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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.
The Court has unanimously dismissed Mr Fitzgerald’s appeal against conviction and, by a majority, allowed his appeal against sentence.
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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Fitzgerald v R [2021] NZSC 131
Case
[2021] NZSC 131
Decision Date
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.