Friday, July 17, 2020

Unable to prevent injustice?

Our little nation (or as we call it in pandemic times, our team of five million) was agog with disbelief today at news of an injustice that the courts could not correct: Fitzgerald v R [2020] NZCA 292.

Our “three strikes” legislation required the court to impose the maximum term of imprisonment available on the defendant. In a Wellington street he had kissed a stranger on the cheek and had assaulted her companion. While the victims no doubt experienced some trauma, they may not have known that Mr Fitzgerald was mentally disabled.

The offences themselves would have not warranted terms of imprisonment. It was only Mr Fitzgerald’s record of more serious sexual offending that set him up for the maximum penalty for what he was charged with. Seven years’ imprisonment.

All four of the judges involved – the sentencing judge and the three Court of Appeal justices – agreed that the result was manifestly unjust. The one Court of Appeal justice who dissented insofar as he found an interpretive solution laid the ground for an application for leave to appeal to the Supreme Court.

Amazingly, it took the Court of Appeal 10 months from the hearing to deliver its judgments.

Apart from wrangling over whether a discharge without conviction can be ordered when a sentence is compelled by statute (and one has to wonder why “minimum” and “maximum” were thought to mean the same thing, and in any event they were irrelevant as here the penalty was fixed), the question is naturally raised: could there be some alternative way of avoiding the injustice?

In the circumstances, charges of offensive behaviour were available, or even just two charges of common assault (this was the charge he faced in respect of the second victim). Maximum penalties of $1000 fine, or 1 year in prison respectively.

Was the decision about what charges to bring against Mr Fitzgerald made reasonably? Judicial review of charging decisions is available, and the issue in such proceedings would be whether prosecution for the particular charges that were filed was in the public interest. Plainly, the judges here must have had doubts about that, in view of the inevitable penalty upon conviction. The prosecutor, when deciding what charges to file, should be guided by the seriousness of what the defendant actually did, not the seriousness of the most serious charge that could be filed. The seriousness of what the defendant actually did should be assessed by the likely starting point for sentencing. Here it is clear that a fine or a community based sentence would have been an appropriate measure of the seriousness of the defendant's conduct.

What, though, if it is now too late to review the decision on choice of charges?

The only other “thinking outside the box” remedy that occurs to me at the moment is the stay of proceedings. For this, the Court would have to be satisfied that continuation of the proceedings would undermine public confidence in the integrity of the judicial process. Does judicial paralysis in the face of an unjust result undermine public confidence in the integrity of the judicial process? Finding itself faced with having to impose a manifestly unjust sentence, a court might consider whether to stay the proceedings before that point, even, perhaps, without prejudice to the filing of lesser charges or the addition of lesser charges to the charge list, or the substitution of convictions for lesser offences.

See Osborne v Worksafe New Zealand [2017] NZCA 11 at [36].

Still, the case may not be over, so I say no more.