Fitzgerald v R

• Jurisdiction: New Zealand
• Judge: Clifford,Goddard JJ,Collins J
• Judgment Date: 15 July 2020
• Neutral Citation: [2020] NZCA 292
• Court: Court of Appeal
• Docket Number: CA286/2018
• Date: 15 July 2020

Between

Daniel Clinton Fitzgerald

Appellant

and

The Queen

Respondent

[2020] NZCA 292

Court:

Clifford, Collins and Goddard JJ

CA286/2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KĪTI PĪRA O AOTEAROA

Bill of Rights, Criminal — appeal against conviction and sentence — appellant was convicted of indecent assault and sentenced to seven years imprisonment — the offending was at the low end of the scale — the appellant subject to the three strikes regime — whether a discharge without conviction could be granted for a third strike offence — Sentencing Act 2002 — New Zealand Bill of Rights Act 1990 — Criminal Procedure Act 2011

Counsel:

K F Preston and A C R M Jeffares for Appellant

C A Brook and A D H Colley for Respondent

• A The appeal against conviction and sentence is dismissed.

• B The application for leave to appeal on a question of law is declined.

JUDGMENT OF THE COURT

REASONS

Clifford and Goddard JJ	[1]
Collins J (dissenting)	[95]

Clifford AND Goddard JJ

Table of Contents

	Para No
Background	[1]
Mr Fitzgerald's condition	[1]
The offences committed by Mr Fitzgerald	[2]
High Court trial and sentencing	[5]
Mr Fitzgerald's appeal	[13]
A declaration of inconsistency with NZBORA?	[16]
Sentencing Act — relevant provisions	[19]
Interpreting legislation in light of NZBORA	[26]
A seven year sentence is manifestly unjust in this case	[32]
Applying s 9 of NZBORA in this case	[38]
Interpreting the relevant Sentencing Act provisions	[48]
Section 86D(2) is inconsistent with NZBORA	[76]
Should we make a declaration of inconsistency?	[81]
Result	[93]

Background

Mr Fitzgerald's condition

1 Mr Fitzgerald has longstanding mental health issues and needs constant mental health care. For some 30 years he has suffered from schizophrenia, paranoid delusions and auditory hallucinations. He has possible frontal lobe deficits from head injuries. He has consistently been on medication, with varying success. His illness has been characterised by disturbed behaviour, disorganisation in his thought processes, delusional beliefs and abnormal perceptual experiences. He has a long history of drug and alcohol abuse.

The offences committed by Mr Fitzgerald

2 On 3 December 2016 Mr Fitzgerald was walking down Cuba St in Wellington. He was slightly intoxicated. Two women were walking together in the other direction. He went up to one of them, told her he wanted to kiss her, and tried to kiss her on the lips. She moved her face away from Mr Fitzgerald, but he managed to kiss her on the cheek.

3 The first victim's friend tried to pull Mr Fitzgerald away by the arm. He grabbed her by the arms, pushed her against a nearby wall and held her there for a moment. Then he let go of her and kept walking along Cuba St.

4 One victim estimated the incident lasted for about one minute. The other thought perhaps two minutes. It was on any view brief. However it was undoubtedly a distressing incident for both victims. In her victim impact statement the second victim, who was a particularly vulnerable person, described the continuing emotional consequences of the assault she suffered. We do not have a victim impact statement from the first victim in relation to the indecent assault she suffered.

High Court trial and sentencing

5 Mr Fitzgerald was arrested shortly afterwards. He was charged with indecent assault of the first victim, common assault of the second victim, and breach of an extended supervision order (by possessing and/or consuming alcohol and cannabis). Following an inquiry under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) he was found to be fit to stand trial. 1 At a Judge-alone trial before Simon France J he was found guilty on all three charges. 2 He then appeared for sentence before Simon France J. 3 On the assault charge he was convicted and sentenced to three months' imprisonment. He was convicted and discharged for the breach of the supervision order.

6 The indecent assault — an attempted kiss on the lips, an actual kiss on the cheek — involved conduct at the low end of the range for that offence. As the very experienced High Court Judge observed, standing alone, and putting to one side aggravating factors relating to the offender, it would not normally attract a jail term. 4

A community-based sentence would be likely. 5 But the three strikes regime in the Sentencing Act 2002 applied, as Mr Fitzgerald had two previous indecent assault convictions. 6 The circumstances of these two convictions are summarised in an earlier propensity ruling referred to by the Judge: 7

[13] The propensity evidence consists of previous indecent assault offending by Mr Fitzgerald. … In 2012 … Mr Fitzgerald knocked the victim to the ground which caused her skirt to ride up. Mr Fitzgerald fell on top of her and then buried his face in her buttock area while putting his hands there as well. Finally, in 2015 Mr Fitzgerald in short succession slapped or grabbed three women on the buttocks as they walked past him.

7 Mr Fitzgerald was sentenced to 11 months' imprisonment for the 2012 offence, and four months' imprisonment for the 2015 offence. 8 These were both more serious than the 2016 offending.

8 Section 86D(2) of the Sentencing Act provided that if Mr Fitzgerald was convicted of a third strike offence, he had to be sentenced to the maximum term of imprisonment prescribed for the offence. The maximum sentence for indecent assault is seven years' imprisonment. 9 If Mr Fitzgerald was convicted of that offence, the Judge had no discretion: he was required to impose a sentence that bore no relationship at all to the gravity of the offending, or to the circumstances of the offender. Some provisions of the three strikes regime contain a “safety valve” that enables the Court to decline to impose the sanctions contemplated by that regime if those sanctions would be manifestly unjust. But there is no safety valve in s 86D(2) for sentences imposed in relation to third strike offences.

9 Mr Fitzgerald had sought a discharge without conviction under s 106 of the Sentencing Act. If he was not convicted, the mandatory sentence provision would not bite. Section 106(1) provides that a court may discharge a person who is found guilty of an offence without conviction —

…unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

10 Section 107 sets the threshold for when a court can discharge a person without conviction under s 106. A court must not do so unless the court is satisfied —

…that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

11 The Judge held that he could not discharge Mr Fitzgerald without conviction under s 106. The three strikes provision was an enactment applicable to the offence Mr Fitzgerald had committed which required the Court to impose a minimum sentence: in this case, seven years' imprisonment. The exception in s 106 applied and prevented the Court from granting a discharge. 10

12 The Judge therefore convicted Mr Fitzgerald of indecent assault and sentenced him to seven years' imprisonment. The Judge declined to make an order that this sentence be served without parole. Section 86D(3) requires such an order to be made unless it would be manifestly unjust given the circumstances of the offence and of the offender. The Judge considered that it would be manifestly unjust for Mr Fitzgerald to serve a seven year sentence without parole for this offence. 11

Mr Fitzgerald's appeal

13 Mr Fitzgerald argues that s 106 does apply. This Court can and should discharge him without conviction. 12 If he is convicted, as he has been, the consequences (seven years' imprisonment) will be out of all proportion to the gravity of his offending. The Judge was wrong to find that the three strikes regime is an enactment “applicable to the offence” that requires a minimum sentence. It is not an enactment that applies to the offence he committed. Rather, it is an enactment that applies to certain offenders: those who have two strikes recorded against them.

14 Mr Fitzgerald says the High Court Judge's approach is inconsistent with the right not to be subjected to disproportionately severe punishment, which is guaranteed by s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA).

15 The Crown says the Judge was right to find that the s 106 power was not available. The three strikes regime applied to the third strike offence that Mr Fitzgerald committed. It required a minimum sentence — seven years' imprisonment. The Judge was required to impose that (minimum) sentence. He could not grant a discharge without conviction. The Judge's interpretation of s 106 is the only viable reading of that provision. The Court must apply the legislation in accordance with that interpretation, even if it is inconsistent with NZBORA.

A declaration of inconsistency with NZBORA?

16 We called for further submissions on whether this Court could, and should, make a declaration that s 86D of the Sentencing Act is inconsistent with NZBORA.

17 Mr Fitzgerald submits that it is open to the Court to make such a declaration, and that we should do so. The Crown submits that such a declaration cannot be made in the context of a criminal appeal before this Court. Nor, the Crown argues, is there any inconsistency with NZBORA.

18 We return to this issue at [76] below.

Sentencing Act — relevant provisions

19 The three strikes regime applies to offenders who are convicted of “serious violent offences”. 13 A list of some 40 offences that are regarded as serious violent offences for this purpose is set out in s 86A. Some of the listed offences are inherently very serious — for example, murder and manslaughter. Others embrace a wide spectrum of...