Winslow v Police - [2015] NZHC 1962

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 1962
Decision Date: 18 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Shane Matthew Winslow, challenged the decision of the District Court to deny his application for a limited licence following his disqualification from holding or obtaining a driver’s licence for 12 months. Winslow had pleaded guilty to driving with excess breath alcohol and careless driving, for which he was sentenced to 12 months’ intensive supervision and 400 hours of community work. The central issue was whether the denial of a limited licence was justified under the criteria set forth in the Land Transport Act 1998. Specifically, the court had to determine if granting the limited licence would result in undue hardship to Winslow’s employer or extreme hardship to him, and whether such an order would be contrary to public safety.

The court found that Winslow would indeed suffer extreme hardship if the limited licence was not granted, as his employment as a specialist driver was at risk, and he was the sole income earner for his family. However, the court disagreed with the District Court’s conclusion that granting the limited licence would be contrary to public safety. The High Court emphasised that the focus should be on whether public safety would be endangered if Winslow drove within the restricted hours of the limited licence, and whether there was a relationship between his relevant offending and the permitted activity. The court highlighted that Winslow had taken significant steps towards rehabilitation, including completing an alcohol and drug services programme, attending Alcoholics Anonymous meetings, and maintaining abstinence from alcohol. Given these efforts and the specific conditions of the proposed limited licence, the court concluded that granting the limited licence would not endanger public safety.

Consequently, the appeal was allowed, and the limited licence was granted in the terms sought by Winslow.

Orders