Sentence goes against man’s human rights, but cannot be overturned, says court of appeal

Court of Appeal, Wellington


Court of Appeal, Wellington

A seven-year prison sentence for a mentally-ill man who kissed a stranger on Cuba St went well beyond excessive punishment and would shock properly informed New Zealanders, the Court of Appeal has found.

But despite the finding, two of the justices involved in the case say the man cannot be discharged because of New Zealand’s three strike rule.

Daniel Clinton Fitzgerald, 47, had been sentenced by a High Court Judge to seven years’ imprisonment, because it was his “third strike” offence.

He took the case to the Court of Appeal, his lawyers arguing the sentence breached the New Zealand Bill of Rights Act (NZBORA) guarantee not to be subject to cruel, degrading, or disproportionately severe treatment or punishment, especially considering his mental health.

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On Wednesday, the Court of Appeal decision was released, and two of the justices, Denis Clifford and David Goddard, “reluctantly” concluded they could not avoid imposing the seven-year sentence under the three strike rule, despite ruling it breached his rights under the NZBORA.

“That result brings squarely into focus the question of how the breach of Mr Fitzgerald’s NZBORA rights can most appropriately be vindicated.”

But the third judge, Justice David Collins, disagreed, saying that there was jurisdiction to discharge Fitzgerald without conviction, and he would have allowed the appeal.

“The direct and indirect consequences of a conviction for Mr Fitzgerald are profoundly serious. Unless he is discharged without conviction he will be required to serve a sentence of seven years’ imprisonment.

The offending took place on Wellington's Cuba Street, when Fitzgerald attempted to kiss a woman on the lips, and kissed her on the cheek after a struggle.

Rosa Woods/Stuff

The offending took place on Wellington’s Cuba Street, when Fitzgerald attempted to kiss a woman on the lips, and kissed her on the cheek after a struggle.

“Mr Fitzgerald has already served a sentence in excess of three years and six months’ imprisonment. That in itself is a manifestly unjust outcome.”

In cases where a judgment is split, the majority rules meaning Fitzgerald will continue with his sentence.

He is eligible for parole, and was considered for parole last month, but the Parole Board declined to release him.

He has been in custody since the 2016 attack, either in prison or hospital due to his serious mental health problems.

Labour attempted to repeal the controversial three strikes law in 2018, but backtracked after New Zealand First indicated it would not support the repeal.