Man jailed for Supreme Court street assault appeal decision

A man with mental illness jailed for seven years for trying to kiss a woman on a Wellington street is challenging the decision in the Supreme Court.

Daniel Clinton Fitzgerald, who is schizophrenic, was sentenced in 2018 for the assault.

He had been convicted twice before of assaulting women on the street and the third conviction invoked the three-strike rule under the Sentencing Act and therefore the maximum penalty for the crime.

In 2016, Fitzgerald grabbed a woman on Cuba Street and tried to kiss her, she managed to turn her head and he gave her his cheek.

She then got into an altercation with her friend, who stepped in to help.

Under the three strikes law, introduced under the previous national government, he was sentenced to seven years.

Previous judges have called the sentence “extremely disproportionate” to the seriousness of the crime, but they were grudgingly subject to the law.

The Human Rights Commission was in the Supreme Court as intervener, there to offer a greater perspective on the issues.

His attorney, Andrew Butler, told the court that the commission supported Fitzgerald’s appeal and cited the Rights Act.

“Avoiding the imposition of seven years in prison on Mr. Fitzgerald will not harm or harm the underlying purposes of the 2010 amendment law.”

“In fact, it is likely to reduce the public contempt that would otherwise be felt. In this country, we like people to take a fair hit on the whip, not a whip.”

Fitzgerald first made himself known to mental health services at age 15.

He has been on the radar ever since and has a history of crime.

Most of these crimes are in the mildest extreme of indecent assault, including his third conviction.

Psychologists say that while he has some ability to determine right from wrong, his ability to fully understand the rules of the three strikes would have been limited.

Butler urged the court to immediately release Fitzgerald.

“Mr. Fitzgerald should not stay another minute in jail, he needs help, which it seems he is not receiving, in his current environment.”

Butler said that while the crime was terrible for the victims, it did not qualify as a serious violent crime.

Outside of court, Fitzgerald’s attorney, Kevin Preston, said he should never have been subject to the three-strike rule because the courts could have chosen not to convict.

“Given the huge disproportionality, the violation of their human rights and section 9 of the New Zealand Bill of Rights, the courts must interpret the legislation for this to affect.”

He said the Supreme Court should fire him without conviction, release him from prison and provide him with the help he needed through mental health services.

Preston said the lower courts were wrong to interpret the law the way they did.

Fitzgerald has already served four years of his sentence, and Preston said that had taken its toll.

“It’s very, very sad,” Preston said.

Madeleine Laracy of the Crown argued that the law was clear.

“The maximum penalty must be imposed, there is no exception there and there is no qualifying condition in the nature of the escape valve of manifest injustice,” he said.

In 2018, Labor’s plan to repeal the law was derailed by its coalition partner New Zealand First, which was not prepared to offer its support.

Now, Labor has redoubled its party’s commitment to ditch the law, which it says is leading to “absurd results.”