Pilot has his sentence increased for reckless flying
Thread Starter
Pilot has his sentence increased for reckless flying
In 2014 a pilot flying with 2 passengers flew low along the Clarence River, hitting power-lines and causing the death of one passenger and serious injury to another. He was found guilty of 2 offences by a jury and sentenced to imprisonment but the judge suspended the sentence so that it was most unlikely that he would ever do any time in gaol.
The prosecution appealed. A few days ago the appeal court upheld the appeal and increased the sentence - but the pilot will still not have to go inside.
One of the things the court said was that "Punishment of those who commit offences involving flying aircraft is calculated to come to the attention of the relatively small group of persons involved in doing so in the community."
Hence this post!
Link to the court's judgment here:
https://www.caselaw.nsw.gov.au/decis...b058596cba1aed
The prosecution appealed. A few days ago the appeal court upheld the appeal and increased the sentence - but the pilot will still not have to go inside.
One of the things the court said was that "Punishment of those who commit offences involving flying aircraft is calculated to come to the attention of the relatively small group of persons involved in doing so in the community."
Hence this post!
Link to the court's judgment here:
https://www.caselaw.nsw.gov.au/decis...b058596cba1aed
Thread Starter
As the judgment shows, he faced 5 years imprisonment on one count and 2 years on the other. He was acquitted by the jury on a charge of manslaughter which carries a maximum penalty of 25 years imprisonment in NSW.
All the regs are penalty units anyway, aren't they? Is anything a jailable offence?
Fortunately good old CASA settled for a $500 administrative fine!
Dr
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I am no expert in aviation law, but I don't believe he was charged under a breach of the regulations (CARs/CASRs/CAOs/AIP etc).
I believe that in order to find the "Operate aircraft in manner reckless as to endanger xxxx" penalties one would have to look into the Civil Aviation Act.
Of course, the court then may refer to the regs to determine whether the aircraft was operated recklessly (in this case they noted he was flying well below the 500 foot limit from the regs), but may also consider any other factors that may be relevant (such as how deliberate it was, and how unsafe it was).
He was not simply charged with low flying, which if he was would be an "administrative" penalty imposed by CASA not the courts.
I'm guessing that the way these things work is that CASA determines whether to take a case to the DPP, and then the DPP decides whether to prosecute (based on evidence provided by CASA). In the case of death or injury, the police may also be involved.
To draw a parallel to the road system:
- get caught speeding => cop a speeding fine from the road authority.
- hurt someone while speeding => charged by the DPP for reckless driving.
In the case of Forky's experience, it's probably not an unusual tactic for an authority to threaten the maximum penalty in order to encourage cooperation, even if they had no intention of imposing it (nor any likelihood that it would be successful in court). That certainly happens in every episode of "Law and Order"
But if someone gets killed or seriously injured, I think you'd have to have a watertight case that you weren't negligent in order to escape some sort of criminal conviction.
Maybe someone with more knowledge can shed more light on how these things work.
I believe that in order to find the "Operate aircraft in manner reckless as to endanger xxxx" penalties one would have to look into the Civil Aviation Act.
Of course, the court then may refer to the regs to determine whether the aircraft was operated recklessly (in this case they noted he was flying well below the 500 foot limit from the regs), but may also consider any other factors that may be relevant (such as how deliberate it was, and how unsafe it was).
He was not simply charged with low flying, which if he was would be an "administrative" penalty imposed by CASA not the courts.
I'm guessing that the way these things work is that CASA determines whether to take a case to the DPP, and then the DPP decides whether to prosecute (based on evidence provided by CASA). In the case of death or injury, the police may also be involved.
To draw a parallel to the road system:
- get caught speeding => cop a speeding fine from the road authority.
- hurt someone while speeding => charged by the DPP for reckless driving.
In the case of Forky's experience, it's probably not an unusual tactic for an authority to threaten the maximum penalty in order to encourage cooperation, even if they had no intention of imposing it (nor any likelihood that it would be successful in court). That certainly happens in every episode of "Law and Order"
But if someone gets killed or seriously injured, I think you'd have to have a watertight case that you weren't negligent in order to escape some sort of criminal conviction.
Maybe someone with more knowledge can shed more light on how these things work.
Im just putting myself in the position of a member of the family of the deceased / injured. Imagine an acquaintance who happens to be a pilot says, I will take you on a a fly around the region. The pax have no concept of what is illegal, dangerous or otherwise in terms of light aircraft operation. They are putting their faith and lives in the hands of someone who should have known better.
So if a criminal conviction didn't stick for whatever reason, what would be the family's recourse through civil action?
So if a criminal conviction didn't stick for whatever reason, what would be the family's recourse through civil action?
derfred.
The CAsA way.
Breaches of the regs are strict liability criminal offences. Which one they use depends how hard they want to whack you. Thats for pilots etc/casa "clients"
CAsA personnel who engage in criminal conduct are the ones that get 'administative' sanctions ie the wet lettuce treatment.
Breaches of the criminal codes, both State and Federal are "re-directed"/ corruptly subverted by CAsA legal/ ECC to just breaches of the CaSA 'Code of Conduct...that has NO provisions in it for criminal conduct.
Unlike the APSC/Aust Public Service Commission code that does.
Which makes the CAsA 'code' a get out of jail free card.
For those that read the Oz last friday article about the sneaking away of the ECC....the (No) Ethics and(Mis)Conduct committee, which has played the downgrade card with aplomb in the past.
Fear not... in the recent "renewal" machinations within CAsA there is a like outfit now dealing with investigations into complaints to the ICC/ Industry Complaints Commissioner.
New moniker, different chairs, same deck on the bum boat, unfortunately.
Its now called People and Culture division. And they have an 'ops manual' of sorts
"Manual for the dealing with breaches of the code of conduct"
Is this the illegitimate son of the ECC.? Probably.
Recent results show its the 'same old'
CYA 101 comes to mind.
The CAsA way.
Breaches of the regs are strict liability criminal offences. Which one they use depends how hard they want to whack you. Thats for pilots etc/casa "clients"
CAsA personnel who engage in criminal conduct are the ones that get 'administative' sanctions ie the wet lettuce treatment.
Breaches of the criminal codes, both State and Federal are "re-directed"/ corruptly subverted by CAsA legal/ ECC to just breaches of the CaSA 'Code of Conduct...that has NO provisions in it for criminal conduct.
Unlike the APSC/Aust Public Service Commission code that does.
Which makes the CAsA 'code' a get out of jail free card.
For those that read the Oz last friday article about the sneaking away of the ECC....the (No) Ethics and(Mis)Conduct committee, which has played the downgrade card with aplomb in the past.
Fear not... in the recent "renewal" machinations within CAsA there is a like outfit now dealing with investigations into complaints to the ICC/ Industry Complaints Commissioner.
New moniker, different chairs, same deck on the bum boat, unfortunately.
Its now called People and Culture division. And they have an 'ops manual' of sorts
"Manual for the dealing with breaches of the code of conduct"
Is this the illegitimate son of the ECC.? Probably.
Recent results show its the 'same old'
CYA 101 comes to mind.
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CIVIL AVIATION ACT 1988 - SECT 20A
Reckless operation of aircraft
(1) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.
(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.
Penalty: 5 years
Plenty of other Commonwealth and State charges that would have seen higher penalties but this was probably the most specific charge for the offences committed. "Lucky" I think.
Reckless operation of aircraft
(1) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.
(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.
Penalty: 5 years
Plenty of other Commonwealth and State charges that would have seen higher penalties but this was probably the most specific charge for the offences committed. "Lucky" I think.
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Thanks for that kaz, I didn't have time to dig that out, but that was my point. He wasn't charged for a breach of any reg. He was charged under that Act.
The Judge noted a breach of the regs in order to determine whether he was guilty under the Act, but that was only a part of the consideration.
The Judge noted a breach of the regs in order to determine whether he was guilty under the Act, but that was only a part of the consideration.
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YPJT
That is noted.
I assume you saw this little bit I posted:
So, yes. Even though the sentencing judge in this case decided on a suspended sentence, a criminal conviction was still recorded. It was also noted in the case that a civil suit was pending against the accused by the father of the deceased, despite a $300K consideration already having been paid outside of the courts.
Im just putting myself in the position of a member of the family of the deceased / injured. Imagine an acquaintance who happens to be a pilot says, I will take you on a a fly around the region. The pax have no concept of what is illegal, dangerous or otherwise in terms of light aircraft operation. They are putting their faith and lives in the hands of someone who should have known better.
So if a criminal conviction didn't stick for whatever reason, what would be the family's recourse through civil action?
So if a criminal conviction didn't stick for whatever reason, what would be the family's recourse through civil action?
I assume you saw this little bit I posted:
But if someone gets killed or seriously injured, I think you'd have to have a watertight case that you weren't negligent in order to escape some sort of criminal conviction.
(At 32.)
"The Sentencing Judge accepted his remorse and contrition which he said was demonstrated immediately by the efforts he made to assist in the recovery of Kayla's body from the plane and then walking some four kilometres or so to find help notwithstanding the injuries he had sustained in the accident.The Sentencing Judge also noted that he had made a payment of some $300,000 to Mr Whitten despite the fact that he was being sued by him for nervous shock."
A rather interesting concept for the pilot to pay $300,000 to the father of the deceased girl, prior to attending a criminal trial.
(P.S. Appeals Court Judge, His Honour Davies J, is into really long sentences..)
"The Sentencing Judge accepted his remorse and contrition which he said was demonstrated immediately by the efforts he made to assist in the recovery of Kayla's body from the plane and then walking some four kilometres or so to find help notwithstanding the injuries he had sustained in the accident.The Sentencing Judge also noted that he had made a payment of some $300,000 to Mr Whitten despite the fact that he was being sued by him for nervous shock."
A rather interesting concept for the pilot to pay $300,000 to the father of the deceased girl, prior to attending a criminal trial.
(P.S. Appeals Court Judge, His Honour Davies J, is into really long sentences..)
