R v Jones[2019] QDC 79

DISTRICT COURT OF QUEENSLAND

 Introduction

1. [1]
   The defendant has pleaded guilty to five counts of operating an Australian aircraft without a licence contrary to section 20AB of the Civil Aviation Act 1988 (Cth), ^[1] one count of making a false commonwealth document contrary to section 144.1 of the Commonwealth Criminal Code 1995 (Cth) ^[2] and I will take into account pursuant to s 16BA of the Crimes Act 1914 (Cth) one count of providing false or misleading information to the Civil Aviation Safety Authority (CASA) contrary to s 135.1(7) of the Criminal Code 1995 (Cth). ^[3]

2. [2]
   I take into account the pleas of guilty and reduce the penalties I would have otherwise imposed by reason of the pleas. They show cooperation in the administration of justice and have saved the cost of a trial. The pleas of guilty to counts 1 to 5 are early pleas. The plea to count 7 is not early but regardless of that, I will give the defendant credit for that plea.

3. [3]
   In sentencing the defendant I have regard to the provisions of s 16A of the Crimes Act.  I also have regard to s 17A of the Crimes Act in reaching my decision.

4. [4]
   The defendant was born on 22 August 1990. The defendant is currently 28 years of age and the defendant was 22 to 24 at the time of the offending.

The facts

5. [5]
   The facts of this case are contained in a statement of facts which forms part of exhibit 2. I have full regard to those facts.

6. [6]
   The agreed facts are briefly that between August 2013 and February 2015 the defendant flew commercial operations for five different companies on a total of 856 occasions without holding a valid Commercial Pilot’s Licence (CPL). The commercial work that the defendant undertook included inter alia spreading seed for farmers across agricultural land. In March 2015 the defendant participated in an electronic interview in which the defendant made wide ranging admissions to flying commercial operations without holding a CPL. At all material times the defendant did hold an Australian Private Pilot’s Licence (PPL). This entitled the defendant to do the same work but without fee or reward.

7. [7]
   With respect to count 7, on or about 6 August 2013 the defendant approached Mr Anthony Pratt. He is a CASA authorised training officer who conducts various training activities for pilots so they can obtain licencing rating and endorsements for different flying activities required by the Civil Aviation Act.  The defendant approached him to obtain training to obtain an agricultural rating 2.  Training with him was necessary to enable him to give the defendant the necessary agricultural rating so the defendant could show prospective clients the defendant was rated to undertake agricultural commercial activities.  The defendant was required to satisfy Mr Pratt that he held a CPL before the defendant could do the training.  The defendant produced to him a fake CPL.  The defendant admitted to this during his interview.  The defendant admitted he had copied another person’s licence and changed it to match the details.  Mr Pratt in his evidence at the committal hearing said he would not have accredited the defendant with completing the necessary agricultural training if the defendant had not produced the false document.

8. [8]
   Count 7 relates to the defendant making the false CPL and producing it to Mr Pratt intending that he would accept the document as genuine. The defendant’s intention in producing the false document and having it accepted by Mr Pratt was so the defendant could obtain a benefit from him, namely training for an agricultural rating namely for an agricultural rating 2. The defendant knew he was not entitled to this training and the rating which followed.

9. [9]
   As to the offence the subject of s 16BA of the schedule, the defendant was contacted by Ms Melissa Cutler on or about 14 January 2015. She was employed by CASA as a safety systems inspector. One of her duties was to conduct audits of operators and assessing safety management systems. She had acquired intelligence the defendant was flying aircraft without appropriate endorsements and she investigated the defendant. It was important that she see the defendant’s CPL. Her records did not indicate the defendant ever held the CPL. In an email of 28 January 2015 at 11.14 am, she asked the defendant to send details of the defendant’s CPL. The defendant told her he could organise this. There were various emails between the defendant and Ms Cutler but the defendant never produced the CPL. The defendant’s responses were misleading and were to “put off the scent” into the enquiry.

Prosecution submissions

10. [10]
    The prosecution submits that the offending period was significant and involved a large number of flights with five separate operators. It is accepted the defendant was the only passenger on the flights. It is submitted that specific and general deterrence are important sentencing considerations in a case such as this. General deterrence is a paramount sentencing consideration relating to the false commonwealth document charge. It is submitted that the admissions made in the record of interview are in the defendant’s favour, as is the plea of guilty. It is accepted the defendant was very young at the time and has no previous convictions.

11. [11]
    It is ultimately submitted that a sentence of imprisonment is required but it is accepted that alternatives to an immediate custodial term of imprisonment are open.

12. [12]
    The prosecution relies on a number of comparable decisions including R v McCormack;^[4] DPP v Gruhl;^[5] R v Barton.^[6]  By way of analogy the prosecution relies on R v Moxon^[7] and Alam v R.^[8]

13. [13]
    Of course each case depends on its own facts, those cases are of assistance but it is up to the sentencing judge to reach his or her conclusions on the given facts of the case.

Defence submissions

14. [14]
    The defendant’s counsel in submissions distinguished the crown cases.

15. [15]
    When I first heard the matter on 11 April 2019 the defendant’s counsel asked the matter to proceed on the basis of the facts alleged in his submissions.

16. [16]
    I will now detail those submissions.

17. [17]
    Exhibit 3 was a defence chronology which assisted him in his submissions. The chronology told me that in May 2009 the defendant had a private pilot licence (PPL) issued. The defendant then went to the United States to work and had a commercial pilot licence (CPL) issued on 23 November 2012. I should mention that the defendant comes from a family from St George, the lineage of which are agricultural pilots and this is the family business. The defendant went to the United States to explore work opportunities and this is why the defendant obtained the US CPL in 2012.

18. [18]
    The defendant returned to Australia in 2013 to work the season here. Count 7 occurred when the defendant produced a copy of the false CPL to Mr Pratt and commenced agricultural training. The defence submits that the defendant did this because of his youth, the high expectations of his family and his naivety. The reality is that the defendant is qualified in the United States as a CPL. It is also submitted that Mr Pratt was not the person who issued the licence, Mr Pratt conducted the training. As it turns out, Mr Pratt said the defendant was a very proficient pilot and competent. He passed his training. It is submitted this is not a matter where there was a risk over or beyond normal flying by reason of the offending. Count 7 only occurred because of Mr Pratt’s in-house rules. It is submitted the offence is at the lower end of the spectrum for this kind of offending.

19. [19]
    The defendant completed the agricultural training with Mr Pratt on 6 March 2014. The defendant continued his operations without the CPL in September 2014 and November 2014 (Counts 3 and 4). As it turned out, Ms Cutler commenced her investigations in January 2015. On 14 January 2015 the defendant passed a theory examination for the CPL. On 18 January 2015 the defendant lodged an application with CASA for his Australian CPL in recognition of his US CPL. The defence concedes that the defendant’s conduct with Ms Cutler was an attempt to put them off the scent.

20. [20]
    On 7 December 2015 a show cause notice was issued by CASA with respect to the defendant’s private license. This show cause notice relied on the charged allegations. On 26 August 2016 the defendant’s PPL was cancelled. The defendant made application for the AAT to review that decision on 2 September 2016. Ultimately, the case was settled by a deed of agreement entered into on 12 December 2016 whereby the defendant’s PPL was returned to him.

21. [21]
    On 7 December 2017 the summons and complaint in this matter was issued and on 21 March 2018 the defendant’s PPL was reissued.  On 28 August 2018 CASA sent out a letter detailing the matters to complete for the issue of the Australian CPL. 

22. [22]
    On 30 August 2018 CASA confirmed an agreement to complete those matters. By 8 April 2019 the defendant had passed his exams and had done 5,500 flight hours.

23. [23]
    The defence submits that any penalty imposed by the court may affect the obtaining of his CPL and could lead to certain consequences concerning his PPL.

24. [24]
    Section 269 of the Civil Aviation Regulations provide for this (Exhibit 4).  It is also submitted that a conviction being recorded in this matter may have a significant effect upon any visa to return to the United States. 

25. [25]
    It is submitted by the defence that the crown cases are distinguishable. It is submitted in this case that the defendant was flying solo in remote areas without passengers. It is submitted the defendant is a skilled pilot, certified to be proficient without any risk above and beyond normal flying. It is submitted that the reality is the defendant is an experienced pilot with the appropriate qualifications in the United States and was proficient as certified by Mr Pratt.

26. [26]
    It is submitted there would be serious consequential effects if the defendant were to lose his licence.

27. [27]
    Exhibit 5 is a copy of the provisions of s 282 of the Civil Aviation Regulations.  It is submitted by the defence that the prosecuting authority could have charged the defendant with a far less serious offence if it had so chosen.  It is submitted one should regard the charges at the lower end of the spectrum.  In particular, Count 7 is at the lower end of the scale for those sorts of offences bearing in mind that the document was only required to start training which in fact the defendant had passed.

28. [28]
    Exhibit 6 were good character references tendered on the defendant’s behalf. Mr Middlebrook who could be regarded as a victim, said the defendant was a good and able pilot and even though the defendant acted wrongly the defendant realised the implications of this and the offences seem out of character. Mr Mace who has known the defendant’s family for 30 years speaks well of the defendant. Mr McIntyre who has also known the defendant for a long time speaks well of the defendant. Mr Peterson speaks well of the defendant and says that the defendant has an open invitation to work and fly with him in Illinois.

29. [29]
    It is submitted that the offences were borne out of the defendant’s youth and immaturity. The defence submits that in the unusual circumstances a s 19B Bond should be imposed. It firstly submits that there are extenuating circumstances here namely:

1. (a)
   The defendant’s youth;

2. (b)
   The defendant’s immaturity;

3. (c)
   The defendant’s naivety;

4. (d)
   The family expectations;

5. (e)
   The significant consequences of punishment, namely the potential that CASA could cancel the defendant’s licence and/or stop the defendant’s qualification for a CPL and the impact on an American visa and the employment there.

30. [30]
    It is submitted that specific and general deterrence do not loom large in this case. As to specific deterrence, the defendant has no previous convictions and the defendant has remained out of trouble since the notice to show cause in December 2015. As to general deterrence, it is submitted this is a very unusual scenario; the defendant was actually licenced with a PPL and the defendant held a CPL in the USA; the defendant flew solo and there was no additional danger in this case.

31. [31]
    After defence counsel’s submissions in April 2019 the matter was adjourned so that the parties could put in further submissions/evidence on the matters raised.

Crown further material

32. [32]
    The crown filed and served the affidavit of Paul Campbell sworn 1 May 2019 pursuant to these directions.

33. [33]
    Objection was taken to the tender of this affidavit by the defence. I heard submissions as to this on 8 May 2019 and ruled that it should be admitted in light of the important matters raised therein and subject to the defence having an opportunity to reply.

34. [34]
    Mr Campbell’s affidavit is exhibit 7. He is the senior investigator in the litigation and enforcement branch of CASA. He was allocated the investigation on 4 February 2015 and has been in court when the matter has been mentioned or heard. He swears that on 7 June 2010 the defendant commenced sitting theory exams for the issue of a CPL. After 23 attempts of examinations falling within the seven categories, the defendant passed only three subject examinations relating to his CPL. He had not passed his agricultural ratings examination.^[9]  On 11 November 2012 the defendant travelled to the USA.  On 20 November 2012 he was granted a U.S. validated private pilot licence on the basis of his Australian PPL.  On 23 November 2012 he was issued with a U.S. CPL.  There is a difference between the U.S. CPL application process in that the applicant is only required to pass a 100 question multiple choice test to a pass mark of 70 per cent.  The U.S licence did not allow the defendant to fly passengers commercially further than 25 nautical miles or at night and did not require the defendant to satisfy the same requirements as an Australian CPL.

35. [35]
    On 6 August 2013 the defendant commenced training with Mr Pratt. Mr Pratt is a CASA authorised testing officer delegated by a permission number. He was also delegated CASA’s powers under the Civil Aviation Regulations relating to the conduct of flight tests in relation to grade 1 and grade 2 agricultural pilot aeroplane ratings.  At the time he conducted his training with Mr Pratt, Civil Aviation Order 40.6.4 (“CAO”) was in operation.  This CAO sets out the aeronautical knowledge that an applicant for an agricultural rating must possess.  In particular, the applicant must have passed a written examination on the matters specified in the syllabus.  The defendant had not passed this written examination at the time of his training with Mr Pratt.^[10]  CAO 4.6.5 sets out the aeronautical experience that a pilot must hold to undergo a flight test for an agricultural rating.  This required the applicant to hold a CPL or an air transport licence as well as satisfactorily completing a course of flying listed in the syllabus.  A pilot holding a grade 2 agricultural rating must also complete 110 hours of supervision. 

36. [36]
    On 6 March 2014 the grade 2 agricultural training was completed and Mr Pratt under his delegation issued the defendant with a grade 2 rating by placing the sticky label for this rating in the defendant’s pilot logbook. Application forms were required to be provided to CASA following the issue of these labels but was not done. The defendant took these forms from Mr Pratt at the conclusion of his training and never submitted them to CASA. Mr Pratt gave evidence at the committal hearing he would only have provided the training to the defendant if he had a CPL because his operational manual required that he only provide training to persons with a CPL.^[11]  A person may only be issued with a grade 2 agricultural rating if they satisfactorily complete the relevant written examination and are the holder of a CPL.  A person may operate the type of aircraft used in agricultural operations privately on their own land but the person must hold the appropriate operational ratings.  There is no evidence the defendant had this rating.^[12] 

37. [37]
    Since the sentencing hearing on 11 April 2019, Mr Campbell has conducted a full review of the brief of evidence which was disclosed to the defendant’s legal representatives on 9 November 2017. There was no evidence in the brief the defendant was conducting any agricultural operations prior to his training with Mr Pratt in August 2013. The defendant first commenced working with Aaron Ford at Ford Aviation Pty Ltd completing agricultural operations, spraying and spreading in or about September 2013. At this time he had not been provided with his grade 2 agricultural rating. Between September 2013 and October 2013 he completed about 70 to 75 hours of supervised time with Ford Aviation.

38. [38]
    In about October 2013 he spoke with Leslie Brown in relation to conducting agricultural operations with LKB Aviation over summer. Mr Brown understood through the conversations the defendant had completed 110 hours of supervision including 20 hours of direct supervision.^[13]  In about October 2013 Mr Ford contacted Mr Brown for the purpose of ascertaining if Mr Brown was completing the defendant’s agricultural rating supervision.  Mr Brown advised Mr Ford the supervision had been completed.  Mr Ford did not sign off his hours.^[14]  Mr Ford did not sign off the defendant having completed 122 hours under supervision.^[15] 

39. [39]
    As to the defendant’s skill and competency, on 30 October the defendant conducted spreading operations for Quirindi Air in aircraft VH-NAB. The defendant spread the seed incorrectly which led to a complaint by the property owner.^[16] 

40. [40]
    On 28 November 2013 the defendant completed a spray job for Mr Brown. Mr Brown found his ability very poor.

41. [41]
    Since the sentencing hearing Mr Campbell has conducted a perusal of CASA business records. Annexure B is a copy of an email sent by Johnny King of King AG Aviation in Texas. On 26 June 2014 whilst working for Mr King, the defendant conducted operations as a pilot in command of air tractor AT402B. He flew into a paddock and substantially damaged the aircraft. The U.S. National Transport Safety Bureau reported the crash as probably pilot error.^[17] 

42. [42]
    On 18 December 2014 whilst working for Jonathan Middlebrook at Middlebrook Air Operations Pty Ltd, the defendant hit an electricity wire at Coolah.^[18] 

43. [43]
    With respect to his CPL application, on 18 January 2015 the defendant submitted an application to CASA for the validation of his US CPL and the issue of an Australian CPL. He was informed by CASA that no determination would be made until the court proceedings were concluded.^[19]  Regulation 11.055 of the Civil Aviation Safety Regulations 1998 (Cth) list the matters to be taken into account when considering the issuing of a CPL.  Annexure C is a copy of that regulation.^[20]  The outcome of the decision in relation to the defendant’s CPL is not entirely dependent upon the outcome of the court case but is a matter that will be taken into account among many factors in determining whether or not to issue the CPL.  Those factors might include:

1. (a)
   The defendant’s demonstrated attitude towards compliance with regulatory requirements relating to aviation safety and other transport safety;

2. (b)
   The defendant’s experience in aviation;

3. (c)
   The defendant’s knowledge of regulatory requirements applicable to civil aviation in Australia;

4. (d)
   The defendant’s history of serious behavioural problems;

5. (e)
   Evidence the defendant has contravened provisions of the CASA legislation or the law of any other country relating to aviation safety or transport safety; and

6. (f)
   Any other matters relating to his fitness.

44. [44]
    CASA may well decide that even if he receives a s 19B non-conviction, he is still not a fit and proper person to hold a CPL. CASA will consider the totality of matters relating to the defendant, his dealings with CASA, his experience and skill and his conduct in the industry generally in making a decision as to whether he is a fit and proper person.^[21] 

45. [45]
    Records of interview conducted with the defendant are attached as annexures D and E.^[22]

46. [46]
    In the first record of interview dated 11 March 2015 the defendant agreed he had been flying in Australia from September 2014 until the end of February 2015 without holding a CPL.^[23] He said he did this because he was an idiot and because he was having trouble with the exams although he had now passed them.^[24] He admitted giving the false licence to Mr Pratt.

47. [47]
    In the second record of interview dated 6 May 2015 he said by that stage he had about 2,500 hours experience.^[25] He had obtained his PPL in 2009. He started studying for his CPL in Australia but struggled with the exams and someone told him to go to the USA and do the training there.^[26] He admitted failing exams in Australia. He obtained his US CPL in 2012.^[27] Later that year he came back to Australia and started working for Jones Air. With respect to the agricultural pilot test with Mr Pratt he said that he did not send the document to CASA and held onto it.^[28]  He was aware he was not entitled to sit these tests unless he had a CPL. He did this because his father was not going to let him go back to the USA until he had done it.^[29] He described how he created the false document on the photocopier.^[30] His first job after the qualification was with Aaron Ford. He admitted conducting commercial operations with Ford Aviation without holding a CPL.^[31] He agreed that he got excited that he could fly for Jones Air and what he did was the “easiest way around it.”^[32] He admitted clipping a powerline with his tyre but the aircraft was not damaged.^[33]

Defence further material

48. [48]
    Mr Edward Maitland, the defendant’s solicitor filed an affidavit sworn 13 May 2019.^[34]  In this affidavit he swears that under s 202 of the Immigration and Nationality Act (US) there are a number of serious criminal offences (that if there were convictions) would deny the defendant entry into the United States.  This includes murder, rape, theft, fraud, a conviction for two or more criminal offences at any stage of a person’s life, drug trafficking, solicitation or prostitution, human trafficking, money laundering and terrorist activities.^[35] 

49. [49]
    Mr Maitland is instructed by the defendant that the defendant has a flying contract with Pontiac Flying LLC of Illinois to provide aerial agricultural services as a pilot on a seasonal basis which runs for about six months per year. He has been employed by them since 2014. The defendant has informed him he purchased a 2014 air tractor AT-502B agricultural aircraft from Frost Flying Services in Arkansas for $US670,000 which he hires to Pontiac as a plane and pilot package as part of the contract. The defendant owes $400,000 on the loan for the aircraft and his capacity to service that loan is directly referable to his ability to provide his services as a pilot of that aircraft.^[36]  If the defendant is denied entry to the USA he would not be able to work for Pontiac or anyone else in the United States and would be unable to meet his obligations under the loan agreement.  He would be forced to sell the aircraft or it would be repossessed.^[37] 

50. [50]
    With respect to Mr Campbell’s affidavit concerning action taken by CASA, Mr Maitland swears that the facts and circumstances the subject of administrative action taken by CASA which was brought before the AAT for review were the same facts and circumstances and the prosecution brought against the defendant.^[38]  Mr Maitland attended a conference with the eastern region manager of CASA, Mr Marin, at the AAT.  The matter was settled by agreement with CASA for the return of the defendant’s PPL under a deed executed by the parties on 13 December 2016.  EJM2 is a copy of the deed.  The defendant completed the requirements under the deed and his PPL was reissued on 21 March 2018.^[39] 

51. [51]
    On 23 November 2012 the defendant was issued with his US CPL issued by the FAA. The allegation of Mr Campbell’s affidavit that the CPL was limited to 25 nautical miles is wrong. The licence had an area restriction of 50 nautical miles in relation to the carriage of any passengers. There was no restriction if the defendant was flying alone. This permitted him to undertake agricultural operations across the entire USA. EJM3 is a copy of the US CPL issued to him on 23 November 2012. The initial area restriction of 50nm has been lifted and there is no area restriction.^[40] 

52. [52]
    With respect to the allegation of incorrect seed spreading and spraying, the defendant instructs that at the time he was a relevantly inexperienced pilot with respect to agricultural operations. The spreading and spraying had nothing to do with his performance as a pilot but was with respect to his agricultural duties.^[41]  With respect to the allegation concerning the flying into the paddock, the defendant says this occurred when he had only accrued 300 hours of flight time and was still an inexperienced agricultural pilot.  Similarly, with respect to the instance where the electricity wire was hit, he had then only accrued 650 hours and was inexperienced.  A report was lodged with the relevant authority and no action was taken.^[42] 

53. [53]
    On 10 May 2019 Mr Maitland accessed the website of the Australian Transport Safety Bureau (ATSB) which is the agency responsible for enhancing transport safety by independently investigating, analysing and openly reporting on transport safety matters. His research shows that there has been a survey of Australian agricultural aviation incidents from 1986 to 1995.^[43]  The research shows that agricultural aviation accidents account for 12 per cent of all aviation accidents in Australia during that 10 year period and the accidents rate is higher than for other sectors of general aviation.  The majority of accidents occur in the agricultural work phase whereas most accidents with other types of commercial operations occur in take-off and landing phases.  The largest group of accidents are associated with contacting powerlines or overhead communication lines.  The ATSB also found that at least 40 per cent of wire strike occurrences between July 2003 and June 2011 had not been reported to the ATSB.^[44]  Wire strikes and other incidents are a common feature in agricultural aviation. 

54. [54]
    Since the incidents described by Mr Campbell the defendant has accrued a further 5,500 hours approximately without further incident.^[45]  On 18 January 2015 the defendant made application to CASA for his Australian CPL in recognition of his US CPL.  Australia and the United States are contracting states to the International Civil Aviation Convention (ICAO).  The CASA Flight Crew Licencing Manual (FCLM) states that various types of authorisations are available to qualified pilots who hold an ICAO licence and wish to fly Australian registered aircraft either in Australia or overseas.  Sections 11.4 and 11.5 of the FCLM provide that CASA may issue a certificate of validation (COV) which permits the holder of an overseas authorisation to fly an Australian registered aircraft for specific operations for up to two years.  Applicants for a commercial COV may be required to pass an aeronautical examination and a flight test.^[46]  Section 12 of the FCLM states that in accordance with regulation 61.275 of the CASR, CASA will accept that the requirements for the issue of an Australian flight crew authorisation held by the holder of an overseas flight crew authorisation issued by the ICOA contracting state are met if the applicant meets the minimum requirement set out in ss 12.1.1 and 12.1.2 of the FCLM or evidence is provided that is satisfies CASA that it meets the Australian requirements.^[47] 

55. [55]
    On 18 January 2015 the defendant made application to CASA for the issue of the Australian CPL in recognition of his US CPL. On 14 April 2016 the FAA issued the defendant with an updated CPL to include multiengine aeroplanes, an instrument rating and with no area restrictions pertaining to the carriage of passengers.^[48]  There has been regular correspondence with CASA regarding the defendant’s application for an Australian CPL.  On 14 December 2018 CASA acknowledged receipt of the FAA airman certificate file received by CASA in 14 December 2017 and set out the CASA requirements for the defendant to complete for the issue of the Australian CPL in recognition of his US CPL.^[49]  On 1 April 2019 CASA advised the defendant that it was satisfied of his competency in respect of the CPL helicopter aeronautical knowledge examination (AKE) but he had not completed his CPL AKE.

56. [56]
    On 2 April 2019 Mr Maitland advised CASA that the defendant had completed the AKE for the CPL aeroplanes.^[50]  CASA in a letter dated 1 April 2019 stated “once CASA receives evidence of certification from the Head of Operations of the relevant flight school that the applicant is competent as per Part 61 CASR Manual of Standards, then arrangements can be made to proceed with flight testing with a CASA Flight Training Examiner or Flying Operations Inspector.”  CASA also stated that no final decision would be made concerning the CPLA and CPLH applications until the conclusion of the criminal proceedings.^[51]

57. [57]
    At the resumed hearing the defence tendered an ATSB report “Aviation Occurence Statistics”^[52] and an ATSB report “Aerial Application Safety”.^[53] In essence exhibit 11 highlighted that aerial agriculture had the highest average rates of reported accidents and fatal accidents. Aerial work required aircraft to regularly operate in conditions with inherent risks. The most commonly reported occurrence involving aircraft conducting aerial agricultural operations in 2015 was wire strike followed by forced or precautionary landing and collision with terrain.

58. [58]
    Exhibit 12 noted that aerial application operations have a notably high accident rate relative to other aviation sectors. There are inherent risks not present with other types of flying, in particular working with high workloads and numerous obstacles such as powerlines and uneven terrain.

59. [59]
    It was noted that pilots involved in such accidents had a median of 4,625 hours. The most prevalent type of occurrence (with more than half of the total accidents and serious incidents) involved a wire strike over the past 10 years. The average age of pilots was 43 across the past 10 years. It was further noted that research on wire strikes found that 63% of pilots were aware of the position of the wire before they struck it, demonstrating the difficultly of detecting wires. Another limitation is the lack of conspicuousness of powerlines. Because powerlines can oxidise to blue/grey they blend into the background.

60. [60]
    The incident involving Mr Jones is referred to at page 19 of exhibit 12. In that case, while descending into a field he lost sight of a powerline as the grey wire blended in with the brown wheat stubble and the wire was subsequently caught in the tyre of the aircraft.

Further submissions by the defence

61. [61]
    In further written submissions by the defendant^[54] the defence submits that paras 1-12 of Mr Campbell’s affidavit are largely non-contentious.  It is submitted that para 13 and the following merely reinforce the matters which are the subject of the plea of guilty and are merely him making submissions from his perusal of the brief.^[55]  At para 40 and following Mr Campbell purports to address matters relevant to the exercise of a discretion to grant a licence.  He is an investigator and not a delegate who has any power to grant a licence.  It is submitted that his observations at para 44 are well beyond the scope of his authority and are largely speculative.

62. [62]
    It is further submitted that the application of the discretion in s 19B consists of two stages. The first stage is to identify one or more of the factors identified in s 19B and the second stage is to determine whether it is inexpedient to inflict any punishment. The defence submits that the court is required to have regard to the extent to which the offence was committed under extenuating circumstances. In this case it is submitted that:

1. (a)
   The defendant was a young man at the time of the offence and it came from a family with a long and proud history in agricultural aviation;

2. (b)
   The training undertaken with Mr Pratt was paid for by the defendant and the production of the copied licence by the defendant enabled the training to occur;

3. (c)
   The defendant was plainly a competent pilot as evidence by the fact he passed the training.

63. [63]
    It is submitted the combined effect of the defendant’s youth and naivety induced him to feel under a family expectation to succeed which is a relevant extenuating circumstance. The defence also relies on the character, antecedents and age of the defendant. It is then submitted it is inexpedient to inflict any punishment. It is submitted that a prosecution could have been brought under the Civil Aviation Regulation 282.  No issue was taken with the fact the prosecution has chosen to proceed with the more serious offence but it is submitted that CAR 282 demonstrates that flying without the appropriate license is by reference to the maximum penalty available not an overtly serious offence.

64. [64]
    At the resumed hearing the defence relied heavily on exhibits 11 and 12. It was submitted that experience itself is not indicative of a capacity to avoid accidents. It was submitted that the documents show there was no ineptitude on the part of Mr Jones as a pilot because piloting is an inherently dangerous activity. It was stressed that Mr Jones now has 5,500 hours as a pilot. The defence stressed also that the prosecution had chosen not to charge Mr Jones under regulation 282.

65. [65]
    By way of reply the defence also submitted that the defendant had made full and frank admissions. As to the submission that he was inexperienced and incompetent, the fact is that Mr Pratt certified him. The crown cases were distinguished.

Further prosecution submissions

66. [66]
    The prosecution has filed further submissions dated 16 May 2019.^[56] In the submissions the prosecution submits that the court should accept Mr Campbell’s evidence. It is submitted that the following should be found:

1. (a)
   There are less strict requirements to obtain a US CPL than one in Australia. The defendant routinely failed to obtain his Australian CPL but obtained one in the US.

2. (b)
   Mr Pratt was essentially operating as a delegate of CASA.

3. (c)
   There is no evidence the defendant had any agricultural operations experience prior to his training with Mr Pratt.

4. (d)
   In October 2013 the defendant was inept at conducting seeding operations and there is evidence from customers his abilities were poor at best.

5. (e)
   There is evidence he operated an aircraft dangerously and was responsible for an airplane crash in the US and he flew into an electricity wire in Australia.

6. (f)
   The granting of the defendant’s CPL in Australia is a multi-faceted decision and even if a s 19B discharge is received there may be a number of cogent reasons why he would not receive a CPL.

67. [67]
    It is submitted the defence submission that Mr Campbell’s evidence is speculative and beyond his authority should be rejected. Mr Campbell, it is submitted, holds a position of authority at CASA and has sworn evidence about the decision-making process regarding the CPL.

68. [68]
    On the contrary it is submitted that much of the affidavit of Mr Maitland is either inadmissible hearsay or of little weight or no assistance to the court. It is unclear what expertise Mr Maitland holds concerning US immigration law. There is no expert evidence from a US lawyer or migration agent.

69. [69]
    With respect to his contract with the US company, there is no evidence about whether the company is aware of the proceedings in Australia and no details about the defendant’s financial position more broadly concerning the purported financed loan agreement.

70. [70]
    No issue is taken with the inept conduct of the seed spreading and the airplane crash in the US.

71. [71]
    As to s 19B it is submitted that there must be something which clearly distinguishes the circumstances of the offence under consideration from the typical offence. It is submitted that the discretion under s 19B is exceptional. Prior good character and lack of criminal antecedents alone will scarcely be sufficient to enliven s 19B. The possible consequences of a conviction on his livelihood are not relevant to the first stage of the process. In order to consider whether the offence is trivial it must be different from the typical breach of this section. The term “extenuating circumstances” relate to the circumstances under which the offending occurred. Even if the first stage of the test has been satisfied, the second stage must be applied. In exercising the discretion under s 19B it is important that courts give expression to legislative policy relevant to the offence under consideration.

72. [72]
    With respect to the submission that a conviction would jeopardise a particular avenue of employment, a proper foundation for such a submission is required. The public, the authorities and potentially employers should know the truth of a matter of which the defendant has been sentenced. It is submitted that the exercise of a discretion under s 19B would be exceptional in cases involving fraudulent or deliberately deceptive conduct.^[57] It is submitted that the courts have long recognised the importance of general deterrence in CASA prosecutions. The crown relies on R v Crumpton.^[58] The integrity of a regulatory system must be upheld. Proper licensing requirements seek to achieve compliance. The defendant sought to undermine this by going behind the system by dishonest means.

73. [73]
    It is submitted that R v Barany^[59] is a case which supports the contention that the effect on the applicant’s businesses and/or international travel is not a relevant matter for s 19B. The court can give effect to such concerns by not requiring the defendant to serve actual imprisonment. It is not accepted the defendant was a youth at the time. The contention the defendant was naïve is rejected because he was someone who acted with premeditation and with deviousness.

74. [74]
    In the circumstances the prosecution submits it would be inappropriate for the imposition of a s 19B bond.

75. [75]
    In further oral submissions Mr Noud submits that exhibits 11 and 12 prove the prosecution point, that is, agricultural aerial flying is a dangerous activity hence the need for properly licensed pilots. The crown relies on R v Crumpton^[60] which highlights the need for deterrence in this area. It also relies on R v Barany.^[61] It is submitted that the submissions concerning the effect of his work in the United States are not of great weight. It is submitted that if one reads the defendant’s records of interview rather than showing a naïve person, it shows a person who deliberately engaged in falsehoods.

Factual findings

76. [76]
    In reaching the factual findings I have regard to section 132C of the Evidence Act 1977 (Q).

77. [77]
    I find as follows:

1. (a)
   In June 2010 the defendant failed 4 of the 7 exams necessary for a CPL in Australia.

2. (b)
   The defendant travelled to the USA in November 2012. The defendant was issued with a US CPL on 29 November 2012. I find it is easier to obtain a CPL in the USA than in Australia.

3. (c)
   Whilst in the USA the defendant flew into a paddock on 26 June 2014 substantially damaging the plane

4. (d)
   The defendant returned to Australia in 2013.

5. (e)
   On 6 August 2013 the defendant approached Mr Pratt who is a CASA Authorised testing officer delegate with powers to conduct flight tests in relation to grade 1 and grade 2 agricultural pilot ratings.

6. (f)
   The defendant deliberately produced a fake CPL to him having copied another person’s licence and changing it to match the defendant’s details. The purpose was so the defendant could unlawfully obtain a CPL with agricultural ratings.

7. (g)
   The defendant knew he was not entitled to undergo that training with Mr Pratt and the defendant knew he was not entitled to the ratings which followed.

8. (h)
   The defendant started work with Ford Aviation Pty Ltd completing agricultural operations in September 2013.

1. (i)
   In October 2013 the defendant lead Mr Brown of Quirindi Air to believe the defendant had 110 hours of supervision. In fact the defendant had 70-75 hours.

10. (j)
    Mr Ford would not sign off the defendant’s hours but yet his signature appeared on a log book claiming the defendant had done 122 hours.

11. (k)
    On 30 October 2013 there was a complaint that the defendant spread seed incorrectly.

12. (l)
    The defendant worked with Mr Brown on 28 November 2013. Mr Brown found the defendant’s ability very poor.

13. (m)
    On 18 December 2014 while working for Mr Middlebrook the defendant hit an electricity wire at Coolah.

14. (n)
    Whether the defendant ultimately gets a CPL is not entirely dependent on this court case.

15. (o)
    Even if the defendant received a section 19B bond CASA may not grant the defendant the licence.

78. [78]
    Having said this I also find:

1. (a)
   The convictions today may well affect the defendant’s ability to work in the USA.

2. (b)
   The defendant owes a significant loan there and there is the potential of financial hardship by reason of the convictions.

3. (c)
   The incorrect spreading of seed does not relate to the defendant’s ability as a pilot.

4. (d)
   The incidents in the USA and in Australia occurred some time ago now.

5. (e)
   The defendant is now a far more experienced pilot with 5,500 hours experience.

6. (f)
   The defendant may receive the CASA CPL but it is possible the defendant will not because of these proceedings.

7. (g)
   The defendant engaged in the conduct as a result of his youth coupled with family expectations of him but I would not describe it as naivety.

Determination

79. [79]
    I have considered the provisions of section 17A and ultimately conclude there are no sentencing options available on the false document charge aside from imprisonment. I will turn to the reasons shortly.

80. [80]
    As to the flying without a licence charges I consider deterrence is an important sentencing consideration here. CASA is charged with safety of our airways and it is crucial that people be appropriately licensed when flying aircraft.

81. [81]
    There are real dangers involved with agricultural flying e.g. wirestrikes.

82. [82]
    In Commissioner of Taxation v Baffsky^[62] it was said that to impose a section 19B bond is a two stage process.  

83. [83]
    I do not consider this to be an appropriate case for a section 19B bond in light of the number of charges and the hours flown when the defendant knew he was not authorised. This is despite the defendant’s otherwise good character and antecedents.

84. [84]
    I do not consider the offences to be trivial or that they were committed under extenuating circumstances. The fact is there are five charges. It was not an isolated event. It involved a lot of flying and charge 7 involves context for this. The defendant knew he was not entitled to fly for reward without an Australian CPL.

85. [85]
    In all of the circumstances I also do not think it is inexpedient to inflict no punishment, nominal punishment or probation.

86. [86]
    However I consider the unusual feature of this case is that the defendant did hold a US CPL licence and a PPL. Also the defendant was young at the time with family pressures on him concerning his career. Also the incidents of poor flying appear to have occurred some time ago and the defendant has flown many hours since. No doubt these are matters which CASA will take into account in reaching its decision on the defendant’s licences.

87. [87]
    It is also relevant he pleaded guilty, he has no prior convictions, his admissions were full and frank and he has been out of trouble since 2015.

88. [88]
    Having considered all matters on flying charges and matters mentioned in section 16A of the Crimes Act 1914 (Cth) I consider there is an option aside from imprisonment and that is a fine on each count.  

89. [89]
    On the other hand I consider the false document charge to be more serious for the following reasons:

1. (a)
   There was some degree of planning and deception involved;

2. (b)
   It is serious deceiving an instructor;

2. (c)
   Deterrence is a very relevant matter; and

2. (d)
   There is also the deceit involving the investigator. This is serious as CASA has important responsibilities in ensuring the safety of Australians and it is important that persons not be deceitful to CASA.

90. [90]
    Having considered the relevant matters mentioned in section 16A of the Crimes Act 1914 (Cth) I consider there is no appropriate penalty aside from imprisonment on the false document count.

91. [91]
    I also take into account the section 16BA matter when determining the penalty for the fraud.

92. [92]
    The question remains whether actual custody should be served.

93. [93]
    The matters I take into account on this question are:

1. (a)
   The defendant’s youth;

2. (b)
   The defendant’s immaturity;

3. (c)
   The family pressure;

4. (d)
   The significant consequences of punishment, namely the potential that CASA could cancel the defendant’s licence and/or stop the defendant’s qualification for a CPL and the impact on an American visa and the employment there;

5. (e)
   His pleas of guilty;

6. (f)
   His lack of prior convictions;

7. (g)
   The full and frank admissions; and

8. (h)
   His having been out of trouble since 2015. This shows he has engaged in self-rehabilitation.

94. [94]
    I consider I should impose a total of 6 months imprisonment but order the defendant be released immediately.

95. [95]
    I make the following orders:

1. The defendant is convicted on each count.

2. On each counts 1, 2, 3, 4 and 5 I impose a fine of $2,000.00.

3. The defendant is allowed one month to pay the fines.

4. If the fines are not paid I refer the matter to the State Penalties and Enforcement Registry. 

5. On count 7 the defendant is sentenced to 6 months’ imprisonment.

6. The sentence of imprisonment is to commence today.

7. I order the defendant be released forthwith upon giving security by recognizance in the sum of $1,000.00 conditioned that the defendant be of good behaviour for a period of 2 years.