Saturday, December 4

Man to be sentenced again after Supreme Court rules three-strike sentence ‘beyond excessive’


A Wellington man with mental illness will be re-sentenced on assault charges for which he was convicted in 2018 after an appeal to the Supreme Court.

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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 three-strike rule of the Sentencing Act, which was a 2010 amendment 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 re-convicted in Superior Court, “taking into account his significant health problems.”

The Supreme Court ruled that the sentence goes “far beyond excessive punishment” and was a violation 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-strike regime to require judges to impose sentences that violate the law. section 9 of the Bill of Rights, which gave everyone the right not to be subjected to torture or cruel treatment.

Fitzgerald’s attorney, Kevin Preston, was “obviously very pleased” with the ruling and wanted the re-sentencing hearing in Superior Court “as soon as possible and hopefully all resolved before Christmas, which will mark the fifth year. from [Fitzgerald’s] imprisonment “.

Preston was waiting to speak to Fitzgerald about “the good news” when RNZ contacted him.

The Supreme Court’s decision to return the sentence to the Superior Court gives the court time to obtain updated information.

Winkelmann said there are “pending factual investigations that must be conducted before a satisfactory regime can be established for Fitzgerald’s release as part of the re-sentencing exercise.”

Preston recognized this and said the main challenge would be finding “suitable accommodation” for Fitzgerald.

“Due to Daniel’s particular needs, he has been denied parole four times on the basis that there is no appropriate accommodation for him to be released and to provide the necessary support.”

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

Psychiatric services should also be involved “because that, of course, helps him and also protects the community,” he said.

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

“I just hope the government keeps its promise.”

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

His chief legal advisor, John Hancock, said the ruling “strongly affirms that sentences must be in accordance” with the Rights Act and New Zealand’s international human rights obligations.

“A consistent approach to human rights is essential to avoid unjust sentences.”

An appeal against the blanket conviction was unanimously dismissed.

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


www.rnz.co.nz

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