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R v Fitzgerald

R v Fitzgerald

Case [2021] NZHC 2940 1 November 2021

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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…

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.

Continue reading R v Fitzgerald

Details

AGLC: R v Fitzgerald [2021] NZHC 2940
Case: [2021] NZHC 2940
Decision Date: 1 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Wellington Registry, Daniel Clinton Fitzgerald was sentenced for the offence of indecent assault. The case, CRI-2016-085-3351 [2021] NZHC 2940, was heard on 29 October 2021, with J M O’Sullivan representing the Crown, and K F Preston and D A Ewen representing Mr Fitzgerald. Fitzgerald had already served over four years of a seven-year imprisonment sentence, which was deemed disproportionately severe by the Supreme Court. The court was required to re-sentence Fitzgerald in accordance with normal sentencing principles, considering his mental health issues, specifically schizophrenia.

The court faced the issue of whether to impose a new prison sentence, potentially with release conditions, or to consider alternative options under the Criminal Procedure (Mentally Impaired Persons) Act 2003 or other civil law provisions. Dr Edwards, a psychiatrist, recommended an inpatient treatment order for Fitzgerald, while counsel for Fitzgerald opposed this, arguing for immediate release. The court had to balance the need for Fitzgerald's mental health treatment against the principles of sentencing and the fact that he had already served a significant portion of an unlawful sentence.

Simon France J decided that the most appropriate course was to impose a sentence limited to time served, reflecting the disproportionate nature of the original sentence. The court imposed a term of six months' imprisonment on the single charge of indecent assault, with no release conditions. The decision emphasised the state's duty to assist Fitzgerald given the history of his case and his current mental health status. The court recognised that Fitzgerald had already served an excessive term for his offence and that any further incarceration would be unjust. The final sentence was six months’ imprisonment, with no additional release conditions imposed.

Orders