Case Brief: Fitzgerald v R [2021] NZSC 131

April 22, 2022


The majority of the Supreme Court found the three strikes regime is subject to section 9 of the New Zealand Bill of Rights Act. This means the High Court should not have imposed the maximum sentence for Mr Fitzgerald’s third strike offence where it was grossly disproportionate to the seriousness of the offence.


Section 86D of the Sentencing Act 2002 requires the sentencing judge to impose the maximum sentence when an offender commits a third serious violent or sexual offence (“Three Strikes Regime”).

Mr Fitzgerald’s was convicted of indecent assault for a third time. However, all of his offences were at the lower end of the scale of indecent assault and were largely driven by his significant and long-standing mental health issues.

Because this was his third offence, Simon France J in the High Court applied the Three Strikes Regime and sentenced him to the maximum sentence of seven years’ imprisonment. Simon France J did not consider a s 106 discharge without conviction was available where the Act imposed a minimum sentence.

A majority of the Court of Appeal upheld this decision. All judges agreed the sentence was manifestly unjust and breached section 9 of the New Zealand Bill of Rights Act 1990 (“NZBORA”) which is the right not to be subject to torture, cruel, degrading or disproportionately severe treatment or punishment. However, they found s 106 was not available where the Three Strikes Regime applied, so the sentence had to stand.

The appellant appealed both the conviction and the sentence to the Supreme Court.

The Case

The parties agreed that section 9 was a fundamental right for which no limit can be justified. They parties also agreed that Mr Fitzgerald’s sentenced breached this right. However, section 86D provides that the Three Strikes Regime applies “despite any other enactment” and states that “the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.”

The Supreme Court was asked to determine whether the Three Strikes Regime could be interpreted in a rights-consistent way.

Interpreting the Three Strikes Regime

The majority found that s 86D could be interpreted in a rights-consistent way. They found the words “any other enactment” were intended to refer to other provisions in the Sentencing Act that would require a lesser sentence and other aspects of the Crimes Act and Criminal Procedure Act that would otherwise apply. It was not intended to override the fundamental rights in section 9

O’Regan and Arnold JJ noted that not all applications of the Three Strikes Regime will breach section 9. They found the words “disproportionately severe” were coloured by the other references to torture, cruelty and degrading punishment. This means that only grossly disproportionate sentences, such as those that would shock the national conscience, are unlawful. Parliament intended to impose disproportionate outcomes for third strike offenders, but the majority found this did not extend to an intent to legislate in breach of section 9.  If Parliament intended to legislate across NZBORA, it needed to say so in the legislation.

William Young J dissented. He considered the words in s 86D were “crystal clear” and it was not possible to read in a qualification that the Three Strikes Regime applies “despite any other enactment, except NZBORA”. His Honour found that Parliament did not need to expressly legislate against NZBORA. Section 86D is clearly drafted to exclude NZBORA considerations. He would have dismissed the appeal against sentence.  

Section 106

The Court was also asked to consider whether the s 106 discretion to discharge an offender without conviction played a role in the Three Strikes Regime.

The Crown warned against applying s 106 as a cure to the effects of the three strikes regime where a conviction and sentence would otherwise be appropriate. Winkelmann CJ agreed the Court should not make s 106 the only alternative to conviction under the three strikes regime where such a conviction would breach s 9, NZBORA. Usually, discharge without conviction will not be appropriate for an offence that falls within the categories of serious offences covered by the three strikes regime. However, there may be cases where s 106 can be applied without distorting the basic structure of the Sentencing Act, even at the third strike stage. Winkelmann CJ found this case came very close to one where s 106 would be appropriate, but the public health and safety concerns raised by the Crown could be addressed following conviction under the Criminal Procedure(Mentally Impaired Persons) Act 2003.


O’Regan and Arnold JJ considered s 106 was available as part of the usual suite of sentencing options. While they found there was no need to determine the precise scope of s 106 in this case, they noted it was “strongly arguable” that applying s 106 to third strike offences would be inconsistent with the purpose of the Three Strikes Regime.

William Young J found s 106 is not inconsistent with NZBORA in any sense, however the Three Strikes Regime prohibits the imposition of a lesser sentence.

The Supreme Court unanimously dismissed the appeal against conviction.


Mr Fitzgerald’s conviction was upheld, but the majority remitted the matter back to the High Court for re-sentencing in light of their finding that, in this case, the Judge is not required to impose the maximum sentence under the Three Strikes Regime.

Parliament is currently considering the Three Strikes Legislation Repeal Bill.

If you would like any further information on this case, please contact Director Brigitte Morten.

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