Pitman v Director of Civil Aviation
[2021] NZHC 1507
•23 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000105
[2021] NZHC 1507
BETWEEN ASHLEY RICHARD PITMAN
Appellant
AND
DIRECTOR OF CIVIL AVIATION
Respondent
Hearing: 1 June 2021 Appearances:
MD Lloyd for Appellant
CH Macklin for Respondent
Judgment:
23 June 2021
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 23 June 2021 at 3.00pm
Registrar/Deputy Registrar
Date………………………….
Solicitors: Gordon & Pilditch, Rotorua
Andrew Lemalu Law, Auckland
To: M Lloyd, Auckland
PITMAN v CAA [2021] NZHC 1507 [23 June 2021]
Introduction
[1]Ashley Pitman faced two charges, namely:
(a)operating a remotely piloted aircraft, more commonly known as a drone, in a manner that caused unnecessary endangerment to another person (the operator of a paraglider);1 and
(b)while operating the drone, failing to give way and keep clear of the paraglider.2
[2] The charges arose out of an incident in which the drone Mr Pitman was flying hit and became entangled in the brake lines of a paraglider operating in the same area. Fortunately for all concerned, the paraglider pilot managed to land his craft without injury.
[3] The charges against Mr Pitman were heard over a three day judge-alone trial before Judge A M Wharepouri (31 August – 2 September 2020).3 On 14 October 2020, Judge Wharepouri delivered his verdicts, finding Mr Pitman guilty on both charges. On 18 February 2021, the Judge declined Mr Pitman’s application for a discharge without conviction.4 Mr Pitman was accordingly convicted and was ordered to pay a fine of $1,000 (apportioned equally across the two charges).
[4] Mr Pitman now appeals against the Judge’s decision to decline his application for a discharge without conviction. The appeal is advanced on three grounds:
(a)first, that the Judge erred in assessing the gravity of the offending;
1 Civil Aviation Act 1990 (the Act), s 44. Maximum penalty one year’s imprisonment or a $10,000 fine.
2 Civil Aviation Rule 101.213(a); Civil Aviation (Offences) Regulations 2006, sch 1. Maximum penalty a fine of $5,000 if entered as a conviction or $2,000 if entered as an infringement.
3 Director of Civil Aviation v Pitman [2020] NZDC 20911.
4 Director of Civil Aviation v Pitman [2021] NZDC 3157.
(b)second, that the Judge erred in assessing whether the consequences of conviction were out of all proportion to the gravity of the offending; and
(c)third, that the Judge erred by not exercising his discretion to discharge Mr Pitman without a conviction.
Background
[5] The background facts themselves, as found by the Judge, are not in issue. I take the following from the Judge’s reasons for verdicts and sentencing notes.
[6] On 15 February 2018, Mr Pitman took his drone to Karioitahi Beach, south of Auckland. As the Judge recorded in his sentencing notes, the beach is a popular one for many people who pursue leisure activities, including paragliding, and is commonly used by local paragliding schools for training beginner pilots. It was not suggested Mr Pitman knew of this before flying his drone at the beach. He had flown his drone at Karioitahi Beach twice before. Mr Pitman relied heavily on a website called AirShare, which told him that there were no potential hazards in the area. The airspace above the beach is also uncontrolled airspace (that is, there are no formal restrictions in relation to it).
[7] On the day in question, Mr Pitman set himself up to fly his drone from a location away from other people who were at the north of the beach. He did not see any paragliders initially, and those he saw later were in the distance to the north of his position. He flew his drone for about 20 to 25 minutes, changed the batteries, and via the camera operator’s screen of his drone, saw a paraglider fly past heading south. He turned his mind to the presence of paragliders and concluded that they were a long way away and that he did not pose a threat to them. He flew his drone for a little longer, and then decided to bring it back in to land and pack up for the day. He flew the drone south along the beach at a height of approximately 90 metres. The drone’s physical body was facing south, but with the camera facing north. At the relevant time, Mr Pitman was looking at the camera operator screen and suddenly saw the image on the screen “spinning in circles”. His drone had collided with a paraglider, piloted by a student pilot, and had become entangled in the brake lines.
[8] The student pilot obviously noticed the collision. The drone created a braking effect, turning the paraglider to the right. Fortunately, the student pilot did not panic and managed to safely land the paraglider. A prosecution witness at the trial, Mr Harrison, described the risk arising from a collision such as this as follows:
I think the most reasonable and likely outcome of a drone impacting a paraglider anywhere that isn’t the pilot himself or herself would be a panicked pilot result and a loss of control of the aircraft.
…
And I’d say that would scare me and I’d say it would scare a student even more. And then if – the biggest, one of the biggest causes of a paraglider coming to grief is when a pilot over controls the wing… if you went hands fully down on one side of a paraglider to turn it, you could induce a collapse and then a collapse would turn quickly into a spiral and when you’re flying at four or five or 600 ft, you’re going to be pretty lucky to recover that before you go pinging into something hard.
[9] After the pilot had landed, Mr Pitman did the right thing and rushed over to him. He apologised, offered to pay compensation for any damage to the paragliding wing, gave the pilot his contact details and only then left the scene. It was recognised at trial by the prosecution and the Judge that Mr Pitman’s actions after the incident were commendable: he made no effort to conceal his role and willingly gave the student pilot his details.
[10] Mr Pitman’s drone had a rear-facing camera on it, which transmitted to a screen held by him. He gave evidence at trial that he split his attention, “about 50/50”, between the screen transmitting from the drone and directly watching the drone from the ground. In this context, Civil Aviation Rule 101.209 relevantly provides:
101.209 Visual line of sight operation
(a) This rule applies to the following types of aircraft:
101.209 (1) a remotely piloted aircraft:
…
(c)A person who operates an aircraft to which this rule applies must at all times—
(1)maintain visual line of sight with the aircraft; and
(2)be able to see the surrounding airspace in which the aircraft is operating; and
(3)operate the aircraft below the cloud base.
(d)For the purposes of this rule visual line of sight means a straight line along which an observer has a clear view and which may be achieved with the use of—
(1)spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision but not the use of an electronic, mechanical, electromagnetic, optical, or electro-optical instrument; or
(2)a first person view system and a trained and competent observer who maintains—
(i)visual line of sight of the aircraft; and
(ii)sight of the surrounding airspace in which the aircraft is operating; and
(iii)direct communication with the person who is operating the aircraft.
(emphasis added)
[11]Civil Aviation Rule 101.213 also provides that:
A person who is operating a remotely piloted aircraft or a control line model aircraft must ensure that the person is operating gives way to, and remains clear of, all manned aircraft on the ground and in flight.
[12] The Judge found that if Mr Pitman was going to look at the rear-facing camera operator screen for his drone with any regularity (that is, rather than watching the drone directly in the sky), he needed a trained and competent observer to be with him within the scope of subsection (d)(2). At trial, Jayne Marsh, the manager of Rotorua Airport and an experienced operator of drones, gave evidence. She said that a trained and competent operator might, notwithstanding r 101.209, look down at their first- person camera screen occasionally, perhaps ten per cent of the time. In the Judge’s view, a 50/50 split showed an unacceptable lack of discipline. It was, the Judge said, “akin to steering a car in a forward direction by reference only to the rear vision mirror”.5
5 At [33].
The law
[13] Sections 106 and 107 of the Sentencing Act 2002 enable a court to discharge an offender without conviction provided the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[14] As noted by the Court of Appeal, this is a two-stage inquiry.6 First, the Court must determine the gravity of the offence and the consequences of conviction, and whether those consequences are out of all proportion to the gravity of the offending. Second, if the Court is satisfied the consequences are out of all proportion to the gravity of the offending, it should consider whether to exercise its discretion to nevertheless decline to grant a discharge.
[15] In considering the consequences of a conviction being entered, the court should consider not just those that would “would inevitably or probably occur”, but all those where there is a “real and appreciable risk that such consequences would occur.”7 And the consequences of a conviction on finding future employment can be taken into account.8 For example, the Court of Appeal observed in Gaunt v Police that: 9
It would be unrealistic not to recognise that a conviction for common assault, which carries a maximum penalty of one year’s imprisonment, would have an inhibiting effect on Mr Gaunt’s employment prospects. Answering truthfully the commonly asked question of whether he had any criminal convictions would immediately place him at a disadvantage. If given the opportunity to do so, he would be required to explain that the conviction was for spitting at his partner in the course of a domestic dispute. That is not likely to be seen as a positive quality in the assessment of Mr Gaunt as a prospective employee.
There is nothing novel about these propositions. It is well-recognised that the black mark of a conviction alone is a significant consequence on an otherwise clean record, especially for a young person who does not yet have a foothold in a career.
(emphasis added, citations omitted)
6 DC (CA47/2013) v R [2013] NZCA 255 at [31].
7 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].
8 Tahitahi v Police [2012] NZHC 663 at [25] and [31].
9 Gaunt v Police [2017] NZCA 590, at [14]–[15].
The District Court decision on discharge without conviction
[16] Judge Wharepouri reminded himself of the relevant legislation. It is not contended that he made any errors in this regard. He then addressed Mr Pitman’s culpability in terms of the offending itself, concluding that:10
Your flying on this day involved a high level of carelessness by over reliance on the first-person view using the drone camera, as opposed to actually watching the craft in the air. This is the best and most likely explanation as to why you did not see [the paraglider pilot’s] wing.
[17]In the context of the offending as a whole, the Judge described it as “serious”.11
[18] The Judge then took into account mitigating factors concerning Mr Pitman himself. He observed that Mr Pitman had no prior convictions and was of previous good character, referring to the numerous positive character references to that end. The Judge noted Mr Pitman’s genuine remorse from the moment of the accident and assessed his risk of re-offending as low. Taking into account these factors, he assessed the gravity of the offending overall as somewhere between low and moderate.
[19] Three adverse consequences of a conviction were raised before the Judge. These were the damage to Mr Pitman’s career prospects, travel plans, and mental health. Of these, only the risk to Mr Pitman’s career prospects and mental health are pursued on appeal.12
[20] The Judge considered that Mr Pitman would not face material damage to his career as a filmmaker. He observed that the conviction would not be for dishonesty or violence, and that this would no doubt be taken into account by future employers. Mr Lloyd, counsel for Mr Pitman then and now, argued that because a drone is a “piece of filmmaking equipment” it would be of especial relevance to filmmaking employers. The Judge observed, however, that Mr Pitman’s expertise in that field was much broader than just videography (in which the use of a drone might be more relevant). Given the nature of the conviction and Mr Pitman’s broad and successful work history
10 At [12].
11 At [13].
12 I accordingly do not address the Judge’s findings on the suggested consequences to Mr Pitman’s future travel.
as a filmmaker, the Judge did not consider there to be a real and appreciable risk of a conviction seriously impacting on Mr Pitman’s ability to secure future work or grants.13
[21] The Judge then turned to the effects on Mr Pitman’s mental health. He observed that adverse impacts on mental health due to convictions were common, and that Mr Pitman’s anxiety caused by a conviction had to be viewed through the lens of a pre-existing mental health condition. The Judge was unpersuaded that the fact of a conviction alone would have such an impact on Mr Pitman’s mental health that it would justify a discharge without conviction.14
[22] In the round, the Judge considered that the consequences of a conviction would not be disproportionate to the wrongdoing involved and declined the application for a discharge. He assessed the appropriate penalty as a fine of $2000, but reduced by 50 per cent to account for Mr Pitman’s previous good character, remorse and future prospects. As noted, the Judge ordered Mr Pitman to pay a fine of $1000, apportioned equally across both charges.
Mr Pitman’s submissions on appeal
[23] Mr Lloyd refers to two authorities which he says are relevant and support a discharge without conviction being granted in this case.
[24] The first is Civil Aviation Authority v Reeve, in which the defendant flew a drone to try and film a forest fire which helicopters were fighting from the air, on two separate occasions.15 In doing so, he flew into controlled airspace. The Judge considered that the offending was at the lower end of the scale and that the general harm to Mr Reeve’s career caused by any conviction was sufficient to result in disproportionality. A discharge was accordingly granted.
13 At [17].
14 At [21].
15 Civil Aviation Authority v Reeve [2016] NZDC 16698.
[25] The second case is Police v Cruz, in which the defendant, again, flew a drone to take photographs of an ongoing forest fire.16 In that case, the defendant flew his drone within 50 metres of one of the helicopters fighting the fire, which forced the helicopters to land and suspended the firefighting operation for two hours. Around ten additional hectares were burned as a result, and flying time worth $8,000 to $10,000 was lost due to the grounding. An application for a discharge was declined.
[26] Mr Lloyd submits that Mr Pitman’s offending is at the low end of the scale (and lower than in both the cases just referred to). Mr Lloyd notes that Mr Pitman did not fly his drone into a controlled area, and in fact chose a relatively isolated area to fly. He describes Mr Pitman’s wrongdoing as momentary inattention, not an active and obvious endangerment. Mr Lloyd also refers to the lack of clear directives on flying drones generally, there being no relevant signs at the beach warning of paragliders and the many and clear mitigating factors relating to Mr Pitman himself (and recognised by the Judge). In these circumstances, Mr Lloyd submits that the Judge erred in assessing the gravity of the offending as low to moderate, and submits it ought to have been assessed as no more than low.
[27] Mr Lloyd further submits that harm to Mr Pitman’s career is a real and appreciable consequence of a conviction, and in concluding to the contrary, the Judge also erred. Mr Lloyd refers to the fact that Mr Pitman has spent ten years working in the field of filmmaking, which constitutes a major investment on his part. Mr Lloyd also refers to Mr Pitman’s own evidence, from his affidavit sworn in support of his application for a discharge without conviction, that he considers he is likely to lose work in the competitive filmmaking industry as a result of the conviction. Mr Lloyd suggests that given the Court’s acceptance of Mr Pitman’s character, there is no basis to conclude his evidence in this regard is unreliable. Further, Mr Lloyd submits that given Mr Pitman’s many years working in the film industry, his own assessment of the likely consequences of a conviction can and ought to be accepted by the Court.
[28] Finally, Mr Lloyd reiterates the findings set out in Mr Pitman’s psychologist’s report as to Mr Pitman’s mental health, submitting that there is clear and independent
16 Police v Cruz [2018] NZDC 2246.
evidence of the adverse impact on Mr Pitman’s mental health from a conviction alone. Mr Lloyd also submits that, in not accepting that the mental health consequences of a conviction warranted a discharge, the Judge put too much emphasis on Mr Pitman’s conditions being pre-existing.
The Director of Civil Aviation’s submissions on appeal
[29] Through counsel, the Director submits that the Judge was correct to assess the culpability of the offending itself (that is, before taking into account factors relevant to Mr Pitman) as moderately serious, emphasising that the paraglider could have been seriously injured or killed. Mr Macklin, counsel for the Director, firmly disputes any categorisation of Mr Pitman’s offending as the result of a “momentary lapse of attention”. Mr Macklin notes that Mr Pitman was found guilty of the more serious offence of operating an aircraft in a manner which causes unnecessary danger to any other person (s 44 of the Act), rather than the less serious charge of operating an aircraft in a careless manner (s 43A of the Act). Mr Macklin notes that even on Mr
[30] Pitman’s own narrative of the events, the incident was not the result of a momentary lapse: rather, Mr Pitman was flying the drone in an unsafe manner throughout the day, with ongoing and unsafe reliance on the camera operator screen for the drone, rather than watching the drone directly in the sky overhead.
[31] Mr Macklin submits that the suggested consequences on employment are too vague and unspecified to give rise to a real and appreciable risk of any material adverse impact. Mr Macklin also emphasises the nature of the conviction in this case (a regulatory offence), submitting that it is not disproportionate for Mr Pitman to need to explain a regulatory conviction to future employers, if and when required. The Director further submits that Mr Lloyd’s characterisation of the Judge’s decision on the application for a discharge as “batting away” issues of mental health is unfair. The Judge, Mr Macklin submits, engaged with all of the issues Mr Lloyd had advanced on Mr Pitman’s behalf, but considered that they were ultimately not disproportionate to the gravity of the offending.
Analysis
[32] To the extent the Judge concluded that the gravity of the offending itself was serious, I am satisfied that he erred. While I agree that the offending was not a momentary lapse of attention, there is no suggestion Mr Pitman was deliberately flying his drone in an area he knew to be popular with paragliders, or actively and knowingly continuing to fly his drone in an area close to paragliders. But I am equally clear that the gravity of the offending was not low. The Judge was clear that Mr Pitman was over-reliant, in a significant way, on the camera operator screen on his drone rather than watching the drone itself in the sky. The Judge’s findings in this regard are not challenged on the appeal. I would classify the gravity of the offending as moderate (though more at the upper end of that categorisation, rather than the lower).
[33] There is also no dispute about the mitigating factors relating to Mr Pitman. In my view, these rightly reduce Mr Pitman’s culpability overall. Standing back, I would categorise the gravity of the offending overall as low (rather than low to moderate). In reaching this view, I emphasise that I do not take a significantly different view from the Judge who had, after all, presided over a three-day Judge alone trial in this matter. It simply reflects my view that the starting point of classifying the offending as “serious” pitched the gravity of the offending slightly too high.
[34] What then of the suggested consequences of a conviction? First, I accept that there is a real and appreciable risk that a conviction will, in a general sense at least, have some adverse effect on Mr Pitman’s career; or to put the point another way, it is inevitable that the presence of a conviction is unlikely to enhance career prospects. In reality, however, that is likely to be the case with any conviction. As the Court of Appeal has observed, a conviction is inevitably a “black mark”17 of sorts for someone who does not have prior convictions.
[35] But in my view, and particularly when considering whether the consequences of a conviction are “out of all proportion” to the gravity of the offending, the Court needs to consider in a somewhat more granular way what impact the conviction is likely to have on employment, which in turn requires consideration of the nature of
17 Gaunt v Police [2017] NZCA 590 at [15], citing DC (CA4712013) v R [2013] NZCA 255 at [44].
the conviction, the nature of the offender’s employment (and likely future employment) and any other relevant factors.
[36] In this case, the conviction is for a regulatory offence, rather than, say, a conviction for dishonesty, violent or sexual offending. Convictions for those types of offending are much more likely to have direct adverse consequences on employment prospects than a conviction of this type (or, for example, driving related convictions, unless of course the employment concerned is driving-related). I note Mr Pitman’s own evidence that he considers a conviction will adversely and materially impact his employment prospects. While I have no doubt Mr Pitman is genuine in holding these views, a person in his position will naturally have a pessimistic view of the impact of a conviction, which may (inadvertently) overstate the likely consequences.
[37] Mr Pitman does not suggest that the use of a drone is central or even particularly relevant to his work going forward. Indeed, in his affidavit sworn in support of his application for a discharge without conviction, he states that, at this time at least, he does not intend to ever use a drone again. Nor does he suggest he has used a drone in his (extensive) 10 year filmmaking career. Accordingly, while Mr Lloyd made many references to this being a conviction for unsafe operation of a piece of “filmmaking kit”, this case is nevertheless far removed from those where the conviction is directly relevant to the offender’s employment, such as where a discharge is sought for driving related offending by a bus or taxi operator. Further, Mr Pitman has a relatively long and deep involvement in the industry in which he works, which Mr Lloyd emphasised in his oral submissions. This is not therefore a case of a young person without any career track record, where one might expect a conviction to have a greater adverse effect. Mr Lloyd also referred to the “unfairness” of Mr Pitman having the conviction with him for the “rest of his life”. This does not take into account, however, the operation of the Criminal Records (Clean Slate) Act 2004.
[38] Accordingly, while I accept that the fact of the conviction is likely to have an impact on employment prospects – much like any conviction – I am not persuaded that any such effect is out of all proportion to the gravity of the offending in this case.
[39] Is the position altered by the stated consequences on Mr Pitman’s mental health? Mr Pitman clearly has an underlying condition which manifests in an anxiety disorder. Correspondence from his treating psychologist states that she is concerned that a conviction and criminal record “might” lead to Mr Pitman experiencing severe anxiety, which “might lead to clinical depression and further delay in progressing with his career and personal relationships”.
[40] The point the Judge made about Mr Pitman’s mental health issues being pre- existing was not to “bat away” these issues, but rather to recognise that they have not been caused themselves by these (now lengthy) proceedings or a conviction. Thus, the Judge observed that legal proceedings and a conviction will commonly impact on a person’s mental health, so such an impact in this case, albeit “on top of” a pre- existing condition, it not itself unusual. And the report from Mr Pitman’s treating psychologist is couched in broad and somewhat tentative terms. She also notes Mr Pitman’s very real progress in learning to deal with and respond to his anxiety disorder. Again, I do not consider any incremental adverse impact on Mr Pitman’s mental health from the entry of a conviction alone (rather than the anxiety resulting from the significant delay between the events in question and Mr Pitman’s trial, and then a three day trial itself) to tip the balance in suggesting that the consequences of a conviction are out of all proportion to the gravity of the offending.
[41] Finally, and for completeness, I do not find the Reeve and Cruz decisions of material assistance in this case. A full reading of the Reeve decision highlights that the gravity of the offending in that case was considered by the Judge to be very low. The Judge expressly stated that “the prosecution has given rise to a widespread false public belief that you flew your [drone] in close and dangerous proximity to the helicopter over the fire”, which was not correct.18 The Judge also noted that the charges relating to breaching controlled airspace were “relatively minor”, with the intrusion into controlled airspace being “very close to the boundaries” and “posing no actual risk to any aircraft”.19 In those circumstances, the granting of a discharge without conviction is perhaps understandable. And in the Cruz decision, a discharge was obviously not granted. The Judge observed that the drone flying in that case had
18 At [20].
19 At [21].
put helicopter pilots at a “genuine risk of a catastrophic collision.”20 The Judge accepted that the offender in that case had an impeccable record, had pleaded guilty and was assessed as being unlikely to re-offend. The offending in that case, which did not involve an actual collision, was nevertheless described as “at least moderately serious”.21 The Judge was not satisfied that the consequences of a conviction were out of all proportion to the gravity of the offending overall, and emphasised the need for denunciation and general deterrence in offending of that kind.
[42] Standing back, taking into account all of the matters discussed above, and while I have some sympathy for Mr Pitman, on a principled basis, I do not consider the Judge erred in not granting a discharge without conviction.
Result
[43]The appeal is dismissed.
Fitzgerald J
20 At [17].
21 At [17].
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