Westland Air Charter Limited v Director of Civil Aviation
[2015] NZHC 2119
•3 September 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-406-21 [2015] NZHC 2119
BETWEEN WESTLAND AIR CHARTER LIMITED
Appellant
AND
DIRECTOR OF CIVIL AVIATION Respondent
Hearing: 1 September 2015 Counsel:
C Griggs for Appellant
C H Macklin and M S Jenkins for RespondentJudgment:
3 September 2015
RESERVED JUDGMENT OF MACKENZIE J
I direct that the delivery time of this judgment is
1.15 pm on the 3rd day of September 2015
Solicitors: Stephens Lawyers, Wellington, for Plaintiff
Gordon Pilditch, Rotorua, for Respondent
WESTLAND AIR CHARTER LTD v DIRECTOR OF CIVIL AVIATION [2015] NZHC 2119 [3 September
2015]
[1] This is an application for leave to appeal as a second appeal, under s 253(3) of the Criminal Procedure Act 2011 (the CPA), against the penalty imposed on the appellant for a breach of the Civil Aviation (Offences) Regulations 2006 (the Regulations). Extension of time to file that application is also sought. I have before me both of those applications, and the substantive appeal if leave to appeal is granted.
[2] The appellant was issued an infringement notice alleging that, on a number of occasions between 1 December 2013 and 9 January 2014, it committed an offence against Civil Aviation r 135.607. The offence was that as the holder of an air operator certificate, it failed to ensure that each pilot acting as pilot-in-command had within the preceding 12 months passed a pt 135 flight competency check. The appellant requested a hearing under s 21(7) of the Summary Proceedings Act 1957 in respect of the offence, to enter a guilty plea and make submissions on the penalty. That came before two Justices of the Peace (JPs) on 6 August 2014. The appellant was fined $12,000 plus Court costs. The fine was at the level of the infringement fee prescribed in the Regulations for breach of r 135.607. The JPs recorded that, this
being an infringement fee, no conviction was entered.1
[3] The appellant appealed under s 248 of the CPA against the JP’s decision. By s 247(a) the appeal was to a District Court presided over by a District Court judge. The appeal was heard by Judge Zohrab on 21 October 2014. He issued a reserved judgment on 30 October 2014.2 He reduced the fine to $9,000.
[4] The appellant’s appeal to this Court is a second appeal, to which s 253 of the CPA applies. Under that section, this Court must not give leave unless it is satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred or may occur unless the appeal is heard. Counsel for the appellant submits that two questions of law arise from the judgment of Judge Zohrab which are matters of general public importance. These are as
follows:
1 Director of Civil Aviation v Westland Air Charter Ltd DC Blenheim CRI-2014-006-574,
6 August 2014.
2 Westland Air Charter Ltd v Director of Civil Aviation Authority of New Zealand DC Blenheim
CRI-2014-006-841, 31 October 2014.
(a) If a defendant served with an infringement notice requests a hearing under s 21 of the Summary Proceedings Act 1957 and is found guilty, is it lawful and proper for the Court to operate on the presumption that the prescribed infringement fee should apply, or should the appropriate penalty (if any) be determined in accordance with the principles provided in s 8 of the Sentencing Act 2002?
(b)Is it lawful and proper for a defendant found guilty of an infringement offence to be subject to a larger financial penalty than more culpable defendants convicted of more serious offences under civil aviation law, on the ground that the latter are subject to a conviction while the former is not?
[5] Counsel further submits that a miscarriage of justice has occurred in that, if the principles in s 8 of the Sentencing Act 2002 are applied to this case, the penalty imposed was manifestly excessive.
[6] It is necessary to set out the background in some detail. The background is described in the very comprehensive and careful decision of the JPs as follows:3
[7] The defendant, Westland Air Charter, holds a general aviation Air Operator Certificate authorising it to conduct commercial air operations for hire and reward. To this end, the defendant also holds registration for a single engine, single pilot float plane that is operated out of Picton, focussed on scenic passenger flights.
[8] Sole director of Westland Air Charter Limited is Mr Alistair John
Gray, the holder of a commercial pilot’s licence, aeroplane, since
7 October 1990. Mr Gray is the sole pilot for the defendant and is specified in the Air Operator’s Certificate as holding the senior roles of chief executive, crew training, flight and grounds operation and maintenance control.
[9] Civil Aviation Rule 135.607 requires that a holder of an Air Operator Certificate must ensure that each pilot acting as pilot-in-command has passed the required part 135 flight crew competency check within the preceding 12 months.
[10] Mr Gray completed his last competency test on 9 January 2014. At that time it became apparent that his competency check record was not continuous. Investigations established his previous competency check had
3 Director of Civil Aviation v Westland Air Charter Ltd, above n 1.
expired on 9 August 2012. Mr Gray’s pilot log-book disclosed, however, that he had undertaken a total of 18 commercial flights from Picton during the period 6 December 2013 to 8 January 2014, despite his knowledge that his competency check validity had expired.
[7] The Regulations prescribe penalties for breaches of a large number of the Civil Aviation Rules made under the Civil Aviation Act 1990. Regulations 4 and 5 provide:
4 Offences and penalties
(1) A breach of a provision specified in the first column of Schedule 1 is an offence against the Act.
(2) A person who commits an offence referred to in subclause (1) is liable on conviction,—
(a) in the case of an individual, to a fine not exceeding the amount specified in relation to that offence in the third column of Schedule 1:
(b) in the case of a body corporate, to a fine not exceeding the amount specified in relation to that offence in the fourth column of Schedule 1.
5 Infringement offences
(1) A breach of a provision specified in the first column of Schedule 1 for which an infringement fee is specified in Schedule 1 is an infringement offence against the Act.
(2) The infringement fee for an offence referred to in subclause (1) is,—
(a) in the case of an individual, the infringement fee specified in relation to that offence in the fifth column of Schedule 1:
(b) in the case of a body corporate, the infringement fee specified in relation to that offence in the sixth column of Schedule 1.
[8] Rule 135.607 is listed in sch 1. Under reg 4 the penalty to which a body corporate is liable on summary conviction is $30,000. Regulation 5 also applies to r 135.607, because an infringement fee is specified in sch 1 for a breach of that provision. The infringement fee for a body corporate is $12,000.
[9] Sections 57 and 58 of the Civil Aviation Act 1990 apply to proceedings for infringement offences. Under s 57(2)(a), the alleged offender may be proceeded against by filing a charging document under s 14 of the CPA, or an infringement
notice may be issued under s 58 of the Civil Aviation Act 1990. When that route is followed, s 58(6) provides:
(6) Where an infringement notice has been issued under this section, proceedings in respect of the offence to which the notice relates may be commenced in accordance with section 21 of the Summary Proceedings Act 1957, and in that case the provisions of that section shall, with the necessary modifications, apply.
[10] There has been conflicting authority on the question whether, when an infringement notice is taken to a hearing to fix penalty, the Court must adopt the infringement fee, or whether the penalty is to be determined having regard to the penalty prescribed for the offence where the case is dealt with by a prosecution rather than an infringement notice. However, the law on this point is now settled. In Emeny v Police Morris J reviewed the authorities and held that the latter view is
correct.4 I reviewed some of the earlier conflicting authorities in Nelson City
Council v Howard.5 I said:
[18] In my view, that analysis shows clearly that what the Court is empowered to impose upon the defendant, after a defended hearing, is a fine, pursuant to the offence provision (in this case s 34 of the 1998 Act and s 5 of the 1986 Act). It is not the infringement fee which is made payable by s 141. Section 29(9) makes it clear that what is imposed (additionally to any costs) is a fine. The power to impose that fine is conferred by s 78A. Section 78A refers to “such fine … as the Court would be authorised to order … on convicting the defendant of the offence”. That fine is to be found in the offence provisions, namely s 34 of the 1998 Act and s 5 of the 1986 Act. Nowhere in the scheme of the legislation, as I have described it, is the Court empowered to impose the infringement fee provided for in s 141.
[19] Accordingly, I consider that the answer to the question is clear. The jurisdiction of the District Court, in the circumstances of this case, was to impose a fine of a maximum of $2000 or $1000 respectively. That fine could be of any amount which the Court in its discretion, applying proper sentencing principles, might think fit. The amount of the infringement fee is a factor which the Court might take into account in deciding the appropriate level of fine. The Court might well fix the fine at the same level as the infringement fee. However, the penalty imposed by the Court, even if, on the particular facts, it is equal to the amount of the infringement fee, is a fine, not an infringement fee.
4 Emeny v Police HC Rotorua AP 35/96, 23 April 1997.
5 Nelson City Council v Howard [2004] NZAR 689 (HC). Section 78A of the Summary Proceedings Act 1957, referred to in [18], has been replaced by s 275 of the Criminal Procedure Act 2011, to the same effect.
[11] Randerson J agreed with that view in Young v Police.6 So too did Duffy J in Moses v Auckland City Council.7 This case is, for present purposes, on all fours with Nelson City Council v Howard.8 The essential point in the first proposed question, namely whether the infringement fee applies or the penalty is to be fixed by ordinary
sentencing principles, is clear and no point of general importance arises.
[12] The first proposed question potentially raises a slightly different point by seeking to ask whether there is a presumption that the prescribed infringement fee should apply. I need to consider whether that slightly different point raises a matter of general or public importance. It could potentially do so only if it was relevant in the circumstances of this case. That would be so only if either the JPs or Judge Zohrab had acted on such a presumption.
[13] It is clear that neither of them did. As I have noted, the JPs gave a very full and careful decision. They set out the law on this point correctly at [18].9
[18] This [s 21(7) of the Summary Proceedings Act 1957] also accords to Court a degree of discretion in determining the level of penalty. This could entail a sum equal to the infringement fee, a lower penalty without minimum or a higher amount up to the fine available upon conviction. …
[14] They went onto examine the submissions of both counsel, and to express their own views and findings about the seriousness of the offending. They noted that the appellant sought a penalty substantially less than the infringement fee. They said:
[41] The setting of infringement fees is a legislative process, culminating in schedule 1, Civil Aviation Offences Regulations 2006. The industry would have been involved in establishing an appropriate level of penalty for offending. Departure from the infringement fee in either direction is not something to be undertaken lightly. The defendant’s offending is neither exceptionally aggravated nor mitigated in any particular manner. If it had been, then the informant is likely to have taken action differently, for example, by charging the defendant instead of issuing an infringement notice or by way of warning.
6 Young v Police [2007] 2 NZLR 382.
7 Moses v Auckland City Council HC Auckland CRI-2010-404-306, 21 December 2010.
8 Nelson City Council v Howard, above n 5.
9 Director of Civil Aviation v Westland Air Charter Ltd, above n 1.
[15] In noting the process which would have been involved in establishing an appropriate level of penalty for offending, the JPs did not apply a presumption that the infringement fee should apply. They rightly treated it as a relevant consideration in fixing the appropriate penalty.
[16] The JPs then said:
[43] In conclusion, on the basis of the evidence and the submissions of both parties before the Court, it is determined that there is no overriding justification to depart from the level of penalty indicated by the infringement fee prescribed in schedule 1 Civil Aviation Offences Regulations 2006.
[17] When this paragraph is read in its full context, it is clear that the JPs recognised that their task was to set an appropriate penalty, not simply to apply the infringement fee. The weight that they gave to the infringement fee as a factor in this case was a matter for the exercise of their discretion, having regard to all other factors which they considered relevant, as they discussed. They found, having exercised the sentencing discretion open to them, that the infringement fee was the appropriate penalty. They did not apply a presumption in reaching that decision, and the first question does not arise on their decision.
[18] Judge Zohrab in his judgment said:10
[10] Departure from the infringement fee is not something to be undertaken lightly. Moreover, as the Justices observed, the defendant’s offending is neither exceptionally aggravated nor mitigated in any particular manner.
[11] Whilst I understand the appellant’s reasons for referring to various other Civil Aviation Authority prosecutions, those cases are not directly comparable with the appellant’s offending, and they each give rise to differing policy and sentencing considerations.
[12] With the infringement fee set at $12,000 it is not possible for the Court to impose a greater fee than the $12,000, but it is possible for the Court to impose a lesser fee. However, the comments by Morris J in Emeny emphasise that the discretion to impose a lesser fee should only be exercised where there are clearly mitigating factors, and it is necessary to achieve justice in individual cases. Further, he emphasises that infringement offences should not be watered down.
[19] The first sentence in [12] is not in accordance with authority. The authorities to which I have referred establish that once the matter proceeds to court, the full range of penalties provided in the relevant legislation becomes available.11
However, the error is of no moment, as no question of a higher penalty arises in this case. Judge Zohrab correctly applied Morris J’s comments about the circumstances in which a lower penalty may be appropriate.
[20] Judge Zohrab went on to note the factors which the JPs had taken into account. He then said:
[16] As I have observed, the Court should guard against the watering down of infringement fees. However, the Sentencing Act 2002 requires a Court to consider the ability of an appellant to pay an infringement fee, and given that information was not before the Justices, nor was ability for payment considered by the Justices, in my view it is appropriate to conclude that given the provision of the financial information that there was an error in sentence imposed and that a different sentence should be imposed.
[21] In that paragraph, the Judge clearly did not apply a presumption that the infringement fee would apply, and he expressly took into account the relevant Sentencing Act 2002 principles. In commenting that the Court should guard against the watering down of infringement fees, Judge Zohrab was clearly applying the comments of Morris J in Emeny v Police, and making his own assessment of the weight to be given to that factor in the sentencing exercise. That was a factor that he was properly able to take into account. He did not apply a presumption in doing so, and the first proposed question does not arise, on his decision.
[22] The second proposed question also does not give rise to a question of general or public importance which would justify the granting of leave to appeal. Judge Zohrab noted, at [8](e), the respondent’s submission that it needs to be remembered that this is an infringement offence which does not result in a conviction for the appellant. There is no indication in his reasoning that this was a factor to which he had regard in fixing the penalty which he imposed. The reasoning indicates to the contrary. He addressed at [11], set out above, the other cases which had been relied on, in which convictions had been entered. He held that those cases
were not comparable so as to be helpful in the exercise of fixing the appropriate level of penalty.
[23] Mr Griggs places considerable reliance on the lesser penalties imposed in those cases to support his submission that the penalty in this case was manifestly excessive. It is not appropriate to review those cases on this application for leave to appeal. They involved different offences, albeit that they could all generally be described as civil aviation regulatory offences. The Judge’s conclusion that these were not directly comparable, and that each gives rise to differing policy and sentencing considerations, was open to him. It does not raise any matter of general or public importance which might justify leave to appeal.
[24] The proposition that a miscarriage of justice has occurred because the penalty imposed was manifestly excessive is not a proper ground for granting leave to appeal. It is little more than an attempt to gain a second appeal as to the appropriate level of penalty.
[25] For these reasons, the application for leave to appeal must fail.
[26] An extension of time for applying for leave to appeal is granted, but the application for leave to appeal is refused.
[27] Mr Macklin submits that costs should lie where they fall. There will be no order as to costs.
“A D MacKenzie J”
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