Man jailed over avenue assault appeals resolution in Supreme Court docket

EPA lawyer Andrew Butler.

2021-02-23 10:50:03

A mentally-ill man jailed for seven years for trying to kiss a girl on a Wellington avenue is difficult the choice within the Supreme Court docket.

EPA lawyer Andrew Butler.

Lawyer for the Human Rights Fee Andrew Butler instructed the Supreme Court docket the fee supported Clinton Fitzgerald’s enchantment.
Photograph: RNZ / Michael Cropp

Daniel Clinton Fitzgerald, who’s schizophrenic, was sentenced in 2018 for the assault.

He had been convicted twice earlier than for assaulting girls on the road and the third conviction invoked the three strikes rule below the Sentencing Act and due to this fact the utmost sentence for the crime.

In 2016, Fitzgerald grabbed a girl on Cuba Road and tried to kiss her, she managed to show her head, and he acquired her cheek.

He then had an altercation along with her pal who stepped in to assist.

Below the three strikes legislation, introduced in below the earlier Nationwide authorities, he was sentenced to seven years.

Earlier judges have referred to as the sentence “grossly disproportionate” to the gravity of the offence however they have been reluctantly certain by the legislation.

The Human Rights Fee was on the Supreme Court docket as an intervener, there to supply better perspective on the problems.

Its lawyer, Andrew Butler, instructed the court docket the fee supported Fitzgerald’s enchantment and cited the Invoice of Rights Act.

“Avoiding the imposition of seven years’ imprisonment on Mr Fitzgerald will do no harm, no hurt to the underlying functions of the 2010 modification act.

“Certainly, it would doubtless scale back the general public contempt it’d in any other case be held in. On this nation, we like folks to get a good crack on the whip, not a whipping.”

Fitzgerald first turned recognized to psychological well being companies aged 15.

He has remained on the radar ever since, and has a historical past of offending.

Most of those offences sit on the lighter finish of indecent assault, together with his third conviction.

Psychologists say whereas he has some capacity to find out proper from mistaken, his capacity to totally comprehend the three strikes guidelines would have been restricted.

Butler urged the court docket to right away launch Fitzgerald.

“Mr Fitzgerald shouldn’t keep a minute extra in jail, he wants assist, that he’s not getting it might seem, in his present surroundings.”

Butler mentioned whereas the offence was terrible for the victims, it did not qualify as severe violent offending.

Exterior the court docket, Fitzgerald’s lawyer Kevin Preston mentioned he ought to by no means have been topic to the three strikes rule as a result of the courts might have chosen to not convict.

“Bearing in mind the gross disproportionality, the breach of his human rights, and the part 9 of the New Zealand Invoice of Rights, the courts ought to interpret the laws to present have an effect on to that.”

He mentioned the Supreme Court docket ought to discharge him with out conviction, launch him from jail, and get him the assistance he wanted through psychological well being companies.

Preston mentioned the decrease courts have been mistaken to interpret the legislation the best way they did.

Fitzgerald has already served 4 years of his sentence, and Preston mentioned that had taken a toll.

“It is very, very unhappy,” Preston mentioned.

Madeleine Laracy, for the Crown, argued that the legislation was clear.

“The utmost sentence should be imposed, there is no such thing as a exception there and neither is there any qualifying proviso to it within the nature of the manifest injustice security valve,” she mentioned.

In 2018, Labour’s plan to repeal the legislation was derailed by its coalition companion New Zealand First, who weren’t ready to supply their assist.

Now, Labour has doubled down on its celebration’s dedication to eliminating the legislation, which it says is resulting in “absurd outcomes”.

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