Wellington City Council v Jetconnect Limited DC Wellington CRI-2011- 085-374 [2011] NZDC 1266 (8 August 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT WELLINGTON

CRI-2011-085-000374

WELLINGTON CITY COUNCIL
Informant

V

JETCONNECT LTD
Defendant

Appearances: S F Quinn for Informant

JDK Gardner-Hopkins for Defendant

Sentencing: 8 August 2011

SENTENCING NOTES OF JUDGE J M KELLY

The charge

[1] The defendant, Jetconnect Ltd, appears for sentencing today having pleaded
guilty to one charge under s 338(1)(a) of the Resource Management Act 1991.
[1] The offence was caused by Jetconnect permitting a contravention of s 9(3) of
the Act in that it failed to comply with Rule 11.1.1.1.5 of the Wellington District Plan by landing an international flight in breach of the curfew for flights landing at Wellington International Airport.
[1] The maximum penalty for this offence is a fine not exceeding $600,000.

Factual basis for sentencing

[4] Jetconnect is owned by Qantas Airways Ltd. Since 2002, Jetconnect has operated trans-Tasman services between New Zealand and Australia under the Qantas brand.
[4] Activities at Wellington International Airport are subject to the provisions of the Wellington District Plan. Rule 11.1.1.1.5 of the Plan states:

Night flying operations

11.1.1.1.5 Domestic operations must not occur during the hours from

midnight to 6.00am. International operations must not occur during the hours:

• Midnight to 6.00am for departures
• 1.00am to 6.00am for arrivals

For the purposes of this rule "operations" means the start of a take-off roll or touch down on landing.

[6] Rule 11.1.1.1.6 of the Plan provides an exception as follows:

(a) Disrupted flights where operations are permitted for an additional 30

minutes.

[6] Having flown from Sydney, Australia, agents or employees of Jetconnect landed an aircraft at the airport at or about 01:47am on 18 September 2010.
[6] It is accepted that Flight QF 117 was a disrupted flight and therefore was permitted to land up until 01:30am.
[6] It is also accepted that flight QF 48 from Wellington to Sydney (the flight preceding flight QF 117) was late due to adverse weather conditions. Further, because of those weather conditions, flight QF 48 was subject to significant turbulence, which necessitated inspection of the aircraft by engineers. That further delayed the availability of that aircraft for flight QF 117 and necessitated its replacement with another aircraft.

[10] The departure of flight QF 117 was then further disrupted because, after pushing back, the takeoff was delayed due to inspections being carried out on the Sydney runway following bird-strike by another aircraft. Flight QF 117 was held for 22 minutes on the runway prior to takeoff. Flight QF 117 was airborne at 21:02pm local time.
[10] When it became apparent that landing of flight QF 117 would not occur within the 01:30am tolerance allowed for disrupted flights, Jetconnect's pilots initiated inquiries as to their ability to divert, first to Auckland International Airport

and then to Christchurch International Airport. It is accepted that weather
conditions in Auckland combined with the onboard fuel status rendered it unsafe for flight QF 117 to land in Auckland.

[10] The pilots then sought to initiate a diversion to Christchurch International Airport. Several communications were made with Qantas staff and contractors at Christchurch International Airport. Issues were raised in respect of Qantas personnel shortages and the pilots formed the impression that it would be difficult to process passengers if they were to land flight QF 117 there.
[10] Jetconnect accepts, however, that it would have been possible for flight QF 117 to land at Christchurch International Airport and that the pilots, having that option, should have diverted to Christchurch.
[10] Since it commenced operations in 2002, Jetconnect has not breached the relevant rule of the Plan. Nor has it received any previous warnings for breaches of that rule. It is also accepted that Jetconnect has no convictions for any other offence.

Sentencing principles

[10] The principles applicable to sentencing in respect of breaches of the Resource Management Act are those set out in Machinery Movers Ltd v Auckland Regional Council' read in light of the provisions of the Sentencing Act 2002. Those principles

have been enunciated in Selwyn Mews Ltd and Ors v Auckland City Council2 which was cited with approval in R v Conway3.

[16] Turning now to consideration of Machinery Movers principles. Nature of the environment affected
[16] The environment affected is the residential area surrounding the Wellington International Airport. In particular, the amenity enjoyed by the residents that live under the flight paths adjacent to the airport.
[16] The provisions of the District Plan relating to operations at the Airport are the result of the resolution of numerous references (including those by local residents) on what was the Proposed Wellington City District Plan.
[16] As a result of the resolution of those references, the Wellington Air Noise Management Committee was established, which is comprised of representatives from the informant, Wellington International Airport and local residents. The Wellington Air Noise Management Committee actively monitors the noise effects associated with the airport.
[16] The District Plan process and establishment of the Wellington Air Noise Management Committee has created an expectation that the informant will actively enforce the curfew that applies to the airport. The Committee receives information regarding any breaches and monitors the informant's response to those breaches. Local residents have a strong expectation that compliance will be upheld.

Extent of the damage inflicted

[16] The informant submits that it has commenced this prosecution to uphold the integrity of its District Plan. The informant acknowledges that no formal complaints

were made in relation to flight QF 117. The informant says however, the late

2 Selwyn Mews Ltd and Ors v Auckland City Council, High Court Auckland, CRT-2003-404-159, 30 April 2004, Randerson
3 R v Conway (CA 234/04, 28 October 2004)

arrival of flight QF 117 undermines the purpose of the curfew which is to provide local residents with certainty regarding noise associated with operations at the airport, which in turn impacts on their sleep patterns.

Deliberateness of the offence

[22] The informant submits at the time of final "push back" at Sydney (20:40pm local time, 22:40pm NZ time) Jetconnect knew or ought to have known that the flight would not be able to comply with the curfew at the airport. The fact that flight QF 117 was subsequently held on the runway for a further 22 minutes further exacerbated the risk that the flight would not comply with the curfew.
[22] The informant acknowledges that for Jetconnect to cancel flight QF 117 or divert to Christchurch would have caused it considerable financial and logistical difficulties. However the informant submits it is inappropriate for Jetconnect to make a commercial decision to breach the curfew at the airport and simply pay any financial penalty that may arise from that breach rather than suffer the financial and logistical difficulties of cancelling the flight or diverting it to an alternative airport.

Defendant's attitude

The informant acknowledges that Jetconnect did not actively set out to breach the curfew. However the informant submits that Jetconnect did not take all necessary steps to prevent the breach.

Sentencing Act 2002

[22] The purposes of this sentence are to hold Jetconnect accountable, to denounce its conduct and to deter it and others from offending in a similar way.
[22] I identify the following principles of sentencing as appropriate to the facts of

culpability of Jetconnect that I have identified when discussing the affect on the environment and the deliberateness of the offending.

(b) Second, I must take into account the relative seriousness of this
offending which is reflected in the amount of the maximum fine and the strict liability nature of this offence.
(b) Third, I must have regard to the desirability of consistency with
similar offences recognising that the penalties in relation to environmental offending vary markedly because of the different effects on the environment and culpability of offenders.

Submissions on behalf of the informant

[26] The informant acknowledges that the environmental effects resulting from Jetconnect's offending are at the lower end of the scale. However the informant submits that the size of Jetconnect and the need to ensure that users of the airport always comply with the controls set out in the District Plan are reasons why an example should be made of the defendant.
[26] The informant refers to the sentencing notes of Judge Thompson in Wellington City Council v Acernus Aero Ltd where the defendant pleaded guilty to contravening the same rule of the District Plan by landing a light aircraft in breach of the curfew for domestic flights taking off or landing at Wellington International Airport. In that case it was accepted that the pilot misunderstood the curfew, at least in part, due to confused and incorrect advice given to him in an email exchange with Wellington International Airport. Judge Thompson did, however, emphasise that the pilot's enquiry was not as thorough as would be expected from a professional and experienced pilot in these circumstances. The small domestic operator was fined $6,000.

Submissions on behalf of the defendant

[28] Although in the written submissions filed on behalf of the defendant, a discharge without conviction or alternatively a conviction and discharge were sought, Mr Gardner-Hopkins did not pursue those submissions in Court.
[28] Mr Gardner-Hopkins quite properly acknowledged that a fine should be imposed but submitted that it should be at the lower end for the following reasons. First, Jetconnect emphasises the very minor nature of the offence which resulted in minimal harm with no complaints received. Secondly, there was genuine reason for the breach. The flight was disrupted for safety reasons and attempts were made to divert. Mr Gardner-Hopkins submits that the offending was not deliberate or careless and that at worst, it could be characterised as arising from an error of judgement by the Captain, based on his impression as to the difficulties of landing in Christchurch because of ground staff shortages. Thirdly, Jetconnect has no history of offences or warnings. Its parent company, Qantas, last received a warning in 2002. Fourthly, Jetconnect is committed to operating responsibly and there is little prospect of any reoffending. The proper procedures have been confirmed and the bringing of a prosecution itself is a significant deterrent to Jetconnect and other airlines.

Discussion regarding an appropriate starting point

[28] Although I accept that this is a minor offence, I am mindful that the maximum penalty is a fine of $600,000. It is well established that both general and specific deterrence is an important factor in sentencing for this type of offending and that there is a need to ensure that fines are not so low that they will be regarded as a licence fee for offending.
[30] I agree with the informant's assessment that the offending in this case is more serious than the offending in Wellington City Council v Acernus Aero Ltd in that Jetconnect is an international airline that can be expected to have all necessary systems and protocols in place to avoid a breach such as that which occurred on 18 September 2010.

[32] Further, I accept that at the time of final "push back" at Sydney Airport, Jetconnect knew or ought to have known that based on its scheduled flight time, flight QF 117 would not have been able to comply with the curfew at Wellington Airport. In addition, by electing to breach the curfew, Jetconnect avoided the financial and logistical difficulties of cancelling flight QF 117 or diverting to Christchurch Airport.
[32] For these reasons I have concluded that an appropriate starting point is a fine of $18,000.
[32] There are no aggravating factors personal to Jetconnect.
[32] The mitigating factors personal to Jetconnect are that it has no previous convictions and it has co-operated with the informant. For these factors, I consider Jetconnect is entitled to a discount of approximately 11 percent. That equates to $2,000, reducing the fine to $16,000.

Discount for guilty plea

[32] As Jetconnect entered a guilty plea to this offence at the first available opportunity, it is entitled to the maximum discount of 25 percent in accordance with the Supreme Court's decision in Hesse11 v R. That amounts to a further discount of $4,000.

End point

[32] That leaves an end point fine of $12,000. Sentence
[32] Therefore on CRN ending 0236, Jetconnect Ltd is convicted and fined $12,000.
[35] I make an order pursuant to s 342 of the Resource Management Act that the fine is to be paid to the Wellington City Council, less the required 10 percent.

[40] Jetconnect Ltd is also ordered to pay Court costs of $132.89 and solicitor costs in accordance with the scale set out in the Costs in Criminal Cases Regulations 1987.

J M Kelly

ate Environment Court Judge