Daniel Clinton Fitzgerald granted leniency for kissing stranger despite three strikes law

Justice Minister Andrew Little said the three strikes law is not working, and will be repealed. Photo / File

A mentally-ill man at risk of going to prison under the three strikes law for forcibly kissing a stranger has been spared a 7-year jail term without parole.

Daniel Clinton Fitzgerald, 45, already had two strikes in his criminal history when a Wellington judge found him guilty in March of indecent assault for the December 2016 incident.

He is believed to be only the third person sentenced for a third-strike offence since the law was passed in 2010.

The victim, whose husband had died two months earlier, was out for dinner with a friend on Cuba St in the central city when she spotted Fitzgerald staring at her.

He rushed over, grabbed her, and said he wanted to kiss her, pulling her face towards him.

She turned her head away, and Fitzgerald kissed her on the cheek. The victim's friend tried to intervene, and Fitzgerald pushed her against a shop window.

He has also been found guilty of assaulting the friend, as well as breaching a no-alcohol condition.

The indecent assault victim said in a victim impact statement it has taken her many years to recover from childhood sexual abuse, family violence, and intimate partner violence, and that Fitzgerald's actions undid all of her progress.

"Despite all of my efforts . . . it just takes one person to undo all of my hard work and take me back to what I was in the past - a worthless, disposable person who people can hurt whenever they like."

The statement said the victim works to protect herself from others, but that it was not enough.

"It takes a lot not to become like those who have hurt you, and to make a better life for yourself.

"What Daniel did makes this work even harder."

The guilty verdicts came at the end of a judge-alone trial earlier this year in the High Court at Wellington.

Fitzgerald had two strikes already, both for indecent assaults in 2012 and 2015.

He faced a the maximum seven-year prison sentence served without parole for the most recent offending, under the three strikes law.

But Justice Simon France chose to make an exception to the law at Fitzgerald's sentencing in the High Court at Wellington this morning.

Defence lawyer Kevin Preston asked for a discharge without conviction for his client.

But Justice France said the legislation said a judge could discharge without conviction unless there was an enactment applicable to the offence that the court is required to impose a minimum sentence.

He sentenced Fitzgerald to seven years in prison, but allowed normal parole rules to apply, as he said to do otherwise would be manifestly unjust, partly due to the low level of the offending and partly due to Fitzgerald's mental health issues.

He will be eligible for parole after a third of his sentence.

The first person to be sentenced for a third-strike offence, Raven Casey Campbell, was also shown leniency by a judge.

Campbell received the full seven-year sentence for indecently assaulting a prison officer by squeezing her bottom, but Justice Kit Toogood allowed the prospect of parole after two years and three months.

Kingi Ratima also had his sentence for a third-strike offence mitigated.

Ratima, who had more than 100 previous convictions, mainly for driving and dishonesty offences, received the maximum sentence of 10 years in prison for a violent robbery.

But the sentencing judge believed it would be manifestly unjust to make Ratima serve the full 10 years without parole, so allowed a non-parole period of only five years.

Justice Minister Andrew Little last year said the three strikes law was "silly", didn't work, and would be repealed.

The three strikes law was passed in 2010 and applies to 40 serious sexual or violent offences.

The first-strike conviction results in a normal sentence and a warning, the second in a sentence without parole and a final warning, and the third in the maximum sentence for that offence without parole - though parole eligibility can be granted if a judge deems the sentence manifestly unjust.