Attul Patel would have been sentenced to seven years' imprisonment today if not for a court error. Photo / Doug Sherring
New Zealand's would-be eighth three-strikes offender has escaped a maximum seven-year prison term because of a court botch-up.
Instead he will serve five months' home detention.
Attul Kumar Patel was sentenced today in the High Court at Auckland by Justice Christian Whata after again being caught lurking in an Auckland cinema before sneaking in and indecently assaulting a young woman.
It was the fourth time the disgraced accountant has committed such an offence in the past five years.
However, despite the District Court seemingly having already given Patel two prior strikes for his offending, he wasn't sentenced to the mandatory maximum sentence under the controversial law today.
The faux pas was described in court today as an "error".
The three-strikes law requires a person convicted of a third serious violent, sexual or drugs offence to be sentenced to the maximum available sentence without parole, unless it would be "manifestly unjust".
The legislation applies to 40 offences.
Patel had been convicted of his first two cinema groping incidents in May 2014. He was sentenced to 18 months' intensive supervision, 230 hours' community work and ordered to pay reparation.
He was also given a first-strike warning.
In January 2017, Patel was again caught in a movie theatre - this time rubbing a girl's thigh.
The father-of-two was given a second strike warning by the District Court - but this one wouldn't count.
"You were given a verbal second strike warning but a written warning was not sent to you, rather you were sent another first strike warning," Justice Whata explained today.
A warning under the three-strikes law must be given in writing to be valid.
Justice Whata said if the second warning had not been void he would have had no choice but to send Patel to prison for seven years. Instead he sentenced him to five months' home detention and ordered him to take his medication.
"If you do this again you will be sentenced to a term of imprisonment of seven years," the judge said.
"This is now your final warning."
Justice Minister Andrew Little said last year the three-strikes law was "silly" and expressed a desire to repeal the legislation, which came into effect in June 2010 after a deal with the then National-led Government and Act Party.
But despite announcing plans to axe the law, the current Government recanted a planned repeal after objections by coalition partners New Zealand First.
Ministry of Justice figures, current to September, show 82 final warnings have been handed out to offenders this year, 1158 first strikes, and four third strikes.
Since then there have been at least one more - George Pomee.
Just last week, Pomee was sentenced for a third-strike offence in the High Court at Auckland to 14 years' imprisonment after he kidnapped, robbed and "terrorised" a tourist.
Pomee's 14-year sentence was more than twice as long as the sentencing judge, Justice Mathew Downs, would have given him if the three-strikes law had not been in place.
Justice Downs imposed a minimum period of imprisonment of five and a half years.
In August, Whanganui stabber Hayze Neihana Waitokia, who had 14 previous convictions, was the first offender to be given the maximum sentence available under the three-strikes legislation.
Justice David Collins, the former Solicitor-General of New Zealand from 2006 to 2012, sentenced Waitokia to seven years' imprisonment without the possibility of parole for wounding with intent to injure after he stabbed a man in the leg while on bail.
All other New Zealand judges who have sentenced a third striker have used the caveat to rule a maximum sentence without parole would be manifestly unjust.
After Waitokia's sentencing, Act Party leader David Seymour said the sentence was the three-strikes law working as it was intended.
"Andrew Little, [Deputy Prime Minister] Winston Peters, and other ministers need to ask themselves whether they want repeat violent offenders to be able to churn through our justice system creating an endless string of victims," he added.
In May in the High Court at Hamilton, Dylyn Mitchell Davis avoided life imprisonment without parole under the law for the murder of Aroha Kerehoma.
Justice Paul Davison ruled a life sentence without parole was manifestly unjust but imposed a minimum period of imprisonment of 20 years on Davis.
Earlier in May, a mentally-ill man was jailed for seven years under the three-strikes law for forcibly kissing a stranger.
Daniel Clinton Fitzgerald was convicted of indecent assault after he rushed over to a woman eating dinner with a friend on Cuba St in Wellington, grabbed her, said he wanted to kiss her, and pulled her face towards him.
Fitzgerald, who was also found guilty of assaulting the friend, had two previous strikes for indecent assaults in 2012 and 2015.
Justice Simon France said Fitzgerald will be eligible for parole after serving the minimum third of his sentence.
In 2017, there were 1538 first warnings, 85 final warnings and just 1 third strike issued by the courts, Ministry of Justice statistics show.
The sole third-strike sentence in 2017 was for Kingi Ratima's violent robbery.
Justice Christine Gordon sentenced him in the High Court at Hamilton to 10 years' imprisonment with a minimum period to serve of five years.
Ratima had more than 1000 previous convictions, mostly driving and dishonesty offences.
In 2016, there were 1446 first warnings, 57 final warnings and New Zealand's first third-strike sentencing in the High Court at Hamilton, the figures show.
Raven Campbell indecently assaulted a female prison guard by grabbing her bum while he was behind bars for aggravated robbery.
Justice Kit Toogood jailed Campbell for a further seven years but allowed the prospect of parole after two years and three months.
Earlier this year, University of Canterbury criminology professor Greg Newbold told Newstalk ZB judges weren't applying the full extent of the three-strikes law because they felt that law itself was manifestly unjust.
"The judges are interpreting the law very liberally. The judges effectively are saying the law itself is manifestly unjust and they are refusing to apply it," he said.
"It was a ridiculous rule to start off with it. It made no sense, it's full of flaws, it's completely inconsistent with the principles of justice."
He lost an arm and a leg in a crash that killed three friends.