FITZGERALD v ATTORNEY-GENERAL OF NZ [2022] NZHC 2465

FITZGERALD v ATTORNEY-GENERAL OF NZ [2022] NZHC 2465IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-628[2022] NZHC 2465UNDER the New Zealand Bill of Rights Act 1990BETWEEN DANIEL CLINTON FITZGERALDPlaintiffAND ATTORNEY-GENERAL OF NEWZEALANDDefendantHearing: 15–16 March 2022, further submissions received 30 March and12 May 2022Counsel: A S Butler and D A Ewen for PlaintiffA Powell, M McKillop and R McMenamin for DefendantJudgment: 27 September 2022JUDGMENT OF ELLIS J[1] Mr Fitzgerald wrongly spent over four and a half years in prison as a result ofwhat the Supreme Court has held was a misinterpretation of the statutory provisionsgoverning the sentencing of "third strike" offenders.1 The Court held the seven yearsentence imposed on him following his conviction for indecent assault was in breachof his fundamental right to be free from grossly disproportionate punishment, asconfirmed by s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA).21 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 [Fitzgerald (SC)]. The "three strikes"regime was established in 2010 by inserting ss 86A to 86I into the Sentencing Act 2002. Thoseprovisions (and the three strikes regime) have, in the last month, been repealed by the Three StrikesLegislation Repeal Act 2022. Although sch 1AA, pt 4, cl 15 of the Sentencing Act bars claims forcompensation arising from the repealed regime, the entitlement to bring a claim for breach of theNew Zealand Bill of Rights Act is preserved.2 Both the High Court and the majority in Court of Appeal considered that the three strikes regimecompelled the sentencing Court to impose the maximum sentence of seven years: R v Fitzgerald[2] In these proceedings, Mr Fitzgerald claims the undisputed breach of s 9 gaverise to a further infringement of his fundamental rights. He says his imprisonment inbreach of s 9 rendered his detention arbitrary and now seeks damages for a breach ofs 22 of the NZBORA.3[3] But the Supreme Court's earlier decision in Attorney-General v Chapman is apotential impediment to this claim.4 In Chapman the Court (by a three: two majority)held there is no jurisdiction to hear NZBORA claims relating to judicial acts oromissions. Although that decision has since been questioned by the United NationsHuman Rights Committee,5 counsel for Mr Fitzgerald acknowledge that it remainsbinding unless and until it is revisited by that Court.[4] So the focus of this proceeding is not on the retrospective error inMr Fitzgerald's original sentencing, but on what he contends was the wrongfulexercise of discretion by the Crown prosecutor when deciding to prosecute him for athird strike offence in the first place. Mr Fitzgerald says this decision did not complywith the Solicitor-General's Prosecution Guidelines (the Prosecution Guidelines)6 andit was reasonably foreseeable at the time that it would lead to a grosslydisproportionate sentence and (so) to his arbitrary detention.[5] These arguments raise novel and difficult questions, at least in a New Zealandcontext. Before turning to consider them, however, it is necessary to begin with someimportant matters of context, and then with the facts.[2017] NZHC 2206 [Fitzgerald (sentence indication)]; R v Fitzgerald [2018] NZHC 1015[Fitzgerald (sentencing)] at [17]; and Fitzgerald v R [2020] NZCA 292, (2020) 12 HRNZ 234[Fitzgerald (CA)] at [8] and [74].3 Mr Fitzgerald's claim was heard together with a similar (but not identical) application for damagesby Mr Koro Putua. I have recently delivered a separate decision on Mr Putua's claim: Putua vAttorney-General [2021] NZHC 2277.4 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 [Chapman (SC)]. Thedecision will be discussed in more detail later in this judgment.5 Views adopted by the Committee under article 5(4) of the Optional Protocol, concerningcommunication No 316/2018 UN Doc CCPR/C/132/D/3162/2018 (7 June 2022).6 Crown Law Office Solicitor-General's Prosecution Guidelines (1 July 2013) [ProsecutionGuidelines].The Solicitor-General's 2013 Prosecution GuidelinesConstitutional underpinnings[6] The Prosecution Guidelines were issued in 2013, following the 2011 Reviewof Public Prosecution Services.7 In his introduction to those Guidelines theAttorney-General explained the relevant constitutional context as follows:1. Under our constitutional arrangements, the Attorney-General isresponsible through Parliament to the citizens of New Zealand forprosecutions carried out by or on behalf of the Crown. In practice,however, the prosecution process is superintended by theSolicitor-General, who, pursuant to s 9A of the Constitution Act 1986,shares all the relevant powers vested in the office of theAttorney-General. These arrangements have renewed force with thecodification of the Solicitor-General's responsibility for publicprosecutions in s 185 of the Criminal Procedure Act 2011.2. Unlike most similar jurisdictions, New Zealand has no centraliseddecision-making agency in relation to prosecution decisions. Inrespect of Crown prosecutions, prosecutions are mainly conducted byCrown Solicitors – private practitioners appointed to prosecute undera warrant issued by the Governor-General. [7] The Attorney-General went on to explain that the way in which theSolicitor-General retains oversight of and control over Crown prosecutions is throughthe Prosecution Guidelines. He said:3. The absence of a central decision-making process underscores theimportance of comprehensive guidelines, and the acceptance of coreprosecution values. The Review of Public Prosecution Services alsoreiterated the important role the Solicitor-General's ProsecutionGuidelines play in setting core and unifying standards for the conductof public prosecutions. The revised Guidelines reinforce theexpectations that the Solicitor-General and I have of all prosecutorswho prosecute on behalf of the State.4. New Zealand is fortunate to be served by a public prosecution servicethat is professional, open, fair and responsible. These standards willcontinue through the day-to-day adherence to the values reflected inthese Guidelines.[8] The Prosecution Guidelines themselves state that they "reflect the aspirationsand practices of prosecutors who adhere to the United Nations Guidelines on the Role7 John Spencer Review of Public Prosecution Services (Crown Law Office, September 2011).of the Prosecutor (1990) and the International Association of Prosecutors Standards(1999). The former document provides:812. Prosecutors shall, in accordance with the law, perform their dutiesfairly, consistently and expeditiously, and respect and protect humandignity and uphold human rights, thus contributing to ensuring dueprocess and the smooth functioning of the criminal justice system.Statutory underpinning[9] The Prosecution Guidelines also state that compliance with them "is expectedin respect of public prosecutions and Crown prosecutions" and is "a condition of thewarrant held by each Crown Solicitor".9 Moreover, and as noted by theAttorney-General in the passage quote above, the role of the Solicitor-General and herrelationship with the Crown prosecutors is now statutorily recognised in the CriminalProcedure Act 2011 (CPA). Thus, s 185 of the CPA provides:10185 Solicitor-General responsible for general oversight of publicprosecutions(1) The Solicitor-General is responsible for maintaining general oversightof the conduct of public prosecutions.(2) In discharging his or her responsibility under subsection (1), theSolicitor-General may—(a) maintain guidelines for the conduct of public prosecutions;and(b) provide general advice and guidance to agencies that conductpublic prosecutions on the conduct of those prosecutions.(3) Nothing in this section requires the Solicitor-General to supervise theconduct of any particular public prosecution or makes theSolicitor-General responsible for the conduct of any publicprosecution.[10] Section 187 of the CPA provides that "the Solicitor-General must assumeresponsibility for and conduct every Crown prosecution from the time or stage in the8 UN Committee on Crime Prevention and Control Guidelines on the Role of Prosecutors (1990).9 Prosecution Guidelines, above n 6, at [1.2] and [2.2].10 Emphasis added.proceedings prescribed in regulations" but that this duty may be performed by anyCrown prosecutor.11 And importantly, s 188 states:12188 Duty of Crown prosecutor to comply with Solicitor-General'sdirectionsA Crown prosecutor who conducts a Crown prosecution under s 187 mustconduct that prosecution in accordance with any directions given by theSolicitor-General (either generally or in that particular case).[11] The framing of the s 188 obligation is wide ("any directions", including thosegiven "generally") and logically encompasses the Prosecution Guidelines. In otherwords, s 188 appears to have created a legal duty incumbent on Crown Solicitors tocomply with the directions set out in the Prosecution Guidelines.Prosecutorial discretion[12] The Prosecution Guidelines address the question of prosecutorial discretion bysetting out the "test for prosecution" as follows:5.1 Prosecutions ought to be initiated or continued only where theprosecutor is satisfied that the Test for Prosecution is met. The Testfor Prosecution is met if:5.1.1 The evidence which can be adduced in Court is sufficient toprovide a reasonable prospect of conviction – the EvidentialTest; and5.1.2 Prosecution is required in the public interest – the PublicInterest Test.[13] The first—evidential sufficiency—limb of this test is not in issue in the presentcase and I do not consider it further.[14] In terms of the public interest, the Prosecution Guidelines begin byacknowledging "it is not the rule that all offences for which there is sufficient evidence11 The relevant regulations are the Crown Prosecution Regulations 2013, which provide (amongother things) that any criminal proceeding transferred to the High Court becomes a Crownprosecution at that time. And at the time the charges were laid against Mr Fitzgerald, s 86D of theSentencing Act provided that "a proceeding against a defendant charged with a stage-3 offencemust be transferred to the High Court". The provisions of the CPA presently under discussiontherefore applied to Mr Fitzgerald's case.12 Emphasis added. 'Crown prosecutor' is defined in s 5 of the CPA to include "a Crown solicitor ora lawyer representing a Crown solicitor".must be prosecuted".13 Prosecutors are required to exercise their discretion as towhether a prosecution is necessary in the public interest.14[15] The Prosecution Guidelines then include a non-exhaustive list of publicinterest considerations that favour prosecution and those that count against it. Oneexample of the considerations that favour prosecution is the seriousness of theoffence:15The predominant consideration is the seriousness of the offence. The gravityof the maximum sentence and the anticipated penalty is likely to be a strongfactor in determining the seriousness of the offence[16] And included among the 13 listed public interest considerations countingagainst prosecution are:16Where the defendant was at the time of the offence or trial suffering fromsignificant mental or physical ill-healthWhere there are any proper alternatives to prosecution available.The memorandum of understanding with Police[17] The Prosecution Guidelines contain a section entitled "Relationship betweenCrown Prosecutors and Enforcement Agencies". Under that heading they provide:17The Police or other investigator28.1 Crown prosecutors appear in the criminal courts in two distinctcapacities, namely on instructions from the person or governmentagency who commenced the proceeding or, in respect of Crownprosecutions, as the Crown's representative.28.2 When acting on instructions, the Crown prosecutor is instructed in thatcapacity as an agent or officer of the Crown and should still act inaccordance with the applicable guidelines. While Crown prosecutorsare expected to consult closely with and take into account the views13 Prosecution Guidelines, above n 6, at [5.5]. See also [5.6]: "In a time honoured statement madein 1951 Sir Hartley Shawcross QC MP, the then United Kingdom Attorney-General, made thefollowing statement to Parliament in relation to prosecutorial discretion: 'It has never been therule in this country that suspected criminal offences must automatically be the subject ofprosecution.'"14 At [5.5].15 At [5.8.1]. There are 17 further considerations listed.16 At [5.9.9] and [5.9.13].17 Emphasis added.of the investigator or officer in charge of the case on all significantmatters, it is also the Law Officers' expectation that governmentagencies who commence proceedings will follow the advice of theCrown prosecutor as to the nature of the charges and conduct of theprosecution.28.3 The relationship between the Crown prosecutor and the agency whocommenced the proceeding should also be conducted in accordancewith any Memorandum of Understanding or similar agreementbetween the Solicitor-General and the chief executive of that agency.Recipients of advice28.4 Due to the increasing complexity of the criminal law andconsiderations arising from the New Zealand Bill of Rights Act 1990,many criminal or regulatory investigations will require specialisedlegal advice from the earliest stages.28.5 In this regard, Crown Solicitors are expected to have and maintainsufficient capacity to give advice as and when necessary, and todevelop and maintain appropriate relationships with the locally basedgovernment agencies to ensure effective legal advice is sought andgiven.28.6 In giving investigative advice, the solicitor-client relationship ismodified to the extent that the investigators to whom the advice isdirected are expected to act in accordance with that advice.[18] A Memorandum of Understanding of the kind contemplated by paragraph[28.3] was entered into between the Solicitor-General and the Commissioner of Policein 2013 (the MOU).18 Among other things, it dealt with the prosecution of third strikeoffences. It required that:19The Police, at Police cost, will refer all prosecutions involving a stage-3offence as defined in s 86A of the Sentencing Act 2002 to the Crown Solicitorfor peer review either pre-charge or by the second appearance.What happened in Mr Fitzgerald's case[19] The factual narrative set out below is not disputed.[20] Since the age of 15 Mr Fitzgerald has suffered from schizophrenia andsubstance (drug and alcohol) abuse. He has a history of paranoid delusions andauditory and visual hallucinations; he needs ongoing mental health treatment and care.18 Memorandum of Understanding between the Solicitor-General and the Commissioner of Police(1 July 2013).19 Schedule B, art 2.Prior to his most recent imprisonment he had been admitted to mental health facilitiesat least 13 times, although he also received treatment in the community. His mentalhealth issues led to difficulty in sustaining accommodation. It might also be observedthat those difficulties render a number of the ordinary principles underlying oursentencing regime—such as personal deterrence—inapt, and inapplicable to him.[21] The incidents that led to his imprisonment occurred on 3 December 2016.They involved Mr Fitzgerald kissing one woman and pushing another during thedaytime on a central Wellington street. Both women were strangers to him. Policecharged him with indecent assault, common assault and breach of the extendedsupervision order to which he was then subject. Mr Fitzgerald was remanded incustody; his housing situation meant he had no suitable bail address.[22] Indecent assault was a qualifying offence under the "three-strikes" regime.20Mr Fitzgerald had been found guilty of indecent assault twice before and so the 2016charge was a "stage three" offence. On its face, s 86D of the Sentencing Act 2002 (theAct) required a sentencing judge to impose the maximum sentence of seven years'imprisonment if Mr Fitzgerald was found guilty on that charge. It was, at that time,commonly thought that the only discretion on sentencing was around whether hewould be required to serve that sentence without parole.21Involvement of the Crown solicitor[23] Pursuant to the MOU, Police wrote to the Crown solicitor seeking a peerreview of their decision to charge Mr Fitzgerald with indecent assault, on 1 February2017. Legal privilege has been maintained over the advice but its content can, perhaps,be inferred from that fact that following the review Police confirmed their decision toproceed with that charge.22[24] Shortly afterwards, one of Mr Fitzgerald's lawyers emailed the Crownprosecutor proposing that the charge be amended to one of common assault (which is20 Sentencing Act, s 86A(12) (now repealed).21 Prior to the Supreme Court's decision in Mr Fitzgerald's case, no defendant convicted of a stagethree offence had been sentenced to less than the statutory maximum.22 As noted earlier, under the Prosecution Guidelines, Police are effectively required to follow theCrown prosecutor's advice.not a qualifying offence) on evidential sufficiency grounds. The Crown prosecutorresponded by saying the evidence clearly supported an indecent assault charge andthat, given Mr Fitzgerald's history of indecencies, she was not prepared to amend thecharge.23[25] Mr Fitzgerald's lawyer next proposed that the appropriate charge was one ofdoing an indecent act (also not a qualifying offence). There is no record of a responseto this suggestion but it is clear that the decision to proceed with the indecent assaultcharge was maintained.[26] In accordance with the Crown Prosecution Regulations 2013,24 the Crownformally took carriage of the prosecution after the proceedings had been transferred tothe High Court. It was at that point (following the filing of a Crown ProsecutionNotice under s 189 of the CPA) that the Crown prosecutor was required to make anindependent judgment under the Prosecution Guidelines as to the appropriateness ofthe charges.[27] On 10 April 2017 the Crown prosecutor acknowledged in an email toMr Fitzgerald's counsel her acceptance that "this is a relatively low level indecentassault."[28] The Crown prosecutor provided an affidavit in these proceedings addressingthe exercise of prosecutorial discretion in this case:2521. The Solicitor-General's Prosecution Guidelines, which I am veryfamiliar with, contain a detailed description of relevant public interestfactors in relation to the test for prosecution. While it is accepted thatthe list is not exhaustive, and the exercise requires judgment, mynormal practice is to refer directly to the guidelines and consider allissues as set out in the list if they are relevant.22. I can confirm that I have no recollection of considering the likelysentencing consequences in my assessment of the public interest test.As sentencing is a matter for the court, considerations as to23 It may be observed in passing that this statement by and of itself suggests that had Mr Fitzgeraldnot had such a history the charge might have been amended.24 See above, n 11.25 Emphasis added.sentencing outcomes would not form part of my consideration as towhether the public interest test had been met. The judgment I exerciseas a prosecutor is whether the alleged offender should be broughtbefore the Court and what charge appropriately reflects the offending.It is for the Court to determine if they are guilty and if so, what thesentence or other disposition should be. As I have said the decision toprosecute requires judgment. It is not a case of ticking boxes but I cansay that having found evidential sufficiency my principal reasons forconcluding prosecution for indecent assault was in the public interestwere that:22.1 the offence was an inherently serious sexual offence whichhad caused harm to the victim;22.2 the offender's history indicated that the offending behaviourwas likely to be repeated; and22.3 the offender was subject to an extended supervision order atthe time of the offending.[29] The affidavit does not suggest any consideration was given to Mr Fitzgerald'smental health.Sentence indication and sentencing[30] In September 2017, Mr Fitzgerald sought a sentence indication. His counselsubmitted that a discharge without conviction on the indecent assault charge wasappropriate and would avoid the operation of the three strikes regime. Thatsubmission was opposed by the Crown on jurisdictional grounds—an argumentaccepted by Dobson J, who said that the sentencing Court would be required to imposethe maximum seven-year sentence.26 As to whether Mr Fitzgerald would be requiredto serve that sentence without parole, the Judge noted:[9] On that issue the Crown has realistically conceded that given all yourcircumstances and the circumstances of the offending it would be manifestlyunjust to require the whole seven years to be served without you being eligiblefor parole at any stage. On all the information I have got so far I consider thatrelatively high threshold of a manifestly unjust outcome would be reached, sothe sentence would not be imposed on the basis that you could not qualify forparole at any stage it would be manifestly unjust.[31] The Judge recorded his view that the indecent assault was "towards the bottomend of the range of seriousness of such offending".27 Then, he observed that26 Fitzgerald (sentence indication), above n 2.27 At [11].Mr Fitzgerald's mental health problems were also relevant and that expert opinion wasthat a sentence of seven years' imprisonment would adversely affect his mental healthstill further, as his time in custody on remand had already done.28 The Judgeconcluded: "in combination, those features are sufficient to make a seven yearsentence without the prospect of parole one that would be manifestly unjust".29[32] Unsurprisingly, Mr Fitzgerald did not plead guilty following this indication.Instead, after a judge alone trial in the High Court, he was later found guilty on thecharge of indecent assault and the other two charges.30[33] Mr Fitzgerald was sentenced on 10 May 2018.31 The sentencing Judge againnoted that the indecent assault was at the "bottom end" of the range and would notordinarily have attracted a jail term at all.32 But the Judge agreed with Dobson J thata discharge without conviction was not available and so he was compelled to sentenceMr Fitzgerald to seven years' imprisonment.33 He also agreed with Dobson J that itwould be manifestly unjust to require him to serve that sentence without the possibilityof parole and so declined to make that order.34Court of Appeal[34] On appeal to the Court of Appeal, the majority upheld the sentence imposed inthe High Court.35 However, all Judges agreed that a seven year sentence wasmanifestly unjust,36 having particular regard to:37(a) the circumstances of the offending—being at "the low end of the rangeof conduct that amounts to indecent assault" and not sufficiently seriouson its own to merit a sentence of imprisonment;28 At [12].29 At [13].30 R v Fitzgerald [2017] NZHC 465.31 Fitzgerald (sentencing), above n 2.32 At [21].33 At [11]–[16].34 At [27].35 Fitzgerald (CA), above n 2.36 At [43] per Clifford and Goddard JJ and [131] per Collins J.37 At [34(a)–(d)].(b) Mr Fitzgerald's impaired mental health, and in particular his inabilityto regulate his behaviour "in the manner that our society expects",which:(i) had a "direct bearing on his culpability";(ii) rendered the deterrence rationale underpinning the three strikesregime inapplicable (given his mental health condition impairedhis ability to act on the two warnings previously received); and(c) the psychiatrist's opinion that Mr Fitzgerald was best placed in arehabilitation unit under an in-patient order pursuant to the CriminalProcedure (Mentally Impaired Persons) Act 2003; and(d) the risk of reoffending which, while evident, was not at a level that"requires or justifies a (lengthy) prison sentence in order to protect thecommunity" (other sentencing options in the short term were not onlymore appropriate, but more likely to reduce the prospect of re-offendingin the long term).[35] The majority expressly considered whether the sentence of seven yearsimprisonment was inconsistent with his right under s 9 of the NZBORA not to besubjected to disproportionately severe treatment. After noting that the s 9 right wasnot capable of justifiable limitation38 and that the threshold for breach was a highone,39 they said:40 We consider that the sentence imposed on Mr Fitzgerald crosses this highthreshold. A sentence of seven years' imprisonment is grossly disproportionatein this case, having regard to the factors identified above: offending at thelower end of the range for the offence; reduced culpability by reason ofMr Fitzgerald's impaired mental health; his impaired ability to act on thewarnings given under the three strikes regime; and the disproportionatelysevere effect on him of a lengthy sentence of imprisonment. Mr Fitzgeraldshould be receiving care and support in an appropriate facility, not serving alengthy term of imprisonment. He has ended up in prison for a very long term,in circumstances where he should not be there at all. The rationale thatunderpins this disproportionate response is that Mr Fitzgerald was givenwarnings that severe consequences would follow if he offended again, and he38 At [41].39 At [42], citing Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.40 At [43] (emphasis added).should have responded to those warnings. But his ability to respond to suchwarnings is materially impaired by his significant mental health issues. Inthese circumstances, a sentence of seven years' imprisonment goes wellbeyond excessive punishment, and would in our view shock the conscience ofproperly informed New Zealanders who were aware of all the relevantcircumstances including Mr Fitzgerald's mental disability.[36] The fact that Mr Fitzgerald would be eligible for parole after serving a third ofhis sentence made no difference to this conclusion:41 Mr Fitzgerald must serve at least two years and four months in prison. Hemay be required to serve the balance of the seven year sentence. If he isparoled and breaches his parole conditions, he may be recalled to prison. Thispunishment is grossly disproportionate to the offence he committed, which asnoted above would not normally attract a custodial sentence. We note thatMr Fitzgerald became eligible for parole in mid-2019, but was not paroled: heremains in custody some three and a half years into his sentence. His mentalhealth is likely to make it more difficult for him to qualify for parole.[37] The majority also suggested that s 19 of the NZBORA (freedom fromdiscrimination on the grounds of disability) might be engaged by Mr Fitzgerald'scase.42[38] In his dissenting judgment, Collins J agreed with all the majority's observationsbut considered that a discharge without conviction was an available sentencing optionand that the operation of the three strikes regime could have been avoided in that way.43Supreme Court and resentencing[39] Mr Fitzgerald was granted leave to appeal both his conviction and sentence tothe Supreme Court.44 The Court unanimously dismissed Mr Fitzgerald's appealagainst conviction.45 But a majority of four allowed his appeal against sentence onthe basis that s 86D could and should be interpreted so as not to require the impositionof sentences that were grossly disproportionate and (so) in breach of s 9 of theNZBORA, as Mr Fitzgerald's was. The Court remitted Mr Fitzgerald's sentencing tothe High Court.41 At [44].42 At [45].43 At [138].44 Fitzgerald v R [2020] NZSC 119.45 Fitzgerald (SC), above n 1.[40] On resentencing, the Judge observed that Mr Fitzgerald had been detained"way too long" and imposed a sentence of six months' imprisonment, meaning thatMr Fitzgerald was released immediately.46 By this time, he had already spent some1,789 days in prison—almost 1700 days longer than he would have been required toserve under his (re)sentence.47What the Supreme Court said about prosecutorial discretion[41] In considering whether s 86D(2) could be given a rights-consistentinterpretation (an interpretation that did not require a sentencing judge to impose thestipulated sentence, if it was grossly disproportionate) a central focus of the majority'sreasoning in Fitzgerald was the parliamentary purpose in enacting the three strikesregime. For example, the Chief Justice said:48[125] At the Sentencing and Parole Reform Bill's first reading, the Ministerof Justice, the Hon Simon Power, said, "the Bill deals with two types ofoffenders: the worst repeat violent and sexual offenders and the worstmurderers". The Bill's explanatory note confirmed that the Bill was aimed atthe "worst repeat violent offenders", using this phrase twelve times. This veryspecific and narrow purpose was reiterated at every stage of the parliamentaryprocess: in select committee, second reading, Committee of the Whole House,and third reading. In the Bill's third reading, the Hon Judith Collins, theresponsible Minister for the Bill at that time, said:Another issue that has been raised is the importance of the appropriatecharges being laid by police. The Government is confident that thepolice have sufficient checks and safeguards in place to ensure thatthe appropriate charges are laid, particularly at the third stage of theregime. At stage three police will be referring all charges that qualifyfor the mandatory maximum penalty to the Crown solicitor for review,either pre-charge or by second appearance.[126] ACT Party Leader the Hon Rodney Hide, a strong supporter of theBill, was likewise confident that the Bill's safeguards were sufficient to ensureit did not overstep its purpose: It is focused solely on the worst violent crimes;it is focused on the few offenders who repeatedly commit violent crime.Unlike the Californian law, people will not receive severe sentences under thislaw from conviction for relatively trivial offences. The offences on thequalifying list all represent serious crimes.[127] The regime was therefore not intended to apply to those who did notrepeatedly commit serious violent offences. The clear expectation was that ifsuch offenders were incidentally caught by the regime, prosecutorial46 R v Fitzgerald [2021] NZHC 2940.47 Because a sentence of six months' imprisonment is, in terms of the Parole Act 2002, a short-termsentence, Mr Fitzgerald would have been entitled to release after serving half of it.48 Footnotes omitted, emphasis added.discretion would be exercised so as to avoid the gross injustice that theapplication of the regime would cause. The issue of how the courts shouldrespond in the event that this expectation was not met, and someone who wasnot a serious violent offender was captured by the regime contrary toParliament's intention, was left unanswered.[42] The Chief Justice considered the exercise of prosecutorial discretion was an"administrative safeguard" where there ran a risk of disproportionately severesentencing:49[138] In that regard, where it applies, s 86D(2) adds a sentencing principlethat recidivism by those caught by the regime is to be viewed as very seriousand worthy of a stern sentencing response. Section 86D(2) emphasises theexisting sentencing purposes of reducing the risk of harm to the community,holding the offender accountable for their offending, and of deterring theoffender or others from committing the same or similar offences. For a stagethree offender, that response will call for the maximum sentence, except wheresuch a sentence is disproportionately severe so as to amount to a breach of s9. The task of setting a sentence which applies these sentencing principles, butdoes not breach s 9, is not beyond the institutional competence of a sentencingcourt. The incorporation of the additional sentencing principle that recidivismby those caught by the regime is very serious and worthy of a stern sentencingresponse ensures that this interpretation does not disapply or nullify the threestrikes regime. And of course it is to be noted that if the administrativesafeguard involving the vetting by the Crown Solicitor of charges laid doeswhat it was intended to do, there should be very few such cases.[43] Similarly, Arnold J (writing for himself and O'Regan J) referred to thestatement by the Hon Judith Collins' in her third reading speech that there would bean administrative process to protect against the laying inappropriate charges, andnoted:50Cabinet had decided on this process on 1 March 2010. Presumably theexpectation was that this would operate as a "sifting" mechanism, so that onlycases falling within the purpose of the regime as articulated would be caughtby it.[44] The judgment goes on:51[202] What emerges from this parliamentary history is that the proposedthree strikes regime underwent significant changes late in the legislativeprocess, without a s 7 vet of the changes. From the Government's perspective,49 Footnotes omitted, emphasis added.50 At [200].51 Emphasis added.the purpose of the regime was, as the Minister put it in her third readingspeech, "to deny parole to, and impose maximum terms of imprisonment on,the very worst repeat violent offenders" There was an awareness that theregime might result in disproportionate sentences at stage three but that wasconsidered appropriate, at least to some extent. To meet concerns aboutpotential "overreach", an administrative process – the review of third strikecharges by the local Crown Solicitor – was put in place in an effort to ensurethat the regime was applied only to those against whom it was directed. Whileseveral members of the Opposition referred in the debates to theAttorney-General's s 7 vet of the Bill as originally introduced, there was noacknowledgement by Government speakers that the amended regime couldproduce outcomes so extreme that they would breach s 9 of the Bill of Rightsor New Zealand's international obligations.[45] Arnold J then noted that the application of the regime, intended to deal with"the very worst repeat violent offender", was inapt, given Mr Fitzgerald's low-scaleoffending and long-standing and serious mental health issues. He concluded:52The appellant is simply not the type of offender identified by the responsibleMinisters in their speeches to the House as the target of the three strikesregime. Indeed, there was every reason to expect that the administrativeprocess involving the Crown Solicitor would mean that people like him wouldnot fall within the regime.[46] In a footnote to the last sentence of [204] the Judges recorded that, during thehearing of Mr Fitzgerald's appeal, the Court was told that the Crown Solicitor hadreviewed the police charging decision in this case and that Crown counsel hadacknowledged to the Court that the Crown Solicitor's responsibility was to assess thecharge in light of the Prosecution Guidelines. The Judges then appeared to editorialise:"[t]his would take into account not just the sufficiency of the evidence, but also thepublic interest in prosecution, which would include Bill of Rights considerations."53[47] In her separate but concurring judgment, Glazebrook J said:54[247] To accept the Crown's submissions in this case would mean findingthat Parliament's purpose in enacting the three strikes regime was to requirejudges to impose sentences on mentally ill persons, like Mr Fitzgerald, that52 At [204] (emphasis added).53 It is not entirely clear whether this formed part of Crown counsel's acknowledgement or was theJudges' own observation.54 Emphasis added.breach s 9 of the Bill of Rights (a right not subject to any reasonable limits).This is despite both Parliament and judges being bound by the Bill of Rightsas a result of s 3(a) of the Bill of Rights, and despite the fact that the impositionof such sentences would mean a breach of New Zealand's obligations underinternational law. To attribute such a purpose to Parliament would besurprising.[248] Of course, the legislative history makes it plain that this was not infact Parliament's purpose. The purpose of the regime was that it would applyto the very worst repeat violent offenders and the language was broadly drawnto ensure all such offenders would be included. To meet the concerns aboutpossible overreach, an administrative process was put into place to make surethat the regime was properly directed.[48] Like O'Regan and Arnold JJ, Glazebrook J noted that the anticipated"administrative process seems to have failed in this case" and that she agreed with theother four judges that reliance on such a process was "neither a sensible nor principledmeans of addressing concerns around inappropriately harsh outcomes".55[49] William Young J dissented as to the availability of a rights-consistentinterpretation of s 86D, namely one that would permit a sentencing judge not to imposethe maximum sentence for a stage three offence. But he agreed with the majority thatParliament had intended there would be an administrative regime to ensure thatprosecutorial discretion would be exercised in a way that did not lead to the impositionof grossly disproportionate sentences. He said:56[326] During the parliamentary process it was recognised that, under theregime then proposed, there was scope for second and third strike sanctions tobe imposed on some who might not be in the group of offenders intended tobe targeted. As explained in the reasons given by the Chief Justice andArnold J, the response was the putting in place of administrativearrangements to ensure a screening by Crown Solicitors of prosecutions inrespect of strike offences. I have distinct reservations as to whether this was asensible and principled way of addressing concerns about inappropriatelyharsh outcomes. But more importantly for present purposes, the apparentacceptance of this arrangement by Parliament reinforces the view that s 86Dshould be construed as meaning what it says. If Parliament's understanding(and its purpose) was that sentencing judges must not imposedisproportionately severe maximum sentences, there was little need forupstream administrative screening by Crown Solicitors. And if theparliamentary purpose had been to set the courts as a long-stop against thepossibility that the Crown Solicitor might get it wrong, that would have beenprovided for in the legislation.5755 At n 355.56 Emphasis added.57 In a sense, this is the paradox that lies at the heart of the present proceeding.[50] It is, perhaps, not difficult to see the genesis of Mr Fitzgerald's present claimin these various dicta. It is the Crown prosecutor's alleged failure to live up toParliament's expectations—the expectations found by the Supreme Court to underliethe three strikes regime—which, he says, resulted in the imposition of a grosslydisproportionate sentence and his arbitrary detention, breaching his rights under theNZBORA.The issues and my approach to them[51] Having set out those contextual matters, I propose to address the issues raisedby Mr Fitzgerald's claim in this order and under these broad headings:(a) the relevant NZBORA breaches;(b) whether the Crown prosecutor was required to consider s 9 of theNZBORA before charging Mr Fitzgerald;(c) whether the Crown prosecutor failed to consider s 9;(d) whether Crown liability can stem from the Crown prosecutor'somission;(e) whether damages are necessary to provide effective redress; and(f) if so, how such damages should be quantified.[52] It is useful to emphasise at this point that the inquiries articulated in (b) and (c)will be undertaken on the basis of the law as it was understood to be in 2017, at thetime the decision to charge Mr Fitzgerald with indecent assault was confirmed. Inother words, I will proceed on the factual basis that the Crown prosecutor believedthat the sentencing Court (as a matter of law) would have no choice other than toimpose the statutory maximum sentence on Mr Fitzgerald. That the Crown prosecutordid believe this is evidenced by the position they later took at the sentence indication(arguing that a seven year sentence was required and discharge without conviction wasnot an available option) and subsequently at sentencing. It was also the Crownposition on appeal to the Court of Appeal, and in the Supreme Court.[53] Whether that factual premise must be altered as a result of the operation of thedeclaratory theory (which posits that, as a matter of law, the Supreme Court's decisionmeant the sentencing Judge always had the ability to decline to impose a grosslydisproportionate sentence) will be considered under (d).The relevant NZBORA breachesThe established breach of s 9[54] It is not of course disputed that the sentence originally imposed onMr Fitzgerald entailed a breach of his right not to be subject to a disproportionatelysevere punishment under s 9 of the NZBORA. Although (as noted earlier) every Judgeto have dealt with Mr Fitzgerald in the course of his criminal proceedings was of thatview, it is probably William Young J in the Supreme Court who examined the natureand extent of the breach in the most detail. Because they become relevant later in thisjudgment, I set out his conclusions on that in full:[281] Looking at the situation as it now is, the appellant has served morethan four and a half years in prison. I see this punishment as disproportionatelysevere for two reasons:(a) It is just too long in light of the only moderate seriousness ofthe offending. Under ordinary sentencing practice, theappellant would have been sentenced to imprisonment forprobably not more than a year. Assuming a sentence of12 months, he would have been released after six months.This would have been a proportionate response to hisoffending. As it is, the time he has spent in prison is alreadynine times what would have been appropriate in terms ofordinary sentencing practice.(b) No allowance has been made for his mental illness.[282] Had the appellant been released on parole when first eligible (in April2019), the time he would have spent in prison (28 months from the time of hisarrest) would have been approximately five times the six months or so hewould have been required to serve if sentenced in accordance with ordinarysentencing practice. I am inclined to think that this too would have beendisproportionately severe.[283] If a requirement to serve 28 months in prison constitutesdisproportionately severe punishment, it follows that the sentence of sevenyears' imprisonment imposed was in breach of s 9 of the Bill of Rights. Onthis approach, there is no need to consider what, if any, allowance should bemade for the likelihood of parole being granted when assessing whether asentence of imprisonment breaches s 9.Was there also a breach of s 22?[55] It is accepted that Mr Fitzgerald's detention was lawful in the orthodox sense.The claim focuses on whether it was, nonetheless, arbitrary and so in breach of s 22.To reiterate, Mr Fitzgerald claims his detention was arbitrary because it was foundedon a breach of s 9.[56] The word 'arbitrary' in s 22 has two meanings: unlawfulness (contrary todomestic law) or arbitrariness (contrary to standards of appropriate state conduct).58In Nielsen v Attorney-General, the Court of Appeal observed that:59Whether an arrest or detention is arbitrary turns on the nature and extent ofany departure from the substantive or the procedural standards involved. Anarrest or detention is arbitrary if it is capricious, unreasoned, withoutreasonable cause: if it is made without reference to an adequate determiningprinciple or without following proper procedures.[57] As it happens, the proposition that an otherwise lawful detention can berendered arbitrary where it entails or results from the breach of another right is notentirely novel. The United Nations Human Rights Committee has held a violation ofone right under the International Covenant on Civil and Political Rights (ICCPR) willmake a subsequent related detention arbitrary in terms of art 9(1) of the Covenant, andengage an obligation to compensate.60 Thus in Jong-bum Bae v Republic of Korea,the Committee held the imprisonment of Jehovah's Witnesses for their refusal toundertake compulsory military service in breach of their art 18 right to freedom ofthought, conscience, and religion was arbitrary in terms of art 9(1):6158 Dr Petra Butler and Dr Andrew Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015) at [19.8.18].59 Nielsen v Attorney-General [2001] 3 NZLR 433 (CA) at 441.60 Article 9(1) is broadly equivalent to s 22 and provides: "[e]veryone has the right to liberty andsecurity of person. No one shall be subjected to arbitrary arrest or detention. No one shall bedeprived of his liberty except on such grounds and in accordance with such procedure as areestablished by law."61 Jong-bum Bae v Republic of Korea UN Doc CCPR/C/128/D/2846/2016 (13 March 2020).7.6 The Committee considers that deprivation of liberty as punishment forthe legitimate exercise of a right protected under the Covenant, includingfreedom of religion and conscience as guaranteed by article 18 of theCovenant, is ipso facto arbitrary in nature. Consequently, the Committee alsofinds that article 9(1) of the Covenant has been violated with respect to eachof the authors.[58] And as to remedy:9. Pursuant to article 2(3)(a) of the Covenant, the State party is under anobligation to provide the authors with an effective remedy. This requires it tomake full reparation to individuals whose Covenant rights have been violated.Accordingly, the State party is obligated to expunge the authors' criminalrecords and to provide adequate compensation to them."[59] The Supreme Court of Canada's decision in Henry v British Columbia is alsoof some interest here.62 Although—as I explain later in this judgment—that decisionis of some wider significance, for present purposes it is noteworthy because the Courtmade a connection between a prosecutor's breach of a defendant's fair trial rights (byfailing to make proper disclosure) and that defendant's wrongful detention. Moreparticularly, it observed that if prosecuting authorities are apprised of informationdemonstrating that a defendant who is detained has a complete answer to the chargeand fail to act on that information within a reasonable time, damages for (amongstother things) any time spent wrongly imprisoned could be appropriate. Eventualvindication through the criminal process might not, by itself, be a sufficient remedy.The Court said:63Even if the claimant was acquitted at trial, a Charter damages award would beavailable where it could be shown that the charges would have been dismissedor withdrawn at an earlier stage of proceedings had proper disclosure beenmade. In such a case, damages might serve to compensate for time wrongfullyspent in custody and any consequential harm suffered as a result of thecriminal proceedings.[60] So in my view there are two equally available ways forward for Mr Fitzgeraldhere:(a) as in Jong-bum Bae, he could contend that the breach of s 9 renderedhis detention arbitrary and in breach of s 22; or62 Henry v British Columbia (Attorney General) 2015 SCC 24, [2015] 2 SCR 214.63 At [96].(b) he could simply rely on the breach of s 9 and (as suggested in Henry)then seek damages to compensate him for the detention that was a directand foreseeable consequences of that breach.[61] In the end, I am not sure it matters much which of the two routes is followed.If the latter, it would be grossly severe punishment to which Mr Fitzgerald was subjectthat would be the measure of the breach and (potentially) any compensation payable.If the former, the point at which the detention became arbitrary would be the point atwhich, as a matter of fact, his punishment (continued imprisonment) could be said tohave become grossly severe.[62] Viewing the matter in that way also answers the Crown's principal argumentagainst finding a breach of s 22 here, which was that Mr Fitzgerald's detention couldnot be said to be "contrary to standards of appropriate state conduct" because it waslawfully imposed and because every successful sentence appeal exposes some form ofdisproportionality.[63] I think that submission misses the point. It is beyond dispute thatMr Fitzgerald's sentence was not simply disproportionate, it was grossly so, in breachof one of his most fundamental rights. The vast majority of successful appeals againstsentence do not come close to engaging that right. As Arnold and O'Regan JJ said:64 as Taunoa makes clear, there is a difference between sentences that aresevere, excessive or disproportionate (and might result in successful sentenceappeals) and ones that are so disproportionately severe as to breach s 9.[64] Moreover, the Crown's submission also invites the Court to ignore the facts.While Mr Fitzgerald was released following his ultimately successful sentence appeal,he had in fact already suffered a detention that constituted a rights breaching,disproportionately severe, punishment. The dicta from Henry quoted earlier make itclear that ultimate success in the criminal process will not necessarily suffice toremedy such a wrong.64 Fitzgerald (SC), above n 1, at [203], referring to Taunoa v Attorney-General, above n 39.[65] That said, however, it would be too simplistic to say that Mr Fitzgerald wassubject to disproportionately severe punishment in that he was detained arbitrarilyright from the start, or from the date the Crown prosecutor determined to prefer thecharge of indecent assault or from the date of the (original) sentencing. Rather, itseems more logical to say that the period of his detention became arbitrary began atthe time it stopped being a merely disproportionate punishment (judged by referenceto the charge laid, the circumstances of the offending and the offender and the"ordinary" sentence he should have received) and became a grossly disproportionateone. So in my view the question is not whether his detention was arbitrary but forwhat period it can be said to be so. That question is not, of course, merely of academicinterest, it potentially has a real bearing on his claim for damages in this case.The period of arbitrary detention[66] At the hearing before me Mr Ewen said the period of arbitrary detention ranfrom 13 April 2017 (being the date on which Mr Fitzgerald entered his not guilty pleas,following the assumed advice of the Crown prosecutor to continue with theprosecution for indecent assault) until his release on 29 October 2021. This date wasearlier than the date he had pleaded, which was 10 May 2018 (the date of sentencing).[67] The Crown objected to any late amendment of the claim in that respect. TheCrown submitted: The pleaded claim suggests that the differential between the "presumptive"(but erroneous) sentence and the correct sentence was a breach of theplaintiff's rights caused by an alleged failure of the Crown prosecutor to takeinto account the "presumptive sentencing consequences" of the indecentassault charge. The defendant has already conceded that this did not occur.Responding to the new claim, which suggests that arbitrary detentioncommenced prior to the imposition of the erroneous sentence throughexecutive action or inaction, would require a closer examination of what thevarious Crown prosecutors involved in the matter did at various points in timebetween Mr Fitzgerald's remand in custody on 5 December 2016 and hiserroneous sentence on 10 May 2018. The defendant's limited evidenceresponds only to the pleaded claim.[68] In the end, however, I find it unnecessary for me to resolve that particular issue.Neither approach advocated on Mr Fitzgerald's behalf adequately explains why therelevant period can be taken as a proxy for the time spent arbitrarily detained byMr Fitzgerald. As I have said, I consider an assessment of that requires considerationof when his detention ceased being merely disproportionate and became grossly so.[69] The only Judge who appears to have considered that issue so far is WilliamYoung J. Despite his dissent as to the outcome of the appeal, he was (as noted earlier)in agreement with the majority that Mr Fitzgerald had been subject to adisproportionately severe punishment. It was in that context that he made theobservations I have set out in full at [54] above. By way of reiteration and summary,however, he said:65(a) had Mr Fitzgerald been sentenced to one year's imprisonment, hewould have been released after six months;(b) had Mr Fitzgerald been released on parole when first eligible (in April2019), the time he would by then have spent in prison (28 months fromthe time of his arrest) would have been approximately five times thatlong;(c) detention that is five times as long as the detention that would haveresulted from an appropriate sentence is a disproportionately severepunishment.[70] As it transpired, Mr Fitzgerald was ultimately (re)sentenced to six months'imprisonment and so would have been released after three. Using William Young J'sapproach to arrive at a conservative benchmark, therefore, detention for five times thatlong (15 months) must also be a disproportionately severe punishment.66 Accordingly,and in the absence of any other helpful or relevant measure I propose to take the startdate of Mr Fitzgerald's arbitrary detention as being 5 March 2018, or 15 months fromhis first remand in custody, which was on 5 December 2016.6765 Fitzgerald (SC), above n 1, at [281]–[283].66 By "conservative" I mean that it may well be arguable that detaining Mr Fitzgerald for four (oreven three) times longer than he should have been detained might also be disproportionatelysevere.67 Although I acknowledge this is around two months less than the original pleaded date(10 May 2018) I can see no real prejudice to the Crown in adopting the slightly earlier date. Thereis no further evidence that might have been called that would affect my conclusion.[71] Accordingly, I proceed on the basis that Mr Fitzgerald was arbitrarily detainedfor a period of 1334 days (5 March 2018 to 29 October 2021). For convenience, Iround that down to 44 months.Was the Crown prosecutor required to consider s 9 before chargingMr Fitzgerald?[72] Before turning to this question, there are two preliminary issues needing to beaddressed:(a) whether Crown prosecutors are state "actors" under s 3 of theNZBORA; and(b) (even if so) whether the Court should refrain from engaging with theissue.If the answer to (a) is "no" or the answer to (b) is "yes" then there would be no needto go further; either Crown prosecutors would have no NZBORA obligations at all orthe Court would have no role in overseeing their compliance with them.Are Crown prosecutors state "actors" under s 3 of the NZBORA?[73] I begin by recording that the Crown in this case did not seek to argue thatCrown prosecutors, when acting in that capacity, were not state actors who fall withinthe scope of s 3 of the NZBORA.68 In my view they were right not to do so. Althoughthe Court of Appeal in Currie v Clayton merely said that the question was arguable (inthe context of refusing to strike out an NZBORA claim against a Crown prosecutor) 69it seems to me that the constitutional arrangements set out above make the position68 Section 3 relevantly provides: "This Bill of Rights applies only to acts done—(a) by the legislative,executive, or judicial branches of the Government of New Zealand; "69 Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [89].clear.70 There can be no doubt that, when acting as such, Crown prosecutors are partof the executive branch of Government.71[74] Accordingly, the NZBORA applies to "acts" done by Crown prosecutors. Theymust, when acting in that capacity, not act inconsistently with the rights affirmed inNZBORA unless to do so would constitute a reasonable limit on the relevant right thatis prescribed by law and can be demonstrably justified in a free and democratic society.And as noted earlier, it is trite that a breach of the s 9 right is incapable of demonstrablejustification in that way.72An area for judicial restraint?[75] As the law stands in New Zealand, judicial willingness to inquire into theexercise of prosecutorial discretion has undoubtedly been marked by restraint. Theaccepted justiciability threshold still appears to be one of "exceptionalcircumstances".73 So the Crown submits a "hands off" approach is required here.[76] It is, however, neither necessary nor desirable to get into the rights and wrongsof that position in general terms. I have little hesitation in concluding that an allegedbreach by a Crown prosecutor of an obligation arising under the NZBORA wouldcome within that (rare) class of case that warrants intervention by the courts.Analytically, that can be justified in two related ways. The first is that compliancewith the NZBORA is a matter of duty rather than choice and so the usual reticencearound interference with prosecutorial discretion simply does not arise. The second isthat the exercise of prosecutorial discretion in a way that is unlawful is, by definition,justiciable. The caselaw discussed below supports either conclusion.70 Above at [6]–[18]. In AB v Attorney-General [2018] NZHC 1096 the Crown solicitor accepted(on the basis of Currie) that, in performing his public function, the NZBORA applied, and he hadno immunity from suit (albeit for the purposes of strike out only). The Supreme Court's decisionin Stewart v R [2009] NZSC 53, [2009] 3 NZLR 425 at [33] also suggests that a prosecutor canindependently breach a defendant's rights.71 Indeed, the fact that they are part of the executive branch of government has traditionally beengiven as a reason that judicial restraint should be exercised where review of prosecutorialdiscretion is sought. See for example Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at[61]–[62].72 See for example Fitzgerald (CA), above n 2, at [41].73 Polynesian Spa v Osborne, above n 71, at [62]; and Osborne v Worksafe New Zealand [2017]NZCA 11, [2017] NZLR 513 at [35].New Zealand[77] Thus, in a New Zealand context:(a) in Kumar v Immigration Department Richardson J (speaking for theCourt) made the obiter observation that a discriminatory exercise ofprosecutorial discretion (as appeared from the case at hand) wouldimperil the rule of law and that the courts "may and will" intervene insuch cases;74 and(b) in Osborne v WorkSafe New Zealand a unanimous Supreme Court madea declaration that the exercise of prosecutorial discretion that wasfounded on an illegal bargain to stifle the prosecution was, itself,unlawful.75England and Wales[78] In England and Wales there are two decisions of note.[79] First, in R v LM five women who claimed they had been trafficked and forcedto work as prostitutes had been convicted at first instance of various crimes.76 Appealswere brought on the basis that, to the extent that the women's criminal activities were"compelled" as a result of their status as victims of trafficking, and in reliance onart 26 of the Council of Europe Convention on Action against Trafficking in HumanBeings, it was wrong to prosecute them. A key contention was that a prosecutorialdecision ought to take into account relevant human rights guarantees to avoidprocedural impropriety.[80] The Court of Criminal Appeal observed that specific rules had been made toguide prosecutors when considering whether it would be appropriate to bring chargesagainst victims (or potential victims) of trafficking. It then noted:7774 Kumar v Immigration Department [1978] 2 NZLR 553 (CA) at 558. This observation was appliedby the High Court Solicitor-General v Siemer HC Wellington CIV 2010-404-8559, 13 May 2011at [47] and [59].75 Osborne v WorkSafe New Zealand [2017] NZSC 175, [2018] 1 NZLR 447.76 R v LM [2010] EWCA Crim 2327, [2011] 1 Cr App R 12.77 At [7]. in the event that the duty laid on the prosecutor to exercise judgment is notproperly discharged, the ultimate sanction is the power of the court to stay theprosecution for what is conveniently, if not very accurately, termed "abuse ofprocess".[81] The Court discussed recent cases where stays had been ordered, noting thatsuch cases would be rare:78the limitations upon the jurisdiction must be understood. Criminal courts inEngland and Wales do not decide whether a person ought to be prosecuted ornot. They decide whether an offence has been committed. They may, however,also have to decide whether a legal process to which a person is entitled, orto which he has a legitimate expectation, has been neglected to hisdisadvantage.[82] The Court discussed the nature of the duty on the prosecutor, and the oversightof the Court, in such circumstances:79We make it clear that the occasions for the exercise of this jurisdiction to stayought to be very limited once the provisions of the Convention are generallyknown, as by now they should be becoming known. Moreover, the jurisdictionto stay does not mean that the court is entitled to substitute its own view forthat of the prosecutor upon the assessment of the public policy questionwhether a prosecution is justified or not. The power to stay is a power to ensurethat the Convention obligation under art 26 is met. The Convention obligationis to provide for the possibility of not imposing penalties on victims for theirinvolvement in unlawful activities to the extent that they have been compelledto do so. Thus the Convention obligation is that a prosecuting authority mustapply its mind conscientiously to the question of public policy and reach aninformed decision. If however this exercise of judgment has not properlybeen carried out and would or might well have resulted in a decision not toprosecute, then there will be a breach of the Convention and hence groundsfor a stay. Likewise, if a decision has been reached at which no reasonableprosecutor could arrive, there will be grounds for a stay. Thus in effect therole of the court is one of review. The test is akin to that upon judicial review.[83] The decision in LM was referred to by the High Court of England and Walesin R (on the application of E and Ors) v Director of Public Prosecutions, which wasconcerned with an alleged failure by a Crown prosecutor to comply with Crownguidelines when choosing to prosecute a vulnerable individual (in that case, a childwho had been groomed and then prompted to sexually abuse their two youngersiblings).80 The complainants sought to argue that the Crown prosecutor's failure to78 At [15] (emphasis added).79 At [19] (emphasis added).80 R (on the application of E and Ors) v Director of Public Prosecutions [2011] EWHC 1465(Admin), [2012] Crim LR 39.apply the relevant guidance in principle made it an appropriate case for judicialreview.81 Ultimately, the Court found that the Crown prosecutor in that case had failedto consider many important relevant considerations referred to in the guidelines andaccordingly quashed the decision to prosecute.82Canada[84] I have already referred to the Canadian case of Henry in the context of thebreach of s 22.83 The decision is also relevant here because it confirms there is amaterial difference—in terms of the Court's readiness to intervene—between a caseinvolving a prosecutorial duty (such as the duty to make disclosure) and one concernedwith the exercise of prosecutorial discretion, strictly so called. In that case, theCanadian Supreme Court confirmed that because of a defendant's right to make fullanswer and defence, guaranteed under ss 7 (right to liberty and security of the person)and 11(d) (fair trial) of the Canadian Charter of Rights and Freedoms, disclosure by aCrown prosecutor in criminal proceedings is a constitutional obligation. 84 Andbecause it was an obligation it did not fall within the ambit of prosecutorial discretionat all.[85] That same distinction between obligation and discretion had been made by theCanadian Supreme Court one year earlier in R v Anderson.85 There, the Supreme Courtrejected the submission that there was a constitutional obligation on a prosecutor toconsider the Aboriginal status of a defendant when deciding whether or not to seek amandatory minimum sentence for impaired driving. One of the reasons given was thatthe duty to impose a proportionate sentence (itself a principle of fundamental justice)rested upon judges, not Crown prosecutors. So it differentiated the argument before itfrom a case involving non- disclosure:86Manifestly, the Crown possesses no discretion to breach the Charter rights ofan accused. In other words, prosecutorial discretion provides no shield to aCrown prosecutor who has failed to fulfil his or her constitutional obligationssuch as the duty to provide proper disclosure to the defence.81 At [40].82 At [62] and [63].83 R v Henry, above n 62.84 At [31], [59] and [82].85 R v Anderson 2014 SCC 41, [2014] 2 SCR 167.86 At [45].[86] The question of who bears constitutional responsibility for proportionatesentences also arose in the slightly later decision of R v Nur.87 Moldaver J (who hadwritten the reasons for judgment in both Henry and in Anderson) again expresslyaddressed the role of the Crown prosecutor in a mandatory sentencing context. In thatcase, the statute in question provided for mandatory minimum sentences for certainoffences, but only where the Crown chose to proceed by indictment, rather thansummarily. Writing for himself and two other judges, Moldaver J noted that thesummary option "all but ensured" that offending that was qualifying, but less serious,would not attract mandatory minimum sentencing because the Crown prosecutorwould elect to proceed summarily in those cases. Parliament had turned its mind tothe possibility that the mandatory sentencing regime could catch less serious offendingand conferred a prosecutorial choice to act as a 'shield' from grossly disproportionatesentences.88[87] So rather than striking down the minimum sentencing regime itself (as themajority had done) Moldaver J said:89 the proper analytical framework should focus on the safety valve — theCrown's discretion to elect summary proceedings in the least serious cases. Iwill describe that framework in detail below. Briefly, it has two stages. First,the court must determine whether the hybrid scheme adequately protectsagainst the imposition of grossly disproportionate sentences in general.Second, the court must determine whether the Crown has exercised itsdiscretion in a manner that results in a grossly disproportionate sentence fora particular offender.[88] The Judge differentiated the statutory provision at issue from that consideredin R v Smith, where Parliament had imposed a seven year mandatory sentence forimporting narcotics.90 He said:91Like s 95, it covered a wide array of conduct, from large-scale drug smugglingto the hypothetical "young person who, while driving back into Canada froma winter break in the USA, is caught with his or her first 'joint of grass'" . However, that offence did not include the option for prosecutors toproceed summarily. Parliament had not turned its mind to the possibility thatthe offence might catch less serious cases that would not merit a seven-yearcustodial sentence. Rather, Parliament targeted the problem of narcotics87 R v Nur 2015 SCC 15, [2015] 1 SCR 773.88 At [155]–[156].89 At [150] (emphasis added).90 R v Smith [1987] 1 SCR 1045.91 R v Nur, above n 87, at [154] (emphasis added).importation with the blunt instrument of a straight indictable offence carryinga long mandatory term of imprisonment. The scheme did not adequatelyprotect against the imposition of grossly disproportionate sentences, and theCourt rightly struck it down.[89] But because Parliament had plainly intended that the Crown prosecutor makea choice, it would be an abuse of process if that choice were exercised to proceed byindictment, if to do so would—by dint of the mandatory sentence that flowed fromthat choice—"undermine society's expectations of fairness in the administration ofjustice".92 Thus the Crown prosecutor was again seen as being subject to aconstitutional obligation which, in the event of abuse, permitted the Court to intervene.Proof of bad faith or malicious intent by the Crown would not be required.What was the Crown prosecutor in Mr Fitzgerald's case obliged to do?[90] The statutory provisions creating the three strikes regime did not, of course,expressly provide for a choice of the kind at issue in Nur.93 The Crown sought to relyon this point of distinction to argue that the decision by the Crown prosecutor in thiscase remains out of reach.[91] I am unable to agree with that. The position in Canada is different. First, theNew Zealand courts do not have the more radical constitutional option of strikingdown the regime, as the majority did in Nur. It is the absence of that option that meansthat prosecutorial discretion may have more constitutional work to do.[92] As well, all four Supreme Court judgments in Fitzgerald are clear that theNew Zealand Parliament did expect that there would be an administrative process,involving the exercise of prosecutorial discretion, that would fulfil the s 9 "safetyvalve" role, and ensure that the three strikes regime did not result in the imposition ofrights-breaching sentences.94 The Court noted this process had been agreed by Cabineton 1 March 2010 and involved "referring all charges that qualify for the mandatory92 At [167].93 That they did not do so was the subject of express criticism by the Supreme Court inMr Fitzgerald's case.94 See generally above [41]–[49].maximum penalty to the Crown solicitor for review either pre-charge or by secondappearance".95[93] It is also plain that by the time Mr Fitzgerald's case arose, this administrativeprocess (or the means by which it could be given effect) in fact existed. Thus:(a) the MOU required Police to refer prosecutions for stage three offencesto the relevant Crown prosecutor;96(b) as Crown counsel acknowledged before the Supreme Court, such areferral would require an assessment of both the evidential sufficiencyfor, and public interest in pursuing, a stage three prosecution byreference to the Prosecution Guidelines.[94] Moreover, this process cannot be seen as "simply" administrative. Section 188of the CPA gives the Prosecution Guidelines, and compliance with them, statutory heft.[95] As footnoted in Fitzgerald, consideration of the public interest limb of the testfor prosecution under the Prosecution Guidelines "would include Bill of Rightsconsiderations".97 That is (with respect) obvious. Crown prosecutors are state actorsfor the purposes of the NZBORA. Sentencing under the three strikes regime gave riseto clear NZBORA implications. The Prosecution Guidelines themselves refer (in theparagraphs immediately following the reference to MOUs) to the need for Crownsolicitors to have NZBORA expertise.[96] If a reference by Police to a Crown prosecutor under the MOU and the publicinterest inquiry mandated by the Prosecution Guidelines necessarily includedconsideration of any NZBORA implications of a proposed prosecution, considerationof s 9 must have been required. In light of what were then the foreseeable sentencing95 Fitzgerald (SC), above n 1, at [125] and [200], citing the Hon Judith Collin's speech moving thethird reading of the Sentencing and Parole Reform Bill 2009: (25 May 2010) 663 NZPD 11228.96 There would have been no stage three offences prior to 2013.97 Fitzgerald (SC), above n 1, at n 282.consequences,98 the relevant inquiry required consideration of whether prosecution inany particular stage three case would be likely to result in a sentence that:(a) contravened fundamental notions of justice and risk undermining theintegrity of the judicial process (potentially rendering the prosecutionitself an abuse of process); and(b) was so severe "as to shock the national conscience".99[97] Where a grossly disproportionate sentence was the foreseeable and likely resultof laying a particular charge then I consider there was no prosecutorial discretion toexercise. Rather, there was a duty to prefer a different charge. This approach isconsistent with the authorities discussed above.Did the Crown prosecutor fail to consider s 9?[98] The Crown prosecutor did not consider s 9. The evidence is that they did notconsider the sentencing consequences of charging Mr Fitzgerald with a stage threeoffence at all. This is puzzling. Even putting to one side the existence of a process bywhich such consideration would occur (and Parliament's expectation that it would beused as an effective safety valve) sentencing is usually a matter on which the Crownprosecutor takes a position.100[99] Nor will it just be later in the criminal process—after a conviction is secured—when such a position is taken. In this case, for example, the Crown prosecutor knewfrom an early stage that Mr Fitzgerald's counsel was centrally concerned with thelaying of a charge that would lead to a sentence that was, at that time, believed to bemandatory under s 86D; that was the whole point of the April 2017 communicationsbetween them. Those concerns were rejected by the Crown prosecutor essentially by98 As explained earlier in this judgment, I say "what were then the foreseeable sentencingconsequences" because I deal with the effect of the declaratory theory separately and later in thisjudgment.99 This is the definition of "disproportionately severe" adopted by Tipping J in Taunoa vAttorney-General, above n 39, at [289].100 All the Prosecution Guidelines say about the Crown Prosecutor's role in sentencing is (at [21.1]):"[t]he prosecutor should be prepared to draw the attention of the Court to the proven or acceptedfacts of the case and any binding or relevant sentencing principles."a reference to evidential sufficiency. And well before trial, at the sentence indication,the Crown's position was that the apparently mandatory seven year sentence wasrequired to be imposed; the possibility of avoiding it through a discharge withoutconviction was actively opposed by them.[100] As well, my experience is that likely sentencing outcomes often do play a partin charging decisions, for obvious reasons.101 By way of one example only I refer tothe sentencing notes in R v Rowe—a case with facts not dissimilar to the present—where the Crown prosecutor did exercise his discretion to reduce the charge, implicitlyto avoid the operation of the three strikes regime.102 Thus, at sentencing Jagose Jexpressly recorded:[2] You initially faced a charge of indecent assault . This would havebeen a third strike offence, had you been found guilty at trial. But the Crownfiled an amended charge on 1 March 2018, substituting the alternative (non-strike) charge of doing an indecent act with intent to offend. You pleadedguilty four days later.[101] Beyond recording those matters, however, I cannot (and need not) take themfurther. The Crown prosecutor was not required for cross-examination and so theirunderstanding of the administrative "safety-valve" and the reasons why they did notconsider the apparently mandatory sentence relevant to their charging discretion couldnot be explored. In any event, the short and signal point is that the evidence makes itclear that the Crown prosecutor did not consider s 9 here. Had there been suchconsideration, it would have been concluded that the indecent assault charge couldnot—as a matter of fundamental justice—have been laid. Subject to my discussion ofthe declaratory theory below, that seems to me to be the necessary upshot of theSupreme Court's decision in Mr Fitzgerald's case.Can Crown liability stem from the Crown prosecutor's omission?[102] Given my conclusion that the Crown prosecutor is a part of the executive anda state "actor" in terms of s 3, it is, I think, indisputable that it is the Crown (representedby the Attorney-General) who bears liability for any actuating NZBORA breach by101 Although, perhaps, not always with the anticipated effect—see Troon v R [2019] NZCA 265.102 R v Rowe [2018] NZHC 1087. The facts of Mr Rowe's offending were of making intimatecomments to a stranger who had been kind to him and hugging her hard "chest to chest" (againsther wishes) on several occasions.the Crown prosecutor here. So the question is whether there was, in fact, such anactuating breach.[103] This requires consideration of the twin pillars of the Crown's defence:(a) the operation of the declaratory theory; and(b) whether the sentence imposed involved a "superseding" decision.The impact of the declaratory theory[104] Mr Powell submitted that a finding that the exercise of prosecutorial discretionhere resulted in a breach of Mr Fitzgerald's NZBORA rights would involve suspendingor violating the declaratory theory of law – the legal fiction that judges do not makenew law, but merely discover what was already there. He said this theory means thatalthough the sentencing Judge did not (in fact) know it, he always had the power todecline to impose a grossly disproportionate sentence on Mr Fitzgerald but simplyfailed to exercise it. It follows that there could have been no relevant or actuatingNZBORA breach by the Crown prosecutor when deciding to charge Mr Fitzgeraldwith indecent assault. That is because, as an extension of this legal fiction, they canbe taken as having known (or reasonably expected) that the Court could and would actto avoid a grossly disproportionate outcome in the exercise of its own sentencingdiscretion.103[105] I am unpersuaded.[106] First, it is unclear to me that the declaratory theory operates in that way. Iaccept that, by reason of the theory, the Supreme Court's decision in Fitzgerald meantthe sentencing Judge could always have chosen not to impose a grosslydisproportionate sentence on Mr Fitzgerald, and that the sentence first imposed on himwas wrong. I also accept that any other grossly disproportionate sentences imposedfor stage three offences prior to the Supreme Court's decision were based on anincorrect reading of s 86D and are also (retrospectively) wrong. And, of course, the103 For a recent example of the declaratory theory "in action", see Marino v Chief Executive of theDepartment of Corrections [2016] NZHC 3074, [2017] NZAR 9.submissions made by the Crown prosecutor on sentencing, to the effect that s 86Dmeant what it said, and had to be applied without exception, were also wrong.[107] What Fitzgerald did not change (but rather confirmed) was that the Crownprosecutor had a s 9 obligation not to lay a stage three charge in circumstances wherethe imposition of the "default" sentence under s 86D would result in a grosslydisproportionate sentence. The point made expressly by the Court was that theprimary safeguard against the imposition of such a sentence was intended to be theexercise of prosecutorial discretion; discretion at sentencing was very much the"long-stop".104[108] If I am right in my conclusion that Crown prosecutors had a discreteconstitutional obligation to exercise their charging discretion in a way that would notexpose defendants to the risk of a grossly disproportionate sentence, then even on thedeclaratory theory, the most that could be said is that there were two relevant (s 3)State actors with parallel and mutually supporting s 9 obligations here: the Crownprosecutor and the sentencing court. I do not regard that as a particularly controversialproposition. In the context of criminal proceedings, for example, both the prosecutorand the Court must surely have parallel NZBORA obligations to ensure a defendanthas a fair trial.105[109] If the Crown prosecutor's responsibility under s 9 is distinct, as I think it mustbe, it can surely be no answer to say that a failure by a prosecutor to have regard to adefendant's s 9 right is of no consequence because (by dint of the declaratory theory,rather than as a matter of fact) the prosecutor knew any such breach would beameliorated through the sentencing process in due course. The most that could besaid is that, to the extent the prosecutor's breach might be cured at sentencing (as itultimately was here, but not until three years after the original sentence, and almost104 Paradoxically (as William Young J noted) if the prosecutorial discretion had been exercised in theway Parliament intended, there would be no need for the judicial long-stop at all: see Fitzgerald(SC), above n 1, at [326].105 See for example Procurator Fiscal v Brown (Scotland) 2001 SCCR 62, [2001] 2 WLR 817.five years from when Mr Fitzgerald was first incarcerated) there might be an impacton the available remedies for breach.106[110] For these reasons, the declaratory theory cannot in my view be used to absolvethe prosecutorial error which, as a matter of fact, occurred. And the theory cannot beused to magic away the undeniable reality that Mr Fitzgerald did, in fact, have agrossly disproportionate sentence imposed upon him or that he was, in fact, wronglydetained for a considerable time as a result. These were not the errors "fixed"retrospectively by the Supreme Court's decision. The proposition that a legal fiction,whose purpose is surely remedial, should operate to deny a remedy for a breach of (ora breach that led to a breach of) Mr Fitzgerald's liberty right is deeply unappealing.107Was Mr Fitzgerald's sentencing nonetheless a superseding decision?[111] In order to examine this aspect of the Crown's defence further, it is necessaryto begin by saying a little more about the Supreme Court's decision inAttorney-General v Chapman and also something about the later decision of the Courtof Appeal in Thompson v Attorney-General.108Attorney-General v Chapman[112] Chapman involved a claim for public law compensation for breaches of boths 25(h) (right to an appeal) and s 27(1) (right to natural justice) of the NZBORA. Theclaim was brought against the Attorney-General, but the breaches concerned werejudicial acts. Put briefly, Mr Chapman had applied for legal aid in relation to hisproposed appeal against conviction. The application was declined by the Registrar ofthe Court of Appeal. He sought a review of that decision, but it was confirmed by theCourt. His appeal was then dismissed without an oral hearing.109 Following a later,106 As will be discussed later, one of the Crown's principal arguments against an award of damagesin this case was that the breach had been cured (and the right adequately vindicated) through thecriminal process.107 See the discussion of the restricted patient between the declaratory theory and the liberty right inMarino v Chief Executive of the Department of Corrections, above n 103, at [22] and [23].108 Chapman (SC), above n 4; and Thompson v Attorney-General [2016] NZCA 215, [2016] 3 NZLR206.109 The procedures which had been applied to Mr Chapman's appeal had been applied to such appealsgenerally in the Court of Appeal for a number of years. They were later held by the Privy Councilin R v Taito [2003] UKPC 15, [2003] 3 NZLR 577 to have been unlawful and in breach of the Billof Rights Act.successful and legally aided appeal, Mr Chapman was not retried and eventuallydischarged.[113] A unanimous Court of Appeal had held that the principles of judicial immunitydid not operate to bar the claim and that it should be permitted to proceed to trial.110But a three judge majority in the Supreme Court disagreed, holding that the publicpolicy reasons which support a personal immunity for judges do not justify extendingthe scope of Crown liability for NZBORA breaches to include actions of the judicialbranch.111[114] Mr Chapman's pleading had also sought to attribute responsibility for what hadoccurred to the Registrar. This raised the question of "whether, and if so to whatextent, the Registrar, who is a public servant, is protected"—a matter with which theCourt of Appeal had not dealt.112 Of the majority judges in the Supreme CourtMcGrath and William Young JJ left the question open, but noted:113To the extent that the Registrar's actions were superseded by decisions ofjudges, or give effect to what they have decided, there can plainly be no rightto Bill of Rights Act compensation. This kind of distinction is difficult to makebut it calls for an exercise of judgment commonly undertaken by the courts.[115] It is this passage on which the Crown now relies. The Crown says because theCrown Prosecutor's decision was "superseded" by the sentence imposed by thesentencing Judge, there can be no claim against the Prosecutor here. I return to thatsubmission shortly.110 Attorney-General v Chapman [2009] NZCA 552, [2010] 2 NZLR 317 at [100]–[101].111 Chapman (SC), above n 4, at [204], per McGrath and William Young JJ; and at [212]–[214] perGault JJ. The public policy reasons deemed of "principal importance" were the desirability ofachieving finality, promoting judicial independence and the availability of effective rights ofappeal, rehearing and review: see [179]–[202].112 At [208].113 At [208]. Gault J agreed with the outcome arrived at by the majority but did not refer to this issue.Of the minority, Anderson J did not address the issue and Elias CJ merely observed (at [53]) thatdrawing a distinction between judicial breach and breach by other State actors for the purposes ofremedy "may be elusive in practice and productive of arbitrary outcomes". In a footnote to thatobservation, she said: "For example, according to whether a warrant is issued by a judge or aregistrar, or whether breach of fair trial rights is attributed to judicial or prosecutorial misconduct."Although the Supreme Court in Chapman referred the question of the registrar's possible liabilityback to the High Court, I do not know what the outcome of that referral back was.Thompson v Attorney-General[116] The dicta just referred to came into play in Thompson v Attorney-General.114But Thompson did not involve a claim for alleged breach of ss 25(h) and 27 of theNZBORA but (like the present case) a breach of s 22. Like Chapman, however, theThompson claim engaged the actions and omissions of both Judges and/or Registrars.[117] Ms Thompson's sentence had been cancelled by a District Court Judge but adeputy registrar failed to update the Court's electronic case management system(CMS) to reflect this decision. When the application to cancel was called again beforea different District Court Judge, Ms Thompson (understandably) did not appear. Notknowing the true position, the Judge then issued a warrant, pursuant to which she wasarrested and detained.[118] Ms Thompson unsuccessfully advanced four tortious claims alleging falseimprisonment, breach of statutory duty, negligence and a claim for "systemicnegligence".115 A fifth cause of action alleged breach of her rights under s 22 of theNZBORA not to be arbitrarily arrested or detained.116[119] As far as the NZBORA claim was concerned, the Court held thatMs Thompson's arrest and detention were arbitrary because, although the issuingjudge had made an innocent mistake, there was no basis upon which the warrant couldlawfully have been issued at the time.117 And the Court held responsibility could notbe sheeted home to the Deputy Registrar because his omission had no direct impacton Ms Thompson's rights and as a matter of causation could not be seen as leading toher arrest. The Court said:[75] Whether or not the Crown could be liable for errors on the part of theregistry in this case gives rise to issues relating to causation, a subjectfrequently encountered in respect of claims in the law of tort, contract and incriminal law, but not specifically addressed (so far as we have been able toascertain) by cases dealing with public law damages. Counsel did not suggest114 Thompson v Attorney-General, above n 108.115 The Court of Appeal agreed with the High Court that the tortious claims were barred by theimmunity afforded by s 6(5) of the Crown Proceedings Act 1950 for acts or omissions that occur"in connection with the execution of judicial process".116 The NZBORA claim was directed at the acts of the Deputy Registrar because Chapman precludeda claim based on judicial error.117 At [65]–[76].that a different approach was necessary in this context, and we do not see thefacts of this case as requiring it.[76] On that basis, we consider that nothing omitted by the registry hadany direct impact on Ms Thompson's rights and we do not consider as a matterof causation that the omission ought to be seen as leading to the arrest. Theomission would not have had any significance but for the earlier adjournmentto 23 July, and Judge Wainwright's decision to issue a warrant on her ownmotion on that day. Consequently, we do not regard the omission as aneffective cause of the arrest. Further, the bail officer whose conduct is in issuecould not have anticipated that a warrant would be issued (without anapplication for that to occur) for Ms Thompson's failure to appear on theapplication for cancellation disposed of by Judge Blaikie. That eventualitywas too remote to justify the imposition of liability. Since the claim waspleaded on the basis of the registry omission those conclusions are fatal to theBill of Rights Act claim.[77] We noted earlier that the decision in Chapman left open the potentialfor public law damages in respect of actions of the Registrar in that case. Wehave concluded on the facts that the proximate or effective cause of theMs Thompson's unlawful arrest was the issue of the warrant, which was ajudicial act. Strictly speaking therefore, in this case also, it is unnecessary todecide what the position might have been had we concluded that the bailofficer's omission caused the arrest.[120] While the outcome in Thompson (respectfully) seems plainly right, I confess Ifind the use of "causation" terminology here potentially confusing. The idea ofoperative "causes" may well be apt when considering an alleged breach of ss 25(h) or27 (as in Chapman itself) but it is arguably less so when considering a claim for breachof s 22. That is because in the context of the vindicatory tort of false imprisonment—a close analogue of s 22—causation (in, for example, the negligence sense) is notrelevant.118 All that needs to be shown is that the plaintiff was directly andintentionally detained by the defendant (and that the detention was unlawful). And ifthe claim in Thompson were to be viewed through that lens, it would be the absenceof any intention to detain on the Registrar's part, rather than the absence of a causallink between the Registrar's act and Ms Thompson's detention, that meant there wasno breach of s 22 by the Registrar in that case.[121] In the present case, however, I did not hear argument about the extent of theanalogy between false imprisonment and arbitrary detention or about the relevance (ornot) of a causation analysis. And in the end, it probably does not matter whether the118 Causation has no real part to play in a vindicatory tort (or a tort actionable per se) such as falseimprisonment, because damage is not an essential element of such a claim. See, for example:R (WL (Congo)) v Home Secretary [2011] UKSC 12, [2012] 1 AC 245 at 274.issue is viewed through an intention or a causation lens. This case is very differentfrom Thompson. In Thompson the Registrar made a mistake that unintentionally andvery indirectly led to another person taking a step that resulted in Ms Thompson'sdetention. Here, and as already explained, the Crown prosecutor had an obligation tomake a decision that did not give rise to a foreseeable risk that Mr Fitzgerald wouldbe detained pursuant to a grossly disproportionate sentence. Contrary to thatobligation, the Crown prosecutor chose to prosecute him for indecent assault, bothknowing and intending that he would, on sentencing, be so detained.[122] I am therefore unable to agree that the "decision" by the sentencing Judge wasrelevantly superseding. The Crown prosecutor's position at the time they decided toprosecute Mr Fitzgerald was that a grossly disproportionate sentence was the only oneavailable to the sentencing Judge. Moreover, it was that sentence for which the Crownprosecutor actively advocated. In these circumstances it is not open to the Crown toavoid responsibility under the NZBORA by ignoring this reality and simply pointingthe finger at the Judge, and judicial immunity.[123] For these reasons I do not consider that either the declaratory theory or thesentencing operates to shield the Crown from liability here; there is accordingly noimpediment to the Court finding liability for breach of both s 9 and s 22, andconsidering the claim for NZBORA damages.Are damages necessary to provide effective redress?[124] NZBORA damages are discretionary. There is little by way of guidance in theexercise of that discretion. The leading authority remains the Supreme Court'sdecision in Taunoa v Attorney-General but it is difficult, with respect, to discern in thevarious judgments either a majority approach or one that is of much practicalassistance to a first instance judge.119[125] As it happens, however, in the case of NZBORA claims made by prisoners (orformer prisoners) the Prisoners' and Victims' Claims Act 2005 (the PVCA) does119 Taunoa v Attorney-General, above n 39.provide some guidance. The PVCA was the legislative response to the High Court'sdecision in Taunoa. 120[126] Before turning to consider that Act, however, it seems useful to make someprefatory remarks.[127] First, Mr Fitzgerald would not have a claim in tort for false imprisonment,malicious prosecution or misfeasance. Because he was always detained pursuant to asentence lawfully imposed by the sentencing Judge (evidenced by the warrant ofcommitment) one of the key elements of false imprisonment could not be made out.121And despite this claim hinging on the actions of the Crown prosecutor, it is not, andcould not be, alleged that the exercise of discretion here was actuated by any kind ofmalice or bad faith.122 So the starting point is that it is only an NZBORA claim thatoffers him any hope of a monetary remedy. By and of itself this differentiates his casefrom the many (often unsuccessful) claims for NZBORA damages; awarding damagesto Mr Fitzgerald gives rise to no risk of "overlap" or "windfall".123[128] Secondly, it must be acknowledged that Mr Fitzgerald's pursuit of his criminalproceedings (culminating in the Supreme Court's decision) did have the effect ofbringing the infringement of his rights to an end. I also acknowledge that in manycases the cessation of any continuing breach may be remedially sufficient.[129] That said, however, had Mr Fitzgerald spent four and a half years in jail as aresult of being wrongly convicted—rather than being wrongly charged andsentenced—he would be entitled to apply for compensation under Cabinet's NewCompensation Guidelines for Wrongful Conviction and Imprisonment (the120 Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC) (liability judgment); and Taunoa vAttorney-General (2004) 8 HRNZ 53 (HC) (relief judgment). The Court of Appeal later foundthat some of the prisoners' treatment also amounted to a breach of s 9, a conclusion confirmed onfurther appeal to the Supreme Court: See Attorney-General v Taunoa [2006] 2 NZLR 475 (CA);and Taunoa v Attorney General, above n 39.121 Compare, for example, Manga v Attorney-General [2000] 2 NZLR 65 (HC).122 Nor is Mr Fitzgerald's a case where the Accident Compensation scheme has any compensatoryrole to play.123 As to the idea of "overlap" see for example Dunlea v Attorney-General [2000] 3 NZLR 136 (CA)at [55]. The related idea of "windfall" was adopted by the Chief Justice in the course of herjudgment in Taunoa v Attorney-General, above n 39, at [109].Compensation Guidelines).124 Although the Compensation Guidelines expressly statethat there is no legal right to compensation, there is at least an expectation that aqualifying applicant will be compensated in accordance with them.125 And the defaultposition (subject to adjustment for aggravating factors) under the CompensationGuidelines is that the amount of any compensation paid will be assessed by referenceto a base rate of $150,000 for each year of wrongful imprisonment.[130] For policy reasons that, in ordinary cases, are sound enough, the CompensationGuidelines do not contemplate the payment of compensation where a sentence hasbeen reduced on appeal. Payment of compensation in such a case is, instead, left as amatter of executive grace and favour.126 The Crown has, however, declined to exerciseits prerogative power and pay compensation to Mr Fitzgerald.[131] On the other hand, the very existence of the Compensation Guidelines suggestan acceptance that compensation should be payable to those who can show that theyhave wrongly suffered a loss of liberty in a way that civil society should notcountenance. The Compensation Guidelines which, by definition, apply only to claimsby former prisoners, recognise that those who are detained as a result of a significantfailure in the criminal justice system are to be distinguished from those defendantswho are simply acquitted at trial or have an overly stern sentence overturned on appeal.Most obviously that is because those who are acquitted are not necessarily innocentand many who have their sentences reduced are not entitled to immediate release.127[132] Moreover, if Mr Fitzgerald's claim is viewed—whether directly or indirectly—through an arbitrary detention lens, there is a presumption of compensation that mightbe said to attach. The NZBORA was enacted to affirm New Zealand's commitment124 Ministry of Justice | Tahu o te Ture Compensation Guidelines for Wrongful Conviction andImprisonment (August 2020) [Compensation Guidelines].125 By "qualifying" I mean an applicant who satisfies the other relevant pre-requisites, which includeestablishing, on the balance of probabilities, that they are innocent of the crime for which theywere imprisoned: see Ministry of Justice, above n 124, at [17(a)].126 To my knowledge, no such compensation has ever been sought or paid. But even in the relativelyrare cases where a successful sentencing appeal results in the immediate release of an offender, itis highly unlikely that the original sentence would have been grossly disproportionate, such thats 9 of the NZBORA was engaged.127 That is why drawing an analogy between cases under the Compensation Guidelines andMr Fitzgerald's could not reasonably be seen as inviting claims for NZBORA damages from everyprisoner who succeeds in achieving something of a sentence reduction on appeal.to the ICCPR, as the preamble to the NZBORA expressly states. The s 22 right to befree from arbitrary detention reflects art 9(1) of the ICCPR. And art 9(5) of the ICCPRprovides that victims of unlawful detention have an enforceable right tocompensation.128The Prisoners' and Victims' Claims Act 2005[133] As I understand it, Mr Ewen accepted the PVCA applied to Mr Fitzgerald'sclaim. Neither party, however, made detailed submissions on the PVCA and itsapplication here.[134] Section 3 of the PVCA states that its purpose is to restrict and guide theawarding of compensation to those who make "specified claims".129 Such awards areto be reserved for exceptional cases and are to be made "only if, and only to the extentthat, it is necessary to provide effective redress".[135] Under s 6 of the PVCA a "specified claim" includes a claim for compensationunder the NZBORA based on an act or omission of the Crown, made by a person who"is or was under control or supervision". This is a term defined to include prisoners.130[136] Any compensation awarded pursuant to such a claim is paid, in the firstinstance, to the Secretary for Justice and a victim of the offender's offending has aright to make a claim against it.[137] Under s 13(1) of the PVCA a court may not make an award of compensationunless it is satisfied that:(a) the plaintiff has made reasonable use of all of the specified internaland external complaints mechanisms reasonably available to him orher to complain about the act or omission on which the claim is based,but has not obtained in relation to that act or omission redress that thecourt or Tribunal considers effective; and128 The use of the word "arbitrary" in art 9(1) and the word "unlawful" in art 9(5) appears to me toreflect a distinction without a difference. In human rights terms, a detention that is arbitrary mustalso be unlawful.129 The word "compensation" is used throughout the Act but must be assumed to include what areusually (in an NZBORA context) referred to as "damages".130 Prisoner is defined under s 4 of the PVCA as "a person who is for the time being in the legalcustody under the Corrections act 2004".(b) another remedy, or a combination of other remedies, cannot provide,in relation to the act or omission on which the claim is based, redressthat the court or Tribunal considers effective.[138] It is in determining whether a remedy other than compensation is "effective"redress for the relevant act or omission that the courts are required to take into accountthe non-exhaustive matters listed at s 14(2). These are:(a) the extent (if any) to which the plaintiff, the defendant, or both took,within a reasonable time, all reasonably practicable steps to mitigateloss or damage arising from the act or omission on which the claim isbased; and(b) whether the defendant's breach of, or interference with, the rightconcerned was deliberate or in bad faith; and(c) the relevant conduct of the plaintiff; and(d) the consequences to the plaintiff of the breach of, or interference with,the right concerned; and(e) the freedoms, interests, liberties, principles, or values recognised andprotected by the right concerned; and(f) any need to emphasise the importance of, or deter other breaches of,or other interferences with, the right concerned; and(g) the extent (if any) to which effective redress in relation to that act oromission has been, or could be, provided otherwise and bycompensation; and(h) any other matters the court or Tribunal considers relevant.[139] I address each factor in turn.[140] As to the first matter, there can be no question that Mr Fitzgerald (throughcounsel) availed himself of all the mechanisms open to him to challenge his continueddetention. This counts quite powerfully in favour of compensation here.[141] And as to the second, there is also no basis for a finding that the omission ofthe Crown prosecutor here was deliberate or in bad faith. I regard this as a neutralfactor.[142] The reference in 14(2)(c) to the "conduct" of the plaintiff was explained by theCourt of Appeal in Chief Executive of the Department of Corrections v Gardiner.131The Court said:132[56] A court should also take into account the plaintiff's relevant conduct,which requires a clear nexus between his or her behaviour and the defendant'swrong — in this case, the unlawful additional period of imprisonment.47 Itincludes, for example, any act of the plaintiff that may have caused thedefendant to act as it did. As noted, the PVCA was a response to Taunoa, inwhich Corrections was trying to manage especially difficult prisoners, and itappears that the legislature was concerned to ensure that courts must takeprovocation by the prisoner into account.[143] Here, there is nothing that could conceivably suggest any link betweenMr Fitzgerald's conduct and his arbitrary detention.[144] The consequences to Mr Fitzgerald of the breach of his right (whether it be abreach of s 9 or of s 22) were that he lost his liberty for approximately 55 months.133And Mr Fitzgerald's loss—in itself very significant—is arguably compounded by hisparticular vulnerability due to his mental health problems, although an assessment ofthat is not entirely straightforward. I return to that matter shortly.[145] As for the nature of the relevant rights, the s 9 and the s 22 rights arefundamental. As noted earlier, a breach of s 9 is incapable of being justified in a freeand democratic society.134 And I have noted already that art 9(5) of the ICCPRstipulates an enforceable right to compensation for anyone who has been unlawfullydetained.[146] The need to emphasise the importance of (and to deter other breaches of) orthe right concerned goes hand in hand with the nature of the right itself. I reiterate,however, that there has been no suggestion of bad faith on the Crown prosecutor'spart. Moreover, the recent repeal of the three strikes regime means that the omissiongiving rise to Mr Fitzgerald's claim ought not occur again.131 Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608, [2018] 2 NZLR712. Mr Gardiner had been unlawfully detained because, as a result of the Supreme Court'sdecision in Booth v R [2016] NZSC 127, [2017] 1 NZLR 223, his release date had been wronglycalculated.132 Footnote omitted.133 This is 55 times the length of Mr Gardiner's unlawful detention.134 Fitzgerald (CA), above n 2, at [41].[147] It is, however, the penultimate matter in the s 14(2) list that was the focus ofthe Crown's submissions in this case. I have already rehearsed the argument earlier.In essence, the Crown says that the conclusion of the criminal process—in the form ofSupreme Court's decision and then Mr Fitzgerald's resentencing and immediaterelease—constitutes an effective vindication of his rights. As a result of a combinationof those acts, he was freed from his disproportionately severe sentence and he was nolonger arbitrary detained. The Crown said this, and a declaration of breach, was theproper—and the only available—remedy here.[148] I have addressed this already. In many cases where some part of the criminalprocess has misfired, I accept that error correction within the process itself will beregarded as sufficient vindication of the wrong. But on the unique facts ofMr Fitzgerald's case, that is not enough; his release prior to the original sentence enddate mitigates his loss a little, but not a lot. He is not a defendant who was alwayslawfully detained but whose successful sentence appeal means that he has spent twoor three months longer in prison than he should have.135 Rather, he is a vulnerableperson who was wrongly detained for a very considerable period because the decisionto prosecute him for a stage three offence was made without any consideration of hiss 9 right. The correction ultimately afforded by the criminal justice processinadequately vindicates the rights breached and does not recognise the actual harminherent in what happened to Mr Fitzgerald. The same can, I think, be said of adeclaratory remedy.[149] All these factors lead inevitably to the view that an award of damages isnecessary to provide effective redress here. The only remaining question is, how thosedamages should be quantified.Quantification[150] As I have said, I do not consider that it makes a material difference whetherMr Fitzgerald's claim for damages is predicated on the breach of s 9 or a consequentialbreach of s 22. That is because either he was arbitrarily detained for 44 months (as I135 My own unscientific (but judicially experienced) sense is that the majority of successful sentenceappeals do not, in fact, establish this. In most cases a reduction in sentence on appeal will not seea defendant immediately released.have found) or the principal measure of the damage suffered as a result of the s 9breach is the grossly disproportionate part of the sentence actually served byMr Fitzgerald, which I have also found to be 44 months.[151] Here, Mr Fitzgerald says damages can be quantified by reference either:(a) to the Compensation Guidelines; or(b) the calculation of mental health treatment and rehabilitation costs overtwo years made by Dr Rosie Edwards, totalling $391,300.136[152] I put the second option to one side at the outset. Although there is an instinctiveattractiveness about it, there is no evidence before the Court that Mr Fitzgerald wouldreceive the treatment and rehabilitation Dr Edwards says he needs. And while it maybe that Mr Fitzgerald's mental health was exacerbated by his imprisonment there is noevidence of a clear causal link between his present treatment and rehabilitation needsand his arbitrary detention.[153] The first option would necessarily proceed by using the CompensationGuidelines to arrive at a figure based on the 44 month period of Mr Fitzgerald'sarbitrary or grossly disproportionate detention.[154] Before turning to consider whether that is appropriate, however, it is necessaryto consider whether, and what, account should properly be taken of the effect ofMr Fitzgerald's detention on his mental health.Mental health[155] No new evidence was called on behalf of Mr Fitzgerald about the impact thathis arbitrary detention had on his mental health. Instead, the Court has before it three136 Dr Edwards is a psychiatrist who provided advice to the Supreme Court under s 38 of the CriminalProcedure (Mentally Impaired Persons) Act 2003. Her report made it clear that, in the absence offunding, Capital and Coast DHB is "most unlikely to purchase an additional bed for Mr Fitzgeraldabove those on their waitlist". In the course of her judgment in Mr Fitzgerald's case,Glazebrook J observed that she "would expect Mr Fitzgerald to receive a referral to services toassist with his complex needs outside of the criminal justice system": Fitzgerald (SC), above n 1,at [253].reports prepared about him by Dr Rosie Edwards, prepared in 2017, 2018 and 2021.The 2017 and 2018 reports opine that Mr Fitzgerald's mental health had deteriorateddue to his imprisonment and the stress of his appeals. Thus:(a) in 2017, Dr Edwards noted that Mr Fitzgerald "has slowly declined inhis mental health in Prison" and was requiring greater amounts ofanti-psychotic and anxiety medication, seemingly due to the stress ofwaiting for a court determination"; and(b) in 2018 she said: "[h]e has found being in prison for the last 14 monthsto be stressful for him and has required increased dose of regularclonazepam".[156] But it also seems plain that prison afforded Mr Fitzgerald some benefits interms of regime consistency, and ensuring he remained compliant with his medicationand keeping him free from drugs and alcohol. So in in her 2021 report Dr Edwardsobserved he was "well" at that time.[157] Although, on the state of the evidence, it is difficult to conclude that prison hadan overwhelmingly detrimental effect on Mr Fitzgerald, the more fundamental factremains. Prison cannot properly be viewed as ever being a suitable place for someonesuch as Mr Fitzgerald. For the reasons articulated by the Court of Appeal, it isimpossible to see how any of the ordinary purposes and principles of sentencing couldjustify his detention there.137 I think this can, at least to some extent, legitimately betaken into account when attempting to place a value on the vindication of his right.Appropriate quantum[158] Despite the unavailability of a tortious claim or remedy in this case, when itcomes to quantum, the obvious relationship between detention that is unlawful anddetention that is arbitrary arguably makes actual damages awards in falseimprisonment claims a useful (albeit not necessarily wholly analogous) comparator.137 As set out at [34] above.[159] Similarly, there is force in the submission that the Compensation Guidelinesare a relevant comparator simply for the reason that those Guidelines also governpayments made to persons whose detention was lawful, but wrong, and who areunlikely to have a basis for a tortious damages claim.[160] In Gardiner v Chief Executive of the Department of Corrections, DunninghamJ at first instance regarded compensation of $10,000 was an appropriate reflection ofMr Gardiner's unlawful detention for around a month.138 She expressed reservationsabout analogising with the compensation payable to those wrongly convicted underthe Compensation Guidelines, preferring to base her analysis on the decision of thisCourt in Manga v Attorney-General.139[161] Dunningham J's figure was upheld on appeal, but the Court of Appeal took aslightly different approach to the quantification exercise.140 It began by noting thatthe value of liberty can vary:[61] Finally, liberty is a fundamental right and its unlawful loss may justifythe emphasis of a damages award, as s 14 recognises, but the amount need notbe the same in all circumstances. The community at large places a very highvalue on liberty and, as Mr Perkins properly accepted, that value is notnecessarily less because the plaintiff was lawfully imprisoned for a period. Itis proper to begin with that value. But when converted to a per-day rate, thevalue of liberty may vary both with the length of the sentence lawfullyimposed and with the period of unlawful detention. (The shorter the latter thehigher may be the per-day rate.)[62] In this regard, it has been held in England that a plaintiff who hasplainly demonstrated that he or she places a low value on personal liberty —for example, by committing offences in prison and so risking delayed release— may expect that value to be reflected in the award. We prefer the view, asstated above, that conduct of the plaintiff may be taken into account wherethere is a clear nexus between that conduct and the additional period ofimprisonment.138 Gardiner v Chief Executive of the Department of Corrections [2017] NZHC 1831, [2017] NZAR1348 [Gardiner (HC)].139 Manga v Attorney-General, above n 121. Mr Manga received compensation of $60,000 ($86,900if annualised) for 252 days of wrongful imprisonment. Dunningham J found that, given thenumber of analogies between Mr Gardiner and Mr Manga's case, Mr Manga's compensation wasthe appropriate starting point, to be taken on a pro-rated basis. Self-evidently, some 20 years havepassed since then, which led Dunningham J (in 2017) to adjust upwards by around 30 per cent forinflation: Gardiner (HC), above n 138, at [68]–[71].140 Chief Executive of the Department of Corrections v Gardiner, above n 131.[162] In light of Mr Fitzgerald's mental disorder, it would not be fair to say that heplaced a low value on liberty. As the Court of Appeal noted, Mr Fitzgerald's mentaldisorders impaired his ability to understand the warnings he had previously been givenand he was unable to regulate his offending behaviour.141[163] In terms of the quantification exercise itself:142[63] We approach the exercise by assessing damages for ourselves andcomparing the result to that reached in the High Court. We do so because, aswe go on to explain, we prefer not to take Manga as our starting point. Thestarting point must be that damages are at large and should not be assessed ina formulaic way.[64] As noted, Mr Gardiner does not claim pecuniary losses. So far asnon-pecuniary losses are concerned, he points only to the loss of liberty. Wehave accepted that a prisoner may suffer emotional harm throughout asentence and so may seek compensation when detained too long, but there isno evidence that Mr Gardiner suffered such harm during the period ofunlawful detention. Although that period was material, at one month, it wasassociated with a lawful sentence. It could not be suggested that his conductsomehow caused Corrections to act as it did. Equally, Corrections acted ingood faith and there is no need for deterrence.[65] We find Manga a useful illustration on particular facts but do notadopt it as a starting point. The annualised figure of $130,000 adopted therewas not closely related to any previous case, and it was high relative to thenear-contemporaneous 2000 Cabinet Guidelines figure of $100,000 for awrongly convicted prisoner. It reflected significant emotional harm sufferedby Mr Manga and the very long period for which he was unlawfullyimprisoned.[66] Manga also pre-dated both the PVCA and a number of cases,including Taunoa, in which Baigent damages have been awarded to prisonersfor breach of protected rights. In Taunoa Blanchard J emphasised thatdamages in tort should not be equated with Baigent damages because the latterare a form of public law compensation and discretionary. However, the effectof the PVCA is to make tort damages discretionary and exceptional, as alreadynoted. In our view that means claims for Baigent damages are an appropriatecomparator in this context.[164] After a review of several other cases in which compensation had been awardedto those who had been unlawfully arrested or detained, the Court said:[68] The Cabinet Guidelines are a useful point of reference, but as notedearlier they combine all non-pecuniary losses into one category so the figureof $100,000 must be discounted substantially for a plaintiff in Mr Gardiner'scircumstances. He was not wrongfully convicted and imprisoned and he141 Fitzgerald (CA), above n 2, at [34].142 Chief Executive of the Department of Corrections v Gardiner, above n 131.cannot point to the serious emotional harm that such a person would likelysuffer. On the other hand, to the extent the guidelines were used an adjustmentwould also need to be made for the time value of money.[69] We accordingly approach the assessment on the basis that we arevaluing the loss of Mr Gardiner's liberty for about five per cent of his lawfulsentence. An award must be large enough to vindicate the important libertyinterest, but there is no cause to increase that sum for emotional harm ordeterrence. Because we have used neither Manga nor the Cabinet Guidelinesas our starting point, it is not appropriate to adjust arithmetically for inflationfrom a given date; that would lend a false air of precision to the exercise andrisk producing an end result that is too high when compared to subsequentcases. Rather, we make the assessment as at the date of breach, recognisingthat an allowance must be made for change in the value of money to the extentthat we base the award on older cases.[70] In our opinion an appropriate award would be not less than $8,000and perhaps as much as $12,000.[165] As will be apparent, Gardiner itself involved a tortious (false imprisonment)claim. But the Court of Appeal's express use of Baigent damages as the relevantcomparator in cases where such a claim was subject to the PVCA (as it was inMr Gardiner's case) makes the decision a useful starting point.[166] Despite the Court of Appeal's warning in Gardiner against an adopting anunduly formulaic approach, no other principled approach suggests itself to me here.And notwithstanding the dicta from Gardiner noted at [161] above, I am unclear whya longer period of wrongful detention might warrant putting a lesser daily value onany relevant compensation. That is not the approach taken under the CompensationGuidelines. And even accepting that it may be appropriate in some cases, there maybe others where the opposite is true. So I propose to use the monthly range in Gardineras my starting point, adjusted for the much lengthier period of wrongful detention inMr Fitzgerald's case. That would result in a damages award of between $352,000 and$528,000 ($440,000 being the mid-point). In my view Mr Fitzgerald's specialvulnerabilities warrant an award at the higher end.[167] The only further question arising is whether some downwards adjustment isthen required to reflect the further point noted in Gardiner, namely that Baigentdamages are discretionary and not to be equated with damages in tort.143 A modest143 Chief Executive of the Department of Corrections v Gardiner, above n 131.reduction is warranted on that score. So in my view $450,000 is the appropriate awardhere.144 As noted earlier, that sum must be paid in the first instance to the Secretaryfor Justice under the PVCA.Interest[168] Mr Fitzgerald also seeks interest on any compensation payable, under s 10 ofthe Interest on Money Claims Act 2016 running until the date of payment and he isplainly entitled to that. Given that the amount on which interest is awarded was notquantified on the day on which the cause of action arose, however, it is necessary toinvite further submissions on the date from which interest should run in terms of s 9of the Act. Ideally agreement between counsel should be reached about this but,failing that, memoranda are to be filed within 10 working days of this judgment.Conclusion[169] There is no dispute that Mr Fitzgerald was subjected to a grosslydisproportionate punishment. For the reasons I have given, I further conclude that:(a) the Crown prosecutor, when acting in that capacity, is a Crown "actor"for the purposes of s 3 of the NZBORA;(b) in the context of a potential prosecution for a stage three offence, andby dint of the prosecution Guidelines, the MOU and s 188 of the CPA,the Crown prosecutor was obliged to consider s 9 of the NZBORA andto exercise their prosecutorial discretion in a way that avoided the riskof Mr Fitzgerald becoming subject to a disproportionately severepunishment on sentencing;(c) although bad faith was not (and could not be) alleged here, the Crownprosecutor breached that obligation in Mr Fitzgerald's case;144 This can be compared with an uncomplicated application of the $150,000 annual amount in theCompensation Guidelines, which would result in compensation of around $550,000.(d) although judicial restraint continues to be appropriate in most caseswhere the Courts are asked to review the exercise of prosecutorialdiscretion, the obligation to consider s 9 and to act consistently with itwas not a matter of discretion;(e) at the point at which Mr Fitzgerald's detention can be said—as a matterof fact—to have become grossly disproportionate, that detention alsobecame arbitrary and in breach of s 22 of the NZBORA;(f) alternatively, the breach of s 9 can also be measured by reference to thatpart of the punishment actually suffered by Mr Fitzgerald that wasdisproportionately severe;(g) in either event, the relevant measure of the breach is his detentionbetween 5 March 2018 and 29 October 2021: a period of 1334 days or44 months;(h) although the declaratory theory means that the Supreme Court'sdecision in Fitzgerald merely revealed that sentencing judges hadalways had the power to decline to impose a sentence on a stage threeoffence that was grossly disproportionate, that theory cannot operateretrospectively to absolve Crown prosecutors of their primaryobligation in this area;(i) similarly the decision of the sentencing Judge does not operate toabsolve the Crown from liability for the Crown prosecutor's breach,particularly given it was the prosecutor's intention that the apparentlymandatory (but grossly disproportionate) sentence be imposed onMr Fitzgerald;(j) although Mr Fitzgerald was (eventually) released as a result of thecriminal process Baigent damages are necessary to give him a fullyeffective remedy for the breaches here; and(k) based on the relevant authorities, the PVCA and factors personal toMr Fitzgerald, an award of $450,000 is appropriate;(l) interest on that sum is payable under the Interest on Money Claims Act2016 running from a date to be confirmed, until the date of payment;and(m) in the first instance, the amount awarded must be paid to the Secretaryfor Justice, under the PVCA.Costs[170] The parties have agreed that the appropriate costs categorisation is 3B.Mr Fitzgerald is legally aided. If the parties cannot settle costs by agreement:(a) counsel for Mr Fitzgerald is to file and serve a memorandum seekingcosts within 20 working days from the date of this judgment;(b) counsel for the Crown is to file and serve its memorandum within afurther 10 working days thereafter;(c) the Court will then determine the issue on the papers unless it requiresto hear from counsel; and(d) if no costs' memoranda are received within 20 working days from thedate of this judgment, then the order of the Court is that there be noorder as to costs and the file is to be closed._____________________Rebecca Ellis JSolicitors:Ord Legal, Wellington for PlaintiffCrown Law, Wellington for Defendant