HUNTER V CIVIL AVIATION AUTHORITY CA264/2014 [2015] NZCA 19

HUNTER V CIVIL AVIATION AUTHORITY CA264/2014 [2015] NZCA 19 [20 February 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA264/2014[2015] NZCA 19BETWEEN BRIAN DAMIEN HUNTERApplicantAND CIVIL AVIATION AUTHORITYRespondentHearing: 9 February 2015Court: Cooper, Venning and Andrews JJCounsel: P N Ross for ApplicantF Pilditch for RespondentJudgment: 20 February 2015 at 10 amJUDGMENT OF THE COURTA The time to bring the application for leave is extended.B The application for leave for a second appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Brian Damien Hunter applies for leave for a second appeal against a sentenceof 300 hours' community work imposed by Judge Adeane in the Napier DistrictCourt on 14 January 2014.1 His first appeal against that sentence was dismissed by Kós J in the High Court at Napier on 13 February 2014.2 Mr Hunter argues thesentence should have been for no more than 100 hours' community work.1 Civil Aviation Authority v Hunter DC Napier CRI-2013-041-1812, 14 January 2014.2 Hunter v Civil Aviation Authority [2014] NZHC 147.Background[2] Mr Hunter pleaded guilty to a charge under s 46(1)(a) of the Civil Aviation Act 1990 (the Act) that, knowing a current aviation document was required, namelya New Zealand pilot's licence, he flew without holding one.[3] The summary of facts to which Mr Hunter pleaded guilty discloses that in September 2012 Mr Hunter contacted Mr Richard Coop, whose parents had a Cessna aircraft for sale. Mr Hunter introduced himself using the name Brian Shaw.[4] Mr Coop held a current private pilot's licence but did not hold instructorratings.[5] Mr Hunter told Mr Coop he had significant prior flying experience, both in Australia and in New Zealand. Mr Coop took Mr Hunter on a flight in the aircraft from the farm airstrip, landing on Portland Island off the Mahia Peninsula. Mr Hunter then asked Mr Coop if they could undertake circuits from Wairoa. During the Portland Island/Wairoa leg Mr Hunter controlled the aircraft from the right-hand seat. Mr Coop landed the aircraft and the pair swapped seats so that Mr Hunter occupied the pilot in command seat (the left seat). Mr Hunter then operated the aircraft by performing two complete circuits from Wairoa. He carried out the first take-off without incident. However during the first approach to land Mr Coop felt nervous about the way Mr Hunter was flying the aircraft and briefly placed his hands on the controls. He did not, however, take control of the aircraft. The subsequent take-off and landing were completed without any issue arising. The pair then swapped seats again and Mr Coop flew the aircraft from Wairoa back to the family farm.[6] Mr Coop subsequently reported his dealing with Mr Hunter to aviation associates. The defendant was approached by an investigating officer but declined to give a statement.The District Court sentence[7] In sentencing Mr Hunter Judge Adeane noted that the prosecuting authority had indicated to Mr Hunter the sternest sentence it would seek would be community work. The Judge considered a community based sentence accompanied by a final warning was appropriate given the public safety issues involved in any breach of the Act. The Judge therefore placed a final warning on Mr Hunter's criminal record tothe effect that any further breaches of the Act would result in a sentence ofimprisonment, and sentenced him to 300 hours' community work.The High Court judgment[8] In dismissing the appeal, Kós J noted Mr Hunter's counsel had produced atable containing nearly every sentence imposed under the Act since 1991. In almost all cases fines had been imposed. The heaviest non-financial sentence was 350 hours' community work. Kós J considered there were very good public policy reasons why Parliament had required that people in control of aircraft were licensed. He noted the maximum sentence for the offence was 12 months' imprisonment.In the circumstances, allowing for the seriousness of the deliberate and calculatedoffending, a sentence of 300 hours' community work could not be said to be manifestly excessive. The starting point of 100 hours' community work argued forwould have been manifestly inadequate.[9] The Judge took a starting point in the range of between 300 and 350 hours. An uplift was required for Mr Hunter's previous convictions for offending under theAct. The uplift effectively cancelled out the credit for the guilty plea. The appeal was dismissed accordingly.This application for leave is out of time[10] The applicant seeks an extension of time to bring this application for leave. The application should have been filed by 13 March 2014.3 It was not filed until 16 May 2014. However, the respondent was neutral on whether an extension of time3 Criminal Procedure Act 2011, s 255(2).was granted, and focused submissions on the merits of the leave application. The time to bring the application for leave is extended.The application for leave[11] Section 253 of the Criminal Procedural Act 2011 applies. Leave is required for a second appeal such as this. The Court must not give leave unless satisfied that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.[12] In McAllister v R this Court confirmed that when dealing with leave-onlyapplications it is appropriate to give reasons "briefly and in general terms", as envisaged by r 5I of the Court of Appeal (Criminal) Rules 2001.4The applicant's submissions[13] Mr Ross for the applicant accepts that the appeal does not involve a matter of general or public importance, but submits that there have been serious errors in the sentence imposed in the District Court (and upheld on appeal) so that a significant miscarriage of justice has occurred. He argues the summary of facts was inaccurate and that the applicant should have the opportunity to put proof of his previous flying experience before the Court. Mr Ross submitted that neither defence counsel nor the Judges in the District and High Courts were likely to have appreciated the "truesituation of the control of the aircraft in the circumstances in which the offendingtook place".[14] In McAllister this Court discussed the approach to the miscarriage of justice limb.5 We apply that approach.[15] The first point is that Mr Hunter took no issue with the summary of facts before the District Court nor before Kós J in the High Court.4 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [46].5 At [37]–[42].[16] Next, the summary of facts was not inaccurate. It correctly recorded that Mr Hunter has never held a New Zealand pilot's licence.[17] Mr Hunter says that he passed his flight test for a private pilot licence in 1975. The further material produced by the Authority discloses that Mr Hunter mayhave held a student pilot's licence and undertaken some flight training but in December 1986 the Authority did not consider Mr Hunter to be a fit and proper person to hold a licence and declined to allow his medical assessment, which was a pre-condition for him obtaining a pilot's licence, to proceed. Indeed, the Authoritycancelled Mr Hunter's student pilot's licence due to his making a false statement on the medical application form. Other than Mr Hunter's bare assertion there is no evidence that he had previously held a private pilot's licence. Given Mr Hunter'snumerous previous convictions for dishonesty the Court is not prepared to accept his evidence without documentary corroboration.[18] In any event, the short point is that Mr Hunter did not hold a pilot's licence atthe relevant time and was sentenced on that basis.[19] Mr Hunter's assertion that he has previous flying experience was recorded inthe summary of facts but again the fact Mr Hunter may have had prior experience of flying is of no relevance to the offence nor the sentence imposed. Mr Hunter knewhe did not hold a pilot's licence. His offending was not inadvertent.[20] The maximum penalty for the offence is 12 months' imprisonment. The sentence of 300 hours' community work cannot be said to be manifestly excessive,particularly when Mr Hunter had previous convictions in 1998 for offending under the Act, including for operating an aircraft without appropriate and currentdocuments and falsely representing himself as a pilot with an instructor's rating.Result[21] The application for leave to appeal is dismissed.Solicitors:Cathedral Lane Law, Napier for ApplicantCrown Law Office, Wellington for Respondent