The decision at the Supreme Court has been challenged by a mentally ill man jailed for 7 years for pursuing the kiss of a woman in Wellington Lane.
In 2018, the schizophrenic Daniel Clinton Fitzgerald was sentenced to attack.
Twice before, he was accused of hitting women on the street and the third conviction invoked the three strike provision under the law on conviction and the maximum penalty for this offence.
In 2016, in Cuba Lane, Fitzgerald picked up a woman and tried to kiss her, turned her head around and he got her cheek.
He was then interrupted by her friend who came to help him.
He was sentenced to seven years under the three-stroke rule enacted by the previous National government.
Former judges called this verdict “grossly disproportionate” to the severity of the crime but were unwillingly bound by legal requirements.
In order to give more perspectives on these subjects, the Commission on Human Rights was an intervener at the Supreme Court.
His counsel Andrew Butler told Fitzgerald’s appeal and quoted the Bill of Rights Act. The committee supported the appeal.
“Avoiding the imposition of seven years’ imprisonment on Mr Fitzgerald will do no damage, no harm to the underlying purposes of the 2010 amendment act.
“Indeed, it will likely reduce the public contempt it might otherwise be held in. In this country, we like people to get a fair crack at the whip, not a whipping.”
First, mental health programs at age 15 is known to Fitzgerald
He has been on the radar since then and has been offending history.
Most of these offenses, including his third arrest, lie at the lighter end of the indecent assault.
Psychologists suggest that while he is able to find the right way out of the wrong, he would have had little capacity to completely grasp the three laws of attack.
Butler called on the court to release Fitzgerald immediately.
“Mr Fitzgerald should not stay a minute more in prison, he needs help, that he is not getting it would appear, in his current environment.”
Butler said the crime was horrific for the victims but that it was not considered a serious violent offence.
Apart from court, Kevin Preston, lawyer at Fitzgerald, said that he should never under the three strike rule because the courts have been willing to choose not to prosecute.
“Taking into account the gross disproportionality, the breach of his human rights, and the section 9 of the New Zealand Bill of Rights, the courts should interpret the legislation to give affect to that.”
He said the Supreme Court should release him from prison without conviction and receive the help he needed via the facilities for mental health.
Preston said in the lower courts, the reading of the law was incorrect as it was.
Fitzgerald had been sentenced to four years and Preston said it was tolling.
“It’s very, very sad,” said Preston.
The Crown argued Madeleine Laracy that the rule was obvious.
“The maximum sentence must be imposed, there is no exception there and nor is there any qualifying proviso to it in the nature of the manifest injustice safety valve,” she said.
Labor’s attempt to dismantle the legislation in 2018 was reversed by its ally New Zealand First, a group that was not prepared to provide support.
Now the commitment by Labor to get rid of the statute, which it claims leads to “absurd results” has doubled.