R v Fitzgerald

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.