M v Police HC Wellington CRI-2009-485-117

[2009] NZHC 2085

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-117

M

v

NEW ZEALAND POLICE

Hearing:         27 October 2009

Appearances: Mr Nisbet for Mr M 

Ms Grau for the New Zealand Police

Judgment:      9 November 2009         at 12.45 pm

JUDGMENT OF MALLON J

M V NEW ZEALAND POLICE HC WN CRI-2009-485-117  9 November 2009

Introduction

[1]      On the night of 4 March 2008, a commercial flight from Christchurch was on a final approach, descending to land at Wellington Airport from the north.  When the plane was over Newlands and at right angles to the runway, a bright green flash of light filled the cockpit, causing the pilots to shield their eyes.   There was then another such incident within one or two minutes of touch-down.   The plane nevertheless landed without difficulty.

[2]      The source of the light was a laser device. Mr M   was experimenting with the device at the top of the Mount Victoria lookout having bought the device on an internet website the previous day.  He had pointed the laser at the plane although his girlfriend, who was with him, told him not to.

[3]      The   police   went   to   the   lookout   and   Mr M     was   apprehended. Mr M   admitted that he had pointed the laser at the plane for about five seconds. He said that he did not have any intention of doing any harm to anyone.  When asked what effect he thought his actions had had on the pilot, he said: “Probably extremely confused and worried and concerned because of someone like me.   I am glad that you came because if you did not I probably would have done it again.  The website did warn people not to shine it in people’s eyes.”

[4]      Mr M   was initially charged with criminal nuisance (s 145 of the Crimes Act 1961), but this charge was substituted with a charge of doing an act in respect of an aircraft in a manner which caused unnecessary danger (s 44(1)(b) of the Civil Aviation Act 1990).  He was found guilty of this charge after a defended hearing on

8 April 2009.  An application for a discharge without conviction was dismissed and he was sentenced to 200 hours’ community work.

[5]      Mr M   now appeals against the District Court’s decision not to grant a discharge without conviction and further appeals against the sentence of community work as being manifestly excessive.

District Court decision

[6]      In assessing the culpability of the appellant, the sentencing Judge considered that the gravity of the offence was of moderate seriousness.  In reaching this view the Judge:

a)       Noted that the charge did not require proof of intention and carried a maximum penalty of 12 months’ imprisonment.  That imprisonment was a possibility for a strict liability offence was regarded by the Judge  as   reflecting   the   potentially  dangerous   consequences   if, however   unintentionally,   someone   does   something   stupid   in connection with an aircraft;

b)Said that Mr M   had distracted the pilots of a plane carrying passengers that was about to land at a city airport and it was self- evident that this could have had catastrophic consequences;

c)       Considered that Mr M   acted foolishly and recklessly and that he must  have  had  some  knowledge  that  what  he  was  doing  was dangerous.     In  this  respect  the  Judge  referred  to  Mr M  ’s acknowledgement to the police, that his girlfriend had told him not to point the laser at the plane and that the website had warned about not shining the device into people’s eyes;

d)Considered that the experience arising from the charge, the ensuing media publicity and the legal costs would  have been  a  shock  for Mr M  , who  was from a  good family and  who  had  excellent qualifications and work skills.  Against that, and although the defence was not frivolous and Mr M   had a right to defend the matter, the Judge noted that Mr M   had not pleaded guilty.  This meant that the police had to prove the case, the pilots had to give evidence and the Court had to give its judgment.

[7]      The Judge accepted that both for family and business reasons Mr M   would be travelling overseas and the conviction could have some impact on that. The Judge considered that there would not be any impact on Mr M  ’s career because his ability was so high that it would be surprising if people were deflected by this conviction.  The Judge concluded that the direct and indirect consequences of entering a conviction were not out of all proportion to the gravity of the offence.

[8]      The Judge considered that if he were just sentencing Mr M   in isolation there were a number of factors in favour of a very lenient sentence.  However the Judge considered that the sentence needed to reflect the seriousness of the act and the need to deter others who might be inclined to act in this way.  The Judge had been referred to another case involving a laser shone at the bridge of one of the Interisland ferries.  The case was not before him but he was told that there were four counts of criminal nuisance and a sentence of 300 hours’ community work was imposed.  The Judge noted some differences with the present case but said it was unsafe to rely on that to any great extent because he did not have the judgment in front of him.  The Judge considered that in light of the need for deterrence a sentence of community work was the least restrictive sentence that could be imposed and that 200 hours was appropriate.

Submissions

[9]      In written submissions on this appeal Mr M  ’s counsel submitted that a discharge without conviction ought to have been granted.  In oral submissions this was not advanced with any vigour.  The focus on the appeal was instead that 200 hours community work was manifestly excessive.

[10]     It was said that the Judge overstated the seriousness of the offending.  It was said to be foolish nuisance offending and nothing more.  It was said that for many months attempts were made to resolve the issue through diversion and Mr M   had always been prepared to make a public statement as to the dangers of using lasers.  It was said that the police were only seeking a conviction which they viewed as necessary for deterrence purposes.  Mr M   was prepared to and is able to pay a fine and/or make a donation to a charity in the region of $1,500 to $2,000.

[11]     The respondent’s position was that the conduct needed to be marked with a conviction.   The respondent submitted that in simple terms Mr M  ’s conduct needed to be made an example of because laser points are readily available.   In written submissions the Crown supported the Judge’s sentence.  In oral submissions the Crown accepted that the sentence was steep and that a fine in the region proposed by Mr M  ’s counsel would probably have the same deterrent effect.

My assessment

[12]     The Judge’s approach to the application for a discharge was correct.  I differ in the Judge’s assessment of the gravity of the offending only in that he does not appear to have given much weight to Mr M  ’s genuine remorse, willingness to take responsibility for his actions from the outset and low re-offending risk.   The Judge appears to have discounted this because Mr M   defended the charge.  But Mr M   did so on legal issues concerning s 44 and not apparently from any lack of insight into the gravity of his offending.

[13]     That point aside, in my view the Judge did not err in his assessment of whether a discharge without conviction was appropriate.  The offending was reckless because Mr M   pointed the laser directly at the plane without apparent regard for the possible consequences.  The pilots were able to avert their eyes from the light by looking at the instruments, but they simply should not have to put up with any unnecessary distraction like this.   The offending was of a kind where general deterrence is important.  Absent compelling adverse consequences of a conviction, it was necessary to mark the gravity of the offending with a conviction.

[14]     As to the sentence of community work, I agree that the ferry case that was mentioned does not assist.  A record of the sentencing decision has not been found but, according to how it was described to the District Court Judge, there were four charges and they were of a different kind.   A media report which Mr M   has found also indicates the circumstances of the offender in that case may have been quite different than here.

[15]     A sentence of 200 hours’ community work is a steep sentence when the maximum  for  the  offending  is  a  sentence  of  12  months’  imprisonment.     If considering   a   sentence   of   community   work,   a   court   must   give   particular consideration to whether the nature and circumstances of the offending make it appropriate for the offender to be held accountable to the community by making compensation to it in the form of work and to whether the sentence is appropriate having regard to the offender’s character and personal history.

[16]     The offending here involved recklessness towards the safety of passengers, albeit that  safety seems  not  to  have  been  seriously compromised.    That  it  was offending involving the public makes a sentence of community work potentially appropriate.     However  I  consider  that,  in  emphasising  the  need  for  general deterrence, the Judge gave inadequate weight to Mr M  ’s character and personal history.   He was a first offender.   He was remorseful.   He was at low risk of re- offending.  He was able to pay a fine.  A substantial fine would have met the need for general deterrence and in my view was the least restrictive appropriate sentence.

[17]     While a larger fine may have been open, in all the circumstances I consider a fine of $1,500 meets the purposes and principles of sentencing in Mr M  ’s case. I  consider  that  the  sentence  of  200  hours’  community  work  was  manifestly excessive.

Result

[18]     The  appeal  against  sentence  is  allowed.    The  sentence  of  200  hours’

community work is quashed.  Mr M  is fined $1,500.

Solicitors:

V Nisbet, Wellington, ph: 04 472 0777, fax: [phone], email: [email protected]

Mallon J

K Grau, Luke Cunningham & Clere, Wellington, ph: 04 472 1050, fax: [phone], email: [email protected]