Moore v Director Civil Aviation
[2025] NZHC 2942
•7 October 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2025-483-000033
[2025] NZHC 2942
BETWEEN DENNIS MOORE
Appellant
AND
DIRECTOR CIVIL AVIATION
Respondent
Hearing: 2 October 2025 Appearances:
M D McGhie for Appellant K E Bucher for Respondent
Judgment:
7 October 2025
JUDGMENT OF CHURCHMAN J
Introduction
[1]On 16 July 2025, Judge Marinovich sentenced the appellant to a fine of
$14,750 on the following charges:1
(a)two charges of operating an aircraft without necessary aviation documents;2 and
(b)operating aircraft in a manner that caused unnecessary danger.3
[2]The appellant now appeals his sentence on the grounds that:
(a)the starting point was too high;
1 Civil Aviation Authority v Moore [2025] NZDC 17370.
2 Civil Aviation Act 1990, s 46 — maximum penalty of 12 months’ imprisonment or $10,000 fine.
3 Section 44 — maximum penalty of 12 months’ imprisonment or $10,000 fine.
MOORE v DIRECTOR CIVIL AVIATION [2025] NZHC 2942 [7 October 2025]
(b)the Judge failed to provide an allowance for totality; and
(c)the Judged erred in declining to consider an alternative sentence.
The offending
[3] The appellant had been rebuilding an aircraft since 2008. In October 2022, the Civil Aviation Authority (CAA) staff inspected the aircraft for the purpose of a Certificate of Airworthiness (COA). CAA staff provided the appellant with a list of 30 items to be rectified before another review could be carried out.
[4] On 23 March 2024, the appellant was the pilot-in-command and sole occupant of the aircraft. He flew the plane from Feilding Aerodrome for approximately 26 km before experiencing mechanical issues, and crash landed in a field approximately 1 km south of the Marton township. The aircraft was damaged beyond repair in the crash.
[5] The appellant has never held a Private Pilot License – Airplane (PPL-A) which is required under pt 61 r 61.105 of the Civil Aviation Rules 2023 (the Rules) to operate that aircraft. The aircraft did not have a current COA and was not in airworthy condition as required under pt 91 r 91.101 of the Rules.
[6] The appellant told CAA investigators that he undertook the flight as he was frustrated that the 100-hour inspection required to obtain a COA had taken more than 18 months.
District Court decision
[7]The Judge identified the following aggravating factors in the offending:
(a)Premeditation or knowledge — the appellant knew that he did not possess the appropriate pilot’s licence. He has previously been prosecuted under s 46 of the Act and knew that he was required to hold a PPL-A. The appellant knew the aircraft was not airworthy and that the aircraft required 40 hours of test flying.
(b)The appellant’s actions resulted in a relatively significant crash, close to the township of Marton. While the crash did not cause any deaths, the appellant suffered serious head, chest and leg injuries.
(c)The appellant posed a risk to himself but also to members of the public. The flight path was objectively dangerous. It crossed state highways, numerous farms, occupied buildings and other locations. The Judge noted that the appellant was fortunate to have landed in an unoccupied paddock, as opposed to on a dwelling or another farm user.
[8] The Judge determined that a starting point of a fine of $7,000 for each offence under s 46 was appropriate. In relation to the s 44 offence, the Judge found that an uplift of $5,000 was appropriate. The Judge adopted a starting point of $21,000, taking into account totality.
[9]A five per cent reduction ($1,000) for remorse was justified. An uplift of
$1,000 was appropriate to account for the appellant’s previous breaches relating to civil aviation matters, in particular safety issues. The Judge then adopted a 25 per cent reduction for the appellant’s guilty plea, amounting to $5,250.
[10]The Judge reached an end sentence of a fine amounting to $14,750.
Approach on appeal
[11] An appeal against sentence is an appeal against discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.4 Generally, an appellate Court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 In most cases, a sentence appeal will turn on whether the final outcome is manifestly excessive, rather than the route taken
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
5 At [36].
by the Judge in reaching that outcome.6 The Court must dismiss the appeal in any other case.7
Submission
Appellant’s submissions
[12] Mr McGhie, for the appellant, submits that the starting point for the s 46 charges was too high. In relation to the failure to obtain a PPL-A, Mr McGhie acknowledged in his submissions that experience is not a valid substitute for proper certification. However, he argues a mitigating factor was the appellant had extensive experience in flying that type of aircraft. Mr McGhie highlights that the appellant has been flying the aircraft since 1976 and has a total of 515 hours recorded in his log- book.
[13] In relation to the failure to have a COA, Mr McGhie submits that there are two mitigating factors. He says that the delay in obtaining official certification for 18 months, combined with the appellant’s frustration in completing the certification process is a mitigating factor. Second, Mr McGhie submits that the appellant “presumably” rectified some of the issues that CAA staff identified in the October 2022 inspection.
[14] Mr McGhie argues that due to the considerable overlap between the elements of the charges under ss 46 and 44, the starting point of an additional $5,000 for s 44 charge is too high.
[15] He also argues that the Court ought to have taken into account the financial capacity of the offender. Mr McGhie states that the appellant’s primary source of income was superannuation, and that the appellant was not earning any income from his share holding in a business. Therefore, Mr McGhie submits that an alternative sentence of community detention or home detention was more appropriate in the circumstances.
6 Ripia v R [2011] NZCA 101 at [15].
7 Criminal Procedure Act 2011, s 250(3).
[16] Mr McGhie has also raised an issue with the Judge’s methodology in calculating the end sentence. He states that sum of the starting points outlined by the Judge would equate to $19,000. However, the Judge took a starting point of $21,000. Mr McGhie submits that if $19,000 was taken as the initial starting point, the end sentence would have been $13,250.
Respondent’s submissions
[17] Mr Bucher, for the respondent, submits that the Judge did not err in setting the starting point as starting points of up to $8,000 would have been justifiable. Mr Bucher submits that a starting point of $5,000 representing 50 percent of the maximum penalty was generous, given the extreme level of endangerment to the public. He argues that this case is a serious example of offending under s 46, given the appellant knew that he was unlicensed, and that the aircraft was not airworthy.
[18] Mr Bucher submits that the appellant’s financial capacity cannot reduce the starting point as it is not an aggravating or mitigating feature of the offending. He says that the ability of the appellant to pay the fine is more appropriately assessed at the final step of sentencing.8 Furthermore, Mr Bucher rejects the appellant’s experience and skill as a mitigating feature of the offending.9
[19] The respondent submits that there is no overlap between ss 46 and 44 which warrants a lower starting point. Mr Bucher submits that on one hand, s 46 relates to offending in which the appellant operated an aircraft knowing that he did not hold the correct aviation document. On the other hand, s 44 addresses the unnecessary endangerment to persons or property.
[20] The respondent submits that the Judge explicitly noted that he had made a totality adjustment. However, as a result of the mathematical error, it is not entirely clear where the adjustment was applied. Mr Bucher submits that the Judge adjusted for totality when he set the starting point for the s 44 offence.
8 Stumpmaster v Worksafe New Zealand [2018] NZHC 2020 at [23]–[24].
9 Civil Aviation Authority v Foster [2021] NZDC 6433 at [14].
[21] Mr Bucher accepts that the Judge appears to have made a mathematical error when setting the starting point. However, he submits that the mathematical error has not resulted in an end sentence which was manifestly excessive.
[22] The respondent submits that the Judge did not err in imposing a fine. Mr Bucher argues that the appellant could pay a fine through instalments. In any event, the respondent notes a fine is significantly lower in the hierarchy of sentences than a sentence of community detention or home detention. Given the appellant’s age and poor health, Mr Bucher maintains that a sentence of community detention or home detention would be insufficient to achieve the purposes and principles of sentencing.
Analysis
Starting point
[23] I start by reviewing the relevant cases that the Judge relied on when determining the starting point of the offending.
[24] In Civil Aviation Authority v Boubee, the defendant was sentenced in respect of 26 charges under s 44 of the Act for operating a helicopter in a manner that caused unnecessary danger.10 The defendant had flown his friends on scenic flights and commutes between various properties. The Court adopted a starting point of $1,000 for each charge.
[25] In R v Dale-Emberton, the defendant was an employee of a company that operated charter flights for tourists.11 During departure from one of the locations, the only propeller of the aircraft sustained serious damage. The defendant failed to inspect the aircraft before taking off on another flight. When he later discovered the extent of the damage, the defendant proceeded to fly the aircraft back to the airbase. The Court considered that he failed to inspect the aircraft before taking off and that his decision to fly the aircraft despite the damage was dangerous. The Court adopted a starting point of $7,000 for two charges under s 44 of the Act.12
10 Civil Aviation v Boubee [2021] NZDC 23907.
11 R v Dale-Emberton [2021] NZDC 12332.
12 At [34].
[26] In Chatachvilly v Director of Civil Aviation, the defendant crash landed an aircraft and injured three passengers after failing to remove ice from the wings of the aircraft before departure. On appeal, the Court upheld a starting point of $5,000.13 The Court noted that the appellant’s offending was mid-level and departed from a standard that one would expect of a commercial pilot with passengers on board.14
[27]In Director of Civil Aviation v Pullen, the Court adopted a starting point of
$10,000 for a charge under s 46 for flying an aircraft without a valid PPL-A.15 The defendant’s previous license had expired approximately 33 years ago.
[28] I accept the respondent’s submission that the appellant’s offending is more serious than the cases above. The appellant flew an aircraft with the knowledge that it was not airworthy, and that it did not have a COA, creating unnecessary danger to members of the public. The appellant’s aircraft had 30 issues that were yet to be rectified. In comparison, the only issue in Chatachvilly v Director of Civil Aviation was that the defendant failed remove the ice from the wings. In Civil Aviation Authority v Boubee, the defendant failed to replace the rotor blades of the aircraft.
[29] The extent of danger arising from the appellant’s offending is more serious than in Civil Aviation Authority v Boubee, R v Dale-Emberton, and Director of Civil Aviation v Pullen, exacerbated by the fact that the aircraft crash-landed.
[30] The appellant’s offending is most similar to the offending in R v Dale-Emberton. The appellant in this case and the defendant in that case flew an aircraft with the knowledge that it was not up to minimum standards. However, there are also factors which increase the seriousness of the appellant’s offending compared to R v Dale-Emberton. The defendant in that case had held a valid commercial pilot license for at least 12 years before the offending. The unnecessary danger in the appellant’s case is higher due to the fact that the appellant did not have a PPL-A and the aircraft was not airworthy at the time of departure.
13 Chatachvilly v Director of Civil Aviation [2019] NZHC 2746.
14 At [22].
15 Director of Civil Aviation v Pullen [2020] NZDC 12392.
[31] I accept Mr Bucher’s observations that s 46 creates a strict liability offence which does not require knowledge on the part of the offender. Section 46 is also a “hybrid” section that creates two offences, an offence of strict liability and the other requiring knowledge on the part of the defendant.16 As outlined in Director of Civil Aviation Authority v Barr, a conviction with an element of knowledge under s 46 attracts a sentence towards the upper end of the range, whilst offences involving ignorance or inadvertence will generally attract lower penalties.17
[32] In the appellant’s case, given that there is strong evidence of premeditation and knowledge, the starting point should attract a sentence towards the upper range.
[33] I do not accept the appellant’s submissions that his experience and skill is a mitigating factor to his offending. Clearly, those did not assist him in safely operating the aircraft on the day of the crash. Moreover, it would be contrary to minimum standards of practice under the Act and the Rules for the Court to reduce the sentence of unlicensed offenders on the basis of their experience and skill. The offence is not one of flying the plane without the necessary skill. It is one of flying the plane without the necessary licence.
[34] I do not accept the appellant’s argument that a valid mitigating factor in sentencing is the fact that the issue of the COA was delayed. Nor do I accept that there is any evidence which would support an inference that the issues identified by the CAA had been rectified by the appellant by the time of the offending.
[35] I do not accept that the appellant’s financial capacity may be taken into account in setting the starting point of the offending. The Judge (at [17] of his decision) clearly found that the appellant was capable of paying a fine, albeit paying it off for a longer period of time. There was no evidence as to the appellant’s assets and liabilities, nor was there a declaration of financial capacity. Notwithstanding that the appeal was advanced on the basis of the appellant’s inability to pay a fine, there was no application for leave to file a declaration in this Court. The Court therefore has no reliable information to establish exactly what the appellant’s financial situation is or why he
16 Director of Civil Aviation Authority v Barr [2010] 1 NZLR 138 (HC) at [37].
17 At [46].
could not pay a fine off over time. I also note that, as highlighted by the respondent, it is not appropriate under the Moses v R methodology to assess the appellant’s financial capacity at the first stage of sentencing.
[36] In light of the matters discussed above, I consider it was open to the Judge to adopt a starting point of $7,000 for each offence under s 46.
Totality
[37]Section 85 of the Sentencing Act 2002 details the totality principle:
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4)If only concurrent sentences are to be imposed,—
(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b)each of the lesser offences must receive the penalty appropriate to that offence.
[38] While the provision refers to sentences of imprisonment, rather than fines, the principle has a wider application, including sentences with financial penalties.18
[39] As noted by the authors of Hall's Sentencing, the totality principle is a standard principle of general application that requires the Court to:19
… where it has imposed a series of cumulative sentences or a combination of concurrent and cumulative sentences upon an offender, review the overall
18 Harvey v Ministry of Primary Industries [2020] NZHC 1357.
19 Geoff Hall (ed) Hall's Sentencing (online ed, LexisNexis) at [SA85.2].
sentence in order to ensure that the total is not excessively harsh or grossly disproportionate to the general level of gravity of the individual offences.
[40] A similar approach was applied in Ashcroft v R, where the Court of Appeal held that:20
A totality reduction is not automatic. It is only if the end sentence is ‘wholly out of proportion to the gravity of the overall offending’ that a discount may be given.
[41] In R v Williams, the Court of Appeal rejected the argument that there is a particular way in which total sentences must be put together in respect of multiple offending.21 Instead, the issue of what is an appropriate total sentence for the various charges is constructed in the particular circumstances, as a matter of individual discretion and assessment.22
[42] Applying the approach set out in Ashcroft v R, and acknowledging that there is no one single means to construct a sentence, I find that the Judge did not fail to adjust the sentence for totality. The Judge articulated at para [25] of his decision that he had taken into account totality. The Judge adjusted for totality in considering the offending under ss 44 and 46. The Judge clearly adopted a lower uplift of $5,000 for the s 44 offending to account for totality.
[43] When I consider the overall sentence, I do not consider that the starting point imposed was wholly out of proportion to the gravity of the overall offending.
Alternative sentence
[44] Because of the appellant’s age a sentence of community detention is inappropriate.
[45] In light of the appellant’s previous offending and his repeated disregard for minimum requirements under the Act and the Rules, I consider a fine would best
20 Ashcroft v R [2014] NZCA 551 at [32].
21 R v Williams CA 91/00, 31 May 2000 at [11].
22 At [11].
achieve the purposes and principles of sentencing, namely denunciation and deterrence.
Methodology
[46] The Court of Appeal in Tutakangahau v R requires a Court, on appeal, to correct any arithmetical errors of the sentencing Judge, as outlined below:23
… we need to acknowledge that there may be cases, although not common, where what has gone wrong is such as to require correction albeit the sentence imposed is within range. A straightforward example is where an explicit arithmetical error has occurred and would have been corrected if it had been drawn to the attention of the sentencing judge at the time. In those circumstances, we expect the appeal court will impose the corrected sentence, giving effect to the sentencing judge's intentions.
[47]When assessing the starting point, the Judge said:24
[23] Here in terms of the s 46 charges I determine for each charge that the appropriate start point fine is one of $7,000 each.
[24] In terms of the s 44 offence there I determine that the appropriate start point fine is $5,000.
[25]That gets me to $21,000 taking into account totality.
[48] It appears the Judge intended to adopt an overall starting point of $19,000. Both counsel accept that the Judge made an arithmetical error in adopting a starting point of $21,000.
[49] If the Judge calculated the reductions off a starting point of $19,000, he would have arrived at an end sentence of $13,350.
[50] I therefore, substitute an end sentence to $13,350, giving effect to the Judge’s intentions.
23 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
24 Civil Aviation Authority v Moore, above n 1.
Conclusion
[51] In light of the Judge’s arithmetical error, the appeal is allowed in part to the extent necessary to correct the end sentence from a fine of $14,750 to $13,350.
[52]Otherwise, the appeal is dismissed for the reasons set out above.
Churchman J
Solicitors:
Ruapehu Law, Whanganui for Appellant Gordon Pilditch, Rotorua for Respondent
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