Director of Civil Aviation v Kirby [2019] NZDC 7644 (18 April 2019)

Last Updated: 13 June 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2017-004-002400 [2019] NZDC 7644

DIRECTOR OF CIVIL AVIATION Prosecutor

v

[GLENN KIRBY] Defendant

Date of Ruling:	18 April 2019
Appearances:	C Macklin for the Prosecutor F Pilditch for the Defendant
Judgment:	18 April 2019

RULING OF JUDGE D J SHARP [ON S 106 APPLICATION]

[1] Mr [Glenn Kirby] makes application for a discharge without conviction. He pled guilty to one charge of operating an aircraft in a careless manner contrary to s 43A Civil Aviation Act 1990. The maximum penalty under the charge is a fine not exceeding $7000.

[2] This application requires the application of s 107 Sentencing Act 2002. The test which must be applied is that the gravity of the offending must be wholly outweighed by the actual and potential consequences of a conviction. There is no onus on an applicant in such applications to achieve any standard of proof. It is a matter that can be determined by reference to affidavit evidence and other material which could be said to either support the application or not.

DIRECTOR OF CIVIL AVIATION v [GLENN KIRBY] [2019] NZDC 7644 [18 April 2019]

[3] The rules in relation to discharges stem from the Sentencing Act which requires discharges to be considered as one of the options that apply to all persons who come to be sentenced. In considering the steps which are required in relation to s 107, the principles of sentencing in general also must be addressed.

[4] The first stage is to consider the gravity of the offending. In this particular case, the defendant was formerly a B Category flight instructor at [name deleted] Aero Club. On [date deleted] 2016, during a flight from [location 1 deleted – the Aerodrome] to the national flying championships in Ashburton, Mr [Kirby] operated in poor weather conditions and has agreed that the actions he took were careless. He had with him in the aircraft a student pilot. The relevant flying occurred in conditions that appeared to be near or below the meteorological minima for flights. At times the defendant also flew below the minimum legal height for flights under the visual flight rules.

[5] The Civil Aviation Act establishes rules for operation and provides divisions of responsibility within the New Zealand civil aviation system. The underlying purpose of the Act and the rules that are provided are to promote aviation safety. The Civil Aviation Authority has an obligation to promote safety and security in relation to aviation and that is with the purpose of providing for the interests of the public. One part of fulfilling the obligations is the monitoring and enforcing of compliance with the Act, the regulations and the Civil Aviation Rules.

[6] In this particular case, weather plays a significant part. The pilot in command is restricted to flying under the visual flight rules in a case such as this. The pilot must operate on what they can see. During such flights, low cloud or heavy rain can reduced visibility to a point that a pilot is flying blind. This poses severe risks of collision and/or disorientation which can have life-threatening or even fatal consequences.

[7] There are minimum meteorological conditions that are required for flights such as the one that took place here. These rules provide the conditions that must be present and specify key points, including distances that must be maintained between aircraft and cloud. There is also a requirement that there be care taken when manoeuvring around other aircraft. Pilots are required to maintain adequate separation between

their aircraft and other aircraft at all times. Aircraft must never be operated so close as to pose a collision hazard.

[8] Low flying can cause risks by increasing the aircraft’s exposure to hazards and reducing the pilot’s option in the event of aircraft malfunction. Aircraft flying close to the ground significantly reduce the pilot’s time to react if an emergency situation were to arise. There are minimum height requirements imposed for aircraft that are operated under visual flight rules.

[9] The regulations provide that a pilot in command must not operate an aircraft under visual flight rules over any area, apart from a city group of people in a congested area, at a height of less than 500 feet above the surface, or at a height less than 500 feet above any obstacle, person, vehicle, vessel or structure that is within a horizontal radius of 150 metres from the point immediately below the aircraft.

[10] In this case, the defendant holds a commercial pilot licence. He is [over 50 years old], or was at the time the summary of facts was agreed. The aeroplane which he flew was with him operating as a B Category flight instructor and instrument ratings show that as at September 2016 he had recorded 2385.5 hours total flying time. He has no previous history in relation to the Civil Aviation Authority’s Regulatory Investigation Unit. He was, on [the date of offending], leading a group of pilots and three young Eagle students travelling to Ashburton to attend the national flying championships. They were flying several different aircrafts, privately-owned and [Aero Club] aircraft, to Ashburton.

[11] Most of the aircraft were travelling together in a loose formation. During the first leg of the trip from [the Aerodrome] to Whanganui Airport the defendant was in company with the [under 18-year-old] Eagle student who recently started learning to fly at the [Aerodrome]. The defendant and the student departed [the Aerodrome] at about 8.30. They were leading two other aircraft.

[12] The group intended to stop at different airfields along the way to Ashburton so that each of the young Eagle students could fly a leg on the trip. Because the defendant

was an instructor, that would mean that each of the students would have a turn piloting the aircraft.

[13] The weather was a factor. Prior to leaving, the defendant discussed the weather with the group. It was noted that the weather conditions they would likely encounter during the flight could be challenging. There was some discussion about where the group would divert to if that became necessary. The prosecution accepts that there was no weather situation at the time the flight left that would have required the flight to have been cancelled.

[14] During the first part of the flight the three aircraft flew in a loose formation and took photographs of each other. As the flight progressed the group encountered deteriorating weather conditions. The pilots discussed whether they would track inland or fly along the coast. By this stage the group were heading towards an area of thick cloud. This area of cloud was visible for about 15 minutes before the group reached it. While there was a discussion about diverting, the group did not fly around the cloud and eventually ended up above it.

[15] There were recorded conversations about the circumstances which the cloud provided. The question of the weather was significant and, to a point, the defendant took the lead role in relation to the progress of the flight. There were separate diversions among the aircraft that were flying. The defendant said his group was trying to get under the weather.

[16] The offending commenced in what had been described in the agreed summary of fact as marginal conditions. The defendant continued flying above the layer of cloud. While over this layer of cloud he came within a few hundred feet of a dense wall of cloud. The student had the controls. The defendant directed him to fly towards a hole in the cloud layer below. To the Eagle student the hole in the cloud looked like an almost perfect cylinder.

[17] Once the aircraft was above the hole the defendant took control of the aircraft. He commenced a steep right-hand descending turn down through the hole in the cloud. The other pilot was a distance behind when the defendant began this manoeuvre. The

video footage shows that the other aircraft was following behind and to the left-hand side of the defendant’s aircraft only seven seconds before the defendant commenced the steep spiral descent. Footage shows the defendant commenced this descent from 2400 feet, with the aircraft breaking out of the hole in the cloud at about 2500 feet.

[18] Mr [Kirby] then handed control of the aircraft back to the student as the aircraft was descending through 1800 feet. It was noted that the aircraft’s vertical speed indicator reached its maximum deflection of 2000 feet per minute during the descent. From the commencement of the turn until breaking clear of the cloud the descent rate was 3343 fpm. The overall average rate of descent from the defendant taking control until the control was returned to the student pilot was 1661 fpm. It was also noted the aircraft had reached an air speed of 140 knots during the descent. After the descent, the defendant and the student pilot discussed the manoeuvre.

[19] The radar data provided by the Airways Corporation of New Zealand shows the two aircraft remained in close proximity relative to one another through the rapid descent. After levelling out beneath the cloud base the two aircrafts then continued tracking inland in a southerly direction towards Whanganui at 1500 feet. At that point they were still trying to continue along an inland route. While attempting to find a way through the inland route to Whanganui there were discussions concerning the deteriorating conditions.

[20] Despite the weather conditions continuing to deteriorate, the defendant kept trying to fly a direct inland route. About one hour into the flight the defendant advised there was a 2600 ft hill coming up somewhere in front of them and they would need to follow a river. A short time later the defendant advised that it was necessary to go lower and his view was that it was necessary to go out to the coast. The defendant radioed, indicating that the weather did not look good. It certainly looked to him to be necessary to go another way (I paraphrase what was said).

[21] The defendant then contacted the trailing aircraft to inform them they were heading for the coast because the inland route was not possible. When the two aircraft reached the coast they began following the coastline towards Whanganui. As they progressed, the defendant become concerned about the rain in front of low cloud.

[22] As they continued, video footage shows the aircraft encountered low cloud and rain about four kilometres to the south of Tirua Point. The student pilot who was in control of the aircraft and was forced to descend below 500 feet in an effort to remain clear of the lowering cloud. The defendant took control of the aircraft as the aircraft was approaching 300 feet. He continued following the coastline in a southerly direction towards Whanganui, flying through the bad weather. At the lowest point the defendant descended the aircraft to approximately 280 feet above the sea.

[23] Although there were slight improvements in visibility at times, the video footage shows the low cloud, rain and poor visibility extended for approximately 40 to 50 kilometres along the coastline with approximately 14 minutes of flight time. The video also shows during a portion of the flight the aircraft was operated below 500 feet for a total of four minutes and 28 seconds and between 500 and 600 feet for the rest of the time. While they were flying through the bad weather, the defendant radioed the trailing aircraft, indicating that they were low at that stage.

[24] The assessment which must be made of gravity is not an assessment which is limited solely to the facts of the offending. Obviously, because the offending is against regulatory-type legislation, safety is a significant factor in assessing gravity. I am also entitled to take into account in the assessment the defendant’s actions concerning the charge after it. It seems to me that undertaking mentoring with the Civil Aviation Authority, losing his job and admitting to the careless act showed that there is a high degree of personal deterrence and accountability present in the circumstances to date.

[25] His accountability is shown by his acceptance of falling below the standard required and I consider that those factors are able to be weighed in the assessment of gravity. Mr [Kirby] is someone who has no previous convictions. He is a person of mature years and he has provided, in his employment, services to people and training to others. He is able to call on his character and he calls upon material that is filed in his affidavit and the affidavit in support by Mr Fennell about his attitude and his claim that these salutary events and his expressions of remorse put him in a position of someone who is unlikely to offend against the regulatory legislation in the future.

[26] Those are factors that I can weigh in the assessment. As I did say during discussions with counsel, because of the need to preserve the integrity of the legislation and the need for safety in aviation, the gravity still remains. Notwithstanding those factors, which I take as reducing gravity and reflecting deterrence/denunciation, at a moderate level of seriousness.

[27] Having established the gravity I then have to consider the actual and potential consequences of a conviction. Some consequences I have already alluded to have come home to roost. The Civil Aviation Authority has, through its administrative processes, applied a process. I am aware that the Authority, regardless of this decision, is aware of the conduct that is present. There is no question of these proceedings for a discharge doing anything to obscure that Authority’s understanding of the circumstances and the requirement that there be steps put in place to ensure that there is no repetition of such carelessness.

[28] There are also the consequences that the defendant has lost his employment with the aero club that he was employed at, at the time these events occurred. Every conviction brings with it certain general consequences. There is the loss of a good record, there is a requirement to disclose offending when applying for insurance or loans, there is a potential for publication and there is a certain sense of shame that people find when they accept or are found to have breached the law in relation to important legislation. So, those general consequences apply in almost every case.

[29] In this particular case, there are factors which are raised by Mr [Kirby] concerning his future in the aviation industry. He has provided, in his affidavit, details of employment opportunities that he has sought. I am bound to apply the standard of whether appreciable consequences of a conviction may have an effect. Here, Mr [Kirby] points to applications for pilot roles with a number of airlines. He has spoken to owners of airlines where he has been recommended to the Chief Pilot, but the prospect of a conviction was given to him as a reason that he was a non-starter for the role. He was unsuccessful in all of the positions he applied for. He claims these proceedings were a factor in these rejections.

[30] The task of becoming a pilot involves many hours of training, it involves a great deal of expense and it often involves people who have a real desire to be involved in the industry. Mr [Kirby] has originally been engaged in a career as an [occupation and industry deleted]. He has for a very long time been interested in the role of being a pilot and since the 2000s he has been engaged in that role.

[31] Mr Pilditch points out that he is someone who does not have a lifelong interest in the industry and has not got that capital to support his future in the industry. As someone who is intending to retain a foothold in the industry, it is submitted that a conviction could mean that his opportunity is taken from him, despite his study, the expense he has incurred and his undoubted desire to be involved in the aviation industry.

[32] The prosecution in this case submits that in the balancing of these actual and potential consequences it is important that I keep in mind the principles and purposes of sentencing; that I keep in mind that weather is a constant factor in the aviation industry and this was a failure to take into account sufficiently a basic aspect which is a recurring problem in relation to risks faced by pilots. Further that in the moderate assessment of gravity that I have made, in this case there are factors that are closely associated to real risk of harm, real risks of safety, and I need to be sure that those matters are in 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 outweighed by the actual and potential consequences to Mr [Kirby]. As a consequence, it comes to me to exercise the discretion which is available when the test is passed.

[34] It is rare that where the test is met that discretion is not applied for an applicant. In this case, fortified by the mentoring which Mr [Kirby] has undertaken, the steps that he has had to go through in relation to the proceedings and the fact that there will be a necessary financial consequence towards payment of the prosecution costs, the discretion is exercised in Mr [Kirby]’s favour.

[35] So, while I accept that there should be a discharge without conviction, it will be with conditions. The condition is that there will be $2000 paid towards the cost of the prosecution. That $2000 may be paid at the rate of $100 per month and the payments will be started on 1 May 2019.

D J Sharp

District Court Judge