Supreme Court rules schizophrenic Wellington man convicted of indecent assault now free

Daniel Clinton Fitzgerald was sentenced to seven years' jail in 2018 for indecently assaulting a woman on Cuba St, Wellington. Photo / NZME

A schizophrenic man who has spent more than four years imprisoned will walk free, after the Supreme Court ruled his sentence so severe it "shocks the conscience".

Daniel Clinton Fitzgerald was sentenced to seven years in 2018 for indecently assaulting a woman on Cuba St, Wellington in 2016. The sentence was the result of reliance on the controversial three-strikes law, which tied the hands of Judge Simon France to a lengthy term of imprisonment.

Today, France told the court Fitzgerald is resentenced to six months' imprisonment – which he has already served – so he could return to Rimutaka Prison and be freed as soon as he was processed.

However, he would not re-enter the community immediately; a psychiatrist recommended he receive rehabilitation with an end goal of living self-sufficiently in the community within a period of about two years.

As a result, Fitzgerald will live in supervised accommodation while he receives treatment.

Judge France told the Court Fitzgerald has been reacting positively to treatment.

France says Fitzgerald has already served "far too long" in prison as the result of an "incorrect application of the three-strikes regime".

"The Supreme Court has held it was disproportionately severe, and in breach of the Bill of Rights. The Supreme Court quashed the sentence and ruled he be resentenced.

The three-strikes law, brought in by a National Government in 2010, aims to penalise repeat offenders and incapacitate them.

It directs a judge to sentence a third-time serious offender to the maximum sentence, unless doing so would be "manifestly unjust".

Labour vowed to repeal the law in 2020, but was blocked by then-coalition partner NZ First.

Fitzgerald has lived with treatment-resistant schizophrenia for much of his life, which France acknowledged in the sentencing for Fitzgerald's third offence: forcibly kissing a woman's cheek on Cuba St in December 2016.

Court documents revealed he grabbed the woman and attempted to kiss her mouth, but she turned away. He also shoved the woman's friend into a shop front as she tried to stop him indecently assaulting the first woman.

It was his third such offence – meaning he must be subjected to the maximum penalty of seven years' imprisonment.

He was sent to Rimutaka Prison, and as he waited behind bars his case wound its way through the court system.

In July 2020 the Court of Appeal upheld his sentence – even though judges recognised it was "disproportionately severe" to the point it breached his rights.

In October 2021 the Supreme Court released its 117-page ruling, revealing four of the judges agreed Fitzgerald's sentence was so severe it breached the Bill of Rights which states everyone has the right not to be subjected to "torture or to cruel, degrading or disproportionately severe treatment or punishment".

"The appellant's sentence of seven years' imprisonment went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders."