CALING v DIRECTOR OF CIVIL AVIATION [2023] NZHC 2017

CALING v DIRECTOR OF CIVIL AVIATION [2023] NZHC 2017 [31 July 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2023-404-000118[2023] NZHC 2017BETWEEN STUART ROBIN CALINGAppellantAND DIRECTOR OF CIVIL AVIATIONRespondentHearing: 6 June 2023Appearances: G J Cameron for the AppellantC H Macklin for the RespondentJudgment: 31 July 2023JUDGMENT OF TAHANA JThis judgment was delivered by me on 31 July 2023 at 3.00 pmRegistrar/Deputy RegistrarSolicitors/Counsel:Garth Cameron Law, DunedinCrown Solicitor. Gordon Pilditch, RotoruaINTRODUCTION[1] Mr Stuart Caling appeals the District Court decision of Judge A G Mahonconvicting Mr Caling of knowingly operating an aircraft without an appropriate andcurrent airworthiness certificate.1 The Judge declined Mr Caling's application for adischarge without conviction under s 106 of the Sentencing Act 2002, entered aconviction, and ordered him to pay a fine of $6,500.2Background[2] Mr Caling has been a pilot for 25 years and is the director of Global FerryingServices Pty Ltd, an Australian company.[3] The charge relates to two separate flights that Mr Caling piloted:(a) on a New Zealand registered Britten-Norman Islander aircraft (ZK-DBV) from Ardmore to Fiji in November 2018; and(b) on a New Zealand registered Britten-Norman Islander aircraft (ZK-MCE) from Ardmore to Vanuatu in March 2019.[4] The maximum flight range of a Britten-Norman Islander aircraft is less than1,400 km with a standard fuel reserve. The flight distance from Ardmore to Fiji is1,980 km, and from Ardmore to Vanuatu is 2,032 km.[5] Mr Caling fitted a 360-litre tank (known as a ferry fuel system) to each aircraftin Ardmore. On each occasion he then flew the aircraft to Kerikeri before departingto Fiji and Vanuatu respectively.[6] Mr Caling knew that the installation of the ferry fuel system requiredcertification from an engineer but proceeded to undertake the two flights withoutobtaining that sign off.1 Civil Aviation Act 1990, s 46(1)(a). Maximum penalty (in the case of an individual) of 12 months'imprisonment or $10,000 fine.2 Director of Civil Aviation Authority v Caling [2023] NZDC 3624.Charge[7] Mr Caling was charged under s 46 of the Civil Aviation Act 1990 withknowingly operating an aircraft without the appropriate and current aviationdocument.3[8] Rule 91.603(a)(7) of the Civil Aviation Rules (issued under s 100(1)(b) of theCivil Aviation Act) requires that the operator of an aircraft ensure the aircraft iscertified for release-to-service under Part 43 of the Civil Aviation Rules after theperformance of any maintenance on the aircraft.[9] Civil Aviation Authority (CAA) Advisory Circulars contain information aboutstandards, practices, and procedures that the Director of Civil Aviation (the Director)has found to be acceptable for compliance with an associated rule. AC21-5 relates toapproval of modifications covering aircraft ferry fuel systems and overweightoperation. Any design change to an aircraft must be installed in accordance withacceptable technical data, as listed in AC21-5. A certified design organisation mayapprove a modification that meets the guidelines in AC21-5. AC21-5 provides that aferry fuel system installation would normally be classified as a major modification andrequires a conformity certificate. A certified maintenance organisation may issue aconformity certificate.[10] It is accepted that Mr Caling was not certified to provide the necessary aviationdocument and that he knew approval from a certified engineer and the appropriate andcurrent aviation document was required.GROUNDS OF APPEAL[11] Mr Caling says that the Judge erred by:(a) misunderstanding the expert evidence regarding the travelconsequences of a conviction, in that he gave no or insufficient weightto evidence of the consequences that a conviction would have onMr Caling;3 Civil Aviation Act 1990, s 46(1)(a).(b) incorrectly relying on an affidavit filed by Mr Richard Andrews onbehalf of the CAA;(c) giving insufficient weight to Mr Caling's cooperation with the CAA;(d) giving insufficient weight to Mr Caling's qualifications, experience andskill when assessing the seriousness of the offending; and(e) not properly assessing the level of risk caused by the offending.[12] Mr Cameron for Mr Caling also says that the Director obtained Mr Caling'sguilty plea by deception by failing to disclose that there was a policy of never "notopposing" an application for discharge without conviction.DECISION UNDER APPEAL[13] The Judge considered that the gravity of Mr Caling's offending was mediumto serious, and that the following were aggravating factors of his offending:(a) Mr Caling knowingly failed to obtain the necessary aviationdocumentation on two occasions;(b) Mr Caling offended in his professional capacity, and his decision to doso was motivated by profit; and(c) the offence created a significant risk of harm to himself and others.[14] Against that, the Judge acknowledged that Mr Caling had a low likelihood ofreoffending and had no previous convictions. He noted that he was otherwise of goodcharacter and had fully cooperated with the CAA.[15] The Judge considered Mr Caling's knowledge and experience placed a higherobligation on him to comply with the law. The Judge rejected the contention thatbecause Mr Caling was the sole occupant of the aircraft, any risk to others wasmitigated. The Judge referred to Mr Caling's acknowledgement that the lives ofmembers of any search and rescue team would have been in danger had his plane gonedown in the sea.[16] The Judge then considered that the immigration consequences for Mr Caling'semployment were not as serious as he claimed. The Judge was not satisfied thatMr Caling would be unable to work as a pilot. The Judge referred to the expertevidence called by Mr Caling which concluded that he may not be affected in asignificant way in obtaining visas for the countries to which he most frequently flies.[17] The Judge did not consider that the consequences were out of proportion to thegravity of the offending and declined the application.APPROACH ON APPEAL[18] This is an appeal under s 232(2)(b) and (c) of the Criminal Procedure Act 2011.The Court must allow an appeal if satisfied that the Judge erred in assessing theevidence to such an extent that a miscarriage of justice has occurred, or in any case, amiscarriage of justice has occurred for any reason.4 The appeal must be dismissed ifno miscarriage of justice has occurred.5ANALYSISRelevant law[19] Sections 106 and 107 of the Sentencing Act govern applications for dischargewithout conviction:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.(2) A discharge under this section is deemed to be an acquittal.(3) A court discharging an offender under this section may—4 Criminal Procedure Act 2011, s 232(2)(b) and (c).5 Criminal Procedure Act 2011, s 232(3).(a) make an order for payment of costs or the restitution of anyproperty; or(b) make any order for the payment of any sum that the courtthinks fair and reasonable to compensate any person who,through, or by means of, the offence, has suffered—(i) loss of, or damage to, property; or(ii) emotional harm; or(iii) loss or damage consequential on any emotional orphysical harm or loss of, or damage to, property:(c) make any order that the court is required to make onconviction.107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[20] Section 106 permits a court to discharge an offender without conviction if thedisproportionality test in s 107 is met. Assessing whether the conviction would bedisproportionate requires a three-step process:6(a) First, identify the gravity of the offending, taking into account allaggravating and mitigating factors;(b) Second, identify the direct and indirect consequences of conviction;and(c) Third, determine whether those consequences are out of proportion tothe gravity of the offence.[21] Only if that the threshold is met can the court move on to consider thediscretion in s 106. If not satisfied it is met, the court cannot exercise its discretion todischarge without conviction.76 See for example Scott v R [2019] NZCA 261 at [79]; Prasad v R [2018] NZCA 537 at [11]; and A(CA747/2010) v R [2011] NZCA 328 at [22].7 R v Hughes [2008] NZCA 546 at [22]–[23]; R v Blythe [2011] NZCA 190 at [9]; and Z(CA447/2012) v R [2012] NZCA 599 at [27].[22] For an appeal to be successful, the appellant must show that a miscarriage ofjustice has occurred as a result of a material error by the Judge in entering a conviction,or that a miscarriage of justice has occurred as a result of an error by the Judge inapplying the correct principles in s 107.8 Ordinary principles governing generalappeals apply and the appeal court must reach its own conclusion on the merits.9Gravity of offending[23] Mr Cameron says the Judge failed to consider the following mitigating featureswhen considering the gravity of the offending and that overall, the offending was atthe low end:(a) Mr Caling's good character;(b) Mr Caling's experience;(c) Mr Caling's safety record;(d) The fact that the aircraft would have been deemed airworthy ifregistered in Australia; and(e) Mr Caling's cooperation with the CAA.Character and cooperation[24] The Judge did consider Mr Caling's character and cooperation. This is clearwhen he stated:10[46] Mr Caling has no previous convictions and I accept there is a lowlikelihood of reoffending. He is otherwise of good character and co-operatedfully with the Civil Aviation Authority after instructing Mr Cameron torepresent him.8 Walker v New Zealand Customs [2021] NZHC 3380 at [46] citing Jackson v R [2016] NZCA 627at [12].9 Walker v New Zealand Customs [2021] NZHC 3380 at [48] citing Austin, Nichols & Co Inc vStichting Lodestar [2007] NZSC 103.10 Director of Civil Aviation Authority v Caling [2023] NZDC 3624.[25] Mr Cameron submits that more should be done to properly recogniseMr Caling's cooperation, which in turn will encourage quicker resolution of cases anda safer aviation industry. He says a 20 per cent discount applied to the maximum fineis not an incentive to plead guilty and cooperate.[26] Enforcement of compliance with the Civil Aviation Rules promotes a saferaviation industry. Section 107 of the Sentencing Act requires the Court to considerwhether the consequences (direct and indirect) of Mr Caling's offending are out of allproportion to the gravity of his offending. While Mr Caling's cooperation is a relevantmitigating factor, it does not automatically follow that persons who cooperate shouldbe granted a discharge without conviction. Mr Caling's cooperation must beconsidered in the context of all the factors relevant to assessing the seriousness of hisoffending. While his cooperation reduced the seriousness of his offending, it needs tobe considered alongside Mr Caling's conduct of non-compliance.Experience and safety[27] The Judge also considered Mr Caling's experience and found that hisknowledge and experience placed a higher obligation on him to comply with the lawas he should have been a role model to others.11 The Judge also noted that the gravityof Mr Caling's offending is greater than that in Director of Civil Aviation v Neylon,which concerned an offence of omission (rather than an offence of commission), andwhich created no actual risk of harm.12 I accept that Mr Caling's experience was anaggravating feature of his offending as he should have known better than to ignoreCivil Aviation safety requirements given his extensive experience as a pilot.Mr Caling chose to ignore those safety requirements despite his significant experience.[28] Mr Caling's experience was also relevant to the extent of the risk to the safetyof others.[29] Mr Caling had provided a statement dated 11 May 2022 (May 2022 statement)stating:11 At [47].12 Director of Civil Aviation v Neylon DC Invercargill CRI-2011-025-2939, 2 July 2012 at [47].11. I can confirm that I am not a licenced maintenance engineer,authorised person or associated with an approved design organisationfor the purpose of being authorised or approved to install a ferry fuelsystem in an Australian aircraft or New Zealand registered aircraft.12. I do however have significant experience with how these ferry fuelsystems work. I have to be satisfied they are safe, my life depends onit. However I can confirm that I have no personal legal authority tosign a ferry fuel system installation.[30] Mr Caling's evidence was that he had personally fitted the ferry fuel system inboth November 2018 and in February 2019 while at Ardmore Airport:54. I did ask an engineer based locally at Ardmore to have a look overthe ferry fuel system just to make sure everything was installedcorrectly, and that there were no obvious issues with where the systemhad been routed.56. I asked if he could have a look at the ferry fuel system. I explainedthat I had installed it in accordance with an Australian EngineeringOrder, and was going to get the ferry tank system signed off.57. After undertaking a check [the engineer] made a few suggestions, forinstance the installation of a couple of zip ties just to make sureeverything was secured and out of the way. However he was notengaged in terms of actually approving the system.58. Since this, I have engaged [the engineer's] services on quite a fewoccasions, and the work has been signed off, either loose leaf ordirectly in the aircraft logbooks.[31] Mr Caling also explained what occurred after he had fitted aircraft ZK-DBVwith the ferry fuel system and requested another engineer at Ardmore to sign it off:91. Once I had installed the Turtle-Pac ferry tank in ZK-DBV, and after[the engineer] had inspected the aircraft fuel system I had installed, Iapproached a local Ardmore Engineer to request that he sign this workoff.92. As highlighted earlier, when I arrived at Ardmore ZK-DBV wasalready in the DTIL hangar. I put the ferry tank system in the aircraft.This was on the basis of the Australian Engineering Order. [Theengineer referred to earlier (who gave advice about zip ties)] was theengineer who was in the hangar and looked at the aircraft.93. The other engineer I am referring to, who was the design person, didnot look at ZK-DBV in the DTIL hangar.94. In response to my request the design engineer told me that I wouldhave to totally redesign the ferry fuel system to meet New Zealandlegal requirements, and update the HF as well.95. He provided an approximate cost, suggesting it would be $3000 to$4000, just for the design and then I would have to have the new oneinstalled.96. I could quickly see this was starting to head towards a 5 figure sum,just to get the HF changed up. I felt the design engineer was lookingto make as much money as he could.97. I had already contracted to the customer GCH, I had already been paidby the customer, I determined this was going to cost a significant (andunexpected) sum of money before I even got wheels off the ground,let alone paying for the fuel or other related expenses.98. The other consideration was weather. There may have been weathermoving through. I cannot recall from that far back.99. I ultimately made the decision to ignore the advice from the designengineer and depart from New Zealand in the Islander aircraft, ZK-DBV, without the necessary sign off having been completed.[32] Mr Caling provided the CAA with a copy of the "Engineering Order 350-134"(the Engineering Order) dated 12 November 2018, which states:This Engineering Order authorizes the following Ferry Fuel SystemInstallation on the abovementioned aircraft [ZK-DBV and ZK-MCE]. Thisapproval is for Australian registered aircraft and for Ferry Flights only.[33] The Engineering Order notes that the ferry fuel system was designed byMr Caling and was approved by Mr Michael Punshon, an aeronautical engineer inAustralia, pursuant to regulation 21.437 of the Civil Aviation Safety Regulations 1998(Australia). Regulation 21.437 states:Grant of modification/repair design approvals—grant by authorisedperson or approved design organisation(1) This regulation applies if an application for a modification/repairdesign approval is made to an authorised person or approved designorganisation.(2) Subject to regulation 11.055, the authorised person or approved designorganisation must grant the approval if the authorised person orapproved design organisation is satisfied that:(a) the requirements mentioned in subregulation (4) are met; and(b) the design complies with the applicable airworthinessstandards for the design.(3) Subject to regulation 11.055, the authorised person or approved designorganisation must grant the approval if:(a) the authorised person or approved design organisation issatisfied that the requirements mentioned in subregulation (4)are met; and(b) the authorised person or approved design organisation is notsatisfied that the design complies with the applicableairworthiness standards for the design; but(c) for each standard with which the authorised person orapproved design organisation is not satisfied that the designcomplies:(i) the authorised person or approved designorganisation has made, and CASA has agreed with, adetermination under paragraph 21.436(2)(a) that thenon-compliance is compensated for by factors thatprovide an equivalent level of safety; or(ii) CASA has made a determination undersubregulation 21.436(6) that the non-compliance iscompensated for by factors that provide an equivalentlevel of safety.(4) For paragraphs (2)(a) and (3)(a), the requirements are that:(a) the applicant has complied with regulations 21.420 and21.425; and(b) if the authorised person or approved design organisation hasgiven notice to the applicant under subregulation 21.430(1)—the applicant has complied with subregulations 21.430(2), (3)and (4); and(c) the technical data submitted under regulation 21.420 for thedesign has been approved under regulation 21.009; and(d) no feature or characteristic of the design makes the relevantaircraft, aircraft engine, propeller or appliance unsafe for itsintended use.[34] Mr Caling's evidence was that if there is an engineering order for an Australianregistered aircraft, he provides a copy of that order to the Australian Civil AviationSafety Authority and then a special flight permit is issued within an hour or two. Itappears he assumed that the same process could be used in New Zealand but was toldotherwise when he asked the engineer at Ardmore to sign off the installation.[35] The Engineering Order was relevant to the potential risk to safety. It indicatedthat an Australian engineer had signed off the design of the ferry fuel system. Whilethat indicates Mr Caling took steps to get the design signed off in Australia, hisevidence indicates he disregarded the need to have the installation of the ferry fuelsystem signed off in New Zealand. His primary reason for doing so was the cost.[36] The requirements in New Zealand were set out in the affidavit of Mr Andrews,which states that:In my experience of ferry fuel tank systems, NZCAA Advisory Circular("AC") 21-5 is the general basis of the design and certification for thesesystems. This advisory circular states all ferry fuel systems are majormodifications. Therefore, a Licensed Aircraft Maintenance Engineer('LAME') under CAANZ Part 145 Certificate of Inspection AuthorisedEngineer ('IA') under CAANZ Part 43 must fit and sign for the conformity ofthe installation to the approved modification data for the initial installation.If a pilot were to remove or fit a ferry system post initial installation, theywould have to be trained and authorised by a maintenance organisation to doso.[37] It appears that Mr Andrews was the design engineer that Mr Caling had spokento at Ardmore. Mr Andrews does not include his conversation with Mr Caling in hisaffidavit. While Mr Andrews referred to the New Zealand CAA Advisory CircularAC21-5 (the Advisory Circular), he did not exhibit it to his affidavit. The AdvisoryCircular is publicly available and specifies its purpose and the relevant approvalprocess:PurposeThis AC describes an acceptable means of compliance with Civil AviationRule Part 21 Certification of Products and Parts in respect of the approval ofaircraft ferry fuel systems and overweight operation modifications. Eachreference to a number in this AC, such as 21.505, is a reference to a specificrule within Part 21.Approval processAny design change to an aircraft must be installed in accordance withacceptable technical data, as listed in Appendix D of Part 21. In accordancewith Part 21, subparts C and N the Director of Civil Aviation may approve alocally developed modification. Either the CAA Aircraft Certification Unit ora Part 146 Certificated Design Organisation holding the appropriatedelegation can grant this approval.These modifications are frequently "one-off" approvals that rely on on-siteinspection of the installation to determine compliance with the applicableairworthiness requirements.A Part 146 Design Organisation is often in a better position to perform thiswork.A Part 146 Organisation may approve a modification that meets the guidelinesgiven in this AC without further referral to the CAA. However, the aircraft owner may have to contact the CAA to have the aircraft'sairworthiness certification re-categorised. See later section headed"Airworthiness Certificate".All of the conditions and limitations associated with the operation of aircraftwith a ferry fuel system installed are contained in the flight manualsupplement and are approved as part of the technical data for the modification.Appendix III gives an example of such a supplement. This should be carefullycustomised to suit the particular installation.Additional conditions of approval may be required and should be included onthe form CAA 337 (available from the CAA Certification Unit) or on a Part146 equivalent approval certificate.Examples of typical conditions of approval include:a) Approved for a single installation in serial number xxxxx.b) The re-classification of the aircraft's airworthiness certificateto a Restricted Category when this modification is embodiedin the aircraft.Ferry fuel modifications need not always be "one-off" approvals. Amodification approval for multiple installations may be granted provided thefollowing criteria are met:a) The modification is fully defined by drawings etc to astandard that is readily reproducible by the installer.b) All required tests are specified. (E.g. Pressure tests of tanks,post-installation functional flight tests, removal instructions,etc.)An approval for multiple installations only applies to installations embodiedby the originator of the modification when approved under a form CAA 337.Technical dataA ferry fuel system would normally be classified as a major modification andrequires a conformity certificate. Part 43 Subpart E – prescribes therequirement for the issue of a conformity certificate by the holder of anInspection Authorisation, or by a person authorised for that purpose under aPart 145 Certificated Maintenance Organisation.The modification must be fully defined to enable such a conformityinspection.For a one-off installation the technical data defining the modification mayconsist of marked-up photographs, sketches, etc.Complete engineering drawings, a parts listing and installation instructionswill be required for the approval of multiple installations.A schematic diagram of the modified fuel system is required in all cases.(emphasis in original)[38] Mr Andrews reviewed the affidavit filed by Mr Caling in support of hisapplication for a discharge without conviction and concluded that aviation safety wascompromised for the following reasons:(i) Communication by use of any non-aviation HF and/or satellite phone,(ii) Design since no CAANZ Part 146 oversight,(iii) Installation since no CAANZ Part 145 or Part 43 oversight,(iv) Flight planning, ie. tight fuel reserves and no approved Flight Manualsupplement.[39] The Engineering Order indicates that the design of the ferry fuel system thatMr Caling installed had been approved by an aeronautical engineer in Australia. Thatis relevant to the actual risk to safety. This does not appear to have been consideredin Mr Andrews' affidavit or by the Judge. While the fact of the Engineering Orderdoes not indicate the aircraft was airworthy, it does indicate that an aeronauticalengineer had reviewed and approved the design. The Engineering Order however, isonly relevant to the design and not to the actual installation of the ferry fuel system.[40] Mr Cameron for Mr Caling challenged Mr Andrews' expertise and theadmissibility of parts of his evidence.[41] Mr Andrews' experience is set out in his affidavit dated 27 August 2022 andincludes a bachelor's and a master's degree in mechanical engineering from theUniversity of Auckland. Mr Andrews has "approximately 30 years of aviationexperience," including "over 30 years' experience of approving modifications foraircraft and helicopters: including the approval of several major modification ferryfuel tank systems."[42] I reject Mr Cameron's submissions that parts of Mr Andrews' affidavit wereinadmissible, speculative, or of no probative value. Mr Andrews' affidavit providedimportant evidence as to the requirements of AC21-5. It also explained howMr Caling's actions did not comply with the requirements of AC21-5. That was ofprobative value.[43] Mr Cameron also challenges the Judge's acceptance of Mr Andrews' evidencethat the modification was major. Mr Andrews' evidence referred to the requirementsof AC21-5 and stated:This advisory circular states all ferry fuel systems are major modifications.[44] Mr Caling provided evidence of the modifications he made, as follows:47. When installing this system in the Islander aircraft I ran the fuel linesthrough the wing, they exit out the top of the wing and then basicallydump into the main tank on that side. The existing fuel system is notinterfered with in any way.48. It takes me about 1 to 1.5 hours to install the ferry fuel system in anaircraft. I take out some of the seats to help with the C of G, run somelines through the wings, remove two panels (describe), it is not a bigjob.49. The way the system is used during a ferry flight is that we deplete themain tank, when it gets down to roughly half to a quarter capacity thenI engage fuel pumps and transfer the fuel that is in the ferry systeminto that main tank, until it gets to about three quarters, or 80 percentfull. I will then turn the pumps off and continue.50. It is just a "top up" system, in my view it's the simplest and safestsystem you can employ. I personally fitted the system into ZK-DBVduring November 2018 and later in ZK-MCE during February 2019whilst at Ardmore Airport, Auckland.[45] The fact that Mr Caling said "it is not a big job" does not refute therequirements in AC21-5 regarding ferry fuel systems. The CAA was entitled to callevidence setting out those requirements to assist the Court in understanding howMr Caling's actions did not comply with the requirements of the Civil Aviation Rules.[46] Further, I reject Mr Cameron's submission that the CAA was estopped fromcalling expert evidence by reason of Mr Caling's May 2022 statement. That statementdid not address the requirements of AC21-5.[47] Finally, Mr Cameron submits that the CAA delayed filing Mr Andrews'affidavit and Mr Caling therefore had insufficient time to provide expert evidence inresponse. I note that leave was granted to file further affidavit evidence regarding theconsequences of the conviction after the 30 August 2022 hearing and there does notappear to have been any request for leave to file further expert evidence from anengineer. I do not accept that the timing of the filing of Mr Andrews' affidavit unfairlyprejudiced Mr Caling. Mr Cameron could have sought leave to file evidence in replyto Mr Andrews' affidavit given that a further hearing was set down for 24 February2023.[48] The following factors were relevant to the issue of safety:(a) Mr Caling's experience with ferry fuel systems.(b) On the face of it, the Engineering Order indicates that the design of theferry fuel system was approved by an Australian aeronautical engineer.(c) Mr Caling asked an engineer to have a look at the ferry fuel system andMr Caling made the modifications the engineer had suggested.(d) Mr Caling attempted to get a certified engineer to sign off the ferry fuelsystem.[49] I therefore accept that the actual risk to safety in so far as it relates to the designof the ferry fuel system was likely lower than found by the Judge. The fact theinstallation was not signed off however, is relevant to safety. Mr Caling is not anengineer and he is not certified to sign off the installation of ferry fuel systems. Evenif Mr Caling had made the installation into an Australian registered aircraft, engineersign off would still have been required. I therefore reject Mr Cameron's submissionthat the aircraft were technically "airworthy." While the design may have been"technically" approved in Australia, the installation was not.[50] Mr Caling undertook the flights knowing that he had failed to obtain engineersign off as was required. That this is an aggravating factor is consistent with Directorof Civil Aviation Authority v Barr where the Court noted:13[44] Offending in which knowledge is proved will generally be moreserious than offending that has come about through ignorance or inadvertence.Cases where knowledge is proved will therefore be likely to attract moresevere penalties than will be the case for offending involving ignorance orinadvertence.[46] In serious cases involving individuals rather than companies, thesentencer will also be entitled to select a penalty from the wide range of non-custodial sentences that are now available. These include community work,community detention and home detention. One would therefore expect aconviction for a knowledge offence to attract a sentence towards the upper endof the range, whilst offences involving ignorance or inadvertence willgenerally attract lower penalties.[51] I agree with the Judge's observation of Mr Caling's experience being anaggravating feature of his offending. Mr Caling knew that engineer sign off wasrequired but decided to proceed without it. This added to the seriousness of hisoffending.[52] Further, while the Judge referred to two charges when there were in fact one,the one charge was representative and related to the two separate flights. Thosecircumstances are relevant to the gravity of the offending. Mr Caling failed to complywith the Civil Aviation Rules on two occasions and knowingly did so both times.There was sufficient time after the first flight for Mr Caling to have taken steps toobtain sign off for the second flight. He however, failed to do so.[53] In the circumstances, while I do not consider that Mr Caling's offending wasas serious as held by the Judge, because he had obtained an Engineering Order for thedesign of the ferry fuel system, I do consider that his deliberate disregard for the13 Director of Civil Aviation Authority v Barr HC Rotorua CRI-2008-463-39, 28 April 2009.requirement to have an engineer sign off the installation of the ferry fuel systemindicates the offending was serious.Consequences[54] Where the adverse consequences relate to travel to other countries, the Courtof Appeal has said:14[26] It seems to us, speaking generally, that a court will ordinarily expectto be satisfied that under the law and practice of the jurisdiction concerned:(1) the conviction must be disclosed but, assuming a discharge isgiven, the fact that the offence was committed need not be;and(2) in consequence of the conviction, the applicant is prima facieinadmissible, and for how long; and(3) there is no alternative entry process available or that, if thereis, such process is unreasonably difficult and uncertain in allthe circumstances.[27] If all of these things can be established, a sentencing court mustfurther be satisfied that the offence is not so serious that it would be wrong toallow the applicant to present himself or herself to foreign immigrationauthorities without disclosing it.[55] Mr Cameron submits that the Judge erred in considering Mr van Harselaar'sevidence as to the consequences on Mr Caling's ability to travel. In this regard he saysthat the Judge did not consider that Mr Caling would not be required to disclose theoffending if he received a discharge without conviction until such time as he appliedfor a renewal of his visa. By that time, Mr Cameron says Mr Caling would be in abetter position to persuade the authorities to grant a visa because of the time since thedischarge.[56] Mr Cameron says the Judge took the expert evidence of Mr van Harselaar outof context and refers to the following conclusion in Mr van Harselaar's affidavit:15.12 In the long term a long period of safe, compliant flying and non-offending and full compliance with visa conditions will be likely toenable Mr Caling to regain his existing visa status. This assumes thatthere is no substantial change to the United States rules in the longterm.14 Edwards v R [2015] NZCA 583.[57] Mr Cameron appears to be asserting that in the short-term the consequenceswill be out of proportion and refers to the following parts of Mr van Harselaar'saffidavit:9.11. In the short-term, Mr Caling could fail at his first attempt at obtaininga visa if it is done within months of a possible conviction. If it is donein a few years, I can only provide my opinion that with less seriousoffending (in terms of the potential imprisonment period and actualsentence) a period of 'good grace' (in Canada it is called "deemedrehabilitation") and character references is likely to eventually besuccessful.11.5. Based on the information noted above and my experience with myclients who have criminal convictions my advice to a client in MrCaling's situation would be:(a) The entry of a conviction since the grant of a visa constitutesa change of circumstances which must be disclosed beforetraveling to the United States.(b) This disclosure would result in the immediate suspension orcancelation of the visa.15.4. A current United States visa will signal to other countries (some ofwhom are allies of the United States) that Mr Caling is a reliable andinoffensive individual.[58] While it is accepted that there may be some short-term impact on Mr Caling'sability to travel, the Court must further be satisfied that the offence is not so seriousthat it would be wrong to allow Mr Caling to present himself to foreign immigrationauthorities without disclosing it. Here, Mr Caling proceeded to fly knowing that hehad not had the installation of the ferry fuel system signed off. He did this twice. Iam not satisfied that it is appropriate for this Court to pre-empt information that maybe relevant to immigration authorities.Proportionality[59] To grant a discharge without conviction the court must be satisfied that theconsequences are out of all proportion to the gravity of the offending.15 It is settled15 R v Smyth [2017] NZCA 530 at [12].law that an applicant for discharge need only point to a real and appreciable risk thatadverse consequences will ensue.16[60] As discussed above, I have found that the offending was not as serious as theJudge considered it to be. However, I have nonetheless found that the offending wasserious in circumstances where Mr Caling is an experienced pilot, he was aware of thesign off requirements, his decision not to comply was motivated by a desire to avoidcosts, and he knowingly flew non-compliant aircraft twice.[61] I accept that having a conviction may have consequences for Mr Caling inobtaining visas. However, on the evidence provided it appears that this will be anissue that dissipates over time. I do not consider that the evidence of Mr van Harselaardiscloses that the consequences are likely to be out of all proportion to the gravity ofMr Caling's offending.[62] On that basis I do not consider the Judge erred in finding that thedisproportionality test in s 107 was not met, so that the discretion to enter a dischargewithout conviction under s 106 was not engaged.Alleged deception[63] Mr Cameron submits that Mr Caling's guilty plea was obtained by deception.He says the Director acted in bad faith by failing to disclose an alleged policy that theDirector never "not opposes" applications for discharge without conviction, regardlessof a defendant's personal circumstances.[64] Mr Caling relies on the following as evidence of the deception:(a) An email from counsel for the Director confirming that they could notrecall an instance where the Director had not opposed an applicationfor discharge without conviction.16 Edwards v R [2015] NZCA 583 at [24].(b) Without prejudice correspondence from counsel for Mr Caling's co-defendant to the Director. Mr Cameron submitted that in circumstanceswhere the Director did not consider that the co-defendant's personalcircumstances justified withdrawal of the charges, the Director wouldnever consider personal circumstances as a justification for notopposing an application for discharge without conviction.[65] Mr Cameron submits that there was never any chance that the Director wouldnot oppose the application for discharge without conviction. The guilty plea had beenentered on the understanding that there was such a chance. It was therefore, deceptiveof the Director not to communicate the he would never "not oppose" such applications.[66] I reject this submission for the reasons below.[67] First, it is the Court's, not the Director's, decision as to whether to grant adischarge without conviction. The Court is required to apply the law and while theDirector is entitled to make submissions and have a position, the decision is ultimatelythe Court's to make.[68] Second, I accept that to form a considered view on whether to agree to adischarge without conviction, the Director requires sufficient information as to theconsequences (direct and indirect) of the conviction on the defendant. It wasreasonable for the Director to request that information before confirming the position.The evidence of Mr van Harselaar was not provided until after the initial hearing on30 August 2022, and in the absence of that evidence the full consequences were notnecessarily clear to the Director, who is not an expert in immigration issues.[69] Third, the fact that two prosecutors cannot recall an instance where the Directorhas not opposed an application for discharge without conviction is not evidence thatthe Director has a policy to never "not oppose" such an application. More is requiredfor the Court to be satisfied that such a policy exists, and that the Director deceivedMr Caling into pleading guilty.[70] Fourth, the without prejudice communications between the co-defendant andthe Director are not evidence of any deceit on the part of the Director. The individualcircumstances of Mr Caling need to be considered separately from other co-defendants.[71] Fifth, there was always a risk that the Director would oppose any applicationfor discharge without conviction. The Director had indicated he considered theoffending was serious. The guilty plea was entered knowing that such a risk existed.[72] Sixth, the following correspondence indicates the reasons for the position theDirector took and do not disclose the policy alleged by the appellant:(a) In an email dated 28 April 2022, Ms McConachy, for the CAA,indicated that in respect of any application for discharge withoutconviction, the CAA had no information on which to base its position.It would be for Mr Caling to show the basis on which such anapplication would be made. If grounds were presented that could becapable of meeting the s 107 threshold, then the CAA would considerthem. However, in the absence of any information at that stage, theCAA considered the offending to be serious, and given the gravity ofthe offence, the consequences would need to be significantly grave inorder to ensure that a discharge without conviction was proportionateand appropriate.(b) In a joint memorandum dated 3 May 2022, the parties agreed theDirector would file a response after Mr Caling had filed an applicationfor discharge without conviction. That indicates that the Directorneeded to see the basis for the application before confirming a position.(c) In an email dated 29 May 2023, counsel for the CAA could not recallan instance where the CAA had not opposed an application fordischarge without conviction. They indicated that they were relying onmemory and that they do not act for the CAA in all prosecutions. Theywent on to explain that:(i) Where a charge has been prosecuted to verdict, non-convictionoptions like resolution or diversion have already been ruled outor considered and rejected. That tends to indicate that aconviction is appropriate in the first instance.(ii) Where the consequences of a conviction would be out ofproportion to the seriousness of what had occurred, the Directorand the defendant would likely recognise this early and seek toresolve the case, either without the Court's intervention or byway of diversion or some similar outcome as appropriate in thecircumstances.(iii) The decision as to what position the CAA would take on a s 106application is intricately related to the effect of the proposedconsequences that the defendant puts before the Court. As such,the CAA would consider those stated consequences anddetermine its position at that point. It is not possible to predictwhat those alleged consequences are, how they relate to the s106 test, and therefore, what the Director would consider is thecorrect course of action for any future matter. As such, a reviewof the Director's decisions in the past could not be determinativeof the Director's position in the future.[73] For the above reasons, I am not satisfied that the evidence indicates that theDirector deceived Mr Caling into making a guilty plea. Any position on whether tosupport or oppose an application for discharge without conviction requiresconsideration of both the nature of the offending and the consequences of a conviction.It is not unreasonable for the Director to not confirm a position until receipt ofsufficient information as to the consequences of a conviction on the defendant. I amnot satisfied that the evidence establishes bias and bad faith, or that the conviction wasobtained by deception.Result[74] The appeal is dismissed.______________________Tahana J