The Kaikoura helicopter pilot convicted for flying without medical clearance to rescue an injured hunter in dangerous conditions says "you had to be there" to understand.
Dave Armstrong, who has been flying since 1989, was on Monday convicted on three charges of breaching civil aviation rules and fined $5800. He was grounded in June, 2012, after what was thought to be a mini-stroke.
Judge Tony Couch in the Christchurch District Court rejected a request from Armstrong's lawyer Craig Ruane to discharge the pilot without conviction saying the conditions for a discharge had not been met.
After sentencing, Armstrong said the fine "had to happen" but he was disappointed by the convictions.
Given the same situation, he would have to think seriously about whether he would fly, he said.
"It was an easy decision [at the time]. You had to be there. No-one can really understand unless they were there. Anyone who had a loved one in that situation, they would do the same."
While he had flown on other occasions without medical clearance, in situations which were not obvious emergencies, they were not always "as you see it, or hear it".
"It was all done on the side of safety. We all got home safe and that is all that matters."
The law should enshrine a "good Samaritan rule" so people "can step up and not step back", Armstrong said.
He continues to fly under a commercial licence but is not allowed to take passengers.
To Scott Lee, Armstrong will always be the hero who saved his life.
On April 5 last year, Lee lay injured in the hills near the Clinton River with the weather closing in. He was dangling on the edge of a 50-metre drop after falling in remote bush, suffering a broken femur. He had to be tied to a tree with clothing to stop him from falling further down the bluff.
After the sentencing, Lee said he was devastated for Armstrong.
"He made a decision to save my life. Dave is that type of Kiwi bloke who puts others before himself. I might have died up there and Dave was the most experienced pilot up there. Rules have to be broken sometimes and there's got to be something in the law to cover that.
"I just want to thank Dave. I really could have died up there and my partner with me. He is my true hero and always will be. So thanks Dave. I wouldn't be here without you."
Judge Couch carefully traversed the facts before sentencing Armstrong.
He said Armstrong was contacted on April 5 last year after the Westpac Rescue helicopter had twice failed to find Lee and his partner. Kaikoura doctor Chris Henry had advised the search and rescue team Lee could die from internal bleeding if left overnight.
Armstrong knew the terrain well and believed it would be possible to get a team to a nearby ridge before nightfall. Although Henry and search and rescue staff knew Armstrong was not authorised to fly, the police were not aware of his flight status, Judge Couch said.
The rescue team persuaded Armstrong to leave behind his co-pilot to make room for another rescuer and Armstrong flew in six rescuers, including Henry, in two flights.
He then urged the other pilot to enter the details of the flight in his log book.
Judge Couch said on April 21 last year three people kayaking on the Clarence River were reported overdue. A police constable in charge of search and rescue decided to fly up the river to look for them and contacted Armstrong.
Although another pilot came along, Armstrong flew the helicopter while the constable and the other pilot looked for the kayakers. They landed at several huts along the way.
When Armstrong was interviewed by the Civil Aviation Authority (CAA) he admitted being pilot in charge on four flights during the period he was not authorised to fly.
Two of the flights were outside the 12 months limit for prosecutions to be commenced, the judge said.
Armstrong told investigators although his company employed other qualified and competent pilots, he decided to fly because of weather conditions and his greater familiarity with the terrain.
As a result of the breaches, Armstrong lost his ability to supervise flight and ground operations for his company.
His job, Judge Couch said, was to decide whether Armstrong should be discharged without conviction.
Conduct relevant to the gravity of the offences included the length of time Armstrong was in control of a helicopter given the perceived risk of a stroke or similar. The flight on April 5 could have been fatal had the pilot "suffered even a momentary loss of awareness or control".
The situation on April 21, when Armstrong was at the controls for about an hour, presented a very real risk of a crash because the other pilot was not monitoring what Armstrong was doing.
The offending involved a measure of premeditation although he accepted Armstrong made the decision to fly on April 5 under considerable pressure from the search and rescue team.
"What the history tells me is these were not isolated events. Rather they were part of pattern of unlawful behaviour."
Judge Couch said the main thrust of Armstrong's defence was the conduct was justified by emergency situations. Looking at the facts of April 5th "anyone would have sympathy", however, other options existed and Armstrong knew his obligations.
The Civil Aviation Act allowed breaches of rules in emergencies but "even if it is a life threatening emergency the defendant is not entitled to operate the helicopter". The pilot still had to be authorised.
"Given that clear statutory provision, I cannot conclude the breach was justified by the circumstances on April 5."
There was no emergency on April 21, the judge said.
Armstrong had deceived the police who would not have allowed him to fly if they had been aware of his lack of medical certification.
An affidavit from rescue industry stalwart John Funnell suggested a conviction would send the wrong message to pilots asked to fly as a last resort, Judge Couch said.
"While I accept Mr Funnell has put this view forward sincerely it proceeds on a very limited view of the issues....It would be wrong for the court to accept as an adverse consequence that other people would be discouraged from breaking the law."
Judge Couch said he could not take into account a defence submission the charges had cost Armstrong's company about $55,000 in lost income and other expenses.
Funnell, a rescue pilot in Taupo, who was at court in support of Armstrong, said he had hoped for mercy for Armstrong.
Before the saga unfolded, Funnell had already made a submission to the Civil Aviation Act review, asking for the "good samaritan" principle - which protected grounded pilots flying in life-and-death situations in the 1990s - to be reinstated.
He said he had been told it was unlikely, but Funnell, a former president of the Aviation Industry Association, hoped Armstrong's case would bring pressure for a law change.
He acknowledged that Armstrong had flown more than once.
"There were two or three other flights he did – all were for search and rescue... when Dave was flying it was in the context of saving lives. It appears he has been penalised harshly for doing so."
Since news of Armstrong's conviction broke, donations to Lee's Givealittle page fundraising for his rescuer have climbed by almost $2000 to more than $5000 – closing in on the amount Armstrong was fined in court.
TIMELINE:
July 18, 2012: Pilot Dave Armstrong awakes in a confused state. His doctor warns he may have had a mini-stroke.
July 26, 2012: A neurologist's test returns normal results.
August 2, 2012: But the Civil Aviation Authority (CAA) suspends him from flying.
January, 2013: The neurologist tells the CAA the pilot's medical risk remains "unacceptably high" and Armstrong is grounded for for 2 years from June, 2012.
August, 2013: Armstrong gets a review of the decision, but the CAA stands by it.
5-6 November, 2013: Armstrong completes two more flights and omits his role from the logbook. The CAA later runs out of time to prepare its prosecution. The missions in the Kaikoura Seaward Ranges are understood to have involved searching for then retrieving the body of tramper Pete Manning.
April 5, 2014: Armstrong is called in by his doctor and Search and Rescue to airlift an injured hunter.
April 21: Armstrong flies again after kayakers are reported missing.
June 24, 2014: The CAA interviews Armstrong, who initially downplays his role. Eventually he admits flying three other times, saying he felt the missions needed an experienced pilot.
October 16, 2015: Armstrong pleads guilty to three flying breach charges.
December 14, 2015: The pilot's request for a discharge without conviction is rejected. He is convicted and fined.
Armstrong had not recorded the flights in his logbook.
CASE 'SERIOUS'
Civil Aviation Authority lawyer Chris Macklin said the case was "very serious".
Armstrong displayed a sustained disregard for aviation laws.
A discharge without conviction would send a "very unhelpful message" to the industry.
Defence lawyer Craig Ruane said Armstrong decided he could not ignore Lee's plight.
Ruane said a conviction would send a "dangerous signal" to other pilots, especially those in search and rescue.
Armstrong's other lawyer and aviation legal specialist, Angela Beazer,said the law needed to change. It permitted pilots to breach rules in an emergency where there was a potential danger to life or property - but that did not apply to pilots who were not lawfully supposed to be flying, or who whose craft was not airworthy, even in the same scenarios.
Beazer said it was possible her client may yet appeal.