Hunter v Civil Aviation Authority

[2014] NZHC 147

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2014-441-1 [2014] NZHC 147

BETWEEN  BRIAN HUNTER Appellant

ANDCIVIL AVIATION AUTHORITY Respondent

Hearing:                   5 February 2014

Counsel:                  P Jensen for Appellant

A Hill for Respondent

Judgment:                13 February 2014

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1]      Mr Brian Hunter is a serial confidence trickster.  He has 153 past convictions for false pretences, forgery and so forth.  Mostly in the 1970s, 1980s and 1990s.  Of late he has sought a wider horizon.  He has pretended to be a trained pilot.  In 1997 he was imprisoned for operating an aircraft without a pilot’s licence, and purporting to provide aviation instruction.

[2]      In September 2012 Mr Hunter convinced a man selling a dual-control Cessna

172B aircraft to let him test-fly it.   He claimed extensive flying experience.   The vendor  flew  the  initial  leg  of  the  test  flight  from  Mahia  to  Portland  Island. Mr Hunter then asked to take the controls on a second test leg to Wairoa, and completed two  take-off  and  landing  circuits  from Wairoa.   The vendor  became nervous about the appellant’s flying as he came in to land at Wairoa.   He briefly placed his hands on the controls.  He did not however take control of the aircraft at that point.   Later the vendor returned to the controls and flew them both back to

Mahia.

HUNTER v CIVIL AVIATION AUTHORITY [2014] NZHC 147 [13 February 2014]

[3]      Mr Hunter pleaded guilty to one charge of operating an aircraft without a pilot’s licence, knowing one was required to fly, contrary to s 46(1)(a) of the Civil Aviation Act 1990.  He was sentenced on 14 January 2014 by Judge Adeane to 300 hours’ community work.  He now appeals against that sentence.  He says that it is manifestly excessive.  His counsel, Mr Jensen, suggests 100 hours’ community work would have been appropriate.

[4]      Mr  Jensen  relies  on  a copy of  the  Civil Aviation Authority’s  sentencing

schedule.  It is a table containing nearly every sentence imposed under the Act since

1991.  It was before Judge Adeane also.

[5]      The schedule records 39 convictions under s 46(1) since 1991.  In almost all cases, offenders have been dealt with by a fine, the greatest of which appears to be

$6,000.   The heaviest non-financial sentence given appears to be 350 hours’ community service imposed in Civil Aviation Authority v Paalvast.1     In that case Mr Paalvast operated a hot air balloon without a current registration, and without holding the appropriate medical certificate, both of which he knew he was required to have.  It appears that sentence was cumulative on a sentence imposed for failure to register his balloon and hold an airworthiness certificate in 2005, for which he was fined a total of $950 plus $1500 prosecution costs.2    There are as Mr Jensen says three cases where 80-120 hours community service was imposed.   The details of those cases were not provided to me.  Inquiries of the relevant registries indicate that the sentencing decisions cannot now be made available.

[6]      There are very good public policy reasons why Parliament has required that people in control of aircraft are licensed.  Principally, because of the underpinning safety training that licensed pilots have.   Mr Hunter may have been capable of getting an aircraft to leave terra firma.  He may also have been capable of getting an aircraft to reach terra firma again, and intact.  And he may have been more or less capable of flying an aircraft between those two points.   But he did not have the requisite safety training of a licensed pilot in the event that something went seriously

wrong.  Flight theory training and rigorous practical training are required of pilots to

1      Civil Aviation Authority v Paalvast DC Rotorua CRI-2005-016-2973, 3 September 2007.

2      Paalvast v Civil Aviation Authority HC Rotorua CRI-2005-463-82, 28 February 2008.

secure greater safety for the occupants of aircraft, and those on the ground, in the event of potential calamity.

Starting point

[7]      Parliament has mandated a maximum sentence of 12 months’ imprisonment. A sentence of 300 hours’ community work might be said to be roughly equivalent to six to nine weeks of imprisonment.3    That is to say, one sixth to one eighth of the maximum sentence that might be imposed.  It cannot be said that such a sentence, allowing for the seriousness of the deliberate and calculated offending here, is manifestly excessive.  I am disinclined to distinguish between the seriousness of the offending in Paalvast and that here.

[8]      A starting point of 300-350 hours’ community work was entirely appropriate. A starting  point  of  100  hours’ community  work  would,  on  the  other  hand  be manifestly inadequate in the case of deliberate offending, as opposed to an offence of inadvertent omission (for example, lapsed certification of man or machine).

Uplift for repeated offending

[9]      Mr Hunter’s offending was seriously aggravated by the fact that it was a repeated offence.   That justifies an increase of at least 20 per cent to the starting point. Taking the lower of the two figures in [8], 300 hours, that produces 360 hours.

Discount for guilty plea

[10]     The appellant deserves a 20 per cent discount for his guilty plea at most.  It came relatively late in the process.  The effective result is that uplift and discount cancel one another out.

Conclusion

[11]     The Judge’s sentence of 300 hours’ community work was not manifestly excessive.

3      See for example, R v Baker CA 354/04, 14 March 2005.

Result

[12]     Appeal dismissed.

Stephen Kós J

Solicitors:

Gordon Pilditch, Solicitors, Rotorua for Appellant

Crown Solicitor, Napier for Respondent