PITMAN v CAA [2021] NZHC 1507

PITMAN v CAA [2021] NZHC 1507 [23 June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000105[2021] NZHC 1507BETWEEN ASHLEY RICHARD PITMANAppellantAND DIRECTOR OF CIVIL AVIATIONRespondentHearing: 1 June 2021Appearances: MD Lloyd for AppellantCH Macklin for RespondentJudgment: 23 June 2021JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 23 June 2021 at 3.00pmRegistrar/Deputy RegistrarDate.Solicitors: Gordon & Pilditch, RotoruaAndrew Lemalu Law, AucklandTo: M Lloyd, AucklandIntroduction[1] Ashley Pitman faced two charges, namely:(a) operating a remotely piloted aircraft, more commonly known asa drone, in a manner that caused unnecessary endangerment toanother person (the operator of a paraglider);1 and(b) while operating the drone, failing to give way and keep clear ofthe paraglider.2[2] The charges arose out of an incident in which the drone Mr Pitman was flyinghit 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 withoutinjury.[3] The charges against Mr Pitman were heard over a three day judge-alone trialbefore Judge A M Wharepouri (31 August – 2 September 2020).3 On 14 October2020, Judge Wharepouri delivered his verdicts, finding Mr Pitman guilty on bothcharges. On 18 February 2021, the Judge declined Mr Pitman's application for adischarge without conviction.4 Mr Pitman was accordingly convicted and wasordered 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 applicationfor a discharge without conviction. The appeal is advanced on three grounds:(a) first, that the Judge erred in assessing the gravity of theoffending;1 Civil Aviation Act 1990 (the Act), s 44. Maximum penalty one year's imprisonment or a $10,000fine.2 Civil Aviation Rule 101.213(a); Civil Aviation (Offences) Regulations 2006, sch 1. Maximumpenalty 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 theconsequences of conviction were out of all proportion to thegravity of the offending; and(c) third, that the Judge erred by not exercising his discretion todischarge Mr Pitman without a conviction.Background[5] The background facts themselves, as found by the Judge, are not in issue. Itake 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 ofAuckland. As the Judge recorded in his sentencing notes, the beach is a popular onefor many people who pursue leisure activities, including paragliding, and is commonlyused by local paragliding schools for training beginner pilots. It was not suggestedMr Pitman knew of this before flying his drone at the beach. He had flown his droneat Karioitahi Beach twice before. Mr Pitman relied heavily on a website calledAirShare, which told him that there were no potential hazards in the area. The airspaceabove the beach is also uncontrolled airspace (that is, there are no formal restrictionsin relation to it).[7] On the day in question, Mr Pitman set himself up to fly his drone from alocation away from other people who were at the north of the beach. He did not seeany paragliders initially, and those he saw later were in the distance to the north of hisposition. He flew his drone for about 20 to 25 minutes, changed the batteries, and viathe camera operator's screen of his drone, saw a paraglider fly past heading south. Heturned his mind to the presence of paragliders and concluded that they were a longway away and that he did not pose a threat to them. He flew his drone for a littlelonger, and then decided to bring it back in to land and pack up for the day. He flewthe drone south along the beach at a height of approximately 90 metres. The drone'sphysical body was facing south, but with the camera facing north. At the relevanttime, Mr Pitman was looking at the camera operator screen and suddenly saw theimage 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 brakingeffect, turning the paraglider to the right. Fortunately, the student pilot did not panicand 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 aparaglider anywhere that isn't the pilot himself or herself would be a panickedpilot 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 evenmore. And then if – the biggest, one of the biggest causes of a paraglidercoming to grief is when a pilot over controls the wing if you went handsfully down on one side of a paraglider to turn it, you could induce a collapseand then a collapse would turn quickly into a spiral and when you're flying atfour or five or 600 ft, you're going to be pretty lucky to recover that beforeyou go pinging into something hard.[9] After the pilot had landed, Mr Pitman did the right thing and rushed over tohim. He apologised, offered to pay compensation for any damage to the paraglidingwing, gave the pilot his contact details and only then left the scene. It was recognisedat trial by the prosecution and the Judge that Mr Pitman's actions after the incidentwere commendable: he made no effort to conceal his role and willingly gave thestudent pilot his details.[10] Mr Pitman's drone had a rear-facing camera on it, which transmitted to a screenheld 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 fromthe 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 atall times—(1) maintain visual line of sight with the aircraft; and(2) be able to see the surrounding airspace in which the aircraftis operating; and(3) operate the aircraft below the cloud base.(d) For the purposes of this rule visual line of sight means a straight linealong which an observer has a clear view and which may be achievedwith the use of—(1) spectacles, contact lenses, or a similar device used to correctsubnormal vision of the user to no better than normal visionbut not the use of an electronic, mechanical, electromagnetic,optical, or electro-optical instrument; or(2) a first person view system and a trained and competentobserver who maintains—(i) visual line of sight of the aircraft; and(ii) sight of the surrounding airspace in which the aircraftis operating; and(iii) direct communication with the person who isoperating 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 modelaircraft must ensure that the person is operating gives way to, and remainsclear 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 cameraoperator screen for his drone with any regularity (that is, rather than watching thedrone directly in the sky), he needed a trained and competent observer to be with himwithin the scope of subsection (d)(2). At trial, Jayne Marsh, the manager of RotoruaAirport and an experienced operator of drones, gave evidence. She said that a trainedand 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'sview, 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 visionmirror".55 At [33].The law[13] Sections 106 and 107 of the Sentencing Act 2002 enable a court to dischargean offender without conviction provided the court is satisfied the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence.[14] As noted by the Court of Appeal, this is a two-stage inquiry.6 First, the Courtmust determine the gravity of the offence and the consequences of conviction, andwhether 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 thegravity of the offending, it should consider whether to exercise its discretion tonevertheless decline to grant a discharge.[15] In considering the consequences of a conviction being entered, the court shouldconsider not just those that would "would inevitably or probably occur", but all thosewhere there is a "real and appreciable risk that such consequences would occur."7 Andthe consequences of a conviction on finding future employment can be taken intoaccount.8 For example, the Court of Appeal observed in Gaunt v Police that: 9It would be unrealistic not to recognise that a conviction for common assault,which carries a maximum penalty of one year's imprisonment, would have aninhibiting effect on Mr Gaunt's employment prospects. Answering truthfullythe commonly asked question of whether he had any criminal convictionswould immediately place him at a disadvantage. If given the opportunity todo so, he would be required to explain that the conviction was for spitting athis partner in the course of a domestic dispute. That is not likely to be seen asa positive quality in the assessment of Mr Gaunt as a prospective employee.There is nothing novel about these propositions. It is well-recognised that theblack mark of a conviction alone is a significant consequence on an otherwiseclean record, especially for a young person who does not yet have a footholdin 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 notcontended that he made any errors in this regard. He then addressed Mr Pitman'sculpability in terms of the offending itself, concluding that:10Your flying on this day involved a high level of carelessness by over relianceon the first-person view using the drone camera, as opposed to actuallywatching the craft in the air. This is the best and most likely explanation as towhy 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 Pitmanhimself. He observed that Mr Pitman had no prior convictions and was of previousgood 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 andassessed his risk of re-offending as low. Taking into account these factors, he assessedthe 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 mentalhealth. Of these, only the risk to Mr Pitman's career prospects and mental health arepursued on appeal.12[20] The Judge considered that Mr Pitman would not face material damage to hiscareer as a filmmaker. He observed that the conviction would not be for dishonestyor 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 "pieceof filmmaking equipment" it would be of especial relevance to filmmaking employers.The Judge observed, however, that Mr Pitman's expertise in that field was muchbroader 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 history10 At [12].11 At [13].12 I accordingly do not address the Judge's findings on the suggested consequences to Mr Pitman'sfuture travel.as a filmmaker, the Judge did not consider there to be a real and appreciable risk of aconviction seriously impacting on Mr Pitman's ability to secure future work orgrants.13[21] The Judge then turned to the effects on Mr Pitman's mental health. Heobserved that adverse impacts on mental health due to convictions were common, andthat Mr Pitman's anxiety caused by a conviction had to be viewed through the lens ofa pre-existing mental health condition. The Judge was unpersuaded that the fact of aconviction alone would have such an impact on Mr Pitman's mental health that itwould justify a discharge without conviction.14[22] In the round, the Judge considered that the consequences of a conviction wouldnot be disproportionate to the wrongdoing involved and declined the application for adischarge. He assessed the appropriate penalty as a fine of $2000, but reduced by50 per cent to account for Mr Pitman's previous good character, remorse and futureprospects. As noted, the Judge ordered Mr Pitman to pay a fine of $1000, apportionedequally across both charges.Mr Pitman's submissions on appeal[23] Mr Lloyd refers to two authorities which he says are relevant and support adischarge without conviction being granted in this case.[24] The first is Civil Aviation Authority v Reeve, in which the defendant flew adrone to try and film a forest fire which helicopters were fighting from the air, on twoseparate occasions.15 In doing so, he flew into controlled airspace. The Judgeconsidered that the offending was at the lower end of the scale and that the generalharm to Mr Reeve's career caused by any conviction was sufficient to result indisproportionality. 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 droneto take photographs of an ongoing forest fire.16 In that case, the defendant flew hisdrone within 50 metres of one of the helicopters fighting the fire, which forced thehelicopters to land and suspended the firefighting operation for two hours. Around tenadditional hectares were burned as a result, and flying time worth $8,000 to $10,000was 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 didnot fly his drone into a controlled area, and in fact chose a relatively isolated area tofly. He describes Mr Pitman's wrongdoing as momentary inattention, not an activeand obvious endangerment. Mr Lloyd also refers to the lack of clear directives onflying drones generally, there being no relevant signs at the beach warning ofparagliders and the many and clear mitigating factors relating to Mr Pitman himself(and recognised by the Judge). In these circumstances, Mr Lloyd submits that theJudge erred in assessing the gravity of the offending as low to moderate, and submitsit 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 andappreciable consequence of a conviction, and in concluding to the contrary, the Judgealso erred. Mr Lloyd refers to the fact that Mr Pitman has spent ten years working inthe field of filmmaking, which constitutes a major investment on his part. Mr Lloydalso refers to Mr Pitman's own evidence, from his affidavit sworn in support of hisapplication for a discharge without conviction, that he considers he is likely to losework in the competitive filmmaking industry as a result of the conviction. Mr Lloydsuggests that given the Court's acceptance of Mr Pitman's character, there is no basisto conclude his evidence in this regard is unreliable. Further, Mr Lloyd submits thatgiven Mr Pitman's many years working in the film industry, his own assessment of thelikely 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'sreport as to Mr Pitman's mental health, submitting that there is clear and independent16 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 aconviction warranted a discharge, the Judge put too much emphasis on Mr Pitman'sconditions 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 theculpability of the offending itself (that is, before taking into account factors relevantto Mr Pitman) as moderately serious, emphasising that the paraglider could have beenseriously injured or killed. Mr Macklin, counsel for the Director, firmly disputes anycategorisation of Mr Pitman's offending as the result of a "momentary lapse ofattention". Mr Macklin notes that Mr Pitman was found guilty of the more seriousoffence of operating an aircraft in a manner which causes unnecessary danger to anyother person (s 44 of the Act), rather than the less serious charge of operating anaircraft 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 amomentary lapse: rather, Mr Pitman was flying the drone in an unsafe mannerthroughout the day, with ongoing and unsafe reliance on the camera operator screenfor the drone, rather than watching the drone directly in the sky overhead.[31] Mr Macklin submits that the suggested consequences on employment are toovague and unspecified to give rise to a real and appreciable risk of any material adverseimpact. Mr Macklin also emphasises the nature of the conviction in this case (aregulatory offence), submitting that it is not disproportionate for Mr Pitman to need toexplain a regulatory conviction to future employers, if and when required. TheDirector further submits that Mr Lloyd's characterisation of the Judge's decision onthe application for a discharge as "batting away" issues of mental health is unfair. TheJudge, Mr Macklin submits, engaged with all of the issues Mr Lloyd had advanced onMr Pitman's behalf, but considered that they were ultimately not disproportionate tothe gravity of the offending.Analysis[32] To the extent the Judge concluded that the gravity of the offending itself wasserious, I am satisfied that he erred. While I agree that the offending was not amomentary lapse of attention, there is no suggestion Mr Pitman was deliberately flyinghis drone in an area he knew to be popular with paragliders, or actively and knowinglycontinuing to fly his drone in an area close to paragliders. But I am equally clear thatthe gravity of the offending was not low. The Judge was clear that Mr Pitman wasover-reliant, in a significant way, on the camera operator screen on his drone ratherthan watching the drone itself in the sky. The Judge's findings in this regard are notchallenged 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. Inmy view, these rightly reduce Mr Pitman's culpability overall. Standing back, I wouldcategorise 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 fromthe 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 thatthere 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 isinevitable that the presence of a conviction is unlikely to enhance career prospects. Inreality, however, that is likely to be the case with any conviction. As the Court ofAppeal has observed, a conviction is inevitably a "black mark"17 of sorts for someonewho does not have prior convictions.[35] But in my view, and particularly when considering whether the consequencesof a conviction are "out of all proportion" to the gravity of the offending, the Courtneeds to consider in a somewhat more granular way what impact the conviction islikely to have on employment, which in turn requires consideration of the nature of17 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 futureemployment) and any other relevant factors.[36] In this case, the conviction is for a regulatory offence, rather than, say, aconviction for dishonesty, violent or sexual offending. Convictions for those types ofoffending are much more likely to have direct adverse consequences on employmentprospects 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'sown evidence that he considers a conviction will adversely and materially impact hisemployment prospects. While I have no doubt Mr Pitman is genuine in holding theseviews, a person in his position will naturally have a pessimistic view of the impact ofa conviction, which may (inadvertently) overstate the likely consequences.[37] Mr Pitman does not suggest that the use of a drone is central or evenparticularly relevant to his work going forward. Indeed, in his affidavit sworn insupport of his application for a discharge without conviction, he states that, at this timeat least, he does not intend to ever use a drone again. Nor does he suggest he has useda drone in his (extensive) 10 year filmmaking career. Accordingly, while Mr Lloydmade 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 theconviction is directly relevant to the offender's employment, such as where a dischargeis sought for driving related offending by a bus or taxi operator. Further, Mr Pitmanhas a relatively long and deep involvement in the industry in which he works, whichMr Lloyd emphasised in his oral submissions. This is not therefore a case of a youngperson without any career track record, where one might expect a conviction to havea greater adverse effect. Mr Lloyd also referred to the "unfairness" of Mr Pitmanhaving the conviction with him for the "rest of his life". This does not take intoaccount, 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 animpact on employment prospects – much like any conviction – I am not persuadedthat 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 mentalhealth? Mr Pitman clearly has an underlying condition which manifests in an anxietydisorder. Correspondence from his treating psychologist states that she is concernedthat a conviction and criminal record "might" lead to Mr Pitman experiencing severeanxiety, which "might lead to clinical depression and further delay in progressing withhis 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 notbeen caused themselves by these (now lengthy) proceedings or a conviction. Thus,the Judge observed that legal proceedings and a conviction will commonly impact ona 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 treatingpsychologist is couched in broad and somewhat tentative terms. She also notesMr Pitman's very real progress in learning to deal with and respond to his anxietydisorder. Again, I do not consider any incremental adverse impact on Mr Pitman'smental health from the entry of a conviction alone (rather than the anxiety resultingfrom the significant delay between the events in question and Mr Pitman's trial, andthen a three day trial itself) to tip the balance in suggesting that the consequences of aconviction 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 ofmaterial assistance in this case. A full reading of the Reeve decision highlights thatthe 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 falsepublic belief that you flew your [drone] in close and dangerous proximity to thehelicopter over the fire", which was not correct.18 The Judge also noted that thecharges relating to breaching controlled airspace were "relatively minor", with theintrusion into controlled airspace being "very close to the boundaries" and "posing noactual risk to any aircraft".19 In those circumstances, the granting of a dischargewithout conviction is perhaps understandable. And in the Cruz decision, a dischargewas obviously not granted. The Judge observed that the drone flying in that case had18 At [20].19 At [21].put helicopter pilots at a "genuine risk of a catastrophic collision."20 The Judgeaccepted that the offender in that case had an impeccable record, had pleaded guiltyand was assessed as being unlikely to re-offend. The offending in that case, which didnot involve an actual collision, was nevertheless described as "at least moderatelyserious".21 The Judge was not satisfied that the consequences of a conviction were outof all proportion to the gravity of the offending overall, and emphasised the need fordenunciation and general deterrence in offending of that kind.[42] Standing back, taking into account all of the matters discussed above, andwhile I have some sympathy for Mr Pitman, on a principled basis, I do not considerthe Judge erred in not granting a discharge without conviction.Result[43] The appeal is dismissed._____________________________Fitzgerald J20 At [17].21 At [17].