Three-strikes law: Supreme Court rejects hefty prison sentence for unwanted kiss

Daniel Clinton Fitzgerald was sentenced to seven years in prison after forcibly kissing a stranger. Photo / NZME

The Supreme Court has rejected a seven-year prison sentence for a mentally ill man convicted in 2018 of trying to kiss a stranger on a Wellington street without her permission - describing the man's maximum sentence as one that "shocks the conscience".

Daniel Clinton Fitzgerald's sentence - which has attracted plenty of attention over the years because of its reliance on the controversial three-strikes law - will now return to the High Court for him to be sentenced "in accordance with ordinary sentencing principles, taking into account his significant mental health issues".

When Fitzgerald was initially sentenced, Justice Simon France pointed to the defendant's years-long struggle with schizophrenia and acknowledged that such a crime would not usually result in prison time. But his hands were tied by the law, he indicated.

Seven years was the maximum possible penalty for indecent assault, the result of Fitzgerald making unwanted contact with the woman's cheek as he tried to kiss her on the mouth on Cuba St in December 2016.

Fitzgerald, who had two prior convictions for similar sexual offences, also pushed the woman's friend against a shop window when she tried to pull him off the first woman, according to court documents.

Labour attempted in 2018 to repeal the three-strikes law, which was put in place by the previous National government in 2010, but the effort was stymied by New Zealand First.

For the past three years, Fitzgerald's sentencing appeal has made its way through the courts. The Court of Appeal upheld the sentence in July 2020, despite judges acknowledging it was "disproportionately severe" and breached his rights.

Justices David Goddard and Denis Clifford wrote last year that they tried to "identify a tenable reading" of the law that would allow the mandatory sentence to be avoided.

"We have reluctantly concluded that this course is not open to us," they said.

The Supreme Court issued its 117-page ruling on Thursday afternoon.

Four of the justices agreed the sentence was severe enough it breached the Bill of Rights, which states that "everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment". Parliament didn't intend for the three-strikes law to result in sentences that violate the Bill of Rights or New Zealand's international human rights obligations, the justices found.

"The appellant's sentence of seven years' imprisonment went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders," the justices said.

Fitzgerald's lawyers also argued to the Supreme Court that he should be discharged without conviction altogether due to the Bill of Rights, but the justices unanimously denied the request.

Chief Justice Helen Winkelmann said, however, that discharge without conviction should be available to some third-strike offenders on rare occasions.

"This case comes very close to being one in which a discharge ... would be appropriate – indeed, it might have been such a case, were it not for public safety concerns," she wrote.

But a conviction will allow him access to mental health services that can address public safety concerns, she said.

The law was intended to apply to serious violent and sexual crimes, 40 of which were outlined in the legislation. Judges were instructed by lawmakers to give a formal warning after the first offence and order a sentence without parole for the second. The third conviction results in the maximum sentence - without parole if the judge doesn't find such an order to be "manifestly unjust".

In Fitzgerald's case, the High Court judge who initially sentenced him had already declined to make him serve the term without the possibility of parole.