Fitzgerald v R - [2020] NZCA 292

Date of Judgment

15 July 2020

Media release

MR Fitzgerald v R (PDF 154 KB)


Fitzgerald v R (PDF 434 KB)


In Fitzgerald v R the Court of Appeal considered whether a discharge without conviction was available on a "third strike" offence , as an alternative to sentencing an offender to the maximum term of imprisonment  for that offence  as required  by the three strikes regime. The Court unanimously held that the sentence of seven years' imprisonment that the court was required to impose on this mentally unwell offender, for offending that would not normally result in a prison sentence, was manifestly unjust. It amounted to "disproportionately severe punishment" that breached Mr Fitzgerald's rights under s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA).

The Court went on to find that the third  strike provision  in s 86D(2)  of the Sentencing Act 2002 is inconsistent with NZBORA, because it does not contain a "safety valve" provision that enables a less severe sentence to be imposed in cases where the maximum sentence 1s disproportionately severe.

Clifford and Goddard JJ held that the Sentencing Act prevented the Court granting a discharge in these circumstances , and dismissed the sentence appeal. Collins J (dissenting) held that an alternative interpretation of the legislation allowed for a discharge to be granted, avoiding a breach of s 9 of NZBORA in this case. 

In 2018 Mr Fitzgerald attempted to kiss a woman walking  along  Cuba  Street  in Wellington. She moved her face away but he managed to kiss her on the cheek.  He then grabbed and pushed the woman's friend who tried to stop him. He was charged with indecent assault and common assault.

The three strikes regime applied as Mr Fitzgerald had two previous convictions for " serious violent offences". Mr Fitzgerald's two previous strike offences were both indecent assault convictions for inappropriate interactions with women in public places. The three strikes legislation therefore required the court to sentence Mr Fitzgerald to the maximum term of imprisonment prescribed for indecent assault, which is seven years' imprisonment.

Mr Fitzgerald sought a discharge without conviction, which he submitted was  an  available  option that would avoid the need to impose a seven year sentence.

The sentencing Judge recognised that Mr Fitzgerald's  offending  was at a low level  that  would not usually result in a prison sentence, and that he has longstanding mental health issues and  needs constant mental health care. Nonetheless, the Judge held that the three strikes regime prevented him from entering a discharge without conviction. Mr Fitzgerald  appealed  to  the Court of Appeal. 


The offending was not serious enough to warrant imprisonment, let alone imprisonment for a term of seven years. Mr Fitzgerald's ability to regulate his behaviour appropriately, and to understand and act on the warnings given under the three strikes regime, is severely compromised by his multiple mental health conditions. The rationale for imposing a more severe sentence after a final warning is not applicable in his case. His impaired mental health and vulnerability also make serving a lengthy sentence of imprisonment disproportionately severe for him.

The sentence of seven years' imprisonment infringes Mr Fitzgerald's right to not be subject to disproportionately severe punishment under s 9 of NZBORA. The sentence goes well beyond excessive punishment, and would shock the conscience of properly informed New Zealanders.

Section 86D(2) of the Sentencing Act, which  requires the maximum  sentence to be imposed  for  a third strike offence, and which does not contain a "safety valve"  permitting  the  court  to impose a less severe sentence where the maximum sentence would be manifestly unjust, is inconsistent with NZBORA. 

Clifford and Goddard JJ:

Section 106 of the Sentencing Act 2002 provides that a discharge without conviction cannot be granted if by "any enactment applicable to the offence the Court is required to  impose  a minimum sentence". By requiring  the Court to impose the maximum sentence,  the  three strikes  regime  sets  a  minimum  sentence for the offence committed by Mr Fitzgerald.

The Court therefore cannot discharge Mr Fitzgerald.The Court need not determine, on this occasion, whether  a formal  declaration  of inconsistency is available in criminal appeal proceedings. A formal declaration of inconsistency with NZBORA is not required in this case. The very clear indication of inconsistency  in  this judgment may be a relevant factor for the Parole Board in deciding whether, and when, Mr Fitzgerald is granted parole. It is also relevant to decisions about what support he is given to help him to obtain parole. 

Collins J (dissenting):

The  three strikes regime does not impose  a  minium sentence covered by s 106.   This interpretation is more consistent with NZBORA and should be adopted. Mr Fitzgerald can therefore be discharged without conviction. This interpretation is supported by the legislative history of the provision and is not an overly strained interpretation. Parliament intended for the three strikes regime to apply to serious violent offenders and would not capture offenders who would otherwise be eligible for discharges without conviction.