CHATACHVILLY v DIRECTOR OF CIVIL AVIATION [2019] NZHC 2746

CHATACHVILLY v DIRECTOR OF CIVIL AVIATION [2019] NZHC 2746 [25 October 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2019-425-000023[2019] NZHC 2746BETWEEN YANNICK CHATACHVILLYAppellantAND DIRECTOR OF CIVIL AVIATIONRespondentHearing: 17 October 2019Appearances: T J Mackenzie for AppellantC H Macklin and M S Jenkins for RespondentJudgment: 25 October 2019JUDGMENT OF GENDALL JThis judgment was delivered by me on 25 October 2019 at 4:30 p.m.Registrar/Deputy RegistrarDate: 25 October 2019Introduction[1] The appellant, Mr Chatachvilly pleaded guilty in the District Court atQueenstown to a charge laid by the Civil Aviation Authority ("the CAA") that on15 August 2017 at Queenstown, he operated a Cessna 177 aircraft in a manner whichcaused unnecessary danger to its passengers.1 The aircraft had crashed shortly aftertake-off from Queenstown Airport. The appellant was carrying three passengers andall of the occupants of the aircraft were injured to varying degrees. The aircraft, too,was damaged. Particulars of the charge the appellant faced were that he "took offwhen the aircraft had ice or frost adhering to the wings". The appellant says, however,that the principal cause of the aircraft crash was an engine failure which occurred.[2] On 3 April 2019, Judge Brandts-Giesen declined an application by theappellant to be discharged without conviction. On 24 July 2019, he sentenced theappellant to a fine of $2,600.00 plus court costs.[3] The appellant now appeals the decision of the District Court declining to granta discharge without conviction, and appeals the sentence imposed as manifestlyexcessive.Background[4] The appellant is aged 34 and has been flying since July 2000. His experienceincludes private, club, and commercial flying. He holds both private and commercialpilot licences and by late 2018 had flown almost 1500 hours.[5] On the morning of 15 August 2017, the appellant was to fly three passengerson a flight from Queenstown Airport in the Cessna 177, a light single-engine, high-wing aircraft. It was a cold morning at Queenstown Airport. Because the dew pointand air temperature were close together there was a high risk of ice forming outside.[6] Before taking off, a pilot must be satisfied that an aircraft is in a condition forsafe flight. That requires a thorough pre-flight inspection, including detecting andremoving frost or ice. When the appellant went out to retrieve the Cessna 177 in the1 Civil Aviation Act 1990, s 44.morning, other pilots were working together to remove ice from an aircraft parkednearby. The appellant did not remove ice from his aircraft and taxied his away whilethose other pilots were still completing their de-icing.[7] Prior to collecting his passengers, the appellant parked the aircraft for a further20 minutes. When he escorted the passengers to the aircraft, one of the passengerspointed out to the appellant the frost on the rear horizontal stabilisers of the aircraft.The appellant informed her that it was nothing to worry about and would "blow off"once airborne. Another passenger observed the frost on the upper wing surface andbrought it to the appellant's attention, whereupon he "dusted it off with his hands",stating "that will come off after we take off".[8] According to the Amended Summary of Facts, a number of matters wereagreed between the parties. During take-off, the appellant experienced "what heperceived as a loss of engine performance". He lowered the nose and made rudder andaileron control inputs and banked the aircraft towards the grass area at the side of therunway. The aircraft continued to lose altitude, and the situation becameunrecoverable. The aircraft continued to sink and it crashed onto the grass at the sideof the runway.[9] The high impact caused the engine (with propeller still attached), the nose, andthe left main undercarriage to be broken from their mountings. The manner in whichthe propeller blades were bent indicated the engine was not operating when the aircraftimpacted the ground.[10] The absence of the left main undercarriage then caused the aircraft to veer leftand slide along the soft ground. The impact significantly deformed the cabin structure,the right-hand cabin door came open and the right front seat became detached from itsfloor mountings. One passenger was partially ejected from the aircraft and shesuffered a cut to her head and a sprained ankle. Another passenger suffered bruisingand whiplash, and the third passenger a neck sprain and an ankle sprain.[11] Following the crash, it was noted by attending emergency services (andphotographed shortly after the accident) that there was frost (ice) on the wings of theaircraft. It is accepted that ice and frost deposits on an aircraft wing disrupt anddegrade the smooth flow of air over the aerofoil. This significantly reduces wing liftand increases drag.[12] The Civil Aviation Authority subsequently investigated the crash. The Directorof Civil Aviation charged the appellant with operating an aircraft in a manner whichcaused unnecessary danger to those on board, pursuant to section 44 of the CivilAviation Act 1990. This offence carries a maximum penalty of 12 months'imprisonment or a $10,000 fine. Initially, particulars of the alleged offending werethat:(a) The appellant operated at more than the maximum certified take-offweight specified in the aircraft flight manual; and(b) The appellant took off when the aircraft had ice or frost adhering thewings.[13] Later, however, the first particular, noted at [12](a) above, was removed andthe appellant pleaded guilty to the charge relating to the second. The appellantconsidered that the cause of the crash was an engine malfunction and initially he didnot accept that ice and frost contamination of the wing surfaces had played any role.However, the appellant has since accepted that ice and frost contamination of the wingsurfaces did contribute to the accident.Refusal to grant a discharge[14] Judge Brandts-Giesen in his decision set out the test in s 106. The applicationfor a discharge required the judge to consider the following three steps:(a) The gravity of the offence.(b) The direct and indirect consequences of conviction.(c) The question of whether or not the consequences of a conviction areout of all proportion to the gravity of the offence.[15] In terms of the gravity of the offending, the Judge set out the paramountcy ofsafety when pilots operate. The Agreed Summary of Facts stated that prior to the flightice had been pointed out to the appellant. This occurred after the passengersapproached the plane or were onboard. The Judge said this must have beenapproximately 20 minutes after the appellant had inspected the plane before taxiing itto the terminal where he collected the passengers. At that time of the day, temperaturesin Queenstown can change rapidly in either direction. The appellant should havechecked his plane again, immediately before take-off. The Judge said he could notcategorise the appellant's mistake as being anything less than serious, as it involvedaircraft and passenger safety.[16] The Judge found that the ice contributed significantly to the accident, anaccident which caused much damage to the plane, and significant injuries to thepassengers. That there were no more serious injuries was probably attributable to therelatively low speed of the impact, and to a high level of luck. Despite that, the Judgein his decision concentrated more on the appellant's failure to take precautions, ratherthan on the outcome of his mistake.[17] The appellant's conduct fell short of the minimum standards set out in the CivilAviation Regulations and of accepted safety procedures. He should have addressed theice and frost contamination. From the point of view of the appellant's conduct and theoutcome, the Judge concluded that the gravity of the offending was moderatelyserious.[18] As to the consequences of the offending, the appellant had suggested he maynot have been able to retain residency if a conviction was entered. The Judge said thereality is that, as a permanent resident, he can remain in New Zealand indefinitely. Nordid the judge accept issues as to citizenship would affect employment.[19] The crux of the appellant's argument in the District Court appeared to be thata conviction would limit his career options. The Judge accepted that an incident suchas the one in which the appellant was involved would adversely affect his careeradvancement. However, the Judge did not see that, in the professional world of beinga pilot, a conviction would significantly exacerbate the record of this aircraft accident.A discharge without conviction would not expunge the fact that an accident happened.The Judge reasoned that aircraft authorities are professional organisations who arelooking for the best pilots. In doing so, they will take safety records into account andtreat them as rather more important than whether or not a person has been dischargedwithout conviction, or indeed has a conviction. At the same time, those employingpilots generally will be pilots or recent ex-pilots. They will understand what theappellant did and what went wrong here.[20] Accordingly, the Judge was not convinced that the consequences of convictionwere out of all proportion to the gravity of the offence and he dismissed the applicationfor a discharge without conviction.Sentencing decision[21] The maximum sentence for the charge here, as I have noted, is 12 months'imprisonment or a fine not exceeding $10,000. In his decision, the Judge said from theoutset that imprisonment was not an option.[22] The Judge concluded that the appellant's conduct was cavalier and not of astandard one would expect of a commercial pilot with passengers on board. This wasmid-level offending, he said, so a starting point of $5,000 was appropriate.[23] This was then discounted by five percent for previous good record, and20 percent for remorse, for a positive restorative justice, and some voluntary workdone by the appellant, as well as the course valued at $1,000 the appellant providedfor the principal victim.[24] That initial 25 per cent reduced the fine to $3,750. The judge then gave fullcredit for the appellant's guilty plea and reduced the sentence by 25 percent. Thatbrought it to $2,812.50, which was rounded down to $2,800.[25] The Judge then made a further reduction because he acknowledged thisaccident has had an enormous effect on the appellant who has moved with his familyto Christchurch but he had still not found satisfactory employment. He also noted thatas far as this type of small aircraft was concerned, the appellant was relativelyinexperienced. The fine was reduced to $2,600 plus Court costs.Principles on appeal[26] An appeal against a refusal to discharge a appellant without conviction ischaracterised as an appeal against both conviction and sentence.2[27] Section 232 Criminal Procedure Act 2011 provides that the Court may onlyallow an appeal against conviction if satisfied that the trial judge "erred in his or herassessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or that "a miscarriage of justice has occurred for any other reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.3 R v Sungsuwan defines a "real risk" as "a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong."4[28] The procedure for discharges without conviction is governed by ss 106 and 107of the Sentencing Act 2002. The Court may grant a discharge without conviction unders 106 of the Sentencing Act 2002 only if it is satisfied, according to the s 107 guidance,that the direct and indirect consequences of a conviction would be out of all proportionto the gravity of the offending.5 This is assessed by reference to a three-step test: (1)identifying the gravity of the offending; (2) identifying the consequences ofconviction; and (3) determining whether the consequences of a conviction would beout of all proportion to the gravity of the offending.6 When assessing gravity at thefirst step, the Court needs to take into account the aggravating and mitigating factorsrelevant to both the offending and the offender.72 Jackson v R [2016] NZCA 627.3 Section 232(4).4 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.5 Sentencing Act 2002, s 107.6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] – [17]; Z (CA447/2012) v R [2012]NZCA 599, [2013] NZAR 142 at [8]; A (CA747/2010) v R [2011] NZCA 328 at [25].7 Z, above n 6, at [27]–[28] adopting A, above n 6, at [25].[29] Appeals against the proportionality test under s 107 are by way of rehearing,with the appellate Court making its own assessment of whether the criteria areestablished.8 If a discharge without conviction should have been granted but this didnot occur, then there will have been a material error by the sentencing Judge, or if itcould be said that a miscarriage of justice will have occurred for any other reason, thenthe appeal against conviction must be allowed.9[30] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act, and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied that there has beenan error in the imposition of the sentence and that a different sentence should beimposed.10 It is only appropriate for this court to intervene and substitute its own viewsif the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.11SubmissionsAppellant[31] Mr Mackenzie for the appellant maintains that the Judge here overstatedculpability. The appellant says the Judge's entire consideration of culpability washeavily influenced by the engine failure (and the consequent crash landing).[32] Mr Mackenzie says that this was a case where an old aircraft had an enginefailure. He noted the cause may or may not have been an iced carburettor but that didnot matter for the purposes of this proceeding. He submitted no culpability flows fromthe cause of or the fact of the engine failure. The expert evidence on both sides isspeculative as to the exact reason for the engine failure and the crash landing. Theappellant maintains that at most, the aircraft came down harder during the emergencylanding due to the reduced wing airflow than might otherwise have been the case(without the frost and ice).8 H v R [2012] NZCA 198 at [35]-[36].9 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].10 Criminal Procedure Act 2011, ss 250(2) and 250(3).11 Ripia v R [2011] NZCA 101 at [15].[33] What the appellant pleaded guilty to was only of taking off with ice and froston the wings. The appellant contends the Judge erred in finding the offence could notbe categorised as "anything less than serious".[34] The appellant suggests that, had the crash not occurred, this incident couldequally have been seen as an act of careless operation for failing to remove the ice. Amore precise offence here, he says might have been one provided for in the CivilAviation Rules at Rule 91.315 as follows:12Operating in snow and ice conditionsNo pilot-in-command of an aircraft shall perform a take-off under VFR in anaircraft that has snow, ice, or frost, adhering to the wings, stabilisers, or controlsurfaces.[35] He noted that breach of this Rule 91.315 can be prosecuted either by charge orinfringement. The maximum fine on conviction (on this charge) is $5,000 or $2,000 ifproceeded with by infringement.[36] Overall Mr McKenzie contended that this should have been considered as anoffence of low seriousness. The very fact that the aircraft, fully loaded, was able totake off, the appellant says, goes some way to demonstrating that the icing was at thelower end. It also explains, Mr McKenzie suggests, why the appellant did not dealwith it prior to the flight, but instead exercised his judgment that it was minor frostthat would blow off.[37] Counsel submits therefore that the Judge's decision in determining where thisoffending should be placed by concluding it was unable to be described as "anythingless than serious", in relation to the most serious of available offences, was wrong. Itwas, according to the appellant, a significant overstatement of the actual offending andit conflated the engine failure and the crash landing with the separate incident forwhich he was prosecuted.[38] Against what he submits, therefore, is relatively minor offending, the appellantsays he faces significant consequences. The error that the Judge made, he says, was to12 Civil Aviation Act 1990 s 100, Civil Aviation (Offences) Regulations 2006 r 4 & schedule 1.fail to appreciate that the conviction will create a real and appreciable risk that theappellant will never have an opportunity on any future aviation job application to tryand explain the offending, because he will likely be screened out on the basis of hisinitial application.[39] The evidence of Mr Eastlake, the appellant says, is to the effect that aconviction could result in the appellant not progressing to an interview and having noopportunity to explain the offending. And, that evidence, he says, was not challengedin the District Court. The appellant contends, too, that the approach of the Judge toissues over disclosure of the offending was overly simplistic. While the appellantacknowledges he would have to disclose the offending, he says again the Judge failedto appreciate that he may well not make it past any initial screening/application processwhere conviction histories are asked for.[40] Similarly, whilst the Judge noted that an airline may "understand what thedefendant did and what went wrong" that again ignores that the appellant may neverhave an opportunity to explain the actual facts and seek that understanding.[41] Mr Mackenzie submits there is also a related immigration consequence in thathe says the appellant cannot apply for New Zealand citizenship for three years afterthis conviction was entered. New Zealand citizenship is a pre-requisite foremployment with Jetstar. And, Jetstar here is the most suitable potential employer forthe appellant (given his experience in flying Airbus A320 aircraft in Europe which isJetstar's principal aircraft flown in this country).[42] Ultimately the appellant contends that he has made a huge investment in timeand money for his flying career and this will be sacrificed because of the immediatereaction that the conviction brings. That is, the appellant submits, an unfair and severeoutcome for him.[43] In sum, the appellant says it is hugely unfair that he should lose this career overwhat is said to be merely a lack of appreciation and a simple error of judgment overthe extent of ice and frost on his aircraft here.Respondent[44] In response, Mr Macklin for the respondent addresses an initial point first. Thisis what he maintains is the fact that the appellant cannot seek to amend the AgreedSummary of Facts at this point and that is what he is trying to do. The "AmendedSummary of Facts" was reached by negotiation and agreement between the parties.Resolution was reached on the specific basis that the appellant confirmed that heaccepted that ice and frost contamination of the wing surfaces contributed to theaccident. Correspondence with the appellant's previous counsel specifically confirmedthis point "for the avoidance of doubt".[45] The respondent submits that the appellant is attempting now to revisit thisspecific point, a point that was addressed in resolution discussions between the parties.The agreed "Amended Summary of Facts" on which the appellant was sentencedfollowing his guilty plea, and on which is discharge application was considered, mustprevail. The respondent maintains that if the appellant sought to dispute that the takingoff with ice and frost did not contribute to the accident, then the appropriate wayforward was through a not guilty plea and subsequent trial or by way of a disputedfacts hearing. Neither of these occurred here.[46] The respondent also disputes any attempt to question the gravity of theoffending itself. Mr Macklin addresses the respondent's submission that, as theaircraft was able to take off, this may go some way to demonstrating that the icing wasat the lower end. This submission, he says, ignores the point that the aircraft, throughthe presence of ice with its drag and extra weight, required a much longer take-off rollthan was usually required and a decreased rate of climb after take-off.[47] Further, this is not a case, Mr Macklin says, where the appellant was permittedto simply "exercise his judgment". Civil Aviation Rule 91.315 is entirely clear: nopilot shall perform a take-off in any aircraft that has snow, ice or frost adhering to thewings, stabilisers or control surfaces. Similarly, under the heading 'Pre-flight Checks',the manual requires pilots to "remove even small accumulations of frost, ice or snowfrom wing, tail and control surfaces". No room is left for discretion or judgment. Therule, Mr Macklin notes, is absolute.[48] The appellant's failure to address the ice and frost contamination in the presentcase, the respondent suggests, is significantly aggravated by the fact that two differentpassengers specifically alerted him to the presence of frost on the stabilisers and wingsurfaces. He was on notice. The passengers were concerned enough to raise the pointwith the appellant as their pilot. He nonetheless disregarded these concerns and simplystated that the ice would probably blow off while airborne.[49] The respondent submits that Judge Brandts-Giesen was right to conclude thatthis was a significant mistake and that the appellant's conduct was somewhat cavalierand not of a standard one would expect of a commercial pilot with passengers onboard.[50] In terms of the consequences of conviction, the respondent reiterated thatJudge Brandts-Giesen had held the conviction would have little impact on theappellant's immigration status given that he was a permanent resident.[51] On the citizenship question, the respondent notes that the appellant is notcurrently a New Zealand citizen and thus it seems he cannot seek employment atJetstar here because of their citizenship rules, whether or not he is convicted. Further,the appellant does not have a right to New Zealand citizenship. The respondentcontends that, where a conviction may have consequences for an offender'simmigration status in New Zealand, the Court has generally concluded that it isappropriate for that issue to be resolved by the Immigration Service, rather than by theCourt.[52] As to employment consequences, the respondent maintains that, on any airlineaviation job application, in any event, the appellant would be required to disclose thecircumstances of the accident, whether or not he was convicted. As such, it issuggested, the appellant would be expected to disclose both the number and the natureof any incidents or accidents that he may have been involved in. Such disclosureswould be a factor in determining if the appellant as a potential pilot should progressto the next stage of the recruitment process. The respondent further submits that it isentirely appropriate that the conviction here remains and is required to be declared topotential aviation employers, given the context of the conviction. The requirement todeclare a conviction is common to all convicted persons and does not represent someunusual or disproportionate detriment.[53] In his submissions for the appellant, Mr McKenzie stated "as opined byMr Eastlake, it is likely that commercial airlines would immediately decline a pilotwho presented with that conviction. That is a real and appreciable risk". To this,Mr Macklin replies that, Mr Eastlake in his affidavit does not say that it is likely thatcommercial airlines would decline the appellant. The highest Mr Eastlake puts it isthat, "It is possible having such a conviction would prevent [the appellant] from evenreaching the panel interview stage of the airline pilot recruitment process."[54] Further, before me Mr Macklin referred to an Air New Zealand declarationform relating to employment applications annexed to the appellant's affidavit. In thisform, space is left for an applicant to specifically explain and provide detail as to anyprevious convictions. The respondent also does not accept that it is likely the appellantwill never have the opportunity to explain the circumstances of a conviction. Again,the only evidence on point, Mr Macklin says, is that it is possible that a convictionmight prevent the appellant from reaching the interview stage.Analysis[55] I turn first to consider the gravity of the offending here. The appellant haspleaded guilty to operating an aircraft in a manner which caused unnecessary dangerto its passengers. This is, by itself a serious offence. For present purposes I accept theargument for the appellant that the main cause of the accident might well have beenengine failure. Despite that, the appellant does accept that a failure to properly de-icethe aircraft contributed to the crash. Indeed, in his own 5 February 2019 affidavitbefore the Court, at para [13] the appellant accepted that he made a "gross error inregard to the frost assessment".[56] The reason for removing ice is to remove the risk of a possible accident which,particularly in the case of an aircraft carrying passengers, could have widespread andcatastrophic consequences. A wing covered in ice has poor lift and is considerably lessstable. The appellant's actions severely compromised the safety margin within whichthe aircraft could operate. When an engine fails mid-flight, a pilot will need to usetheir skills to safely land the plane. With a wing or other surfaces covered in ice, theprospect of this being done is significantly reduced.[57] Had the circumstances been different and the Cessna here had reached a higheraltitude when the failures occurred, the consequences and the injuries to the appellant'spassengers could even have been far more significant. Although this is speculation itwas perhaps fortuitous that the aircraft did not reach a substantial height where themanoeuvrability and lift of the wings could have been the determining factor forpossible injuries or even fatalities.[58] Before me, Mr Mackenzie said Judge Brandts-Giesen erred in finding that theappellant "contributed significantly to the accident, causing much damage to the plane,and considerable injuries to the passengers". The Respondent, on the other hand,argues that the appellant has accepted this explicitly. I find that the appellant must betaken to have accepted he caused danger by his actions. That is inherent in the fact hepleaded guilty to the specific charge against him on the basis of the particular noted at[12](b) above.[59] And, in any event, whether that danger contributed to the crash is not the issueto be determined. It is the risk of the danger in question that is the offence. I acceptthat Judge Brandts-Giesen, in his decision, acted properly in that in viewing theseriousness of the appellant's offending, he was not guided by what the overalloutcome was (being the crash of the aircraft) but rather he focussed on the appellant'sfailure to take the required precautions. Arguments that a lower offence might havebeen appropriate are of little moment here. The appellant may not have beenapprehended had the aircraft not crashed, but he would have committed the offenceeither way.[60] It is clear here that the appellant and the respondent both made concessionsprior to the entry of the guilty plea. A lesser offence might have been charged, but itwould have been just as open to the CAA to not withdraw in its prosecution theparticular of exceeding the maximum take-off weight (which it did withdraw).[61] I accept this is serious offending. I accept the submission for the respondentthe appellant's failure to address the ice and frost contamination is significantlyaggravated by the fact that two different passengers specifically alerted the appellantto the presence of frost on the stabilisers and the wing surfaces. He was on notice. Thepassengers were concerned enough to raise the point with him. He nonethelessdisregarded these concerns in simply stating that the ice would probably blow offwhile airborne.[62] As to the appellant's immigration status arguments, I agree with the respondentthat where a conviction may have consequences for an offender's immigration statusin New Zealand, the Court has generally concluded that it is appropriate for that issueto be resolved by the Immigration Service rather than by the Court.[63] In terms of job opportunities, I accept Judge Brandts-Giesen's reasoning here.A conviction might be likely to some extent to adversely affect the appellant's career.However, the issue for the court is whether this is disproportionately so. The appellantwill face scrutiny when applying for jobs because of this conviction. However, that isnot an unjust consequence of being involved in a crash of an aircraft. A discharge willnot stop scrutiny. Airlines are sophisticated employers and should give the appellantan opportunity to explain the incident when applying for employment.[64] And, as to the direct and indirect consequences of the offending, in my viewthere is some substance in the Judge's comment that the general stigma of theconviction here was really "no more or less than what offending against legislationdoes in any case", and that the Criminal Records (Clean Slate) Act 2004 would operateafter a period of time.[65] On this aspect, the Court of Appeal has said in R v Smyth:13It is not enough that the consequences of a conviction outweigh the gravity ofthe offending. Significantly more is required. The consequences must be outof all proportion to the gravity of the offending before the Court hasjurisdiction to grant a discharge without conviction.In my judgment, this is not a case where, in carrying out the required balancing13 R v Smyth [2017] NZCA 530 at [12].exercise, the consequences of a conviction could be said to be out of all proportion tothe seriousness of the appellant's offending. I accept too that a conviction, although ahurdle to overcome, will not create an impenetrable barrier to the appellant operatingas a pilot.[66] I conclude that Judge Brandts-Giesen did not err either in his assessment of thegravity of the appellant's offending and the consequences of the conviction, or inconcluding that these consequences were not out of all proportion to the seriousnessand gravity of the offending.[67] I find that the Judge was correct to refuse the application by the appellant fora discharge without conviction.Sentence[68] I turn now to the Judge's sentencing decision which simply involved a fine of$2,600 plus court costs. I simply do not find this sentencing decision manifestlyexcessive. I agree with the Judge's view that the appellant's conduct was somewhatcavalier and not of a standard one would expect of a commercial pilot with passengerson board. This was mid-level offending and the starting point adopted of $5,000 waswithin a proper range. Similarly, the discounts were appropriate and the end fine of$2,600 was not excessive. This sentence appeal also fails.Conclusion[69] For all the reasons I have outlined above, this appeal is dismissed....................................................Gendall JSolicitors:Tim Mackenzie, Barrister, ChristchurchGordon & Pilditch, Rotorua