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Creon Upton
July 21, 2020
Courts of New Zealand

Fitzgerald v R [2020] NZCA 292

A recent judgment of the Court of Appeal has reignited debate around the so-called “three strikes” regime under the Sentencing Act 2002 (as amended by the Sentencing and Parole Reform Act 2010).

The Court held by a majority that the statutory regime required it to hand down a mandatory sentence of 7 years imprisonment to Mr Fitzgerald for offending that was not serious enough to warrant imprisonment at all. Although concluding that the sentence was “manifestly unjust”, the majority of Clifford and Goddard JJ determined that the Sentencing Act gave them no option but to impose it.  Further, Mr Fitzgerald’s impaired mental health and vulnerability made the sentence “grossly disproportionate, and such as to cause shock to properly informed citizens”, breaching Mr Fitzgerald’s rights under s 9 of the New Zealand Bill of Rights Act 1990.  The majority observed: “Mr Fitzgerald should be receiving care and support in an appropriate facility, not serving a lengthy term of imprisonment.”  In the minority, Collins J considered that a discharge without conviction was available to Mr Fitzgerald, and he would have granted it.

The judgment is available here:

A discussion of the case by Professor Andrew Geddis is available here: