Fitzgerald v Attorney-General of NZ - [2022] NZHC 2465

Date of Judgment

27 September 2022


Fitzgerald v Attorney-General of NZ (PDF 562 KB)


Synopsis and Media Release 
In 2018 Mr Fitzgerald-who suffers from a number of mental impairments-was found guilty of a relatively low-level indecent assault. Because he was on a third "strike", he was sentenced to the maximum sentence of seven years imprisonment. 

In October 2021 the Supreme Court overturned that sentence. Contrary to the view taken in the courts below, the Court held that the three strikes legislation did not contemplate the imposition of a sentence that was grossly disproportionate and in breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA). In doing so the Court noted that, in enacting the three strikes law, Parliament had expected that the risk of a grossly disproportionate, rights-breaching, sentence would be avoided by an administrative process involving the exercise of prosecutorial discretion. 

Mr Fitzgerald was then resentenced to six months' imprisonment, which would have entitled him to release after three.  But by the time of his resentencing, he had already spent some 1789 days (59 months) in prison. He therefore brought proceedings seeking damages for breach of his right not to be arbitrarily detained under s 22 of the NZBORA. Because, in an unrelated case, the Supreme Court has held that judicial acts (such as sentencing) cannot found a claim under the NZBORA, his challenge focused on the decision to lay the indecent assault charge by the Crown prosecutor. 

The High Court held that the Crown prosecutor, when acting in that capacity, is a state "actor" for the purposes of s 3 of the NZBORA. As well, the exercise of prosecutorial discretion was governed by the Solicitor-General's Prosecution Guidelines, which have the force of law by dint of s 188 of the Criminal Procedure Act 2011. The Prosecution Guidelines required a prosecutor to be satisfied not only that there was an evidential sufficiency for laying a particular charge but also that laying that charge was in the public interest. As Arnold J (writing for himself and O'Regan J) observed in the Supreme Court decision, the public interest limb of the inquiry included any relevant NZBORA considerations. 

The High Court found that in light of all those matters, and Parliament's expectation when enacting the three strikes law, it followed that the Crown prosecutor was obliged to exercise their prosecutorial discretion in a way that avoided the risk of a defendant becoming subject to a disproportionately severe punishment on sentencing. The Crown prosecutor breached that obligation in Mr Fitzgerald's case. The judicial restraint that is usually exercised where prosecutorial discretion is in issue did not apply because the obligation to consider, and to act consistently with, Mr Fitzgerald's rights under s 9 was not a matter of discretion. The Court also held that at the point at which Mr Fitzgerald's sentence had, as a matter of fact, become grossly disproportionate (by reference to the offending itself and his personal circumstances) his detention also became arbitrary and in breach of s 22 of the NZBORA. Alternatively, the breach of s 9 could simply be measured by reference to that part of the punishment actually suffered by Mr Fitzgerald that was disproportionately severe. For reasons explained in the judgment the Court found that the relevant measure of the breach here was his detention between 5 March 2018 and 29 October 2021: a period of 1334 days or 44 months. 

The Court accepted that the operation of the declaratory theory meant that the Supreme Court's decision in Fitzgerald merely revealed that sentencing judges had always had the power to decline to impose a sentence on a stage three offence that was grossly disproportionate, but rejected the Crown submission that this theory could operate retrospectively to absolve the Crown's liability for the prosecutor's breach here. While it was a Judge who imposed the sentence directly leading to Mr Fitzgerald's imprisonment, the Crown prosecutor had a discrete constitutional obligation to exercise their charging discretion in a way that would not expose defendants to the risk of a grossly disproportionate sentence in breach of the NZBORA. Throughout, it had been the prosecutor's intention that the apparently mandatory (and grossly disproportionate) sentence be imposed on Mr Fitzgerald. Moreover it was clear that Parliament's expectation was that prosecutorial discretion would operate as the primary means by which rights breaching sentences would be avoided. 

Although Mr Fitzgerald was (eventually) released as a result of the criminal process, NZBORA damages were necessary to give him a fully effective remedy for the breaches here. Based on the relevant authorities, the factors set out in the Prisoners' Victims Claims Act (PVCA) and factors personal to Mr Fitzgerald, an award of $450,000 (plus interest) was appropriate. In the first instance, the amount awarded must be paid to the Secretary for Justice, under the PVCA.