Arguably the most famous person sentenced under the “three strikes law”, Clinton Fitzgerald, went to jail for a seven-year stretch after kissing a woman in the street. His sentence has been overturned by the Supreme Court after four-and-a-half years were served and the High Court has now awarded him compensation of $450,000. Central to both decisions was whether and where, in the prosecution process for such offending, the prohibition against disproportionate punishments in s 9 of the Bill of Rights (BORA) should be applied.

Since it was first passed in 2010, s 86D of the Sentencing Act 2002, often referred to as the “three strikes law”, has been an intensely political provision, trumpeted by conservative forces and loathed by their left-wing opponents. New Zealand First prevented the last Labour government from repealing it, but the current administration, with its one-party majority, has just removed it from the statute books.

Three strikes” provided that the maximum sentence had to be applied, without judicial discretion, on the third conviction for a qualifying offence. For those who disagreed with it, the Fitzgerald case summed up what was always liable to happen – a sentence grossly disproportionate to the offence.

The offence charged, indecent assault, was at the lowest end of the scale and Fitzgerald was a schizophrenic with substance abuse issues. Nevertheless, he was sentenced to seven years because the sentencing judge did not consider there was a choice.

The Court of Appeal held that the sentence was manifestly unjust and, in particular, breached s 9 of the BORA. It also noted s 9, unlike many rights, could not be subject to limitation. However, a majority also held the sentence could not be disturbed.

The Supreme Court took a very different view. It ruled that the provision did indeed have to be read in light of s 9. It was substantially guided to this conclusion by the Hansard record of how senior politicians had represented that a three-strikes prosecution would work. Repeated speeches identified the worst criminal offenders as the targets of the provision and assured the House that the discretion of prosecutors in laying charges would ensure that the wrong offenders were not caught by it.

In keeping with this, a process was approved by Cabinet to refer all charges that would trigger a three-strikes sentence to a Crown solicitor, with the necessary implication that whether such a sentence would be proportionate would be a central consideration.

The Supreme Court held this was the primary way that those who designed the system intended grossly disproportionate sentences to be avoided. Although, in the court’s view, the sentencing judge could still apply s 9 to avoid a disproportionate outcome, the preferred and intended route was that no judge would have to do so. The Supreme Court remitted the sentence back to the High Court which imposed six months. Fitzgerald subsequently sought compensation for the excessive time he was incarcerated.

Fitzgerald is the only beneficiary of the ruling to date and as the provision is no longer in force it will not assist any sentencing judges of the future. However, the possibility exists that others who have already been sentenced can now bring appeals. Of wider application is the new duty on prosecutors generally to consider s 9 when charges are laid.

Every judge in the chain held that s 9 had been breached; as Young J in the Supreme Court found, a breach arose both because the sentence was far too long on its face, but also because it did not allow for Fitzgerald’s mental illness. The question is where the breach should have been remedied. The issue on appeal was whether s 9 bit on s 86D and the Supreme Court agreed it did. The issue for compensation was whether any burden to consider s 9 outcomes lay upon the prosecutor.

As the Supreme Court has now found, if s 9 could always have been applied by the judge, an obligation on the prosecutor to consider it when charging appears to dissolve. However, in considering compensation the High Court approached the question as the law was believed to be at the time the charges were laid: a maximum sentence on conviction without wriggle room.

The prosecutor had had the option, and was encouraged by defence counsel, to lay the charge as ‘doing an indecent act’, or even ‘common assault’, which would not have triggered a three-strikes sentence. A similar thing has been done with other defendants for the same reason. At issue with compensation was whether she was obliged to so do.

The courts are traditionally reluctant to inquire into prosecutorial decisions. The trial gives the court its opportunity to determine the merits of charges and little cause usually arises to look into the decisions that preceded them. This can be contrasted with duties, like that of disclosure, where compliance is routinely enforced. However, if prosecutors have a duty – rather than a discretion – to engage with s 9, then the justification for judicial intervention is much stronger.

Similar considerations have arisen overseas, with prosecutions of defendants who had offended in exceptional circumstances. In R v LM [2010] EWCA Crim 2327, women in England who had been trafficked and forced into prostitution were convicted of offences they claimed they were forced to commit. On appeal they pointed to rules governing prosecution that specifically considered the situation of trafficking victims. The appellate court noted that while the usual function of a court is to try the charges before it, not the process by which they were laid, it could still decide whether defendants have received safeguards in the process to which they were entitled.

A similar position was taken by the court in R v Director of Public Prosecutions [2011] EWHC 1465 (admin), which stayed the prosecution of a child groomed by an adult to sexually assault other children. Of decisive weight was the Crown prosecutor’s failure to follow official guidelines.

The High Court went on to observe the courts in New Zealand cannot apply Supreme Law to strike down statutes that throw up grossly disproportionate results, in contrast to many other jurisdictions. This increases the burden on other parts of the system to see such results coming in the distance and adjust for them. The decisive point for the compensation question was whether a prosecutor who could anticipate a grossly disproportionate sentence had a discretion or a duty to adjust the charge to avoid it. The court held it was a duty.

The court rejected attempts by the Crown to argue well-known principles of causation. The prosecutor knew and intended the maximum sentence would result from conviction. No chain of causation issue arose. It also rejected a claim that Fitzgerald was adequately compensated by being ultimately vindicated.

The court noted there was no basis to claim false imprisonment – the sentence had been lawful when it was imposed – or malice or misfeasance. The prosecutor made an honest mistake, not a bad-faith one. The only ground was BORA damages. Although article 9(5) of the International Covenant on Civil and Political Rights provides an “enforceable right” to compensation in comparable circumstances, BORA damages remain discretionary and little guidance exists.

The Cabinet Guidelines (also discretionary) apply a base rate of $150,000 per year for wrongful conviction and imprisonment, but Fitzgerald was not wrongfully convicted. However, an excessive sentence could be argued to impose parallel harm to one imposed for wrongful conviction.

Ultimately, the court was assisted by the Prisoners’ and Victims’ Claims Act 2005 and its emphasis in s 3(1) on compensation where necessary for “effective redress”. Fitzgerald had exercised every opportunity to challenge his detention (and therefore bore no responsibility for it); the Crown had made an error, albeit a good-faith one, that caused the detention; and the consequences to Fitzgerald were substantial, both in terms of excess time served and his vulnerability due to his mental illness. To provide effective redress, and deter future breaches, compensation was necessary. By reference to the Cabinet Guidelines, and comparable cases, $450,000 was awarded.

It remains to be seen whether any historic three-strike sentences might now be revisited. Anecdotally, it seems likely that others in similar positions benefitted from enlightened charging decisions, which the Supreme Court ruled was always the intention. The lasting reach of this decision is likely to be the enforceable duty on prosecutors to consider s 9 of the BORA and arguably any other provisions of it.

The authors have personally dealt on occasion with s 77(1) and (2) of the Land Transport Act 1998 which provides that breath and blood results of a defendant’s alcohol levels are “conclusively presumed” to reflect the level present when a car was last driven. This means that defendants tested hours after they got home, surrounded by empty bottles (as one of my clients was), cannot bring evidence that their drinking was post driving.

The conclusive presumption was enacted to close down the “hip flask” defence, where drivers who had crashed claimed they had a swig from one just before the police arrived and that their alcohol result should not ground a conviction. In practice, the presumption means that people with evidence of factual innocence cannot offer it.

The author’s experience is that at least some prosecutors are alive to the injustice of this and do not proceed. If a conviction in the face of factual innocence constitutes “disproportionate treatment”, as per s 9, or a breach of natural justice, as per s 27, choosing to proceed in this situation could in future be argued to be a breach of an enforceable duty.

Criminal lawyers can therefore thank Clinton Fitzgerald and may perhaps anticipate a new sanity with some prosecutorial decisions. ■

Roderick Mulgan is a criminal defence lawyer and medical doctor with a particular interest in medico-legal issues.

Samira Taghavi is an Auckland barrister ■