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R v Fitzgerald

R v Fitzgerald

Case [2018] NZHC 1015 10 May 2018

Imposition of Sentence

Parole

Criminal Law

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2006-085-3351

CRI 2016-085-3357

[2018] NZHC 1015

THE QUEEN

v

DANIEL CLINTON FITZGERALD

Hearing: 10 May 2018

Counsel:

A R Winsley and H E Savage for Crown

K Preston and A C R M Jeffares for Defendant

Sentence:

10 May 2018

RULING AND SENTENCE OF SIMON FRANCE J

Introduction

[1] Mr Fitzgerald appears for sentence on charges of indecent assault, common assault and breach of supervision order (alcohol and drug condition).1 He was found guilty following a judge-alone trial before me.2

1 Crimes Act 1961, ss 135 and 196; and Parole Act 2002, s 107T.
2 R v Fitzgerald [2018] NZHC 465.

THE QUEEN v DANIEL CLINTON FITZGERALD [2018] NZHC 1015 [10 May 2018]

[2] The circumstances were that Mr Fitzgerald accosted two women walking towards him on a Wellington footpath. He veered towards one, grabbed her and attempted to kiss her on the mouth. The woman averted her face and the kiss landed on her cheek. The second woman intervened. Mr Fitzgerald grabbed her arms and frog marched her backwards until she was up against a shop window. The struggle continued until Mr Fitzgerald desisted and walked off. Mr Fitzgerald was convicted of indecent assault and assault. He was also in breach of a no drug condition imposed as part of a supervision order to which he was subject.

[3] Mr Fitzgerald has previous convictions for similar conduct that have resulted in him previously receiving both a first and second strike warning under the Sentencing Act 2002. These convictions would be his third strike. Following verdict, I deferred the entering of convictions to enable an application for a discharge without conviction. I address that first.

Ruling – is a discharge without conviction available?

[4] A preliminary issue arises before sentencing can proceed. Is a discharge without conviction under s 106 of the Sentencing Act available where a person is found guilty of a third strike offence?3

[5] The two key provisions in the Sentencing Act are the third strike provision, and the discharge without conviction provision. To these the Crown would add a “governing provision” section. Section 86D provides:

86DStage-3 offences other than murder: offender sentenced to maximum term of imprisonment

(1)Despite any other enactment,—

(a)a proceeding against a defendant charged with a stage-3 offence must be transferred to the High Court when the proceeding is adjourned for trial or trial callover under section 57 of the Criminal Procedure Act 2011 or, as the case may be, in accordance with section 36 of that Act, and the

3 There had been a sentencing indication in this matter: R v Fitzgerald [2017] NZHC 2206. Dobson J concluded that a discharge without conviction was not available but allowed the matter to be revisited at any future sentencing: R v Fitzgerald HC Wellington CRI-2016-085-3351, 12 September 2017 (Minute of…

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 [2018] NZHC 1015
Case: [2018] NZHC 1015
Decision Date: 10 May 2018

CaseChat Overview and Summary

In the matter of The Queen v Daniel Clinton Fitzgerald, the defendant was convicted of indecent assault, common assault, and breach of a supervision order. The defendant had a history of similar offenses, including a 2012 incident where he grabbed a woman's buttock and a 2015 incident where he slapped or grabbed three women on their buttocks. The latest offense involved the defendant attempting to kiss a woman on the mouth, which resulted in a kiss on her cheek after she averted her face. The defendant's actions led to the victim being frog-marched against a shop window. The defendant also breached a no drug condition imposed as part of a supervision order. The defendant argued for a discharge without conviction under section 106 of the Sentencing Act 2002, which provides that a court may discharge the offender without conviction unless a minimum sentence is required by an enactment applicable to the offence. The Crown argued that section 86D of the Sentencing Act 2002, which applies to stage-3 offences, mandates the maximum term of imprisonment for such offences and thus precludes a discharge without conviction. The court agreed with the Crown's argument, stating that section 86D(2) applies only once there is a conviction and is not concerned with whether a conviction is entered. The court further held that section 86D(2) constitutes a minimum sentence within the meaning of section 106. As a result, the application for a discharge without conviction was denied. The court sentenced the defendant to seven years' imprisonment for the indecent assault, with the sentence to be served concurrently with the three months' imprisonment for the common assault. The defendant was convicted and discharged for the breach of supervision condition. The court made no minimum non-parole order, observing that no order is made under section 86D(3).

The court held that the nature of the offence and the defendant's mental health issues warranted the imposition of the maximum term of imprisonment. However, the court also considered the circumstances of the offence and the offender, and found that it would be manifestly unjust to order that the defendant serve the whole of the sentence without parole. The court held that the normal parole period should apply, and that the defendant's mental health issues and propensity to commit similar offences were relevant to the sentencing decision. The court provided written reasons for not imposing a minimum non-parole order, as required by section 86D(5) of the Sentencing Act 2002.

Orders