DIRECTOR OF THE CIVIL AVIATION AUTHORITY v BACH [2019] NZHC 2062

DIRECTOR OF THE CIVIL AVIATION AUTHORITY v BACH [2019] NZHC 2062 [22 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-201[2019] NZHC 2062BETWEEN THE DIRECTOR OF THE CIVILAVIATION AUTHORITYApplicantAND MICHAEL EDWARD BACHRespondentHearing: 6 August 2019Appearances: C Macklin for the ApplicantF Pilditch for the RespondentJudgment: 22 August 2019JUDGMENT OF GORDON JThis judgment was delivered by meon 22 August 2019 at 3.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, RotoruaAMC Legal Services, InvercargillCounsel: F Pilditch, AucklandIntroduction[1] The respondent, Michael Bach, pleaded guilty to a single charge of operatingan aircraft in a careless manner contrary to s 43A of the Civil Aviation Act 1990. Themaximum penalty is a fine of no more than $7,000.1 Mr Bach was discharged withoutconviction in the District Court under s 106 of the Sentencing Act 2002.2[2] The Director of the Civil Aviation Authority (the Director) seeks leave toappeal the s 106 discharge on questions of law under s 296 of the Criminal ProcedureAct 2011. The two proposed questions of law are:(a) Did the Judge err in the Court's assessment of the gravity of theoffending; and/or(b) Did the Judge err in the Court's assessment of the consequences of aconviction, as distinct from the consequences of the respondent'sadmitted conduct?[3] The application for leave to appeal and the appeal were heard together.Background[4] Mr Bach was formerly a B category flight instructor at the North ShoreAero Club. He led a group of pilots and three students travelling to Ashburton toattend the national flying championships. There were three aircraft. Mr Bach was inthe company of a student who had recently started learning to fly. They were leadingthe two other aircraft, each with a pilot and student. Mr Bach was the only instructorin the group. The other two pilots were members of the North Shore Aero Club.[5] Prior to leaving, Mr Bach discussed the weather conditions with the group. Henoted the weather they would likely encounter during the flight could be challenging.1 Civil Aviation Act 1990, s 43A(2)(a).2 Director of Civil Aviation v Kirby [2019] NZDC 7644 [Decision on appeal]. The copy of theDistrict Court decision provided to this Court by counsel referred to the appellant by his real name,Michael Bach. It appears that in the published version, a fictitious name, Glenn Kirby, is adoptedand identifying particulars are anonymised. There was no submission made on behalf of Mr Bachthat his name should be anonymised in this judgment, and I see no reason to do so.However, at the time they left the North Shore aerodrome, the weather conditions werenot such that the flight ought to have been cancelled.[6] As the flight progressed, the weather deteriorated. The pilots flew towards anarea of cloud ahead. Mr Bach had an opportunity to safely turn back. But he did not.Mr Bach and one other pilot flew above the cloud. But that started to compromisetheir ability to maintain visibility. Mr Bach determined the safest option would be toget below the cloud. He took the controls from the student and performed a steepspiral turn through a hole in the cloud layer. He rapidly descended below the cloud.The other aircraft was following closely.[7] Mr Bach then determined it was safest to track along the coast rather thaninland. He descended further below the weather. At one point, he was forced todescend below the minimum height of 500 feet under the visual flight rules to avoidthe clouds.[8] Upon landing, Mr Bach asked his student not to post any footage of the flight(taken with a Go-Pro) online without his permission.[9] Mr Bach had originally faced two alternative charges: a charge of causingunnecessary endangerment which carries a maximum penalty of 12 months'imprisonment and the charge in this appeal. The Director agreed to abandon the moreserious charge conditional on Mr Bach pleading guilty to the less serious charge.[10] The charge to which Mr Bach pleaded guilty contained a number of particularsand was expressed as follows:[That he] Operated an aircraft, namely a Robin 212OU registration ZK-TZL,in a careless mannerParticulars:a. Flew pursuant to visual flight rules into weather conditions thatappeared to be near or below the meteorological minima prescribedpursuant to the Civil Aviation Rules, Part 91, Sub-part D.b. Conducted a tight spiral turn in close vicinity to another aircraft indifficult and cloudy conditions.c. Flew too close to cloud in Class G airspace.d. Operated below 500 feet above ground level in weather conditionsthat were below the meteorological minima prescribed by Part 91.301of the Civil Aviation Rules.District Court[11] The District Court Judge considered the s 106 application following Mr Bach'sguilty plea. The Judge applied the three-stage test of assessing the gravity of theoffending, the consequences of a conviction and whether those consequences wouldbe out of all proportion to the gravity of the offending.3[12] First, as to the gravity of the offending, the Judge considered that safety was asignificant factor given the regulatory nature of the legislation.4 Mr Bach operated inpoor weather conditions. He accepted that he was careless. The Judge noted thatweather plays a significant part in flight, especially as to visibility. The Judge observedthat weather "poses severe risks of collision and/or disorientation which can have life-threatening or even fatal consequences".5 There are also significant risks with low-flying.[13] But the Judge noted that "gravity is not an assessment which is limited solelyto the facts of the offending".6 Other relevant factors included the fact Mr Bach hadundertaken mentoring with the Civil Aviation Authority (CAA). He had lost his joband had admitted to his carelessness, showing a high degree of personal deterrenceand accountability. Mr Bach has no previous convictions. The Judge considered thatMr Bach was unlikely to offend against the regulatory legislation again in future.These factors reduced the gravity to a "moderate level of seriousness".7[14] Secondly, as to the consequences of conviction, the Judge first observed thatthe CAA was aware of Mr Bach's careless conduct. He then referred to generalconsequences such as the loss of a good record, difficulty in applying for insurance orloans, potential for publication and a sense of shame. In making his assessment in the3 At [4], [27] and [33].4 At [24].5 At [6].6 At [24].7 At [26].particular case, the Judge considered consequences in relation to Mr Bach's future inthe aviation industry.[15] Thirdly, the Judge found that the gravity of the offending was whollyoutweighed by the actual and potential consequences to Mr Bach.[16] Mr Bach was discharged without conviction with conditions. He was orderedto pay $2,000 in costs at a rate of $100 per month starting 1 May 2019.Application for leave to appeal[17] First, as to whether the appeal poses questions of law, Mr Macklin, for theDirector, relies on R v Smyth in which the Court of Appeal accepted that the followingquestions raised questions of law:8(b) Did the Judge err in her assessment of the gravity of the offending?(c) Did the Judge err in her assessment of the consequences of aconviction?[18] Mr Macklin submits that within the two questions in this appeal the keyarguments for the Director are that the Judge: took irrelevant factors into account;failed to consider a relevant factor; and made factual findings which were not basedon evidence.[19] Mr Macklin also submits that the case is generally important. It raises issuesworthy of an appeal court's attention. It includes factors common to many carelessoperation cases prosecuted under the Civil Aviation Act.[20] Finally, Mr Macklin submits that the appellant's notice of application beingmistakenly entitled "Notice of Appeal" as opposed to "Notice of Application for Leaveto Appeal" was a technical error and should not prevent leave being granted. In allother respects the document complied with the relevant requirements of rr 8.3 and 8.4of the Criminal Procedure Rules 2012. The document was fit for purpose.8 R v Smyth [2017] NZCA 530 at [6].[21] Mr Pilditch, for Mr Bach, refers to the form of the appeal being a notice ofgeneral appeal. He submits that, up until the appellant's submissions were filed, noneof the prior documentation articulated the errors now referred to by the Director as setout in [18] above.[22] Having now had the grounds articulated, Mr Pilditch submits that:(a) The first ground is couched as a question of law but in the final analysisit is an attempt at a general appeal; and(b) Aspects of the second ground are not questions of law.Analysis[23] Section 296 of the Criminal Procedure Act 2011 provides for appeals onquestions of law so long as the Court grants leave. Neither s 296 nor s 213 of theCriminal Procedure Act specifies criteria applicable to a grant of leave in the HighCourt. No particular test has emerged from case law. However, "Leave will generallybe granted if, on the face of it, there is an arguable question of law identified."9[24] The Court of Appeal in Brown v R, identified three standard errors which createa question of law:10(a) a misdirection of law apparent in the decision;(b) oversight of a relevant matter or consideration of an irrelevant matter;(c) a factual finding unsupported by any evidence or an omission to drawan inference of fact which is the only one reasonably possible on theevidence.[25] In Taulapapa v R, the Crown had identified three questions, the first twofollowing the format of questions (b) and (c) in Smyth (refer [17] above).11 The third9 Police v Neutze [2018] NZHC 1510 at [2].10 Brown v R [2015] NZCA 325 at [16].11 Taulapapa v R [2018] NZCA 414 at [19].was whether the Judge erred in finding the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence. The Court ofAppeal stated that thus framed the questions were directed to the Judge's factualfindings. However, in that case, questions of law, in line with the Brown errors, wereisolated by the Crown during argument.12 The Court therefore answered reframedquestions of law. Some of those reframed questions were expressed in similar termsto the arguments advanced by the Director in this appeal.[26] In Police v Neutze, the question of law for which leave to appeal was soughtwas: did the Judge err in her assessment of the gravity of the offending?13 However,in that case, Brewer J stated:[11] The Court of Appeal in R v Malu considered a Crown appeal againsta discharge without conviction where the first of the three questions of law forwhich leave to appeal was sought was the same as Ms Small's question. Theother two were similar but addressed the second and third steps. The Courtcommented that the questions are more suitable for consideration in thecontext of a general appeal. It granted leave to appeal because inside thegeneral questions were arguable questions of law.[12] I will adopt the same approach. Within the general question posed byMs Small are arguable questions of law – namely, to use the language ofBrown v R – oversight of relevant matters. I grant leave to appeal and willnow consider them.(footnotes omitted)[27] I will similarly follow that approach. Within the two questions posed there arequestions of law that fall within the second and third categories in Brown v R. I do notconsider that any initial technical non-compliance is a sufficient basis for refusingleave. I accordingly propose to grant leave on the basis that the Director has identifiedquestions of law. It is not necessary to address the Director's submission that appealraises matters of general importance.Ground 1 (first argument) — irrelevant factors taken into account[28] The Director makes two separate arguments in relation to the District CourtJudge's gravity assessment. The first is that irrelevant factors were taken into account.12 At [20].13 Police v Neutze, above n 9, at [7].The second is that a relevant factor was not considered. Of the two, the Director placesmost weight on the second argument. I will deal with each in turn.[29] Mr Macklin takes issue with parts of [24] to [26] of the decision, which are theparagraphs in which the District Court Judge set out the factors he took into accountin making his finding as to the gravity of the offending. I set out those paragraphs infull and then refer to the particular parts with which the Director takes issue:[24] The assessment which must be made of gravity is not an assessmentwhich is limited solely to the facts of the offending. Obviously, because theoffending is against regulatory-type legislation, safety is a significant factor inassessing gravity. I am also entitled to take into account in the assessment thedefendant's actions concerning the charge after it. It seems to me thatundertaking mentoring with the Civil Aviation Authority, losing his job andadmitting to the careless act showed that there is a high degree of personaldeterrence and accountability present in the circumstances to date.[25] His accountability is shown by his acceptance of falling below thestandard required and I consider that those factors are able to be weighed inthe assessment of gravity. Mr Bach is someone who has no previousconvictions. He is a person of mature years and he has provided, in hisemployment, services to people and training to others. He is able to call onhis character and he calls upon material that is filed in his affidavit and theaffidavit in support by Mr Fennell about his attitude and his claim that thesesalutary events and his expressions of remorse put him in a position ofsomeone who is unlikely to offend against the regulatory legislation in thefuture.[26] Those are factors that I can weigh in the assessment. As I did sayduring discussions with counsel, because of the need to preserve the integrityof the legislation and the need for safety in aviation, the gravity still remains.Notwithstanding those factors, which I take as reducing gravity and reflectingdeterrence/denunciation, at a moderate level of seriousness.(emphasis added)[30] Mr Macklin submits that the following are irrelevant matters:(a) Mr Bach's action "concerning the charge after it";14 and(b) Consequences of the offending:15 that undertaking mentoring with the Civil Aviation Authority,losing his job and admitting to the careless act showed that there is a14 Decision on appeal, above n 2 at [24].15 At [24] (emphasis added).high degree of personal deterrence and accountability present in thecircumstances to date.[31] In his oral submissions, Mr Macklin abandoned the argument in relation to"admitting to the careless act". That left two factors: undertaking mentoring andlosing his job.[32] Mr Macklin did not take issue with the Judge taking into account:(a) Mr Bach's "accountability" shown by a guilty plea;(b) Lack of previous convictions;(c) Service to others; and(d) Indications that Mr Bach is unlikely to offend again.[33] In support of his submission that "the defendant's actions concerning thecharge, after it" is an irrelevant matter, Mr Macklin submitted that a defendant'sreaction upon being charged, as opposed to realising they have done wrong, cannotweigh on an assessment of the gravity of the offending. Mr Macklin submits that thepoint is not fully reasoned by the District Court Judge so may not have weighedheavily. However, Mr Macklin submits it was nevertheless wrong to have weighed itat all.[34] In my view, Mr Macklin misstates the effect of what the Judge said. Thesentence complained of needs to be read with the sentence that follows in which theJudge referred to the defendant's actions after the charge. That sentence itemises whatthose actions were. I do not consider Mr Macklin's point (a) (in [30] above) raises aseparate matter. It is part of point (b).[35] That then leaves two factors which Mr Macklin says are irrelevant in weighingthe gravity of the offending:(a) A loss of employment; and(b) Undertaking training or mentoring.[36] Mr Macklin submits that neither of those factors could reduce the gravity ofthe offending. To the extent that compulsory training or mentoring (mandated by theDirector of Civil Aviation) may reduce the risk of re-offending, the Judge accountedfor that later in the decision. Weighing this factor at this point was double counting.[37] Mr Pilditch submits that the assessment of the gravity of the offending goesfurther than the isolated facts concerning the event or incident giving rise to the charge.The Judge's reasoning simply follows matters that the senior courts have directed asbeing relevant to "overall culpability".16[38] In this case, personal deterrence and the likelihood of reoffending, and, in thatregard, losing his job and undergoing training were relevant. Mr Pilditch says theappellant, in submitting that the mentoring was somehow second-rate because it wasmandatory, is straying into a general appeal issue.The test — ss 106 and 107[39] The law in relation to ss 106 and 107 is succinctly stated by the Court of Appealin Taulapapa v R:17[22] It is settled law that a court considering a discharge should: examinethe gravity of the particular offence, taking into account all aggravating andmitigating factors of the offending and the offender; identify the direct andindirect consequences of conviction; and consider whether thoseconsequences are "out of all proportion" to the gravity of the offence. Onlythen does it move to considering the residual discretion under s 106. Theremust be a "real and appreciable" risk that any given consequence will happen:this standard recognises that the court is assessing the likelihood of somethingthat may happen in the future.[23] The offender should ordinarily put information before the court toprovide a factual basis for a decision that the test has been satisfied. There isno legal onus on the offender to do so however, and the standard of proof ins 107 is simply that the judge be satisfied that the requirements of the sectionare met.(footnotes omitted)16 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; and Delaney v Police HC WellingtonCRI-2005-485-22, 22 April 2005.17 Taulapapa v R, above n 11.[40] In assessing the gravity of the offending, the Court is not restricted to anassessment of the conduct that gives rise to the charge. In R v Hughes, the Court ofAppeal approved the comments of Miller J in Delaney v Police:18[29] I consider that "the gravity of the offence" should be read asincluding not only the offence itself but also anything that may affect theCourt's subsequent assessment of overall culpability. That includes guiltypleas, expressions of remorse and the Court's assessment of how likely it isthat the offender will reoffend, the victim's perspective, and any consequencealready suffered by way of reparation, community work, or publicity.[41] The Court also referred with approval to Montgomery v Police, in whichMiller J confirmed his approach in Delaney:19[10] In Delaney, I held that considerations such as attendance at arestorative justice conference, community work undertaken, and willingnessto make reparation are relevant considerations under s106 and s107. Thephrase "the gravity of the offence" in s107 includes not only the offence butanything that may affect the Court's subsequent assessment of overallculpability". [42] Then in Z (CA47/2012) v R, the Court of Appeal stated:20[27] For our part, we consider that there is much to be said for the approachadopted by the Divisional Court in A(CA747/2010). That is: when consideringthe gravity of the offence, the court should consider all the aggravating andmitigating factors relating to the offending and the offender [28] However, while consideration of [the offender's personal andaggravating and mitigating] circumstances must, in our view, be carried out inthe context of the s 107 analysis, whether this occurs at the first or third stepof that analysis is not of great significance. Provided that all relevant factorsare considered in the s 107 context, the precise point at which they areconsidered is unlikely to be material.[43] First, I start with the loss of employment. I accept that Mr Bach's loss of hisjob with the Aero Club is not a mitigating factor per se. But if the loss of his job isconsidered as providing context to Mr Bach's subsequent acceptance of hiswrongdoing it would then properly be part of an accountability assessment as well aspersonal deterrence and the likelihood of reoffending. And that was the manner inwhich the Judge assessed Mr Bach's loss of his job. After mentioning that factor, and18 Delaney v Police, above n 16, at [29] as cited in R v Hughes, above n 16, at [27].19 Montgomery v Police HC Palmerston North CRI-2005-454-70, 11 April 2006.20 Z (CA447/2012) v R [2012] NZCA 599.two other factors, the Judge said they "showed that there is a high degree of personaldeterrence and accountability present in the circumstances to date".21[44] I do not consider the Judge erred in taking into account a loss of employment.[45] Secondly, I turn to the Director's second alleged irrelevant factor, that the Courtshould not have taken into account mentoring and training because it was mandated.In his oral submissions Mr Macklin acknowledged that, in assessing the gravity of theoffending, a court could weigh the fact that a defendant had undertaken a programmeof rehabilitation. He illustrated his submission with a hypothetical example of aperson who realised they had done wrong and immediately took steps to address whathappened, and where the person concerned is determined to address some of the wrongthat has been captured in their offending.[46] That was not what happened in this case, Mr Macklin said. Mr Bach wasrequired to undertake a programme of monitoring and mentoring recommended asadministrative action under s 15(2) of the Civil Aviation Act. The reporting letter toMr Bach from the CAA, which followed the completion of the programme, includedthe following:All note your constructive approach to the monitoring programme and anevident desire to take lessons from the process.[47] Notwithstanding those comments, Mr Macklin submits the Judge should nothave taken the mentoring and training into account in assessing the gravity of theoffending.[48] I do not agree. Mr Bach's undertaking of mentoring evidenced a lowlikelihood of reoffending. As the Judge noted, the offending is less grave when anapplicant has learnt a salutary and lifelong lesson and is unlikely to reoffend.Moreover, the fact that the mentoring with the CAA was mandatory does not derogatefrom Mr Bach's willingness to commit to the process and desire to achieve outcomesthat were sought by him and his mentor. This was relevant to Mr Bach's overallculpability.21 Decision on appeal, above n 2 at [24].[49] An analogy might be drawn with mandatory attendance in a restorative justiceprocess. A sentencing court is entitled to take into account an offender's participationin such a conference when sentencing, even though attendance was mandatory.Effectively the submission comes down to the fact that the Judge should not haveplaced the weight that he did on Mr Bach's participation in the programme. I agreewith Mr Pilditch's submission that the Director has strayed into a general appeal onthis point. I do not consider there was an error of law in this regard.[50] I will address Mr Macklin's submission of double counting on this issue whenI come to the second ground of appeal.Ground 1 (second argument) — relevant factor not taken into account[51] Mr Macklin submits the relevant factor which the Judge did not refer to inmaking his gravity assessment was a significant one and he places most weight on thisargument for the purposes of the first appeal ground.[52] The summary of facts contains the following:Defendant's position after flight52. When spoken to by the CAA, [the student pilot who accompaniedMr Bach] recalled that the defendant told him not to share the videofootage that he had recorded during their flight with anyone else.53. A review of the cockpit audio recording revealed the followingconversation:Defendant: So far as the GoPro footage is concerned, we will begetting engagement ahhh that you don't post anythingpublicly unless one of us says it's okay to.[Student]: Oh okay fair enough.Defendant: Because for example, coming through that rain before that's not a good look so, um, we know that CAA trawlsthrough You tube looking at stuff, so you probably don'twant to put that in. You also probably don't want to putthe descent through the cloud in.[53] This part of the summary of facts was not mentioned at all by the District CourtJudge, either in the first part of his decision where he summarised the factualbackground or when he assessed the gravity of the offending. Mr Macklin submitsthat Mr Bach made the above statements to try and suppress his offending. He saysthat taking such steps, effectively pressuring a student pilot to conceal offending, wasa significant aggravating factor that was not weighed in the District Court Judge'sassessment of the gravity of the offending.[54] Mr Pilditch accepts that the Judge did not explicitly refer to these facts, but hedoes not accept that this amounts to a failure to consider a relevant consideration so asto amount to an error of law.[55] Mr Pilditch draws on judicial review principles:22 not every factor that might be relevant has to be considered on pain oftaking an invalid action. This is where there are unenumerated factors orenumerated factors where the authority may choose which factors to take intoaccount. The test of when an unenumerated factor is mandatory one wasstated in CREEDNZ Inc v Governor-General by Cooke J thus:What has to be emphasised is that it is only when the statute expresslyor impliedly identifies considerations required to be taken intoaccount by the authority as a matter of legal obligation that the Courtholds a decision invalid on the ground now invoked. It is not enoughthat a consideration is one that may properly be taken into account,nor even that it is one which many people, including the Court itself,would have taken into account if they had to make the decision. (footnotes omitted)[56] Mr Pilditch again relies on Judicial Review: A New Zealand Perspective forsupport in determining whether factors were in fact considered in any decision.23Mr Pilditch summarises the key points in that commentary as follows: where there isclear evidence that information was received by a decision maker, there is apresumption that it was considered; and if a party has made submissions on a point orprovided evidence on it, a decision maker's failure to mention that in their decisiondoes not necessarily mean that it has been overlooked, unless there is an indication inthe decision that it has been overlooked.[57] Mr Pilditch also refers to s 9 of the Sentencing Act which sets out aggravatingand mitigating factors. The alleged concealment by Mr Bach does not fall within any22 Referring to Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis,Wellington, 2018) at [15.42].23 At [15.50].of the mandatory aggravating factors in s 9(1). Mr Pilditch accepts that it was open tothe Court to consider the conduct as an unenumerated aggravating fact under s 9(4),but it was not required to do so. Therefore, there was no error of law, even if this Courtconsidered that another Court could or would have taken it into account.Analysis[58] Counsel were not able to assist with any cases directly on point. Mr Pilditchreferred to the Court of Appeal judgment in R v Newald where, in the sentencingcontext generally, the Court reviewed the task of a sentencing Judge, stating that:24 at least in the case of a relatively common offence, to have knowledge ofthe general range of penalties it may attract, and then to bring into account allthe circumstances of the particular offence and offender which are relevant topenalty, either by way of aggravation or mitigation. That exercise cannot be amathematical process. The possible combinations of relevant factors,themselves of infinite variety, and their interrelationship, are too complex tobe amenable to mathematical formulation. In addition, at the end the sentenceris left with a discretion as to which of the different aims of sentencing he willprefer in the particular case, and a residual discretion which permits him toconsider whether the circumstances provide special justification for theexercise of mercy.[59] I do not find that case of assistance. It is only after a court has determined thatthe consequences of a conviction are out of all proportion to the gravity of the offence,that it should consider whether to exercise its residual discretion to grant a discharge.25In making its gravity assessment, the District Court was not undertaking adiscretionary exercise.[60] First, is Mr Pilditch correct that the Judge presumptively considered theconversation with the student pilot simply because it is referred to in the summary offacts? In circumstances where the conversation is neither referred to in the Judge'sgeneral summary of the background, nor as one of the factors specifically consideredin weighing the gravity of the offence, I do not consider that it can be said the Judgepresumptively considered the conversation.24 R v Newald CA327/93, 12 October 1993 at 2–3.25 Z (CA447/2012) v R, above n 20.[61] I agree with Mr Pilditch when he submits that Brown v R does not establishwhat a "relevant matter" is, or when a failure to consider it might amount to an errorof law. That said, I do not consider that Mr Pilditch's resort to judicial reviewprinciples is of assistance in a sentencing context.[62] Nor do I consider that s 9 of the Sentencing Act provides the answer. The issueis simply whether a relevant aggravating factor was not taken into account, notwhether a relevant factor was mandatory or not. Resort to the s 9 framework ofmandatory (s 9(1)) and non-mandatory (s 9(4)) considerations places a fetter on whatis a general inquiry to determine what is relevant or not in assessing gravity. Referringback to Hughes and Delaney, it is apparent that the factors referred to there are widerthan the enumerated factors in s 9(1) of the Sentencing Act.[63] In making his comments to the student pilot, Mr Bach recognised that the CAAwould have, at the least, reached an unfavourable view of his conduct and he wastaking steps to ensure that it did not come to the attention of the CAA. In my viewthat was a relevant aggravating factor. It was an error of law for the Judge to fail totake it into account.Ground 2 (first argument) — consequences of offending weighed instead ofconsequences of conviction[64] Mr Macklin submits that the Judge erred in failing to observe the distinctionbetween consequences of careless flying (the offending) and consequences of aconviction. He alleges two errors of law: first, that the Judge took irrelevant factorsinto account and, second, that he made findings that were not supported by evidence.The former is the Director's primary argument on the second ground of appeal. I dealwith each in turn.[65] The Judge discussed "the actual and potential consequences of a conviction"at [27] to [33], which I set out in full:[27] Having established the gravity I then have to consider the actual andpotential consequences of a conviction. Some consequences I have alreadyalluded to have come home to roost. The Civil Aviation Authority has,through its administrative processes, applied a process. I am aware that theAuthority, regardless of this decision, is aware of the conduct that is present.There is no question of these proceedings for a discharge doing anything toobscure that Authority's understanding of the circumstances and therequirement that there be steps put in place to ensure that there is no repetitionof such carelessness.[28] There are also the consequences that the defendant has lost hisemployment with the aero club that he was employed at, at the time theseevents occurred. Every conviction brings with it certain generalconsequences. There is the loss of a good record, there is a requirement todisclose offending when applying for insurance or loans, there is a potentialfor publication and there is a certain sense of shame that people find whenthey accept or are found to have breached the law in relation to importantlegislation. So, those general consequences apply in almost every case.[29] In this particular case, there are factors which are raised by Mr Bachconcerning his future in the aviation industry. He has provided, in hisaffidavit, details of employment opportunities that he has sought. I am boundto apply the standard of whether appreciable consequences of a convictionmay have an effect. Here, Mr Bach points to applications for pilot roles witha number of airlines. He has spoken to owners of airlines where he has beenrecommended to the Chief Pilot, but the prospect of a conviction was given tohim as a reason that he was a non-starter for the role. He was unsuccessful inall of the positions he applied for. He claims these proceedings were a factorin these rejections.[30] The task of becoming a pilot involves many hours of training, itinvolves a great deal of expense and it often involves people who have a realdesire to be involved in the industry. Mr Bach has originally been engaged ina career as an engineer in the television industry. He has for a very long timebeen interested in the role of being a pilot and since the 2000s he has beenengaged in that role.[31] Mr Pilditch points out that he is someone who does not have a lifelonginterest in the industry and has not got that capital to support his future in theindustry. As someone who is intending to retain a foothold in the industry, itis submitted that a conviction could mean that his opportunity is taken fromhim, despite his study, the expense he has incurred and his undoubted desireto be involved in the aviation industry.[32] The prosecution in this case submits that in the balancing of theseactual and potential consequences it is important that I keep in mind theprinciples and purposes of sentencing; that I keep in mind that weather is aconstant factor in the aviation industry and this was a failure to take intoaccount sufficiently a basic aspect which is a recurring problem in relation torisks faced by pilots. Further that in the moderate assessment of gravity thatI have made, in this case there are factors that are closely associated to realrisk of harm, real risks of safety, and I need to be sure that those matters arein my mind when I undertake the balancing as necessary.[33] This is a difficult prospect. In the end I come to the conclusion,notwithstanding the undoubted support that there is for the prosecution case,that this is a case in which the gravity of the offending is wholly outweighedby the actual and potential consequences to Mr Bach. As a consequence, itcomes to me to exercise the discretion which is available when the test ispassed.[66] Mr Macklin submits that [27] illustrates the error the Judge makes across hisanalysis of consequences. Mr Macklin says that, in considering the "consequences ofconviction", the Judge notes some consequences have already "come home to roost".Mr Macklin submits that any consequences that have already occurred must correctlybe consequences of the defendant's conduct, not conviction.[67] Mr Macklin goes on to submit that at [28] the Judge effectively finds as such.The Judge notes that Mr Bach lost his employment with the Aero Club "at the timethese events occurred". In other words, this was not as a result of conviction.Mr Macklin then refers to the "general consequences" that the Judge lists, including:(a) loss of good record;(b) disclosure requirements for insurance purposes;(c) potential for publication; and(d) shame when it is found that someone breached the law.[68] Mr Macklin submits that, of those matters listed above, only (a) follows fromconviction. The rest, including disclosure obligations, are consequences of offending.[69] Mr Pilditch submits that the Director has misconstrued the Judge's reasoning.Analysis[70] In my view, at [27], the Judge's observation that some consequences had"come home to roost" needs to be read in the context of his statement that:[27] There was no question of these proceedings for a discharge doinganything to obscure [the CAA's] understanding of the circumstances and therequirement that there be steps put in place to ensure that there is no repetitionof such carelessness.[71] I agree with Mr Pilditch that this was a relevant matter for the Judge to mentionbecause it addressed any suggestion that the discharge was being sought to prevent aregulator from being informed of the circumstances of the offending.[72] At [28], I do not consider that the Judge was making a specific consequencesassessment but rather he was making general observation about the way in whichconvictions impact on an individual. Mr Pilditch referred to an authority cited to theDistrict Court Judge which acknowledged that irrespective of specific consequences,a conviction carries general consequences which can be considered. InDC (CA47/2013) v R, the Court of Appeal observed:26[44] A criminal conviction is of itself a black mark [45] In our judgment there was sufficient material before the Judge onwhich he could reach the necessary level of satisfaction about theconsequences of the offending. It was, with respect, inevitable that Mr DC'sconvictions would have real consequences for his employment. He wouldhave to disclose convictions when applying for any position. Disclosure wouldhave an adverse effect on a prospective employer regardless of whether theconvictions were directly relevant to the field of information technology. Itsexistence would of itself either operate as an immediately disqualifying factoror elicit an inquiry, at the very least, with an attendant obligation to explain.[73] I consider the observations of the Judge are in keeping with those commentsby the Court of Appeal.[74] I therefore do not accept the submission on behalf of the Director that the Judgeweighed irrelevant factors in [27] and [28].[75] For completeness, I return to Mr Macklin's submission that the Judge double-counted the mentoring programme by considering it in the context of his gravityassessment and at this stage. In [27], the Judge states that the CAA had, "through itsadministrative processes, applied a process". I assume that is a reference to thementoring programme. The Judge then immediately moves on to refer to the CAA'sknowledge of the conduct and that a discharge would therefore not obscure the CAA'sunderstanding of the circumstances. When the reference to the programme is seen inthat context, I do not consider the Judge was weighing it for a second time. Therefore,to mention it again at this stage was not double-counting.26 DC (CA47/2013) v R [2013] NZCA 255.Ground 2 (second argument) — findings unsupported by evidence[76] The Judge's specific consequences assessment commenced at [29].Mr Macklin submits that there are two findings unsupported by evidence. The first isthat the owners of airlines suggested that the potential conviction made Mr Bach anon-starter for professional roles and secondly Mr Bach's job application was declineddue to the potential conviction. As to the first finding, Mr Macklin submits that theevidence was that Mr Bach spoke to one owner (not owners) and offered that owner'sevidence as a hearsay statement in his own affidavit. In relation to the second finding,Mr Macklin says there is no evidence supporting Mr Bach's "bald assertions" and thatany job application is multi-factorial. Having made those submissions, Mr Macklinacknowledged that these may be issues going to weight.[77] As Mr Pilditch points out, there is supporting evidence. William Funnell MBE,an experienced helicopter pilot with over 20,000 hours of flight experience of bothfixed wing and rotary aircraft and with over 50 years experienced as a fixed wing andhelicopter pilot, swore an affidavit in support of Mr Bach's application. Mr Funnellhas previously held positions of Chairman of the Helicopter Division of the AviationIndustry Association and President of the Aviation Industry Association, whichrepresents the interests of the Aviation community. Mr Funnell, in his affidavit,comments that:Having an aviation conviction is not helpful for a pilot seeking a job Without a doubt a conviction will not be helpful to Mr Bach. Even being inthe situation he is now having been investigated and pleaded guilty, will weighagainst him. Being discharged without a conviction will enhance Mr Bach'schance of being able to follow a career he has invested in, time and moneywise.[78] So, there is both specific evidence and general authority (referred to at [72]above) supporting the Judge's findings. While, I accept Mr Macklin's submission thatreferences to what an owner of an airline said to Mr Bach (as stated in Mr Bach'saffidavit) is hearsay evidence, I still find there is evidence to support the finding thata conviction would have a negative effect on job applications.[79] As to Mr Macklin's submission that any job application is multi-factorial,while some notice might be taken of that fact, the specific issue in this case waswhether a conviction would give rise to the appreciable risk that the conviction wouldrepresent a barrier that was out of proportion to the gravity of the offending. Therewas no cross-examination of Mr Bach and Mr Funnell, and accordingly theircontentions about the effect of a conviction on Mr Bach were unchallenged.[80] Finally, I address Mr Macklin's submission that the Judge misstated thestatutory test when he said at [33]: the gravity of the offending is wholly outweighed by the actual andpotential consequences to Mr Bach.[81] Mr Macklin submits that this misstatement alone is insufficient to form aground of appeal. But he says it neatly illustrates the error that the Judge has made,namely weighing consequences alone, rather than confining his analysis to theconsequences of conviction.[82] I am satisfied on a reading of the entire judgment that the Judge did notmisapprehend the requirement for the nexus to be between the conviction and theconsequences. He said:(a) "The test which must be applied is that the gravity of the offending mustbe wholly outweighed by the actual and potential consequences of aconviction";27(b) "Having established the gravity, I then have to consider the actual andpotential consequences of a conviction";28 and(c) "I am bound to apply the standard of whether appreciable consequencesof a conviction may have an effect."29[83] The last reference above is contained within the paragraph where the Judgecommenced his specific consequences assessment. Therefore, regardless of the wayin which the Judge worded his conclusion simply by referring to the actual and27 Decision on appeal, above n 2, at [2] (emphasis added).28 At [27] (emphasis added).29 At [29] (emphasis added).potential consequences, I do not consider the Judge misunderstood and misapplied thestatutory test.Answers to questions of law[84] The questions posed were:(a) Did the Judge err in the Court's assessment of the gravity of theoffending; and/or(b) Did the Judge err in the Court's assessment of the consequences of aconviction, as distinct from the consequences of the respondent'sadmitted conduct?[85] I reword and answer those questions as follows:First Ground(a) Did the Judge take irrelevant factors into account when assessing thegravity of Mr Bach's offending? No.(b) Did the Judge fail to take into account a relevant factor, namelyMr Bach's comments to a student pilot on board, when assessing thegravity of Mr Bach's offending? Yes.Second Ground(a) Did the Judge err by taking into account consequences of the offendingrather than consequences of conviction? No.(b) Did the District Court Judge make findings without evidence? No.Remedy[86] Mr Macklin submits that if the appeal succeeds, a conviction should besubstituted, and the case remitted to the District Court for resentencing. That was thecourse adopted in Smyth.30[87] Mr Pilditch refers to s 300(1) of the Criminal Procedure Act 2011 and questionsthe approach of the courts quashing the decision to discharge without conviction andthen entering a conviction.31 He submits that may be warranted in some cases wherethe error means that the lower court, properly directed on the law, could only haveconvicted a respondent. But he says that is not the case here. Even if some of theerrors asserted by the Director were made by the District Court Judge, it does notfollow that the s 106 application should have been declined. He submits that thestarting point is that the matter should be remitted to the District Court forreconsideration in accordance with the opinion of this Court which should not bedetermining the merits of the application.[88] I do not accept Mr Pilditch's submission. The court on appeal may substituteits view of the merits but only if it is satisfied that the court below erred relevantly inlaw.32 That is the case here. Having regard to the error I have identified, I propose toundertake an assessment of the merits.[89] First, I consider the gravity of the offending. In my view, Mr Bach's commentsto the student pilot, which the District Court Judge failed to consider, amount to anattempt to conceal the conduct. That elevates the gravity of the offending. However,in considering the overall gravity, I also note the following.[90] Andrew Campbell, who is an Aviation Safety Advisor for the CAA, swore anaffidavit, for the Director, which was before the District Court. Before he commencedhis analysis, Mr Campbell made some preliminary points. He said that commentingon the case had been an extremely difficult exercise for him for three reasons:30 R v Smyth, above n 8.31 See R v Smyth, above n 8; Solicitor-General v Mohib [2016] NZHC 1908; and Police v Paki [2014]NZHC 3112.32 Taulapapa v R, above n 11, at [18].(a) Reviewing weather decisions in hindsight (via video footage) is not thesame as being there in person with a 360-degree perspective andtherefore has limitations;(b) Mr Bach has acknowledged, in his summary of facts, his mistake; and(c) Mr Campbell found himself in similar situations earlier in his career.[91] There are also the observations of Mr Funnell, who mentored Mr Bach afterthe events concerned. In his affidavit in support of Mr Bach's application, he said:It is unfortunate that our forecasting of weather in New Zealand is such thatoccasionally the forecasters get the predicted weather wrong. New Zealand isa relatively small land mass situated down-stream weather wise of a largeocean which makes accurate forecasting challenging [92] Although Mr Bach accepted that as he and other pilots were flying towards anarea of cloud ahead of him and there was an opportunity to turn back rather thanproceed, Mr Funnell explained that while that was an option, it can lead todisorientation and danger when there is high terrain on one side and a grey ocean onthe other side with an overcast sky.[93] By pleading guilty to careless operation of an aircraft, Mr Bach accepted thathis operation, when considered objectively, fell below the standard of the reasonableand prudent pilot. However, the charge does not import any mental component suchas wilfulness or recklessness.[94] The particulars of Mr Bach's carelessness reflect breaches of various CivilAviation Regulations: flying below weather minima and low-flying. Under s 100 ofthe Civil Aviation Act, and the Civil Aviation (Offences) Regulations 2006, thesebreaches were capable of being prosecuted as breaches of the regulation for whichfines could be imposed. But, because they are also infringement offences, noconviction can be entered. In this case, the prosecution exercised its discretion to laya charge under the Civil Aviation Act (seeking a conviction) for conduct amounting tobreaches of regulations.[95] As against the above factors, the overall course of conduct was neverthelesscareless. Further, Mr Bach was a senior pilot and the only instructor in the group.There are also his comments to the student pilot which I have referred to.[96] In terms of the personal mitigating circumstances, there are the following:Mr Bach's accountability shown by his guilty plea; his lack of previous convictions;service to others; and indications that Mr Bach is unlikely to offend again. On behalfof the Director, it was accepted those matters could be taken into account (refer [32]above). There is also Mr Bach's satisfactory completion of the mentoring programme.[97] In the District Court, the Director submitted that Mr Bach's actions should beclassified as "moderate to serious level carelessness". The Director accordinglysubmitted that a mid to high level fine for careless operation should be imposed. Itwas submitted that the fine selected should start from a point between $3,500 and$5,000.[98] Taking into account all the factors I have referred to, I find that the gravity ofthe offending is moderate.[99] Secondly, I am satisfied that the circumstances before the District Court Judgewere sufficient to raise a real or appreciable risk that a conviction would have a directand adverse consequence upon Mr Bach's prospects of obtaining employment in theAviation field. I note the observations of Asher J in Alshamsi v Police when dealingwith a set of circumstances which was not too dissimilar:33[25] The consequences need to be seen in the broader context thatMr Alshamsi is undoubtedly a motivated young man with good prospects inhis career ahead of him. The Police, of course, and probably any otheremployer, will become aware of the shoplifting incident. Nevertheless, this isnot a reason to not grant a discharge. As I observed in Kohere v Housing NewZealand: [23], the stigma attached to an incident such as this can be muchmore profound if a conviction, rather than a discharge, is recorded. Adischarge without conviction is an indication to the outside world that theCourt did not consider that a conviction was warranted. It can be seen as anexpression of confidence in an offender by the Court. I consider that therewill be a significant difference in the impact of Mr Alshamsi's career of theseevents if he is discharged rather than convicted.33 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.[100] Thirdly, I then turn to whether the likely consequences of a conviction wouldbe out of all proportion to the gravity of Mr Bach's offending. In my view, they wouldbe. In reaching that conclusion, I take into account particularly the evidence I havereferred to at [90] to [94] above (but not overlooking [95]), as well as the personalmitigating circumstances.[101] In terms of the discretion, as the Court of Appeal noted in Blythe v R, the casewill be rare where an offender who has satisfied the s 107 jurisdictional threshold isnot then discharged under s 106(1).34 I can see no reasons why Mr Bach, havingsatisfied the threshold, should not be discharged.Result[102] The application for leave to appeal is granted.[103] The appeal is dismissed.___________________Gordon J34 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].