In some New Zealand prison sits a man called Daniel Clinton Fitzgerald. He has been behind bars since December of 2016. Unless something happens, of which more later, he may stay there until December 2023. All because he unwantedly tried to kiss a woman passerby on the mouth, instead kissing her on the cheek when she moved her head.

Well, maybe “all because” is not quite right. Every human story has more than one single, simple thread to it. And I note at the outset that we won’t hear from the recipient of that unwanted kiss in this particular account, as she did not provide a victim impact statement at Mr Fitzgerald’s sentencing. While I focus on the way the justice system has punished Mr Fitzgerald for his action, I don’t mean to imply that her experience was somehow trivial or unimportant.

Nevertheless, this basic truth regarding Mr Fitzgerald cannot be denied; we are imprisoning him for seven years for kissing a stranger on the street.

How can this be, you wonder? It is what the Court of Appeal last week reluctantly ruled must happen under the previous National Government’s “three strikes” sentencing regime. Mr Fitzgerald’s sentence is “manifestly unjust”, the Court says. It also says it unjustifiably breaches his right to be free from “disproportionately severe” treatment, as guaranteed by the New Zealand Bill of Rights Act 1990. Nevertheless, it is The Law, and so allows for no other outcome. 

You see, Mr Fitzgerald has what we might charitably call a problem with personal boundaries. More accurately, we could label him something of a sex-pest. He has twice before been convicted of indecently assaulting women in public, in ways that are somewhat more serious than his last unwanted kiss. 

And because this is now his third conviction for such behaviour, the three strikes law mandates that he receive the full sentence of seven years for this last offence. In the Court of Appeal, two judges grudgingly accepted this result was unavoidable. A third judge would have discharged Mr Fitzgerald without conviction (thus avoiding having to impose any sentence on him at all), but two judicial votes beat one and so the mandatory seven-year sentence stands. “Manifestly unjust” and “disproportionately severe” though it may be, it is The Law.

And so, in some New Zealand prison sits a man called Daniel Clinton Fitzgerald, jailed for seven years for unwantedly kissing a woman on the street.

Perhaps you feel the foregoing is all a bit too soft on Mr Fitzgerald. After all, women also have a right to safety in public places. If Mr Fitzgerald will not stop his unwanted advances, why should they have to continue suffering them? He has been told about the risks of his actions; at both his previous two sentencings, the judge formally warned him of the consequences should he continue to act in this way. Knowing this danger, he nevertheless carried on his behaviour anyway. Why, then, cry over his decision to spill the milk (as it were)?

At this point we may note that Mr Fitzgerald is not a well person. As recounted in an earlier public court decision: 

“[he] is a schizophrenic who first presented to Psychiatric Services, in a grossly psychotic state, as a 15 year old. He is now 45 years old and in the intervening period has had numerous engagements with mental health providers. He has consistently been on medication with varying success. He requires constant mental health input.”

Mr Fitzgerald’s illness does not completely rob him of his agency. He has been found able to tell right from wrong, so can still stand trial for criminal behaviour. Being mentally ill does not excuse assaulting others, much less in a way that has a sexual element.

Equally, however, a thirty-year history with schizophrenia, exacerbated by head injury trauma and the use of alcohol and other drugs, does not lend itself to clear cause-and-effect decision making. The Court of Appeal summarises Mr Fitzgerald’scondition as “characterised by disturbed behaviour, disorganisation in his thought processes, delusional beliefs and abnormal perceptual experiences.” If that is so, can we really say he now deserves the maximum sentence for his behaviour because he really ought to have known better?

And yet, in some New Zealand prison sits a man called Daniel Clinton Fitzgerald, jailed for seven years for unwantedly kissing a woman on the street.

What, then, should we take from Mr Fitzgerald’s case? The first lesson, I think, is that it demonstrates why the three strikes legislation really needs to go from our statute books.

Although the New Zealand courts have done their best to soften some of the “batshit crazy” – my words, not the courts – effects of this sentencing regime, they can go only so far. The majority’s decision in Mr Fitzgerald’s case shows the limits to judicial creativity in a legal system based on the presumption of parliamentary supremacy. They tell us that the sentence is unjust. They note that it is in breach of fundamental human rights. But it nevertheless is The Law, and so must stand.

As long as the three strikes regime remains a part of our law, it will continue to result in such manifestly wrong outcomes. This is something the current Minister of Justice, Andrew Little, knows all too well. He wanted to repeal it back in 2018, only to be stymied by New Zealand First’s intransigence. Perhaps after September he will be in a position to revisit that matter in more conducive circumstances.

But a repeal of the three strikes law will not help Mr Fitzgerald. His sentence has been passed, and it will stand irrespective of any future legislative repeal. Parliament cannot help him here. So, perhaps his case could be appealed to the Supreme Court, where his argument that he ought to have been discharged without conviction (and thus have no sentence imposed) might meet with more favour. After all, one Court of Appeal judge thought this was an available option under current law.

Such an approach, however, likely will involve months of papers being filed, hearings being held, matters being considered and judgments being written. The wheels of justice grind slowly. Even if Mr Fitzgerald should “win” before the Supreme Court, he loses the time it will take to deliver that victory.

Who, then, can step in to undo the manifestly unjust and rights-infringing position that Mr Fitzgerald is in? The Governor General retains the power, under the “prerogative of mercy”, to “grant a free or conditional pardon, suspend the execution of any sentence, or remit a sentence.” In reality, this power is exercised on the advice of the Minister of Justice, Andrew Little. The man, remember, who recognises that the entire three strikes regime is fundamentally wrong in principle.

And so … in some New Zealand prison sits a man called Daniel Clinton Fitzgerald, jailed for seven years for unwantedly kissing a woman on the street. If that is wrong – and it is wrong – then why not now do what is needed to put it right?