R v Fitzgerald

[2021] NZHC 2940

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2016-085-3351

[2021] NZHC 2940

THE QUEEN

v

DANIEL CLINTON FITZGERALD

Hearing:

29 October 2021

Counsel:

J M O’Sullivan for Crown

K F Preston and D A Ewen for Mr Fitzgerald

Sentence:

1 November 2021

SENTENCING NOTES OF SIMON FRANCE J

[1]    Mr Fitzgerald was sentenced by me to a term of seven years’ imprisonment for a single offence of indecent assault.1 The sentence flowed from an incorrect application of the “three strikes” regime to Mr Fitzgerald’s circumstances. The Supreme Court has unanimously held the sentence was disproportionately severe so as to be in breach of the New Zealand Bill of Rights Act 1990.2 Mr Fitzgerald has served more than four years in relation to the offence.

[2]    The Supreme Court quashed the sentence and directed that Mr Fitzgerald be re-sentenced in the High Court in accordance with normal sentencing principles and having regard to his mental health issues.3

1      R v Fitzgerald [2018] NZHC 1015.

2      Fitzgerald v R [2021] NZSC 131.

3      At [231] and [252].

R v FITZGERALD [2021] NZHC 2940 [1 November 2021]

[3]    Dr Edwards, a psychiatrist, provided a report at counsel’s request for the Supreme Court hearing. This has been updated for today’s hearing.

[4]    It is common ground Mr Fitzgerald has a mental disorder, namely schizophrenia.  He  is   presently   being   successfully   treated   with   medication. Dr Edwards considers Mr Fitzgerald would benefit from a structured transition to the community. Her recommendation, endorsed by the Crown as its submission on the sentencing, is that he requires inpatient status in a mental health facility. This would initially be a secure locked ward, with progression ultimately to self-care in the community. A timeframe of two-plus years is envisaged.

[5]    The legislative route would be an order under s 34(1)(b)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that he be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Orders under s 34(1)(b)(i) must be identified as being either a community treatment order or inpatient order. The recommendation is inpatient.

[6]    Counsel for Mr Fitzgerald opposes the recommendation. He notes that in an earlier report Dr Edwards said Mr Fitzgerald was currently mentally well, and that if he was remanded under s 34(1)(b)(i) the acute unit would likely quickly discharge him into the community.

[7]    Dr Edwards was present at the sentencing and has been available to assist. However, given my view of the matter, that was not required.

[8]    On behalf of Mr Fitzgerald it is submitted the sentence should be a short sentence of imprisonment, the effect being immediate release. It is submitted no release conditions can be imposed because they are linked to six months after sentence expiry date, so inevitably will have expired at the time imposed. It is submitted s 79 of the Sentencing Act means the start date of the substituted sentence imposed today will be the date of the original sentence – 10 May 2018. This is correct.

[9]    Earlier this week, concerned at the idea of using the Criminal Procedure (Mentally Impaired Persons) Act powers in relation to someone who has already

served a disproportionately severe sentence, I sought assistance from counsel as to whether civil options were available. I had in mind that if the authorities thought inpatient status necessary, an application under the civil law could be made.

[10]   This Minute caused counsel  for  Mr  Fitzgerald  to  make  application  for  Mr Fitzgerald to be made a ward of the Court. That cannot be advanced today. If pursued it is to be served on the respondent, and the Registry asked to schedule a case management conference.

Decision

[11]In her judgment Glazebrook J concluded:4

I comment that sentencing options would include a sentence limited to time served. In my view, this may  well  be  the  most  principled  option, given Mr Fitzgerald has already served a large part of a sentence that breached s 9 of the Bill of Rights. If that is the course taken, I would expect Mr Fitzgerald to receive a referral to services to assist with his complex needs outside of the criminal justice system.

[12]   That is my view of the matter. I wish to emphasise that proposals such as that made by Dr Edwards are wholly motivated by Mr Fitzgerald’s best interests. I reiterate that which Glazebrook J has said – in my view the state owes Mr Fitzgerald a duty to provide assistance as a matter of priority given the history of the matter. It was a positive moment to be advised at sentencing that temporary accommodation will be available tonight and in the short term while matters are assessed.

[13]   The Court’s present connection to Mr Fitzgerald is because he has been convicted of an offence. I am required to sentence him today on ordinary sentencing principles. He is not currently mentally unwell and unable to be in the community. I recognise, as everyone does, that whether that continues will be dependent on many factors including him taking his medication.

[14]   As matters stand, he has served way too long for his offence. The sentence today should confer liberty, and in my view unconditionally so. There is no merit at all in my analysing the proper length. In the circumstances I impose a term of

4      Footnote omitted.

six months’ imprisonment on the single charge of indecent assault There are no release conditions.

[15]   I note finally there is a possibility (I use that term neutrally) that Mr Fitzgerald may be subject to a supervision order that has been suspended while he has been in jail. Counsel have indicated the correctness of that will be explored in a different hearing if needed, and I say no more on it.

Conclusion

[16]The sentence is six months’ imprisonment.

Simon France J

Solicitors:

Crown Solicitor, Wellington for Crown