Photo: RNZ / Rebekah Parsons-King
A man dubbed the "Cuba Street kisser" has had damages of $450,000 removed by the Court of Appeal after it sided with an appeal by the Attorney-General.
On Thursday, the court set aside a High Court ruling which saw Daniel Clinton Fitzgerald, who was diagnosed with significant mental health issues, awarded damages for an unfair sentence.
Fitzgerald had forced himself on a woman he did not know on Cuba Street, Wellington in 2016, the latest in a list of similar crimes.
The resulting prosecution for indecent assault was his third strike under the Sentencing Act's three strikes rule which came into play in 2010, and accordingly, the judge at the time imposed the maximum penalty of seven years' imprisonment.
Fitzgerald appealed unsuccessfully to the same court, and then again, this time successfully, to the Supreme Court, which ruled that the seven-year prison term was a disproportionately severe punishment.
The three strikes rule, which was repealed by the Labour government in 2022, contained the proviso that the maximum sentence should not be enforced if it was too tough for the crime.
Fitzgerald was resentenced to a term of six months' imprisonment, which by that stage, he had already served.
He then brought a claim for damages against the Crown based on the oversentencing, and in the High Court, Justice Rebecca Ellis ruled that he had been over-imprisoned for about 44 months (3.6 years).
She also ruled that it was the fault of the Crown prosecutor for laying the charge of indecent assault, and that they should have argued for a conviction under a different charge, and so awarded Fitzgerald $450,000 in damages together with interest.
The Attorney-General appealed in 2023, and the court on Thursday allowed that appeal.
Court of Appeal judges Justice Mark Cooper, Justice Forrest Miller and Justice Brendan Brown, in their judgment, said the Crown prosecutor was not liable for the breach of Fitzgerald's rights - rather, the sentence was the job of the judge, the late Simon France - and therefore the Crown was not required to pay those damages.
"The error, as it proved to be, was made by the sentencing judge, who did not recognise that he had authority to impose a lesser sentence," the judgment read.
It noted that Fitzgerald "ought to be compensated for having spent too long in prison" but "effectiveness [of damages] is normally gauged by reference to the impact of a given remedy on the state agency responsible for the breach of rights".
"Compensation is not needed to ensure that prosecutors and judges apply [the law] that was adopted by the Supreme Court ... Nor is there anything that the Attorney-General, who would be held liable and represents the executive branch, could do consistent with institutional judicial independence to ensure judges' future compliance."