual flight rules into weather conditions that appeared to be near or below the meteorological minima prescribed pursuant to the Civil Aviation Rules, Part 91, Sub-part D.
b.Conducted a tight spiral turn in close vicinity to another aircraft in difficult and cloudy conditions.
c.Flew too close to cloud in Class G airspace.
d.Operated below 500 feet above ground level in weather conditions that were below the meteorological minima prescribed by Part 91.301 of the Civil Aviation Rules.
District Court
[11] The District Court Judge considered the s 106 application following Mr Bach’s guilty plea. The Judge applied the three-stage test of assessing the gravity of the offending, the consequences of a conviction and whether those consequences would be out of all proportion to the gravity of the offending.3
[12] First, as to the gravity of the offending, the Judge considered that safety was a significant factor given the regulatory nature of the legislation.4 Mr Bach operated in poor weather conditions. He accepted that he was careless. The Judge noted that weather plays a significant part in flight, especially as to visibility. The Judge observed that weather “poses severe risks of collision and/or disorientation which can have life- threatening or even fatal consequences”.5 There are also significant risks with low- flying.
[13] But the Judge noted that “gravity is not an assessment which is limited solely to the facts of the offending”.6 Other relevant factors included the fact Mr Bach had undertaken mentoring with the Civil Aviation Authority (CAA). He had lost his job and had admitted to his carelessness, showing a high degree of personal deterrence and accountability. Mr Bach has no previous convictions. The Judge considered that Mr Bach was unlikely to offend against the regulatory legislation again in future.
These factors reduced the gravity to a “moderate level of seriousness”.7
[14] Secondly, as to the consequences of conviction, the Judge first observed that the CAA was aware of Mr Bach’s careless conduct. He then referred to general consequences such as the loss of a good record, difficulty in applying for insurance or loans, potential for publication and a sense of shame. In making his assessment in the
3 At [4], [27] and [33].
4 At [24].
5 At [6].
6 At [24].
7 At [26].
particular case, the Judge considered consequences in relation to Mr Bach’s future in the aviation industry.
[15] Thirdly, the Judge found that the gravity of the offending was wholly outweighed by the actual and potential consequences to Mr Bach.
[16] Mr Bach was discharged without conviction with conditions. He was ordered to pay $2,000 in costs at a rate of $100 per month starting 1 May 2019.
Application for leave to appeal
[17] First, as to whether the appeal poses questions of law, Mr Macklin, for the Director, relies on R v Smyth in which the Court of Appeal accepted that the following questions raised questions of law:8
(b)Did the Judge err in her assessment of the gravity of the offending?
(c)Did the Judge err in her assessment of the consequences of a conviction?
[18] Mr Macklin submits that within the two questions in this appeal the key arguments for the Director are that the Judge: took irrelevant factors into account; failed to consider a relevant factor; and made factual findings which were not based on evidence.
[19] Mr Macklin also submits that the case is generally important. It raises issues worthy of an appeal court’s attention. It includes factors common to many careless operation cases prosecuted under the Civil Aviation Act.
[20] Finally, Mr Macklin submits that the appellant’s notice of application being mistakenly entitled “Notice of Appeal” as opposed to “Notice of Application for Leave to Appeal” was a technical error and should not prevent leave being granted. In all other respects the document complied with the relevant requirements of rr 8.3 and 8.4 of the Criminal Procedure Rules 2012. The document was fit for purpose.
8 R v Smyth [2017] NZCA 530 at [6].
[21] Mr Pilditch, for Mr Bach, refers to the form of the appeal being a notice of general appeal. He submits that, up until the appellant’s submissions were filed, none of the prior documentation articulated the errors now referred to by the Director as set out in [18] above.
[22]Having now had the grounds articulated, Mr Pilditch submits that:
(a)The first ground is couched as a question of law but in the final analysis it is an attempt at a general appeal; and
(b)Aspects of the second ground are not questions of law.
Analysis
[23] Section 296 of the Criminal Procedure Act 2011 provides for appeals on questions of law so long as the Court grants leave. Neither s 296 nor s 213 of the Criminal Procedure Act specifies criteria applicable to a grant of leave in the High Court. No particular test has emerged from case law. However, “Leave will generally be granted if, on the face of it, there is an arguable question of law identified.”9
[24] The Court of Appeal in Brown v R, identified three standard errors which create a question of law:10
(a)a misdirection of law apparent in the decision;
(b)oversight of a relevant matter or consideration of an irrelevant matter;
(c)a factual finding unsupported by any evidence or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
[25] In Taulapapa v R, the Crown had identified three questions, the first two following the format of questions (b) and (c) in Smyth (refer [17] above).11 The third
9 Police v Neutze [2018] NZHC 1510 at [2].
10 Brown v R [2015] NZCA 325 at [16].
11 Taulapapa v R [2018] NZCA 414 at [19].
was whether the Judge erred in finding the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The Court of Appeal stated that thus framed the questions were directed to the Judge’s factual findings. However, in that case, questions of law, in line with the Brown errors, were isolated by the Crown during argument.12 The Court therefore answered reframed questions of law. Some of those reframed questions were expressed in similar terms to the arguments advanced by the Director in this appeal.
[26] In Police v Neutze, the question of law for which leave to appeal was sought was: did the Judge err in her assessment of the gravity of the offending?13 However, in that case, Brewer J stated:
[11] The Court of Appeal in R v Malu considered a Crown appeal against a discharge without conviction where the first of the three questions of law for which leave to appeal was sought was the same as Ms Small’s question. The other two were similar but addressed the second and third steps. The Court commented that the questions are more suitable for consideration in the context of a general appeal. It granted leave to appeal because inside the general questions were arguable questions of law.
[12] I will adopt the same approach. Within the general question posed by Ms Small are arguable questions of law – namely, to use the language of Brown v R – oversight of relevant matters. I grant leave to appeal and will now consider them.
(footnotes omitted)
[27] I will similarly follow that approach. Within the two questions posed there are questions of law that fall within the second and third categories in Brown v R. I do not consider that any initial technical non-compliance is a sufficient basis for refusing leave. I accordingly propose to grant leave on the basis that the Director has identified questions of law. It is not necessary to address the Director’s submission that appeal raises matters of general importance.
Ground 1 (first argument) — irrelevant factors taken into account
[28] The Director makes two separate arguments in relation to the District Court Judge’s gravity assessment. The first is that irrelevant factors were taken into account.
12 At [20].
13 Police v Neutze, above n 9, at [7].
The second is that a relevant factor was not considered. Of the two, the Director places most weight on the second argument. I will deal with each in turn.
[29] Mr Macklin takes issue with parts of [24] to [26] of the decision, which are the paragraphs in which the District Court Judge set out the factors he took into account in making his finding as to the gravity of the offending. I set out those paragraphs in full and then refer to the particular parts with which the Director takes issue:
[24] The assessment which must be made of gravity is not an assessment which is limited solely to the facts of the offending. Obviously, because the offending is against regulatory-type legislation, safety is a significant factor in assessing gravity. I am also entitled to take into account in the assessment the defendant’s actions concerning the charge after it. It seems to me that undertaking mentoring with the Civil Aviation Authority, losing his job and admitting to the careless act showed that there is a high degree of personal deterrence and accountability present in the circumstances to date.
[25] His accountability is shown by his acceptance of falling below the standard required and I consider that those factors are able to be weighed in the assessment of gravity. Mr Bach is someone who has no previous convictions. He is a person of mature years and he has provided, in his employment, services to people and training to others. He is able to call on his character and he calls upon material that is filed in his affidavit and the affidavit in support by Mr Fennell about his attitude and his claim that these salutary events and his expressions of remorse put him in a position of someone who is unlikely to offend against the regulatory legislation in the future.
[26] Those are factors that I can weigh in the assessment. As I did say during discussions with counsel, because of the need to preserve the integrity of the legislation and the need for safety in aviation, the gravity still remains. Notwithstanding those factors, which I take as reducing gravity and reflecting deterrence/denunciation, at a moderate level of seriousness.
(emphasis added)
[30]Mr Macklin submits that the following are irrelevant matters:
(a)Mr Bach’s action “concerning the charge after it”;14 and
(b)Consequences of the offending:15
… that undertaking mentoring with the Civil Aviation Authority,
losing his job and admitting to the careless act showed that there is a
14 Decision on appeal, above n 2 at [24].
15 At [24] (emphasis added).
high degree of personal deterrence and accountability present in the circumstances to date.
[31] In his oral submissions, Mr Macklin abandoned the argument in relation to “admitting to the careless act”. That left two factors: undertaking mentoring and losing his job.
[32]Mr Macklin did not take issue with the Judge taking into account:
(a)Mr Bach’s “accountability” shown by a guilty plea;
(b)Lack of previous convictions;
(c)Service to others; and
(d)Indications that Mr Bach is unlikely to offend again.
[33] In support of his submission that “the defendant’s actions concerning the charge, after it” is an irrelevant matter, Mr Macklin submitted that a defendant’s reaction upon being charged, as opposed to realising they have done wrong, cannot weigh on an assessment of the gravity of the offending. Mr Macklin submits that the point is not fully reasoned by the District Court Judge so may not have weighed heavily. However, Mr Macklin submits it was nevertheless wrong to have weighed it at all.
[34] In my view, Mr Macklin misstates the effect of what the Judge said. The sentence complained of needs to be read with the sentence that follows in which the Judge referred to the defendant’s actions after the charge. That sentence itemises what those actions were. I do not consider Mr Macklin’s point (a) (in [30] above) raises a separate matter. It is part of point (b).
[35] That then leaves two factors which Mr Macklin says are irrelevant in weighing the gravity of the offending:
(a)A loss of employment; and
(b)Undertaking training or mentoring.
[36] Mr Macklin submits that neither of those factors could reduce the gravity of the offending. To the extent that compulsory training or mentoring (mandated by the Director of Civil Aviation) may reduce the risk of re-offending, the Judge accounted for that later in the decision. Weighing this factor at this point was double counting.
[37] Mr Pilditch submits that the assessment of the gravity of the offending goes further than the isolated facts concerning the event or incident giving rise to the charge. The Judge’s reasoning simply follows matters that the senior courts have directed as being relevant to “overall culpability”.16
[38] In this case, personal deterrence and the likelihood of reoffending, and, in that regard, losing his job and undergoing training were relevant. Mr Pilditch says the appellant, in submitting that the mentoring was somehow second-rate because it was mandatory, is straying into a general appeal issue.
The test — ss 106 and 107
[39] The law in relation to ss 106 and 107 is succinctly stated by the Court of Appeal in Taulapapa v R:17
[22] It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are “out of all proportion” to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.
[23] The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are met.
(footnotes omitted)
16 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; and Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005.
17 Taulapapa v R, above n 11.
[40] In assessing the gravity of the offending, the Court is not restricted to an assessment of the conduct that gives rise to the charge. In R v Hughes, the Court of Appeal approved the comments of Miller J in Delaney v Police:18
[29] … I consider that “the gravity of the offence” should be read as including not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is that the offender will reoffend, the victim’s perspective, and any consequence already suffered by way of reparation, community work, or publicity.
[41] The Court also referred with approval to Montgomery v Police, in which Miller J confirmed his approach in Delaney:19
[10] In Delaney, I held that considerations such as attendance at a restorative justice conference, community work undertaken, and willingness to make reparation are relevant considerations under s106 and s107. The phrase “the gravity of the offence” in s107 includes not only the offence but anything that may affect the Court’s subsequent assessment of overall culpability”. …
[42]Then in Z (CA47/2012) v R, the Court of Appeal stated:20
[27] For our part, we consider that there is much to be said for the approach adopted by the Divisional Court in A(CA747/2010). That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender …
[28] … However, while consideration of [the offender’s personal and aggravating and mitigating] circumstances must, in our view, be carried out in the context of the s 107 analysis, whether this occurs at the first or third step of that analysis is not of great significance. Provided that all relevant factors are considered in the s 107 context, the precise point at which they are considered is unlikely to be material.
[43] First, I start with the loss of employment. I accept that Mr Bach’s loss of his job with the Aero Club is not a mitigating factor per se. But if the loss of his job is considered as providing context to Mr Bach’s subsequent acceptance of his wrongdoing it would then properly be part of an accountability assessment as well as personal deterrence and the likelihood of reoffending. And that was the manner in which the Judge assessed Mr Bach’s loss of his job. After mentioning that factor, and
18 Delaney v Police, above n 16, at [29] as cited in R v Hughes, above n 16, at [27].
19 Montgomery v Police HC Palmerston North CRI-2005-454-70, 11 April 2006.
20 Z (CA447/2012) v R [2012] NZCA 599.
two other factors, the Judge said they “showed that there is a high degree of personal deterrence and accountability present in the circumstances to date”.21
[44]I do not consider the Judge erred in taking into account a loss of employment.
[45] Secondly, I turn to the Director’s second alleged irrelevant factor, that the Court should not have taken into account mentoring and training because it was mandated. In his oral submissions Mr Macklin acknowledged that, in assessing the gravity of the offending, a court could weigh the fact that a defendant had undertaken a programme of rehabilitation. He illustrated his submission with a hypothetical example of a person who realised they had done wrong and immediately took steps to address what happened, and where the person concerned is determined to address some of the wrong that has been captured in their offending.
[46] That was not what happened in this case, Mr Macklin said. Mr Bach was required to undertake a programme of monitoring and mentoring recommended as administrative action under s 15(2) of the Civil Aviation Act. The reporting letter to Mr Bach from the CAA, which followed the completion of the programme, included the following:
All note your constructive approach to the monitoring programme and an evident desire to take lessons from the process.
[47] Notwithstanding those comments, Mr Macklin submits the Judge should not have taken the mentoring and training into account in assessing the gravity of the offending.
[48] I do not agree. Mr Bach’s undertaking of mentoring evidenced a low likelihood of reoffending. As the Judge noted, the offending is less grave when an applicant has learnt a salutary and lifelong lesson and is unlikely to reoffend. Moreover, the fact that the mentoring with the CAA was mandatory does not derogate from Mr Bach’s willingness to commit to the process and desire to achieve outcomes that were sought by him and his mentor. This was relevant to Mr Bach’s overall culpability.
21 Decision on appeal, above n 2 at [24].
[49] An analogy might be drawn with mandatory attendance in a restorative justice process. A sentencing court is entitled to take into account an offender’s participation in such a conference when sentencing, even though attendance was mandatory. Effectively the submission comes down to the fact that the Judge should not have placed the weight that he did on Mr Bach’s participation in the programme. I agree with Mr Pilditch’s submission that the Director has strayed into a general appeal on this point. I do not consider there was an error of law in this regard.
[50] I will address Mr Macklin’s submission of double counting on this issue when I come to the second ground of appeal.
Ground 1 (second argument) — relevant factor not taken into account
[51] Mr Macklin submits the relevant factor which the Judge did not refer to in making his gravity assessment was a significant one and he places most weight on this argument for the purposes of the first appeal ground.
[52]The summary of facts contains the following:
Defendant’s position after flight
52.When spoken to by the CAA, [the student pilot who accompanied Mr Bach] recalled that the defendant told him not to share the video footage that he had recorded during their flight with anyone else.
53.A review of the cockpit audio recording revealed the following conversation:
Defendant: So far as the GoPro footage is concerned, we will be getting engagement ahhh that you don’t post anything publicly unless one of us says it’s okay to.
[Student]: Oh okay fair enough.
Defendant: Because for example, coming through that rain before … that’s not a good look so, um, we know that CAA trawls through You tube looking at stuff, so you probably don’t want to put that in. You also probably don’t want to put the descent through the cloud in.
[53] This part of the summary of facts was not mentioned at all by the District Court Judge, either in the first part of his decision where he summarised the factual background or when he assessed the gravity of the offending. Mr Macklin submits
that Mr Bach made the above statements to try and suppress his offending. He says that taking such steps, effectively pressuring a student pilot to conceal offending, was a significant aggravating factor that was not weighed in the District Court Judge’s assessment of the gravity of the offending.
[54] Mr Pilditch accepts that the Judge did not explicitly refer to these facts, but he does not accept that this amounts to a failure to consider a relevant consideration so as to amount to an error of law.
[55]Mr Pilditch draws on judicial review principles:22
… not every factor that might be relevant has to be considered on pain of taking an invalid action. This is where there are unenumerated factors or enumerated factors where the authority may choose which factors to take into account. The test of when an unenumerated factor is mandatory one was stated in CREEDNZ Inc v Governor-General by Cooke J thus:
What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision. …
(footnotes omitted)
[56] Mr Pilditch again relies on Judicial Review: A New Zealand Perspective for support in determining whether factors were in fact considered in any decision.23 Mr Pilditch summarises the key points in that commentary as follows: where there is clear evidence that information was received by a decision maker, there is a presumption that it was considered; and if a party has made submissions on a point or provided evidence on it, a decision maker’s failure to mention that in their decision does not necessarily mean that it has been overlooked, unless there is an indication in the decision that it has been overlooked.
[57] Mr Pilditch also refers to s 9 of the Sentencing Act which sets out aggravating and mitigating factors. The alleged concealment by Mr Bach does not fall within any
22 Referring to Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at [15.42].
23 At [15.50].
of the mandatory aggravating factors in s 9(1). Mr Pilditch accepts that it was open to the Court to consider the conduct as an unenumerated aggravating fact under s 9(4), but it was not required to do so. Therefore, there was no error of law, even if this Court considered that another Court could or would have taken it into account.
Analysis
[58] Counsel were not able to assist with any cases directly on point. Mr Pilditch referred to the Court of Appeal judgment in R v Newald where, in the sentencing context generally, the Court reviewed the task of a sentencing Judge, stating that:24
… at least in the case of a relatively common offence, to have knowledge of the general range of penalties it may attract, and then to bring into account all the circumstances of the particular offence and offender which are relevant to penalty, either by way of aggravation or mitigation. That exercise cannot be a mathematical process. The possible combinations of relevant factors, themselves of infinite variety, and their interrelationship, are too complex to be amenable to mathematical formulation. In addition, at the end the sentencer is left with a discretion as to which of the different aims of sentencing he will prefer in the particular case, and a residual discretion which permits him to consider whether the circumstances provide special justification for the exercise of mercy.
[59] I do not find that case of assistance. It is only after a court has determined that the consequences of a conviction are out of all proportion to the gravity of the offence, that it should consider whether to exercise its residual discretion to grant a discharge.25 In making its gravity assessment, the District Court was not undertaking a discretionary exercise.
[60] First, is Mr Pilditch correct that the Judge presumptively considered the conversation with the student pilot simply because it is referred to in the summary of facts? In circumstances where the conversation is neither referred to in the Judge’s general summary of the background, nor as one of the factors specifically considered in weighing the gravity of the offence, I do not consider that it can be said the Judge presumptively considered the conversation.
24 R v Newald CA327/93, 12 October 1993 at 2–3.
25 Z (CA447/2012) v R, above n 20.
[61] I agree with Mr Pilditch when he submits that Brown v R does not establish what a “relevant matter” is, or when a failure to consider it might amount to an error of law. That said, I do not consider that Mr Pilditch’s resort to judicial review principles is of assistance in a sentencing context.
[62] Nor do I consider that s 9 of the Sentencing Act provides the answer. The issue is simply whether a relevant aggravating factor was not taken into account, not whether a relevant factor was mandatory or not. Resort to the s 9 framework of mandatory (s 9(1)) and non-mandatory (s 9(4)) considerations places a fetter on what is a general inquiry to determine what is relevant or not in assessing gravity. Referring back to Hughes and Delaney, it is apparent that the factors referred to there are wider than the enumerated factors in s 9(1) of the Sentencing Act.
[63] In making his comments to the student pilot, Mr Bach recognised that the CAA would have, at the least, reached an unfavourable view of his conduct and he was taking steps to ensure that it did not come to the attention of the CAA. In my view that was a relevant aggravating factor. It was an error of law for the Judge to fail to take it into account.
Ground 2 (first argument) — consequences of offending weighed instead of consequences of conviction
[64] Mr Macklin submits that the Judge erred in failing to observe the distinction between consequences of careless flying (the offending) and consequences of a conviction. He alleges two errors of law: first, that the Judge took irrelevant factors into account and, second, that he made findings that were not supported by evidence. The former is the Director’s primary argument on the second ground of appeal. I deal with each in turn.
[65] The Judge discussed “the actual and potential consequences of a conviction” at [27] to [33], which I set out in full:
[27] Having established the gravity I then have to consider the actual and potential consequences of a conviction. Some consequences I have already alluded to have come home to roost. The Civil Aviation Authority has, through its administrative processes, applied a process. I am aware that the Authority, regardless of this decision, is aware of the conduct that is present.
There is no question of these proceedings for a discharge doing anything to obscure that Authority’s understanding of the circumstances and the requirement that there be steps put in place to ensure that there is no repetition of such carelessness.
[28] There are also the consequences that the defendant has lost his employment with the aero club that he was employed at, at the time these events occurred. Every conviction brings with it certain general consequences. There is the loss of a good record, there is a requirement to disclose offending when applying for insurance or loans, there is a potential for publication and there is a certain sense of shame that people find when they accept or are found to have breached the law in relation to important legislation. So, those general consequences apply in almost every case.
[29] In this particular case, there are factors which are raised by Mr Bach concerning his future in the aviation industry. He has provided, in his affidavit, details of employment opportunities that he has sought. I am bound to apply the standard of whether appreciable consequences of a conviction may have an effect. Here, Mr Bach points to applications for pilot roles with a number of airlines. He has spoken to owners of airlines where he has been recommended to the Chief Pilot, but the prospect of a conviction was given to him as a reason that he was a non-starter for the role. He was unsuccessful in all of the positions he applied for. He claims these proceedings were a factor in these rejections.
[30] The task of becoming a pilot involves many hours of training, it involves a great deal of expense and it often involves people who have a real desire to be involved in the industry. Mr Bach has originally been engaged in a career as an engineer in the television industry. He has for a very long time been interested in the role of being a pilot and since the 2000s he has been engaged in that role.
[31] Mr Pilditch points out that he is someone who does not have a lifelong interest in the industry and has not got that capital to support his future in the industry. As someone who is intending to retain a foothold in the industry, it is submitted that a conviction could mean that his opportunity is taken from him, despite his study, the expense he has incurred and his undoubted desire to be involved in the aviation industry.
[32] The prosecution in this case submits that in the balancing of these actual and potential consequences it is important that I keep in mind the principles and purposes of sentencing; that I keep in mind that weather is a constant factor in the aviation industry and this was a failure to take into account sufficiently a basic aspect which is a recurring problem in relation to risks faced by pilots. Further that in the moderate assessment of gravity that I have made, in this case there are factors that are closely associated to real risk of harm, real risks of safety, and I need to be sure that those matters are in my mind when I undertake the balancing as necessary.
[33] This is a difficult prospect. In the end I come to the conclusion, notwithstanding the undoubted support that there is for the prosecution case, that this is a case in which the gravity of the offending is wholly outweighed by the actual and potential consequences to Mr Bach. As a consequence, it comes to me to exercise the discretion which is available when the test is passed.
[66] Mr Macklin submits that [27] illustrates the error the Judge makes across his analysis of consequences. Mr Macklin says that, in considering the “consequences of conviction”, the Judge notes some consequences have already “come home to roost”. Mr Macklin submits that any consequences that have already occurred must correctly be consequences of the defendant’s conduct, not conviction.
[67] Mr Macklin goes on to submit that at [28] the Judge effectively finds as such. The Judge notes that Mr Bach lost his employment with the Aero Club “at the time these events occurred”. In other words, this was not as a result of conviction. Mr Macklin then refers to the “general consequences” that the Judge lists, including:
(a)loss of good record;
(b)disclosure requirements for insurance purposes;
(c)potential for publication; and
(d)shame when it is found that someone breached the law.
[68] Mr Macklin submits that, of those matters listed above, only (a) follows from conviction. The rest, including disclosure obligations, are consequences of offending.
[69]Mr Pilditch submits that the Director has misconstrued the Judge’s reasoning.
Analysis
[70] In my view, at [27], the Judge’s observation that some consequences had “come home to roost” needs to be read in the context of his statement that:
[27] … There was no question of these proceedings for a discharge doing anything to obscure [the CAA’s] understanding of the circumstances and the requirement that there be steps put in place to ensure that there is no repetition of such carelessness.
[71] I agree with Mr Pilditch that this was a relevant matter for the Judge to mention because it addressed any suggestion that the discharge was being sought to prevent a regulator from being informed of the circumstances of the offending.
[72] At [28], I do not consider that the Judge was making a specific consequences assessment but rather he was making general observation about the way in which convictions impact on an individual. Mr Pilditch referred to an authority cited to the District Court Judge which acknowledged that irrespective of specific consequences, a conviction carries general consequences which can be considered. In DC (CA47/2013) v R, the Court of Appeal observed:26
[44]A criminal conviction is of itself a black mark …
[45] In our judgment there was sufficient material before the Judge on which he could reach the necessary level of satisfaction about the consequences of the offending. It was, with respect, inevitable that Mr DC’s convictions would have real consequences for his employment. He would have to disclose convictions when applying for any position. Disclosure would have an adverse effect on a prospective employer regardless of whether the convictions were directly relevant to the field of information technology. Its existence would of itself either operate as an immediately disqualifying factor or elicit an inquiry, at the very least, with an attendant obligation to explain.
[73] I consider the observations of the Judge are in keeping with those comments by the Court of Appeal.
[74] I therefore do not accept the submission on behalf of the Director that the Judge weighed irrelevant factors in [27] and [28].
[75] For completeness, I return to Mr Macklin’s submission that the Judge double- counted the mentoring programme by considering it in the context of his gravity assessment and at this stage. In [27], the Judge states that the CAA had, “through its administrative processes, applied a process”. I assume that is a reference to the mentoring programme. The Judge then immediately moves on to refer to the CAA’s knowledge of the conduct and that a discharge would therefore not obscure the CAA’s understanding of the circumstances. When the reference to the programme is seen in that context, I do not consider the Judge was weighing it for a second time. Therefore, to mention it again at this stage was not double-counting.
26 DC (CA47/2013) v R [2013] NZCA 255.
Ground 2 (second argument) — findings unsupported by evidence
[76] The Judge’s specific consequences assessment commenced at [29]. Mr Macklin submits that there are two findings unsupported by evidence. The first is that the owners of airlines suggested that the potential conviction made Mr Bach a non-starter for professional roles and secondly Mr Bach’s job application was declined due to the potential conviction. As to the first finding, Mr Macklin submits that the evidence was that Mr Bach spoke to one owner (not owners) and offered that owner’s evidence as a hearsay statement in his own affidavit. In relation to the second finding, Mr Macklin says there is no evidence supporting Mr Bach’s “bald assertions” and that any job application is multi-factorial. Having made those submissions, Mr Macklin acknowledged that these may be issues going to weight.
[77] As Mr Pilditch points out, there is supporting evidence. William Funnell MBE, an experienced helicopter pilot with over 20,000 hours of flight experience of both fixed wing and rotary aircraft and with over 50 years experienced as a fixed wing and helicopter pilot, swore an affidavit in support of Mr Bach’s application. Mr Funnell has previously held positions of Chairman of the Helicopter Division of the Aviation Industry Association and President of the Aviation Industry Association, which represents the interests of the Aviation community. Mr Funnell, in his affidavit, comments that:
Having an aviation conviction is not helpful for a pilot seeking a job … Without a doubt a conviction will not be helpful to Mr Bach. Even being in the situation he is now having been investigated and pleaded guilty, will weigh against him. Being discharged without a conviction will enhance Mr Bach’s chance of being able to follow a career he has invested in, time and money wise.
[78] So, there is both specific evidence and general authority (referred to at [72] above) supporting the Judge’s findings. While, I accept Mr Macklin’s submission that references to what an owner of an airline said to Mr Bach (as stated in Mr Bach’s affidavit) is hearsay evidence, I still find there is evidence to support the finding that a conviction would have a negative effect on job applications.
[79] As to Mr Macklin’s submission that any job application is multi-factorial, while some notice might be taken of that fact, the specific issue in this case was
whether a conviction would give rise to the appreciable risk that the conviction would represent a barrier that was out of proportion to the gravity of the offending. There was no cross-examination of Mr Bach and Mr Funnell, and accordingly their contentions about the effect of a conviction on Mr Bach were unchallenged.
[80] Finally, I address Mr Macklin’s submission that the Judge misstated the statutory test when he said at [33]:
… the gravity of the offending is wholly outweighed by the actual and potential consequences to Mr Bach.
[81] Mr Macklin submits that this misstatement alone is insufficient to form a ground of appeal. But he says it neatly illustrates the error that the Judge has made, namely weighing consequences alone, rather than confining his analysis to the consequences of conviction.
[82] I am satisfied on a reading of the entire judgment that the Judge did not misapprehend the requirement for the nexus to be between the conviction and the consequences. He said:
(a)“The test which must be applied is that the gravity of the offending must be wholly outweighed by the actual and potential consequences of a conviction”;27
(b)“Having established the gravity, I then have to consider the actual and potential consequences of a conviction”;28 and
(c)“I am bound to apply the standard of whether appreciable consequences of a conviction may have an effect.”29
[83] The last reference above is contained within the paragraph where the Judge commenced his specific consequences assessment. Therefore, regardless of the way in which the Judge worded his conclusion simply by referring to the actual and
27 Decision on appeal, above n 2, at [2] (emphasis added).
28 At [27] (emphasis added).
29 At [29] (emphasis added).
potential consequences, I do not consider the Judge misunderstood and misapplied the statutory test.
Answers to questions of law
[84]The questions posed were:
(a)Did the Judge err in the Court’s assessment of the gravity of the offending; and/or
(b)Did the Judge err in the Court’s assessment of the consequences of a conviction, as distinct from the consequences of the respondent’s admitted conduct?
[85]I reword and answer those questions as follows:
First Ground
(a)Did the Judge take irrelevant factors into account when assessing the gravity of Mr Bach’s offending? No.
(b)Did the Judge fail to take into account a relevant factor, namely Mr Bach’s comments to a student pilot on board, when assessing the gravity of Mr Bach’s offending? Yes.
Second Ground
(a)Did the Judge err by taking into account consequences of the offending rather than consequences of conviction? No.
(b)Did the District Court Judge make findings without evidence? No.
Remedy
[86] Mr Macklin submits that if the appeal succeeds, a conviction should be substituted, and the case remitted to the District Court for resentencing. That was the course adopted in Smyth.30
[87] Mr Pilditch refers to s 300(1) of the Criminal Procedure Act 2011 and questions the approach of the courts quashing the decision to discharge without conviction and then entering a conviction.31 He submits that may be warranted in some cases where the error means that the lower court, properly directed on the law, could only have convicted a respondent. But he says that is not the case here. Even if some of the errors asserted by the Director were made by the District Court Judge, it does not follow that the s 106 application should have been declined. He submits that the starting point is that the matter should be remitted to the District Court for reconsideration in accordance with the opinion of this Court which should not be determining the merits of the application.
[88] I do not accept Mr Pilditch’s submission. The court on appeal may substitute its view of the merits but only if it is satisfied that the court below erred relevantly in law.32 That is the case here. Having regard to the error I have identified, I propose to undertake an assessment of the merits.
[89] First, I consider the gravity of the offending. In my view, Mr Bach’s comments to the student pilot, which the District Court Judge failed to consider, amount to an attempt to conceal the conduct. That elevates the gravity of the offending. However, in considering the overall gravity, I also note the following.
[90] Andrew Campbell, who is an Aviation Safety Advisor for the CAA, swore an affidavit, for the Director, which was before the District Court. Before he commenced his analysis, Mr Campbell made some preliminary points. He said that commenting on the case had been an extremely difficult exercise for him for three reasons:
30 R v Smyth, above n 8.
31 See R v Smyth, above n 8; Solicitor-General v Mohib [2016] NZHC 1908; and Police v Paki [2014] NZHC 3112.
32 Taulapapa v R, above n 11, at [18].
(a)Reviewing weather decisions in hindsight (via video footage) is not the same as being there in person with a 360-degree perspective and therefore has limitations;
(b)Mr Bach has acknowledged, in his summary of facts, his mistake; and
(c)Mr Campbell found himself in similar situations earlier in his career.
[91] There are also the observations of Mr Funnell, who mentored Mr Bach after the events concerned. In his affidavit in support of Mr Bach’s application, he said:
It is unfortunate that our forecasting of weather in New Zealand is such that occasionally the forecasters get the predicted weather wrong. New Zealand is a relatively small land mass situated down-stream weather wise of a large ocean which makes accurate forecasting challenging …
[92] Although Mr Bach accepted that as he and other pilots were flying towards an area of cloud ahead of him and there was an opportunity to turn back rather than proceed, Mr Funnell explained that while that was an option, it can lead to disorientation and danger when there is high terrain on one side and a grey ocean on the other side with an overcast sky.
[93] By pleading guilty to careless operation of an aircraft, Mr Bach accepted that his operation, when considered objectively, fell below the standard of the reasonable and prudent pilot. However, the charge does not import any mental component such as wilfulness or recklessness.
[94] The particulars of Mr Bach’s carelessness reflect breaches of various Civil Aviation Regulations: flying below weather minima and low-flying. Under s 100 of the Civil Aviation Act, and the Civil Aviation (Offences) Regulations 2006, these breaches were capable of being prosecuted as breaches of the regulation for which fines could be imposed. But, because they are also infringement offences, no conviction can be entered. In this case, the prosecution exercised its discretion to lay a charge under the Civil Aviation Act (seeking a conviction) for conduct amounting to breaches of regulations.
[95] As against the above factors, the overall course of conduct was nevertheless careless. Further, Mr Bach was a senior pilot and the only instructor in the group. There are also his comments to the student pilot which I have referred to.
[96] In terms of the personal mitigating circumstances, there are the following: Mr Bach’s accountability shown by his guilty plea; his lack of previous convictions; service to others; and indications that Mr Bach is unlikely to offend again. On behalf of the Director, it was accepted those matters could be taken into account (refer [32] above). There is also Mr Bach’s satisfactory completion of the mentoring programme.
[97] In the District Court, the Director submitted that Mr Bach’s actions should be classified as “moderate to serious level carelessness”. The Director accordingly submitted that a mid to high level fine for careless operation should be imposed. It was submitted that the fine selected should start from a point between $3,500 and
$5,000.
[98] Taking into account all the factors I have referred to, I find that the gravity of the offending is moderate.
[99] Secondly, I am satisfied that the circumstances before the District Court Judge were sufficient to raise a real or appreciable risk that a conviction would have a direct and adverse consequence upon Mr Bach’s prospects of obtaining employment in the Aviation field. I note the observations of Asher J in Alshamsi v Police when dealing with a set of circumstances which was not too dissimilar:33
[25] The consequences need to be seen in the broader context that Mr Alshamsi is undoubtedly a motivated young man with good prospects in his career ahead of him. The Police, of course, and probably any other employer, will become aware of the shoplifting incident. Nevertheless, this is not a reason to not grant a discharge. As I observed in Kohere v Housing New Zealand: [23], the stigma attached to an incident such as this can be much more profound if a conviction, rather than a discharge, is recorded. A discharge without conviction is an indication to the outside world that the Court did not consider that a conviction was warranted. It can be seen as an expression of confidence in an offender by the Court. I consider that there will be a significant difference in the impact of Mr Alshamsi’s career of these events if he is discharged rather than convicted.
33 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.
[100] Thirdly, I then turn to whether the likely consequences of a conviction would be out of all proportion to the gravity of Mr Bach’s offending. In my view, they would be. In reaching that conclusion, I take into account particularly the evidence I have referred to at [90] to [94] above (but not overlooking [95]), as well as the personal mitigating circumstances.
[101] In terms of the discretion, as the Court of Appeal noted in Blythe v R, the case will be rare where an offender who has satisfied the s 107 jurisdictional threshold is not then discharged under s 106(1).34 I can see no reasons why Mr Bach, having satisfied the threshold, should not be discharged.
Result
[102]The application for leave to appeal is granted.
[103]The appeal is dismissed.
Gordon J
34 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
0
5
0