Mental health and our three strikes law

A recent Court of Appeal decision has cast a light on just how punishing our three strikes law can be on people with debilitating mental health conditions, writes Jake Metzger

Analysis: A decade on from the introduction of a regime designed to deter society’s most heinous crimes, the judicial branch handed down some of its most forceful criticisms yet, in a case that starkly revealed the punishing extent of the policy for those with debilitating mental health issues.

Daniel Fitzgerald, the subject of last Wednesday’s remarkable decision from the Court of Appeal, battles schizophrenia, hallucinations and paranoid delusions. Medication, prescribed to mitigate his three-decade-long suffering, has ebbed and flowed in its success, and as result, he has long battled drug and alcohol addictions — and criminal convictions.

The case turned on a brief encounter in the summer of 2016. In early December of that year, two women were walking Wellington’s Cuba Street when they were accosted by an intoxicated Fitzgerald who said to one of the women that he wanted to kiss her. He tried, but the woman evaded his attempt, leading instead to him kissing her cheek, an act that amounted to an indecent assault and his third strike.

Without the three strikes regime, the kiss certainly would not have warranted imprisonment, but the sentencing judge was forced to furnish the strictest possible punishment: seven years’ imprisonment.

In 2012, Fitzgerald indecently assaulted a woman, during which he chased her through a park, knocked her to the ground - causing her skirt to ride up - and then shoved his face and hands into her buttocks before fleeing. Then in 2015, he slapped three women on the buttocks as they walked by, earning him yet another indecent assault conviction. While these were unquestionably distressing for his victims, they fell, relatively speaking, at the minor end of the spectrum.

However, the three strikes regime, introduced under the previous National government, implemented a warning system for 'serious violent offences', a term that in actuality spans murder through to a kiss on the cheek. "The regime will be harsh - but only for the small number of people in our community who show continued disregard for the law and contempt for society,” the then-Minister of Justice, Judith Collins, said of the policy while it was still before Parliament.

Due to the draconian nature of the sentence, Fitzgerald’s lawyer, Kevin Preston, sought to have the Court of Appeal discharge the conviction on the basis that it would be disproportionately severe. Well over a year and half later that request was declined, a result that struck Chester Burrows, the former Minister for Courts and the now Chair of the Te Uepu Hapai te a Ora Tanga; Safe and Effective Justice Advisory Committee, as surprising. “I find it most unusual to find that the majority did not find the maximum of seven years' imprisonment manifestly unjust and impose a much shorter sentence, if not the implied appropriate community-based sentence.”

The Advisory Committee’s view is that the regime should be repealed, Burrows said. “The fact that mental illness may well impact the defendant’s ability to weigh the strike warning and their effects, does not seem to have weighed heavily on the decision-makers.”

That sentiment is echoed in a majority judgment which, torn between adhering to conventional interpretations of legislative purpose and the clear injustice facing the man before them, time and again laments that the Court’s hands are tied. Deterrence - the very foundation upon which the regime is constructed - is a fallacy where people do not have the mental capacity to be deterred, they wrote: “It is profoundly unjust to punish Mr. Fitzgerald more severely because he had received warnings which his longstanding mental health condition impaired his ability to act on.”

A psychiatric assessment issued three years ago warned that prison would only worsen Fitzgerald’s mental condition, necessitating more medication. He should be cared for in a rehabilitation unit, it said, which would lessen the likelihood of reoffending and increase his quality of life. But such an outcome is expressly forbidden by the three strikes regime: he must be sent to prison for the better part of a decade “in circumstances where he should not be there at all,” the majority wrote. “[A] sentence of seven years’ imprisonment goes well beyond excessive punishment, and would in our view shock the conscience of properly informed New Zealanders who were aware of all the relevant circumstances including Mr. Fitzgerald’s mental disability.”

The case reinforces that the criminal justice system must treat those with mental health issues differently, said Petra Butler, a professor at Victoria University of Wellington’s Faculty of Law. “It's a question of ‘Why was he prosecuted in the first place?’ … that's somebody who doesn't belong in a prison. So why prosecute him? Why not get him the help he needs?”

But beyond Fitzgerald’s immediate situation, the case raised bigger constitutional questions. Strikingly, and without prompt, the Court asked both sides whether the three strikes law warranted a formal declaration - a powerful recognition of an abuse of a person’s human right, and the strongest possible warning a court can send in a case such as this - that the regime is inconsistent with the New Zealand Bill of Rights Act. In the end, however, it walked a fine line by ruling that, while the regime certainly undermines basic human rights, it would rather not issue a declaration because Fitzgerald’s lawyers did not seek one.

That result was a touch disappointing, said Butler, a co-author of the pre-eminent book on New Zealand’s Bill of Rights Act.“[In] a matter like that, which is so important because it is about somebody's rights, the court should not be able to shy away from making a decision about the matter only because the plaintiff did rely on the wrong cause of action or did not plead a particular remedy.”

Such a declaration, while weighty, would have provided little real-world benefit to those subjected to the regime, though. Courts in this country cannot strike down legislation on account of it being unconstitutional, due largely to a centuries-old fear it would jeopardise our foundational belief in Parliament being an omnipotent pillar of democracy. Our Bill of Rights Act forces a court to interpret laws in a manner consistent with human rights, but it can frustratingly leave that court effectively toothless if it can’t muster a rights-friendly interpretation.

That inertia is understandable, but it should be addressed, according to Butler. “Maybe in New Zealand, once Parliament, the judiciary and the lawyers are comfortable with the declaration of inconsistency ... so they see that the sky will not fall down, that there will not be anarchy in this country, only because you allow the courts to check Parliament, the road will be paved to allow judges to even strike down legislation in certain circumstances.”

The majority’s view, then, based on the rather hollow powers endowed upon them by both that piece of law and the restraints the three strikes regime has fiercely fastened to their existing ones, was that they were left little room to fashion justice for Fitzgerald.

Poor mental health will limit his ability to qualify for parole, a reality evidenced by the Parole Board’s decision in June to decline his application for the second time. According to the judgment, the Board deemed it best for Fitzgerald’s mental rehabilitation that he be imprisoned, where he could possibly remain for a further three years.

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