7 Oct 2021

Man to be resentenced after Supreme Court rules three strikes sentence 'beyond excessive'

4:28 pm on 7 October 2021

A mentally ill Wellington man will be re-sentenced for assault charges he was convicted of in 2018 after a Supreme Court appeal.

No caption

Photo: RNZ / Richard Tindiller

Daniel Clinton Fitzgerald, who is schizophrenic and has a history of assaulting women on the street, received the maximum sentence under the Sentencing Act's three strikes rule, which was a 2010 ammendment to the Act.

However, the seven year sentence was challenged in the Supreme Court earlier this year.

In a decision released today, the Court, by majority decision, has allowed Fitzgerald to be resentenced in the High Court, "taking into account his significant health issues".

The Supreme Court ruled the sentence goes "well beyond excessive punishment" and was a breach of the Bill of Rights.

The majority - Chief Justice Winkelmann, Justice Glazebrook, Justice O'Regan, and Justice Arnold - held that Parliament "did not intend" for the three strikes regime to require judges to impose sentences breaching section 9 of the Bill of Rights, which gave everyone the right not be subjected to torture or cruel treatment.

Fitzgerald's lawyer Kevin Preston was "obviously very pleased" at the judgement and wanted to get the resentencing hearing before the High Court "as soon as possible and hopefully have it all resolved in advance of Christmas, which is going to mark the fifth year of [Fitzgerald's] incarcertaion".

Preston was waiting to speak with Fitzgerald about "the good news" when contacted by RNZ.

The Supreme Court decision to send sentencing back to the High Court gives the court time to obtain up-to-date information.

Winkelmann said there were "outstanding factual inquiries to be made before a satifactory regime for Mr Fitzgerald's release can be established as part of the re-sentencing exercise".

Preston acknowledged this, saying the main challenge would be finding "suitable accommodation" for Fitzgerald.

"Because of Daniel's particular needs, he's been denied parole four times very much on the basis of there's no appropriate accommodation for him to be released to that would provide the necessary support."

He thought this could also impact chances of new sentence being time served, which is mentioned as an option in the decision because Fitzgerald has already served a large part of his current sentence.

Psychiatric services would also need to be involved "because that, of course, assists him and also protects the community", he said.

Going forward, Preston also wanted to see Minister of Justice Kris Faafoi introduce law to repeal the three strikes law, which Labour first indicated in October 2020.

"I just hope the government comes good on its promise."

The Human Rights Commission, which appeared as an intervener in the Supreme Court appeal and provided submissions on the human rights implications, echoed this, saying it had had concerns about the law since it was introduced by the previous National government. .

Its chief legal advisor John Hancock said the judgement "strongly affirms that sentences must conform" with the Bill of Rights Act and New Zealand's international human rights obligations.

"A human rights consistent approach is critical to avoiding unjust sentencing outcomes."

An appeal against the overall conviction was unanimously dismissed.

However, Winkelmann said she found the case "comes very close to being one in which a discharge would be appropriate, and might have seen such a case, were it not for public safety concerns".