Winslow v Police
[2015] NZHC 1962
•18 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-190 [2015] NZHC 1962
BETWEEN SHANE MATTHEW WINSLOW
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 August 2015 Appearances:
B Meyer for the Appellant
T McGuigan for the RespondentJudgment:
18 August 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 18 August 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
WINSLOW v NEW ZEALAND POLICE [2015] NZHC 1962 [18 August 2015]
Introduction
[1] The appellant, Shane Winslow, pleaded guilty to one charge of driving with excess breath alcohol, third or subsequent, and one charge of careless driving. He was sentenced on 28 April 2015 to 12 months’ intensive supervision and 400 hours community work, and was disqualified from holding or obtaining a driver’s licence for 12 months. On 19 June 2015, his application for a limited licence was declined.
[2] Mr Winslow has appealed the decision not to grant the limited licence. Under s 105 of the Land Transport Act 1998 (the Act), the court may authorise a limited licence when it is satisfied that disqualification has or will result in extreme hardship to the applicant, or undue hardship to a person other than the applicant, and that the order would not be contrary to public safety.
Background
Summary of facts
[3] Mr Winslow was driving a vehicle on the evening of Friday 14 November
2014. He approached a left-hand turn in the road that had an advisory corner speed limit of 45km/h. He was using his mobile phone at the time. The wheels of the vehicle dropped into a ditch and the vehicle rolled over onto its roof. Following the crash, the Police tested Mr Winslow’s breath alcohol and found it to be 616 micrograms of alcohol per litre of breath. In explanation to the Police, Mr Winslow stated that he had been drinking beer after work and was trying to call his wife.
Sentencing
[4] On sentencing, the Judge recorded that Mr Winslow had a number of previous convictions, the last of which was in 2008. He considered that Mr Winslow had known for a long time that he needed to do something about his drink driving and that it had taken until the accident to recognise the damage which could be caused to other road users. The Judge referred to the favourable pre-sentence report which emphasised Mr Winslow’s insight into his offending, his remorse and that he was doing something to address the issue.
[5] Although noting that an electronically-monitored sentence would ordinarily be imposed, the Judge accepted the pre-sentence report’s recommendation that this was not appropriate because Mr Winslow’s house was not in an area which could be monitored. Further, the Judge considered that Mr Winslow had done just about everything he could to show that he was genuine about changing his drinking habits.
Application for limited licence
[6] Mr Winslow then applied for a limited licence pursuant to ss 103 and 105 of the Act on the basis that it was necessary to alleviate undue hardship to his employer and that he would suffer extreme hardship if it were not granted. The application was heard by a different Judge in the District Court.
[7] The Judge noted that Mr Winslow was employed full-time as a specialist driver responsible for transporting concrete water tanks and other products throughout the North Island, and was also required to visit existing business sites on a daily basis. Mr Winslow stated driving was an essential part of his duties.
[8] The Judge also noted that Mr Winslow’s employer had filed an affidavit endorsing the Mr Winslow’s application. The managing director stated that he was dependent on Mr Winslow having a licence. He claimed a tight job market and lack of suitably trained people as a back-up would cause hardship to the company.
[9] After noting that Mr Winslow met the criteria in ss 103 and 104 of the Act, the Judge then considered the issue of extreme and undue hardship. The Judge found that all of the surrounding circumstances of the offending and the offender were relevant to assessing whether the tests were met.
[10] The Judge considered that while Mr Winslow’s employer might suffer some hardship, it would not be undue. The company could employ another driver or possibly replace Mr Winslow.
[11] The Judge then stated that Mr Winslow might suffer extreme hardship if his employment were terminated, although it was not clear whether Mr Winslow had other skills. However, the Judge considered that, even if the lack of a limited licence
could cause extreme hardship, granting the application would be contrary to the public interest. The Judge considered that Mr Winslow seemed to be seeking a reinstatement of virtually a full licence, as he had proposed 84 hours a week of driving in the draft order, although counsel had reduced this to 66 hours.
[12] More importantly, the Judge considered that Mr Winslow’s conviction history was grave. She noted that Mr Winslow had previous convictions for excess breath alcohol in 2008, 2001, 1997, 1999 and 1989. This was exacerbated by other infringements such as driving while disqualified in 1997 and four speeding infringements.
[13] Finally, the Judge considered that while Mr Winslow had made some attempts to address his alcohol use, in the circumstances, this could only be considered the beginning of a lengthy period of rehabilitation. Until his alcohol use and attitude towards drink driving were intensively addressed, the Judge considered that public safety could be in jeopardy. The conditions proposed in the draft order would not sufficiently address these concerns.
[14] Accordingly, the Judge dismissed the application.
Submissions
Appellant’s submissions
[15] The appeal is made on the basis that the Judge’s decision to refuse to grant
the order was wrong in law because:
(a) Mr Winslow’s employer has and will continue to suffer undue hardship without Mr Winslow being able to drive for the purposes of his employment;
(b) Mr Winslow’s family will suffer undue hardship when Mr Winslow is
unemployed as he is the sole income earner;
(c) granting Mr Winslow a limited licence would not be contrary to the public interest.
[16] Mr Meyer, for Mr Winslow, relies on Wheeler v Ministry of Transport, where
the Judge discussed the relative meanings of “undue” and “extreme” hardship.1
Mr Meyer points to three cases where loss of employment was held to result in extreme hardship.2
[17] Mr Meyer submits the affidavits make it clear that Mr Winslow’s employment would likely be terminated and the business would suffer financially if he was unable to obtain a limited licence. Therefore, the requirements under the Act for a limited licence are clearly met.
[18] Mr Meyer emphasises the steps which Mr Winslow has taken since the date of the offending to address his use of alcohol. Mr Meyer says these efforts were given considerable recognition by the sentencing Judge and Mr Meyer brought them to the attention of the Judge dealing with the limited licence application.
[19] Mr Winslow was sentenced to intensive supervision. Mr Meyer confirms this is progressing well. He continues to attend Alcoholics Anonymous meetings once a week. That represents a significant commitment as Mr Winslow’s partner needs to drive him there and back given they reside in a remote location. Mr Meyer confirms that Mr Winslow is committed to remaining abstinent. In his submission, Mr Winslow could not possibly do anything more to demonstrate his rehabilitation.
Respondent’s submissions
[20] The respondent’s position is that Mr Winslow poses a risk to public safety
and it is not in the interests of justice to grant him a limited licence.
[21] The respondent accepts the Judge’s finding that there is sufficient evidence demonstrating that disqualification may cause extreme hardship to Mr Winslow.
1 Wheeler v Ministry of Transport HC Palmerston North M125/85, 11 October 1985.
2 Jull v Police HC Whangarei M58/94, 11 April 1994; Lowe v Police (1988) 3 CRNZ 199 (HC);
and Anson v Ministry of Transport (1988) 3 CRNZ 194 (HC).
However, Mr McGuigan submits that the Judge adequately addressed the risk that might result from Mr Winslow driving vehicles for business purposes. Mr McGuigan supports the Judge’s conclusion that the outcome might be different once Mr Winslow has more intensively addressed his alcohol use.
[22] Mr McGuigan submits that, if the Court determines that the Judge adopted an incorrect focus, the public safety criteria is still not satisfied when viewed in light of the restrictions proposed in the limited licence application. He submits that there is a clear nexus between the offending and the activities Mr Winslow would be permitted to undertake pursuant to the limited licence. On the amended application, Mr Winslow would be permitted to drive for 11 hours each day. Mr McGuigan highlights the fact that the offending occurred at approximately 6.43 pm on a Friday and that Mr Winslow had been drinking after work.
[23] Mr McGuigan emphasises Mr Winslow’s history of driving with excess breath/blood alcohol which, in his submission, is the real concern. He says the grant of a limited licence would be premature in light of Mr Winslow’s history.
Relevant law
[24] Section 105 provides for an applicant to apply for a limited licence where they are not prohibited by ss 103 or 104 of the Act:3
105 Court may make order authorising grant of limited licence
(1) A court may at any time make an order under this section authorising the applicant to obtain, immediately or after the expiration of such period as the court may specify, a driver licence (a limited licence) authorising the applicant to drive to such extent (being the least extent that it is necessary to alleviate extreme or undue hardship) as the court specifies in the order.
(2) The court may make an order under this section if satisfied that—
(a) the disqualification or suspension has resulted or will result in—
(i) extreme hardship to the applicant (whether in relation to employment or otherwise); or
3 These sections prohibit persons convicted of certain offences under the Act from applying under s 105, provide the length of time before a person can obtain a limited licence, and prohibit an order under s 105 authorising a person to drive a vehicle for certain specified purposes.
(ii) undue hardship to a person other than the applicant
(whether in relation to employment or otherwise); and
(ab) the applicant meets the criteria specified in sections
103 and 104; and
(b) an order under this section is not contrary to the interests of public safety.
(3) In making an order under this section, the court—
(a) must specify—
(i) the purpose for which the limited licence is issued; (ii) the particular vehicle or the type of vehicle which
may be driven;
(iii) the days of the week and times at which that vehicle may be driven; and
(iv) such other matters as may be necessary to limit the order to alleviating the hardship which was alleged and proved; and
(b) may specify in the order such other matters as the court thinks fit.
…
[25] The focus in determining whether to grant a limited licence is not of a general nature. The focus is on whether or not public safety would be endangered if the person drove within the restricted hours of a limited licence. There must be a relationship between the relevant offending and the permitted activity.4 Further, no matter how severe the hardship or trivial the offending, the court must not grant an application unless satisfied that an order granting a limited licence is not contrary to the interests of public safety.5
[26] As the section makes clear, the decision whether to grant a limited licence is discretionary, arising once the court is satisfied that the jurisdictional threshold for
invoking the power, the requirements listed in s 105(2), is met.6
4 Boyes v Police HC Auckland CRI-2009-404-16, 3 February 2009 at [6].
5 Keleher v Police HC Rotorua CRI-2004-470-13, 30 April 2004 at [25].
6 See also Police v Wynn HC Gisborne CRI-2009-416-31, 8 March 2009 at [9].
[27] On appeal, an appellant must show that the Judge’s decision to refuse to grant a licence was wrong in principle, or that the Judge’s conclusions were not reasonably open to the Judge.7
Analysis
[28] The respondent accepts that Mr Winslow will suffer extreme hardship if a limited licence is not granted and I agree. There is evidence that Mr Winslow will lose his job as a truck driver if a limited licence is not granted. As he is the sole income earner for the family, those who are dependent on him would also suffer
hardship.8
[29] Therefore, the main issue for determination is whether granting the limited licence is contrary to the interests of public safety. In relation to this part of the inquiry, Harrison J in Boyes v Police said:9
The inquiry is not of a general nature into whether or not Mr Boyes may present a danger to other road users because of his drink driving record. Instead, the inquiry must be focused to whether or not public safety would be endangered if Mr Boyes drove within the restricted hours of a limited licence; that is, there must be a relationship between the relevant offending and the permitted activity.
[30] In this case, I consider that the Judge’s conclusion that granting the licence would be contrary to the public interest was not reasonably open to her given the information available.
[31] The Judge considered that Mr Winslow’s conviction history in terms of drink driving was grave but failed to recognise the historic nature of most of Mr Winslow’s convictions. Whilst Mr Winslow does have five prior drink driving convictions, three of them are historic, dating back to 1989, 1991 and 1997. The Judge referred to Mr Winslow’s demerit history, recording four speeding infringements from 1989 to
2014. In fact, the four speeding infringements were between 1988 and 2007, two of
them only in the last ten years and even then, more than seven years ago.
7 Keleher v Police, above n 5, at [21].
8 See, for example, Boyes v Police, above n 4, where Harrison J found that there was no doubt that if the appellant lost his job he would suffer extreme hardship and his dependents, the appellant’s wife, children and father, would surfer undue hardship.
9 Boyes v Police, above n 4, at [6].
[32] The Judge concluded that Mr Winslow’s alcohol use and attitude towards drink driving need to be more intensively addressed and that, until then, public safety could be in jeopardy. In my view, the Judge gave insufficient weight to the rehabilitative measures Mr Winslow has already undertaken. He has completed an eight-week Community Alcohol and Drug Services (CADS) action group programme and is attending Alcoholics Anonymous meetings. A letter filed in the District Court, dated 17 April 2015, on behalf of the CADS programme, attested that Mr Winslow had been abstinent from alcohol for the five months prior to the date of that letter and had been an active contributor to the group, showing insight and awareness.
[33] It may well be that the Judge either did not have access to this information which was presented on sentencing or did not have it drawn to her attention.
[34] The pre-sentence report was also positive. It recorded that since 2008, the police have reported no concerns or incident reports involving Mr Winslow. It noted Mr Winslow’s remorse and his motivation to make amends for his actions. The report assessed his risk of harm to others as low, especially if he maintains his abstinence from alcohol.
[35] The comment of the sentencing Judge that Mr Winslow had undertaken everything anyone in his position could do to demonstrate that he was genuine about wanting to change his drink driving habits is highly relevant.
[36] I accept that the restricted hours of the draft limited licence are broad and that the time and day of the most recent offending falls within those hours. However, the limited licence permits driving only for the purposes of employment and is subject to a zero alcohol condition. There is nothing to suggest Mr Winslow will not comply with those conditions. Aside from an historic conviction for driving while disqualified in 1987, Mr Winslow has no convictions for breaching court orders. Given that, and the fact of Mr Winslow’s abstinence from drinking, the Court can have confidence that Mr Winslow will abide by the conditions of a limited licence and will not endanger public safety.
Conclusion
[37] The appeal is allowed. The limited licence is granted in the terms sought.
Thomas J
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