Fitzgerald v R

Case [2021] NZSC 131


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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

 SC 67/2020
 [2021] NZSC 131
BETWEEN

DANIEL CLINTON FITZGERALD
Appellant

AND

THE QUEEN
Respondent

Hearing:

 Further submissions:

23 February 2021


19 March 2021

Court:

Winkelmann CJ, William Young, Glazebrook, O’Regan and Arnold JJ

Counsel:

K F Preston and D A Ewen for Appellant
M F Laracy and Z R Hamill for Respondent
A S Butler, R A Kirkness and S W H Fletcher for Human Rights Commission as Intervener

Judgment:

7 October 2021

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed.

BThe appeal against sentence is allowed.  The proceeding is remitted to the High Court for re-sentencing.

____________________________________________________________________

SUMMARY OF RESULT

(Given by the Court)

  1. The Court has unanimously dismissed Mr Fitzgerald’s appeal against conviction and, by a majority, allowed his appeal against sentence.

  2. This case concerns the application of the “three strikes” regime in circumstances where the resulting sentence on conviction for a third strike offence under s 86D(2) of the Sentencing Act 2002 is so disproportionately severe as to breach s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).  The appeal raised two primary issues.  The first was whether, notwithstanding the three strikes regime, the sentencing Judge retained a discretion to discharge the appellant without conviction under s 106 of the Sentencing Act.  The second, which arose during the hearing in this Court, was whether s 86D(2) of the Sentencing Act could be interpreted as subject to a limitation that the requirement to sentence an offender to the maximum sentence does not apply where to do so would breach s 9 of the Bill of Rights and New Zealand’s international obligations.

  3. The appeal against sentence is allowed on the basis of the second issue.  Winkelmann CJ, Glazebrook, O’Regan and Arnold JJ agree that the appellant’s sentence of seven years’ imprisonment went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders, and was therefore so disproportionately severe as to breach s 9 of the Bill of Rights.[1] Winkelmann CJ, Glazebrook, O’Regan and Arnold JJ are also agreed that this right is not subject to reasonable limits under s 5.[2]  They have held that Parliament did not intend, in enacting the three strikes regime, to require judges to impose sentences that breach s 9 of the Bill of Rights and New Zealand’s international obligations.[3]  They consider it possible, and thus necessary, to interpret s 86D(2) so that it does not require the imposition of sentences that would breach s 9.[4]

    [1]At [79]–[81] per Winkelmann CJ, [239] per Glazebrook J and [167] per O’Regan and Arnold JJ. William Young J agrees that the sentence imposed was contrary to s 9: at [283].

    [2]At [38] and [78] per Winkelmann CJ, [241] per Glazebrook…

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Fitzgerald v R [2021] NZSC 131
Case
[2021] NZSC 131
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CaseChat Overview and Summary

The case of Fitzgerald v R involved an appeal against both conviction and sentence in relation to a conviction under the "three strikes" regime of the Sentencing Act 2002. The Supreme Court of New Zealand unanimously dismissed the appeal against conviction but allowed the appeal against sentence by a majority. The central issue was whether the mandatory maximum sentence imposed by the three strikes regime could be interpreted in a way that was consistent with the right, affirmed in section 9 of the New Zealand Bill of Rights Act 1990, not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. The majority of the Court held that the sentence of seven years’ imprisonment was so disproportionately severe as to breach section 9 of the Bill of Rights. The majority concluded that Parliament did not intend, in enacting the three strikes regime, to require judges to impose sentences that breached section 9 of the Bill of Rights and New Zealand’s international obligations. It was therefore possible, and thus necessary, to interpret section 86D(2) of the Sentencing Act so that it did not require the imposition of sentences that would breach section 9. The Court remitted the case to the High Court for re-sentencing in accordance with ordinary sentencing principles. The Court also held that in the rare cases where the maximum sentence produced by section 86D(2) would breach section 9, an offender should be sentenced in accordance with ordinary sentencing principles.

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