FITZGERALD v R [2020] NZCA 292

FITZGERALD v R [2020] NZCA 292 [15 July 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA286/2018[2020] NZCA 292BETWEEN DANIEL CLINTON FITZGERALDAppellantAND THE QUEENRespondentHearing: 18 September 2019 (further submissions received 9 December2019)Court: Clifford, Collins and Goddard JJCounsel: K F Preston and A C R M Jeffares for AppellantC A Brook and A D H Colley for RespondentJudgment: 15 July 2020 at 3.30 pmJUDGMENT OF THE COURTA The appeal against conviction and sentence is dismissed.B The application for leave to appeal on a question of law is declined.____________________________________________________________________REASONSClifford and Goddard JJ [1]Collins J (dissenting) [95]CLIFFORD AND GODDARD JJTable of ContentsPara NoBackground [1]Mr Fitzgerald's condition [1]The offences committed by Mr Fitzgerald [2]High Court trial and sentencing [5]Mr Fitzgerald's appeal [13]A declaration of inconsistency with NZBORA? [16]Sentencing Act — relevant provisions [19]Interpreting legislation in light of NZBORA [26]A seven year sentence is manifestly unjust in this case [32]Applying s 9 of NZBORA in this case [38]Interpreting the relevant Sentencing Act provisions [48]Section 86D(2) is inconsistent with NZBORA [76]Should we make a declaration of inconsistency? [81]Result [93]BackgroundMr Fitzgerald's condition[1] Mr Fitzgerald has longstanding mental health issues and needs constant mentalhealth care. For some 30 years he has suffered from schizophrenia, paranoid delusionsand auditory hallucinations. He has possible frontal lobe deficits from head injuries.He has consistently been on medication, with varying success. His illness has beencharacterised by disturbed behaviour, disorganisation in his thought processes,delusional beliefs and abnormal perceptual experiences. He has a long history of drugand alcohol abuse.The offences committed by Mr Fitzgerald[2] On 3 December 2016 Mr Fitzgerald was walking down Cuba St in Wellington.He was slightly intoxicated. Two women were walking together in the other direction.He went up to one of them, told her he wanted to kiss her, and tried to kiss her on thelips. She moved her face away from Mr Fitzgerald, but he managed to kiss her on thecheek.[3] The first victim's friend tried to pull Mr Fitzgerald away by the arm.He grabbed her by the arms, pushed her against a nearby wall and held her there for amoment. Then he let go of her and kept walking along Cuba St.[4] One victim estimated the incident lasted for about one minute. The otherthought perhaps two minutes. It was on any view brief. However it was undoubtedlya distressing incident for both victims. In her victim impact statement the secondvictim, who was a particularly vulnerable person, described the continuing emotionalconsequences of the assault she suffered. We do not have a victim impact statementfrom the first victim in relation to the indecent assault she suffered.High Court trial and sentencing[5] Mr Fitzgerald was arrested shortly afterwards. He was charged with indecentassault of the first victim, common assault of the second victim, and breach of anextended supervision order (by possessing and/or consuming alcohol and cannabis).Following an inquiry under the Criminal Procedure (Mentally Impaired Persons) Act2003 (CPMIP Act) he was found to be fit to stand trial.1 At a Judge-alone trial beforeSimon France J he was found guilty on all three charges.2 He then appeared forsentence before Simon France J.3 On the assault charge he was convicted andsentenced to three months' imprisonment. He was convicted and discharged for thebreach of the supervision order.[6] The indecent assault — an attempted kiss on the lips, an actual kiss on thecheek — involved conduct at the low end of the range for that offence. As the veryexperienced High Court Judge observed, standing alone, and putting to one sideaggravating factors relating to the offender, it would not normally attract a jail term.41 R v Fitzgerald [2017] NZHC 3128 [Fitness judgment].2 R v Fitzgerald [2018] NZHC 465 [Verdicts judgment].3 R v Fitzgerald [2018] NZHC 1015 [Conviction and sentencing notes].4 At [21].A community-based sentence would be likely.5 But the three strikes regime inthe Sentencing Act 2002 applied, as Mr Fitzgerald had two previous indecent assaultconvictions.6 The circumstances of these two convictions are summarised in an earlierpropensity ruling referred to by the Judge:7[13] The propensity evidence consists of previous indecent assaultoffending by Mr Fitzgerald. In 2012 Mr Fitzgerald knocked the victimto the ground which caused her skirt to ride up. Mr Fitzgerald fell on top ofher and then buried his face in her buttock area while putting his hands thereas well. Finally, in 2015 Mr Fitzgerald in short succession slapped or grabbedthree women on the buttocks as they walked past him.[7] Mr Fitzgerald was sentenced to 11 months' imprisonment for the 2012 offence,and four months' imprisonment for the 2015 offence.8 These were both more seriousthan the 2016 offending.[8] Section 86D(2) of the Sentencing Act provided that if Mr Fitzgerald wasconvicted of a third strike offence, he had to be sentenced to the maximum term ofimprisonment prescribed for the offence. The maximum sentence for indecent assaultis seven years' imprisonment.9 If Mr Fitzgerald was convicted of that offence,the Judge had no discretion: he was required to impose a sentence that bore norelationship at all to the gravity of the offending, or to the circumstances ofthe offender. Some provisions of the three strikes regime contain a "safety valve" thatenables the Court to decline to impose the sanctions contemplated by that regime ifthose sanctions would be manifestly unjust. But there is no safety valve in s 86D(2)for sentences imposed in relation to third strike offences.[9] Mr Fitzgerald had sought a discharge without conviction under s 106 ofthe Sentencing Act. If he was not convicted, the mandatory sentence provision wouldnot bite. Section 106(1) provides that a court may discharge a person who is foundguilty of an offence without conviction —5 The Judge referred to Stephenson v Police [2015] NZHC 3101 where a sentence of nine months'supervision was imposed on appeal for one charge of indecent assault where the appellantfollowed a stranger on the street then grabbed her buttocks, which is more serious conduct than inthe present case.6 Sentencing Act 2002, ss 86A–86I.7 Verdicts judgment, above n 2.8 Police v Fitzgerald DC Palmerston North CRI-2012-054-3026, 30 November 2012 [First strikejudgment]; and Police v Fitzgerald [2015] NZDC 5002 [Second strike judgment].9 Crimes Act 1961, s 135.unless by any enactment applicable to the offence the court is required toimpose a minimum sentence.[10] Section 107 sets the threshold for when a court can discharge a person withoutconviction under s 106. A court must not do so unless the court is satisfied —that the direct and indirect consequences of a conviction would be out of allproportion to the gravity of the offence.[11] The Judge held that he could not discharge Mr Fitzgerald without convictionunder s 106. The three strikes provision was an enactment applicable to the offenceMr Fitzgerald had committed which required the Court to impose a minimumsentence: in this case, seven years' imprisonment. The exception in s 106 applied andprevented the Court from granting a discharge.10[12] The Judge therefore convicted Mr Fitzgerald of indecent assault and sentencedhim to seven years' imprisonment. The Judge declined to make an order that thissentence be served without parole. Section 86D(3) requires such an order to be madeunless it would be manifestly unjust given the circumstances of the offence and ofthe offender. The Judge considered that it would be manifestly unjust forMr Fitzgerald to serve a seven year sentence without parole for this offence.11Mr Fitzgerald's appeal[13] Mr Fitzgerald argues that s 106 does apply. This Court can and shoulddischarge him without conviction.12 If he is convicted, as he has been, theconsequences (seven years' imprisonment) will be out of all proportion to the gravityof his offending. The Judge was wrong to find that the three strikes regime isan enactment "applicable to the offence" that requires a minimum sentence. It is notan enactment that applies to the offence he committed. Rather, it is an enactment thatapplies to certain offenders: those who have two strikes recorded against them.10 Conviction and sentencing notes, above n 3, at [11]–[16].11 At [27].12 Criminal Procedure Act 2011, s 251(2).[14] Mr Fitzgerald says the High Court Judge's approach is inconsistent with theright not to be subjected to disproportionately severe punishment, which is guaranteedby s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA).[15] The Crown says the Judge was right to find that the s 106 power was notavailable. The three strikes regime applied to the third strike offence thatMr Fitzgerald committed. It required a minimum sentence — seven years'imprisonment. The Judge was required to impose that (minimum) sentence. He couldnot grant a discharge without conviction. The Judge's interpretation of s 106 is theonly viable reading of that provision. The Court must apply the legislation inaccordance with that interpretation, even if it is inconsistent with NZBORA.A declaration of inconsistency with NZBORA?[16] We called for further submissions on whether this Court could, and should,make a declaration that s 86D of the Sentencing Act is inconsistent with NZBORA.[17] Mr Fitzgerald submits that it is open to the Court to make such a declaration,and that we should do so. The Crown submits that such a declaration cannot be madein the context of a criminal appeal before this Court. Nor, the Crown argues, is thereany inconsistency with NZBORA.[18] We return to this issue at [76] below.Sentencing Act — relevant provisions[19] The three strikes regime applies to offenders who are convicted of "seriousviolent offences".13 A list of some 40 offences that are regarded as serious violentoffences for this purpose is set out in s 86A. Some of the listed offences are inherentlyvery serious — for example, murder and manslaughter. Others embrace a widespectrum of conduct — for example, indecent assault and sexual conduct with a youngperson under 16. A person who is an accessory to the commission of one of the listedoffences, and as a result is convicted of that offence, also comes within the regime.So the term "serious violent offence" as it is used in these provisions embraces a wide13 Sentencing Act, ss 86A–86I.range of offending. It can include conduct that does not involve any violence at all,let alone serious violence.14 To avoid the misleading connotations of the "seriousviolent offence" label, we will refer to the relevant offences as "listed offences".[20] On a "first strike", defined in the Act as a "stage-1 offence", an offender whocommits a listed offence is sentenced in the ordinary way. They receive a "firstwarning" about the operation of the three strikes regime.15[21] "Second strikes", defined in the Act as "stage-2 offences", are listed offencescommitted by a person who has received a first warning. On a second strike anoffender who commits a listed offence other than murder is sentenced in the ordinaryway. If they are sentenced to a term of imprisonment, the Judge is required to orderthat the offender serve the full term of the sentence, without parole.16 The offender isgiven a "final warning" about the consequences of committing a further listed offence.[22] "Third strikes", defined in the Act as "stage-3 offences", are listed offencescommitted by an offender who has received a final warning. Section 86D ofthe Sentencing Act governs the sentences the court must impose for stage-3 offencesother than murder. As relevant, it provides:86D Stage-3 offences other than murder: offender sentenced tomaximum term of imprisonment(2) Despite any other enactment, if, on any occasion, an offender isconvicted of 1 or more stage-3 offences other than murder,the High Court must sentence the offender to the maximum term ofimprisonment prescribed for each offence.(3) When the court sentences the offender under subsection (2), the courtmust order that the offender serve the sentence without parole unlessthe court is satisfied that, given the circumstances of the offence andthe offender, it would be manifestly unjust to make the order.(4) Despite subsection (3), if the court sentences the offender formanslaughter, the court must order that the offender serve a minimum14 For example the appellant in Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49 whose first strikeoffence as an 18-year-old was a conviction for sexual conduct with a young person under 16 inthe context of a consensual relationship with his 14-year-old girlfriend.15 Sentencing Act, s 86B.16 Section 86C. This Court considered the implications of s 86C for sentencing on second strikeoffences in Barnes v R, above n 14.period of imprisonment of not less than 20 years unless the courtconsiders that, given the circumstances of the offence andthe offender, a minimum period of that duration would be manifestlyunjust, in which case the court must order that the offender serve aminimum period of imprisonment of not less than 10 years.(5) If the court does not make an order under subsection (3) the courtmust give written reasons for not doing so.[23] If an offender is convicted of murder, and that murder is a stage-2 or stage-3offence, the offender must be sentenced to life imprisonment. The court must orderthat the offender serve that sentence without parole unless the court is satisfied that,given the circumstances of the offence and the offender, it would be manifestlyunjust to do so.17[24] Section 86I confirms that the three strikes regime prevails over inconsistentprovisions of the Sentencing Act:86I Sections 86B to 86E prevail over inconsistent provisionsA provision contained in sections 86B to 86E that is inconsistent with anotherprovision of this Act or the Parole Act 2002 prevails over the other provision,to the extent of the inconsistency.[25] The first issue raised by this appeal is the relationship between these provisionsand ss 106 and 107 of the Sentencing Act, which provide:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.(2) A discharge under this section is deemed to be an acquittal.107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.17 Section 86E. This Court considered the interpretation and application of s 86E in R v Harrison[2016] NZCA 381, [2016] 3 NZLR 602.Interpreting legislation in light of NZBORA[26] Legislation must be interpreted having regard to its text and purpose. Theseare the twin drivers of interpretation.18 The text of a provision is often capable ofbeing read in more than one way. The purpose of a provision — ascertained from itsimmediate and general legislative context and its wider social, commercial or otherobjectives — may help the court to choose between competing readings of the text, ormay suggest a different reading that was not immediately apparent on the face ofthe text. The task of a court interpreting a provision is usually to identify the readingof the provision that represents the best fit with that provision's text and purpose.[27] NZBORA provides further guidance to the court on how legislation should beinterpreted where the rights and freedoms affirmed in NZBORA are engaged.The court is directed to prefer interpretations of legislation that are consistent withthose rights and freedoms. But the role of the court remains one of interpretation.The court is not permitted to decline to give effect to legislation enacted by Parliament,or to rewrite the legislation by adopting "interpretations" that are in truth exercises oflegislative power. The relevant provisions of NZBORA read as follows:4 Other enactments not affectedNo court shall, in relation to any enactment (whether passed or made beforeor after the commencement of this Bill of Rights),—(a) hold any provision of the enactment to be impliedly repealed orrevoked, or to be in any way invalid or ineffective; or(b) decline to apply any provision of the enactment—by reason only that the provision is inconsistent with any provision of this Billof Rights.5 Justified limitationsSubject to section 4, the rights and freedoms contained in this Bill of Rightsmay be subject only to such reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society.18 Interpretation Act 1999, s 5; and Commerce Commission v Fonterra Co-operative Group Ltd[2007] NZSC 36, [2007] 3 NZLR 767 at [22].6 Interpretation consistent with Bill of Rights to be preferredWherever an enactment can be given a meaning that is consistent with therights and freedoms contained in this Bill of Rights, that meaning shall bepreferred to any other meaning.[28] Section 6 of NZBORA recognises the realities of the interpretation process.It is often the case that a provision in an enactment can plausibly be read in more thanone way. Different indications found in a provision's text, and in its immediate andwider purpose, can (and often do) point in different directions. Confronted with anumber of possible readings of a provision, a court will, as we have said, normallyseek to find the reading of the provision that represents the best fit with the provision'stext and purpose. But s 6 of NZBORA may require a different approach. If the readingof the provision that represents the best fit with that provision's text and purpose wouldbe inconsistent with NZBORA, and there is another available reading that is consistent(or less inconsistent) with NZBORA, s 6 requires the court to prefer that other reading.[29] The direction to prefer the more rights-consistent available reading applieswhatever the Parliamentary record may suggest about the intentions of particularlegislators, or legislators generally, as this Court emphasised in R v Poumako:19[37] These possible constructions are to be considered by reference to s 6of the Bill of Rights Act. The meaning to be preferred is that which isconsistent (or more consistent) with the rights and freedoms in the Bill ofRights. It is not a matter of what the legislature (or an individual member)might have intended. The direction is that wherever a meaning consistent withthe Bill of Rights can be given, it is to be preferred. The legislature's intentionin this regard is clear.[30] However as s 4 makes plain, s 6 does not authorise a court to treat a provisionas invalid, or decline to apply it, or interpret it in a manner that is in effect anamendment of the statute. It is not open to the court to exercise, under the guise ofinterpretation, the legislative power that our constitutional arrangements entrust toParliament. Section 6 authorises — and requires — the court to adopt a morerights-consistent reading of an enactment if and only if the enactment "can be given"19 R v Poumako [2000] 2 NZLR 695 (CA). For a helpful discussion see Andrew Butler and PetraButler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015)at [7.12.6]–[7.12.19]. The quoted passage from R v Poumako refers to the intention ofthe legislature, but for the difficulties with that metaphor see Ross Carter Burrows and CarterStatute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 200–203; and JeremyWaldron Law and Disagreement (Oxford University Press, Oxford, 1999) at ch 6.that meaning. Identifying the boundaries of this interpretive exercise is a conceptuallydifficult and practically challenging exercise that necessarily involves a substantialdegree of judgement.[31] At the hearing of this appeal we formed the view that the High Court Judge'sreading of the Sentencing Act provisions in issue in this case was the most naturalavailable reading. But as we explain below, that reading of the Sentencing Act leadsto a result that is manifestly unjust and inconsistent with NZBORA. If there is anotheravailable reading that does not lead to that result, it should be preferred.A seven year sentence is manifestly unjust in this case[32] As noted above, some provisions in the three strikes regime contain a safetyvalve that enables the court imposing a sentence to mitigate the severity of the defaultconsequences prescribed by that regime. In s 86D itself, subs (3) permits the court todecline to make an order that the sentence be served without parole if that would bemanifestly unjust. And s 86E(2)(b) provides that the court may decline to order thatthe life sentence imposed on a person convicted of murder as a stage-2 or stage-3offence must be served without parole, if that outcome would be manifestly unjust.20[33] In R v Harrison a Full Court of this Court considered the scope of the s 86Esafety valve. The Court explained that the safety valve provides the means by whichthe courts can ensure that punishment under s 86E is not disproportionate, and doesnot contravene s 9 of NZBORA.21 The Court identified as (non-exclusive) factorsrelevant to assessing whether a s 86E sentence would be manifestly unjust: 22(a) the sentence that would have been imposed but for the three strikesregime;(b) whether the offender has any, or limited, ability to understand therelevance and importance of a first or final warning;20 See also s 86E(4).21 R v Harrison, above n 17, at [94], [101], and [106]–[111].22 At [108(d) and (e)].(c) whether the factual matrix of the qualifying offence or offences, or ofthe index offence, points to a higher or lower level of culpability; and(d) whether the offender is likely to re-offend such that there is a need forcommunity protection.[34] If s 86D(2) contained a safety valve provision that enabled a court to declineto impose the maximum sentence for the offence where it would be manifestly unjustto do so, the same factors would be relevant. We consider that the safety valve wouldplainly apply in the present case. The sentence imposed on Mr Fitzgerald is manifestlyunjust having regard to the circumstances of the offence and of the offender:(a) The offence was, as the High Court Judge noted, at the low end of therange of conduct that amounts to indecent assault. It would not of itselfbe sufficiently serious to merit a sentence of imprisonment.(b) Mr Fitzgerald's ability to regulate his behaviour in the manner that oursociety expects is severely compromised by his longstanding mentalhealth conditions. This bears directly on his culpability.23Section 9(2)(e) of the Sentencing Act recognises this link betweenmental capacity and culpability by requiring a sentencing court to takeinto account, as a mitigating factor, "that the offender has, or had at thetime the offence was committed, diminished intellectual capacity orunderstanding".(c) Mr Fitzgerald's mental health condition also renders largelyinapplicable the deterrence rationale that underpins the three strikesregime: that offenders understand and can respond to the warnings theyare given.24 It is profoundly unjust to punish Mr Fitzgerald moreseverely because he had received warnings which his longstandingmental health condition impaired his ability to act on.23 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68]–[70].24 R v Harrison, above n 17, at [96].(d) A report prepared by a consultant psychiatrist under s 38 of the CPMIPAct in August 2017 advised the High Court that Mr Fitzgerald wasbecoming "more unwell in Prison requiring not only moreanti-psychotic medication but also increasing doses of anxiolyticmedication". The psychiatrist concluded that Mr Fitzgerald would bebest placed in a rehabilitation unit under an in-patient order made unders 34(1)(b) of the CPMIP Act. That would enable him to receive thecare he needs, and "[i]n time [would be] likely to increase his qualityof life and reduce [the] likelihood of negative behaviours". But thatoption is precluded by s 86D of the Sentencing Act: if Mr Fitzgerald isconvicted, he must be sentenced to seven years' imprisonment.Mr Fitzgerald's impaired mental health and vulnerability mean that asentence of imprisonment, even if otherwise appropriate, would bedisproportionately severe for him. That is a factor that the courts wouldnormally be required to take into account under s 8(h) of the SentencingAct, were it not for the mandatory sentence required by s 86D.(e) There is clearly a risk of Mr Fitzgerald re-offending, in light of hisrecord. But his offending is not at a level that requires or justifies a(lengthy) prison sentence in order to protect the community: othersentencing responses are more appropriate in the short term, and aremore likely to reduce the prospect of re-offending in the longer term.[35] However s 86D(2), as we have already observed, contains no safety valve.At the Committee of the Whole House stage of the Sentencing and Parole Reform Bill,the Opposition proposed inserting a safety valve in the clause that became s 86D(2).The proposed amendment would have added to this provision the words "unlessthe Court is satisfied that, given the circumstances of the offence and the offender, itwould be manifestly unjust to make the order."25 That proposed amendment wasrejected.26 In the course of the debate it was expressly acknowledged by the Bill'sproponents that without this amendment, s 86D(2) could produce disproportionate25 (2010) 663 NZPD 10913.26 At 10926. The reasons given by the Minister responsible for the Bill for the Government'sdecision not to support the amendment were reduced certainty of the third strike penalty, andreduced deterrent force — see 10922.sentences: this prospect was clearly identified at the time the three strikes regime wasenacted.27[36] The result is that s 86D(2) requires the courts to impose the maximum sentenceon a person convicted of a stage-3 offence even where that would be a manifestlyunjust result. The risk that a court will be compelled to impose a manifestly unjustand disproportionate sentence on a person convicted of a stage-3 offence is greatlyincreased by the wide range of conduct that qualifies as a listed offence, as this Courtexplained in R v Harrison.28 In Harrison the Court observed that the risk of arbitraryor wholly disproportionate outcomes under the three strikes regime is potentially high.The potential for injustice and damage to the credibility of the three strikes policy hadbeen greatly increased by the enlargement of the qualifying catchment for strikeoffences. The Bill as introduced limited strike offences to offences that attracted asentence of at least five years' imprisonment.29 At the Select Committee stage the Billwas amended to provide for the approach described above, with any conviction for alisted offence qualifying as a strike regardless of the seriousness of the offending andregardless of the sentence actually imposed.30 In Harrison the Court noted that neitherof the appellants in that case — who were being sentenced for stage-2 offences —would have been caught by the regime under the initial form of the Bill.31 The sameis true of Mr Fitzgerald: under the initial form of the Bill, he would have no previousstrikes recorded against him and the current offence also would not be a strike offence.[37] Against that backdrop, we turn to the issue of whether imposing a sentence ofseven years' imprisonment on Mr Fitzgerald is inconsistent with NZBORA.Applying s 9 of NZBORA in this case[38] The right that is engaged in the present case is the right not to be subjected todisproportionately severe punishment. Section 9 of NZBORA reads as follows:27 At 10940. See also the observations of the Minister responsible for the Bill on the third readingat (25 May 2010) 663 NZPD 11227.28 R v Harrison, above n 17, at [87]–[89].29 Sentencing and Parole Reform Bill 2009 (17-1) (explanatory note) at 1.30 Sentencing and Parole Reform Bill 2009 (17-2) (select committee report) at 2–3.31 R v Harrison, above n 17, at [89].9 Right not to be subjected to torture or cruel treatmentEveryone has the right not to be subjected to torture or to cruel, degrading, ordisproportionately severe treatment or punishment.[39] NZBORA was enacted to affirm New Zealand's commitment tothe International Covenant on Civil and Political Rights (ICCPR).32 Section 9 is basedon art 7 of the ICCPR. The reference to "disproportionately severe" treatment is notfound in art 7, which provides:No one shall be subjected to torture or to cruel, inhuman or degradingtreatment or punishment. In particular, no one shall be subjected without hisfree consent to medical or scientific experimentation.[40] The White Paper that preceded NZBORA explained the rationale for theaddition of this phrase:3310.162 The reference to "disproportionately severe" treatment orpunishment is intended to ensure not only that the courts can review any typeor mode or description of punishment or treatment on the ground that it is perse cruel or degrading, but that they can also review the appropriateness of anytreatment or punishment in particular circumstances. Thus they would havepower to strike down a punishment imposed by Parliament on the grounds thatits harshness and the severity of its consequences are manifestly excessive inrelation to the offence involved. The American courts have held that thispower is open to them under the equivalent provision in the American Bill ofRights (the Eighth Amendment).10.163 The Canadian courts have considered the compatibility of mandatoryminimum sentences with the parallel provision in the Charter. They haveasked whether the punishment itself went beyond rational bounds or wasobviously excessive and whether it was grossly disproportionate to theoffence.[41] As the Crown accepts, the rights protected by s 9 of NZBORA cannot besubject to justifiable limitations in the manner contemplated by s 5: punishment thatis disproportionately severe is not capable of being justified.[42] The courts have emphasised that s 9 sets a high threshold. In Taunoa vAttorney-General, a case concerned with treatment of prisoners, the judgmentsdelivered by the Supreme Court referred to punishment or treatment that is32 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976).33 Geoffrey Palmer "A Bill of Rights for New Zealand: A White Paper" [1984–1985] I AJHR A6(citations omitted)."grossly disproportionate to the circumstances", that goes "well beyond punishmentor treatment which is simply excessive, even if manifestly so", that is "so excessive asto outrage standards of decency", that would "shock the national conscience", or theseverity of which is "such as to cause shock and thus abhorrence to properly informedcitizens".34 This assessment must be made by reference to the values and standards ofNew Zealanders.35[43] The threshold established by Taunoa is a high one. It is not enough that thepunishment prescribed for Mr Fitzgerald is, as we concluded above, manifestly unjustor manifestly excessive. It must be grossly disproportionate, and such as to causeshock to properly informed citizens. We consider that the sentence imposed onMr Fitzgerald crosses this high threshold. A sentence of seven years' imprisonment isgrossly disproportionate in this case, having regard to the factors identified at [34]above: offending at the lower end of the range for the offence; reduced culpability byreason of Mr Fitzgerald's impaired mental health; his impaired ability to act on thewarnings given under the three strikes regime; and the disproportionately severe effecton him of a lengthy sentence of imprisonment. Mr Fitzgerald should be receiving careand support in an appropriate facility, not serving a lengthy term of imprisonment.He has ended up in prison for a very long term, in circumstances where he should notbe there at all. The rationale that underpins this disproportionate response is thatMr Fitzgerald was given warnings that severe consequences would follow if heoffended again, and he should have responded to those warnings. But his ability torespond to such warnings is materially impaired by his significant mental healthissues. In these circumstances, a sentence of seven years' imprisonment goes wellbeyond excessive punishment, and would in our view shock the conscience of properlyinformed New Zealanders who were aware of all the relevant circumstances includingMr Fitzgerald's mental disability.[44] The fact that Mr Fitzgerald is eligible for parole after serving one third of hissentence, because the Judge declined to make an order under s 86D(3), does not affect34 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [91]–[92] per Elias CJ; [172]–[176] per Blanchard J; and [288]–[289] per Tipping J. See also Vaihu v Attorney-General [2007]NZCA 574, [2008] NZAR 83; leave to appeal to the Supreme Court declined: Vaihu v Attorney-General [2008] NZSC 19.35 Taunoa v Attorney-General, above n 34, at [279] and [289] per Tipping J.this conclusion. Mr Fitzgerald must serve at least two years and four months in prison.He may be required to serve the balance of the seven year sentence. If he is paroledand breaches his parole conditions, he may be recalled to prison. This punishment isgrossly disproportionate to the offence he committed, which as noted above would notnormally attract a custodial sentence. We note that Mr Fitzgerald became eligible forparole in mid-2019, but was not paroled: he remains in custody some three and a halfyears into his sentence. His mental health is likely to make it more difficult for himto qualify for parole.[45] Although the issue was not argued before us, it seems to us that there is also agood argument that this outcome is inconsistent with Mr Fitzgerald's right under s 19of NZBORA to freedom from discrimination on the grounds of disability. The threestrikes regime is predicated on the ability of recipients of first warnings and finalwarnings to understand and act on those warnings, and to regulate their conductaccordingly. It seems likely that New Zealanders with mental disabilities that affecttheir ability to understand and act on such warnings will be disproportionately exposedto the severe consequences prescribed for second and third strike offences, comparedwith New Zealanders who do not suffer from such a disability. Section 19 ofNZBORA extends to indirect or "adverse effect" discrimination, where a law orpractice is neutral on its face but has a disproportionate impact on a group because ofa particular characteristic of that group.36 But this argument was not advanced onbehalf of Mr Fitzgerald, and it would be inappropriate for us to seek to determine it inthe absence of full argument.[46] As we explain in more detail at [76]–[78] below, it follows that s 86D(2) ofthe Sentencing Act, which requires the court to impose this sentence if Mr Fitzgeraldis convicted of indecent assault, is inconsistent with NZBORA.[47] But the immediate issue is what the inconsistency of this outcome withNZBORA means for the interaction of s 86D(2) and ss 106 and 107 ofthe Sentencing Act.36 Human Rights Act 1993, ss 21A(1)(b) and 65; and Northern Regional Health Authority v HumanRights Commission [1998] 2 NZLR 218 (HC) at 236.Interpreting the relevant Sentencing Act provisions[48] Section 86D(2) only applies if a conviction is entered. Nothing in s 86Drequires a conviction to be entered. Nor does s 86I: if no conviction is entered s 86Ddoes not apply, so there is no inconsistency of the kind to which s 86I is addressed.[49] As noted above, the reason the High Court Judge considered he was not ableto consider granting a discharge without conviction in the case of an offenderconvicted of a stage-3 offence is found in the language of s 106. The power todischarge an offender without conviction is not available if "by any enactmentapplicable to the offence the court is required to impose a minimum sentence".The Judge considered that s 86D(2) applied to the stage-3 offence committed byMr Fitzgerald. It required the Judge to impose a minimum sentence: as the Judgereasoned, he was not free to impose a lesser sentence than seven years' imprisonment,so this operated as a minimum sentence.37 The fact that the minimum was defined byreference to the maximum sentence for the offence of indecent assault did not affectthat analysis.[50] The alternative reading of s 106 that Mr Preston advances on behalf ofMr Fitzgerald is that the exception applies only in the very rare circumstances wherethe relevant substantive offence attracts a minimum sentence. The offence of indecentassault does not attract a minimum sentence. A person who has committed that offencecan be discharged without conviction, putting to one side the operation of the threestrikes regime. Nothing in the three strikes regime precludes a discharge withoutconviction where a person commits indecent assault as a stage-1 or stage-2 offence.It is only where a person who is convicted of indecent assault has previously receiveda final warning under the regime that the court is required to impose the maximumsentence for that offence. That mandatory consequence applies to certain offenders incertain circumstances, not to the offence as such. So, Mr Preston submits, it is not thekind of offence-specific minimum to which the restriction in s 106 applies.[51] The Crown responds — and the Judge held — that in Mr Fitzgerald's case theoffence of indecent assault was a stage-3 offence, and as such it attracted the37 Conviction and sentencing notes, above n 3, at [13].mandatory sentence prescribed for a stage-3 offence in s 86D(2). So, the Judge said,it is a minimum sentence of the kind to which the restriction in s 106 refers.[52] The Judge's interpretation of the interaction between ss 106 and 86D(2) iscertainly an available reading of those provisions. But reading the provisions in thisway would mean that the Court would be required to impose the maximum sentencefor an offence on a person to whom s 86D(2) applies in circumstances where thatpunishment is grossly disproportionate and inconsistent with s 9 of NZBORA.Against that backdrop, if s 106 can plausibly be read in a way that does not apply tothe mandatory sentences prescribed by s 86D(2), s 6 of NZBORA requires this Courtto do so.[53] However it is not open to the Court to do an "end run" around s 86D(2), andengage in the essentially legislative exercise of creating an exception to that provisionvia s 106 in circumstances where the legislature expressly chose not to include a safetyvalve provision in s 86D(2). The reading contended for by Mr Preston can be adoptedonly if the Sentencing Act can reasonably be given that meaning, without steppingover that boundary.[54] The text of s 106 can be read in this way. The phrase "enactment applicable tothe offence" can be read as referring to the substantive offence committed by theoffender. But there are strong contrary indications in the wider statutory context, andin the legislative history.[55] It is clear that in s 107, which asks whether the consequences of a convictionwould be out of all proportion to the gravity of the offence, the focus is on theparticular offence committed by the particular offender — not on the statutoryprovision creating the offence in question. It would be odd if the "offence" referredto in s 107, the gateway provision for s 106, differed from the "offence" referred to ins 106.[56] More generally, it is difficult to see why Parliament would seek to exclude froms 106 (and from the s 108 power to convict and discharge) a person who commits anoffence which always attracts a minimum sentence, but not a person who commits anoffence which attracts a minimum sentence having regard to the circumstances of theoffence and the offender. The rationale for the exclusion appears to be to ensure thatminimum sentences prescribed by Parliament cannot be avoided via s 106 or s 108.It is not easy to identify any coherent policy reason for excluding some minimumsentences from such an exclusion, simply because they are triggered by factors specificto the circumstances of the offence or of the offender.[57] That reading of the exception is also consistent with the broader scheme ofthe Sentencing Act. Section 8(g) provides that a court must impose the least restrictiveoutcome that is appropriate in the circumstances, in accordance with the hierarchy ofsentences and orders set out in s 10A — with the least restrictive being dischargewithout conviction under s 106. Section 11 provides:11 Discharge or order to come up for sentence if called on(1) If a person who is charged with an offence is found guilty, or pleadsguilty, before entering a conviction and imposing a sentence the courtmust consider whether the offender would be more appropriately dealtwith by—(a) discharging the offender without conviction undersection 106; or(b) convicting and discharging the offender under section 108; or(c) convicting the offender and ordering the offender, undersection 110, to come up for sentence if called on.(2) If any provision applicable to the particular offence in this or any otherenactment provides a presumption in favour of imposing, onconviction, a sentence of imprisonment, a sentence of home detention,a community-based sentence, or a fine, then—(a) despite subsection (1), a court is not obliged to considerwhether the offender would be more appropriately dealt within the manner described in any of paragraphs (a), (b), or (c) ofthat subsection; but(b) the court is not precluded from dealing with the offender inthat manner if the court thinks that it is appropriate in thecircumstances.[58] Section 11 requires a court to consider, before entering a conviction andimposing a sentence, whether the offender would be more appropriately dealt with byless restrictive options such as a discharge without conviction unless a provisionapplicable to the particular offence provides a presumption in favour of imposing someother sentence. Where such a presumption applies, the court is not required to considerthose less restrictive options but is not precluded from doing so. The reference to apresumption found in a "provision applicable to the particular offence" is mostnaturally read as referring to a provision applicable to the particular offence committedby that particular offender. The rationale for subs (2) is that where such a presumptionexists, the less restrictive outcomes referred to in subs (1) are not the appropriatestarting point. That is just as true if the presumption applies to the particular offencecommitted by the particular offender as it would be if the presumption applied to allpersons committing the offence in question. Either way, the logical starting point isthe presumption, not the subsection (1) outcomes. It might be suggested that thephrase "provision applicable to the particular offence" used in s 11 reflects adeliberate difference from the phrase "enactment applicable to the offence" in s 106,with the latter having a different (and narrower) meaning. But the more naturalreading of the two provisions is that they both reflect the same goal of giving full effectto other provisions in which Parliament has chosen to impose a presumptive ormandatory sentence in certain circumstances.[59] The legislative history of s 106 provides further support for this reading of thes 106 exception. Since 1842, New Zealand courts have had a statutory power todischarge a defendant without conviction in relation to certain offences.38 In 1879a Royal Commission in the United Kingdom recommended the enactment of such apower in relation to all offences in the following terms:3913 Discharge without verdictIn any case where the Court considers that the offence deserves no more thana nominal punishment, the Court may in its discretion direct the discharge ofthe accused person without taking any verdict, and such discharge shall haveall the effects of an acquittal.[60] Of that provision the Royal Commission said:40Section 13 gives the court power to discharge without conviction, persons whohave committed acts which, though amounting in law to crimes, do not under38 Police Magistrates Ordinance 1842 5 Vict 4, cl 2.39 Criminal Code Bill Commission Report of the Royal Commission Appointed to Consider the LawRelating to Indictable Offences (C 2345, 1879) at 65.40 At 16.the circumstances involve any moral turpitude. The conferring of suchpower on the judge but little enlarges the authority at present invested in him.He may now, on a conviction, award a punishment merely nominal, ordischarge the person convicted on his own recognizance.[61] In New Zealand this recommendation was considered by the Statutes RevisionCommission. Its 1883 report eventually led to the enactment of s 17 of the CriminalCode Act 1893, which provided:17. (1.) When the Court, on perusal of the depositions returned in any case,considers that the offence charged deserves no more than a nominalpunishment, and that it is unnecessary that a conviction should be obtained, itmay in its discretion direct that no bill shall be preferred by the person, if any,who is bound by recognisances to prosecute; or, if a bill has been found beforethe Grand Jury, it may direct that the accused shall not be arraigned thereon;and in either case it may direct the discharge of the accused if in custody:(2.) Or if the Court at any stage of the trial should consider as aforesaid, itmay direct the discharge of the accused without any verdict.(3.) Such discharge shall have all the effect of an acquittal of the accusedin respect of the offence for which he was committed for trial, held to bail, orindicted.[62] There was no limit on the power to discharge the accused without verdict alongthe lines of the exception in the current s 106.[63] The precursor to the exception in s 106 appears to have made its firstappearance in 1954. Section 42(1) of the Criminal Justice Act 1954 conferred adiscretion on magistrates to discharge a defendant charged with a summary offencewithout conviction "unless by any enactment applicable to the offence a minimumpenalty is expressly provided for". There was no corresponding restriction onthe power conferred on the Supreme Court by s 42(2) to grant a discharge in respectof an offender appearing for sentence on an indictable offence, instead of sentencingthat offender.[64] The exception then appeared in relation to all categories of offence and allcourts in s 19 of the Criminal Justice Act 1985, the immediate precursor to our currents 106:19. Discharge without conviction — (1) Where a person who is charged withan offence is found guilty or pleads guilty, the court may discharge theoffender without conviction unless by any enactment applicable to the offencea minimum penalty is expressly provided for.(2) A discharge under this section shall be deemed to be an acquittal.[65] It seems likely that the reference to minimum penalties in this provision wasaimed primarily at the penalties that could be imposed under the Transport Act 1962and its successors, which set minimum periods for which a person would bedisqualified from driving following conviction for certain offences.41 Some of theprescribed "obligatory disqualification" periods applied to every person whocommitted a particular offence. Others applied on second or subsequent convictionsfor the same offence within a period of seven years from the date of the immediatelypreceding conviction.42 It would be odd if the s 19 exception applied to the formerclass of penalty, but not the latter.[66] That was the view this Court took of s 19 in R v Eteveneaux.43 Mr Eteveneauxhad been found guilty of driving while disqualified. This was his second convictionfor that offence. Section 84(2A) of the Criminal Justice Act 1985 provided that wherea person committed one of a number of specified offences twice within four years,the court was required to order that the motor vehicle involved be confiscated unlessthe making of such an order would result in extreme hardship to the offender or unduehardship to any other person. An order for confiscation of Mr Eteveneaux'smotorcycle was made in the District Court. His appeal to the High Court wasunsuccessful. On appeal to this Court, counsel for Mr Eteveneaux argued thats 84(2A) was not a minimum penalty for the purposes of s 19. Rather, she submitted,s 84(2A) "is a provision which arises when and only when an offender has beenconvicted of the second offence the minimum penalty did not apply to the offencesimpliciter, ie to driving while disqualified as such".44[67] In its oral judgment the Court said:4541 Transport Act 1962, ss 31 and 32.42 See in particular sch 3, pt III.43 R v Eteveneaux (1999) 16 CRNZ 601 (CA) at [10].44 At [10].45 At [10].That is so, but we read s 19 as referring to the particular offence, ie the specificoffence committed, which was driving while disqualified in circumstancescovered by s 84(2A). The actual offence committed by the appellant had themandatory consequence of confiscation flowing from it. While the offence ofdriving while disqualified does not of itself necessarily involve confiscation,the offence committed by the appellant did.[68] That interpretation of s 19 was adopted by this Court shortly beforethe Sentencing and Parole Reform Bill which led to the Sentencing Act 2002 wasintroduced in 2001.[69] As introduced, the Sentencing and Parole Reform Bill 2001 included a powerto discharge without conviction in similar terms to s 19 of the 1985 Act, including anexception that precluded discharge where an enactment applicable to the offenceprovided for a minimum penalty.46 The Select Committee considering the Sentencingand Parole Reform Bill recommended removing the restriction. The Committee tookthe view that the existence of a minimum penalty provision should not prevent adischarge without conviction, but the court should be able to make orders imposingpenalties in conjunction with a discharge. The Committee gave the example of a"drink-driving case, in which an offender may lose their job if convicted, but the courtshould still be able to disqualify them from driving".47[70] The current form of the restriction, referring to a minimum sentence, was theninserted by a Supplementary Order Paper at the Committee of the Whole Housestage.48 The Supplementary Order Paper inserted the same proviso in what is now s108, which confers on the court the power to convict and discharge an offender insteadof imposing a sentence where a conviction is sufficient penalty in itself.[71] The rationale for restoration of the exception in this modified form is notapparent from the Parliamentary record. The only minimum sentence provisions(as distinct from minimum penalty provisions) on the New Zealand statute book at thetime related to certain acts of treason (which attracted a mandatory life sentence unders 74(1) of the Crimes Act 1961), and certain acts of piracy (which also attracted amandatory life sentence under ss 92–94 of the Crimes Act). Before the Sentencing46 Sentencing and Parole Reform Bill 2001 (148-1), cl 95.47 Sentencing and Parole Reform Bill 2001 (148-2) (select committee report) at 21.48 Supplementary Order Paper 2002 (262) Sentencing and Parole Reform Bill 2001 (148-2) at 12.Act was enacted, New Zealand law also prescribed a mandatory life sentence formurder. But s 102 of the Sentencing Act takes a different approach. It provides for apresumption of life imprisonment: an offender convicted of murder must be sentencedto life imprisonment unless, given the circumstances of the offence and the offender,that sentence would be manifestly unjust. A presumption of this kind would notnormally be described as a minimum sentence. So it seems the exception restored ins 106 applied only to two very rare classes of offence, and would have been expectedto have little operation in practice. And it seems that at the time s 106 was enactedwith the exception in its current form, the only minimum sentences on the statute bookwere minimum sentences for certain substantive offences: there were no minimumsentences that applied only to particular categories of offender. But it is difficult todraw any particular inference from that circumstance. Rather, it seems to us that theconcept of a "minimum" sentence applicable to an offence was likely to have beenunderstood as corresponding to the concept of a minimum penalty applicable to anoffence — that is, as extending to a minimum sentence prescribed for certainoffenders, or certain categories of offending.[72] We return to the question of whether the reading Mr Preston contends for isavailable. It is, as we said, open on the text. But all the contextual indications pointthe other way. The proposed reading would at best be a very strained one. Adoptingthat strained interpretation of s 106 would create a safety valve in relation to s 86D(2)that would operate along similar lines to the safety valve that Parliament expresslyconsidered and rejected. That is a strong indication that its adoption would fall on thewrong side of the line drawn by ss 4 and 6 of NZBORA.[73] We also consider that this reading of s 106 would lead to peculiar and arbitraryoutcomes inconsistent with the wider scheme of the Sentencing Act. Applying s 106to third strike offenders for whom a sentence prescribed by s 86D(2) would bedisproportionately severe seems likely to result in a discharge without conviction incases where a conviction is clearly called for, and imposing a (less onerous) sentencewould be the most appropriate outcome. The s 107 threshold would be met in sucha case: a sentence that is disproportionately severe, applying the high threshold inTaunoa, would by definition be a consequence that meets the s 107 test of being outof all proportion to the gravity of the offence. And if the s 106 discretion is available,a discharge without conviction is the only way that an outcome consistent withNZBORA could be achieved: so the court would be required by NZBORA to exercisethe power to discharge the offender without conviction. Absent s 86D(2), the offenderwould not qualify for a discharge without conviction under s 106, or for that matter aconviction and discharge under s 108. It would be odd if the enactment of s 86D(2)resulted in a more favourable outcome for this class of offender. A reading ofthe Sentencing Act that produces that result is not in our view a tenable reading of thatstatute taken as a whole.[74] In summary, we have striven to identify a tenable reading of s 106 that wouldenable the courts to avoid imposing a sentence on Mr Fitzgerald that is manifestlyunjust and disproportionately severe, in breach of his NZBORA rights. We havereluctantly concluded that this course is not open to us. The reading contended for byMr Preston is too strained to be tenable. It is outside the domain of what is permittedunder s 6 of NZBORA.[75] It follows that the s 106 exception applies. A discharge without conviction isnot available in this case. That result brings squarely into focus the question of howthe breach of Mr Fitzgerald's NZBORA rights can most appropriately be vindicated.Section 86D(2) is inconsistent with NZBORA[76] We have already concluded that s 86D(2) is capable of producing results thatare inconsistent with s 9 of NZBORA, as it has for Mr Fitzgerald in the present case.The Crown says that does not mean that s 86D(2) is inconsistent with NZBORA, asthe application of s 86D(2) will not invariably amount to disproportionately severepunishment. We do not consider that is the correct approach when assessing whethera mandatory sentence provision is consistent with s 9 of NZBORA. Rather, thequestion is whether there are realistic scenarios in which the provision will requirethe court to impose a sentence that is grossly disproportionate and inconsistent withs 9. A provision that mandates outcomes that are inconsistent with NZBORA inrealistic scenarios is itself inconsistent with NZBORA. The fact that the provisionwill produce unobjectionable results in other scenarios does not save it.[77] That approach is consistent with the approach adopted by the Supreme Courtof Canada when assessing whether mandatory sentence provisions are inconsistentwith the Canadian Charter of Rights and Freedoms.49 In R v Lloyd the majorityjudgment, delivered by McLachlin CJ, summarised the framework applied in Canadaas follows:50[22] The analytical framework to determine whether a sentence constitutesa "cruel and unusual" punishment under s 12 of the Charter was recentlyclarified by this Court in Nur. A sentence will infringe s 12 if it is "grosslydisproportionate" to the punishment that is appropriate, having regard to thenature of the offence and the circumstances of the offender. A law will violates 12 if it imposes a grossly disproportionate sentence on the individual beforethe court, or if the law's reasonably foreseeable applications will imposegrossly disproportionate sentences on others.[78] The Supreme Court of Canada has recognised that when considering whetherreasonably foreseeable applications of a provision will result in grosslydisproportionate sentences, the court may consider realistic hypothetical scenarios.51But we do not need to identify a hypothetical scenario in which s 86D(2) wouldproduce a grossly disproportionate sentence. This is such a case. Examples couldreadily be multiplied.[79] McLachlin CJ went on to make some observations about the circumstances inwhich a mandatory minimum sentence is likely to be open to challenge on the groundsof inconsistency with the right not to be subject to disproportionately severepunishment:[35] As I have already said, in light of Nur, the reality is this: mandatoryminimum sentences that, as here, apply to offences that can be committed invarious ways, under a broad array of circumstances and by a wide range ofpeople are vulnerable to constitutional challenge. This is because such lawswill almost inevitably include an acceptable reasonable hypothetical for whichthe mandatory minimum will be found unconstitutional. If Parliament hopesto sustain mandatory minimum penalties for offences that cast a wide net, itshould consider narrowing their reach so that they only catch offenders thatmerit the mandatory minimum sentences.[36] Another solution would be for Parliament to build a safety valve thatwould allow judges to exempt outliers for whom the mandatory minimum willconstitute cruel and unusual punishment. Residual judicial discretion forexceptional cases is a technique widely used to avoid injustice and49 R v Nur 2015 SCC 15, [2015] 1 SCR 773; and R v Lloyd 2016 SCC 13, [2016] 1 SCR 130.50 R v Lloyd, above n 49 (citations omitted).51 R v Nur, above n 49, at [73]–[76].constitutional infirmity in other countries. It allows the legislature to imposesevere sentences for offences deemed abhorrent, while avoidingunconstitutionally disproportionate sentences in exceptional cases. Theresidual judicial discretion is usually confined to exceptional cases and mayrequire the judge to give reasons justifying departing from the mandatoryminimum sentence prescribed by the law. It is for the legislature to determinethe parameters of the residual judicial discretion. The laws of other countriesreveal a variety of approaches: Criminal Law Amendment Act, 1997 (S Afr),No 105 of 1997, s 51(3)(a); Firearms Act 1968 (UK), 1968, c 27, s 51A(2);Violent Crime Reduction Act 2006 (UK), 2006, c 38, s 29(4); Powers ofCriminal Courts (Sentencing) Act 2000 (UK), 2000, c 6, ss 109(3), 110(2) and111(2); Sentencing Act (NT), s 78DI; Sentencing Act 1991 (Vic), s 10(1);Sentencing Act 2002 (NZ), ss 86E, 102 and 103; Criminal Law (Sentencing)Act 1988 (SA), s 17; 18 USC § 3553(f) (2012); Penal Code [Brottsbalken](Swed), c 29, s 5. There is no precise formula and only one requirement —that the residual discretion allow for a lesser sentence where application of themandatory minimum would result in a sentence that is grosslydisproportionate to what is fit and appropriate and would constitute cruel andunusual punishment.(Citation omitted.)[80] These observations are equally applicable in New Zealand. We note thatat [36] McLachlin CJ referred to s 86E of the New Zealand Sentencing Act as anexample of a safety valve that ensures consistency with relevant rights. If s 86D(2)included a safety valve of this kind, there would be no inconsistency with NZBORA.Should we make a declaration of inconsistency?[81] As mentioned earlier, after hearing the appeal we called for further submissionson whether, if this Court concluded that s 86D(2) is inconsistent with NZBORA, itwould be appropriate for the Court to grant a declaration of inconsistency. Mr Prestonfiled further submissions in which he sought such a declaration. His submissions alsoadvised that — out of an abundance of caution and to address possible jurisdictionalissues — he proposed to file, on behalf of Mr Fitzgerald, an application for leave toappeal on a question of law under sub-pt 8 of pt 6 of the Criminal Procedure Act 2011(CPA). That application was subsequently received.[82] In a reply memorandum the Crown noted the proposed question of lawappeared to be the focus of the issues already before the Court. Moreover, whilst theCrown's position remained there was no jurisdiction to make a formal declaration incriminal proceedings, it accepted the Court could comment on, or make findings as to,inconsistency with NZBORA in the course of its judgment. That was so, the Crownacknowledged, whether the Court was considering an appeal against conviction andsentence or an appeal on a question of law. Accordingly, the Crown suggested theapplication should be rejected or dismissed. At a subsequent telephone conference,and given the Crown's acknowledgement of the issues already before the Court, theparties agreed that the application did not require further consideration. Any issue itmight have raised was, in effect, already before the Court. Furthermore, the partiesalso agreed no further oral hearing was considered necessary on the declaration issue.We proceeded accordingly.[83] As noted, Crown says that even if we conclude that s 86D(2) is inconsistentwith NZBORA, a formal declaration of inconsistency should not be made. The Crownsubmits that it is not open to an appellant in a criminal appeal to seek a declaration ofinconsistency. Rather, the Crown says, the appropriate course is for a declaration ofinconsistency to be sought in a civil proceeding.[84] The Supreme Court has confirmed that a declaration of inconsistency is anavailable remedy in civil proceedings.52 But New Zealand courts have yet to finallydetermine whether a declaration of inconsistency is an available remedy in criminalproceedings.53[85] In this case there is the further issue that a declaration was not sought inthe High Court: the issue arose for the first time in the course of argument in this Court.The Crown says that it is not open to this Court to make a declaration of inconsistencyin the context of an appeal against conviction or sentence under the CPA.54 The CPAsets out in some detail the orders that may be made in determining such appeals. 55A declaration of inconsistency is not one of the available outcomes expresslycontemplated by that Act, except perhaps where an appeal against conviction is52 Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213.53 Belcher v Chief Executive of the Department of Corrections [2007] NZCA 174 at [13]–[15];Belcher v Chief Executive of the Department of Corrections [2007] NZSC 54 at [7]–[8]; R vChatha (No 2) [2008] NZCA 466 at [32]; McDonnell v Chief Executive of Department ofCorrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [114]–[131]; and Attorney-General vTaylor [2017] NZCA 215, [2017] 3 NZLR 24 at [148].54 Mr Fitzgerald's appeal is described as an appeal against conviction and sentence, as contemplatedby Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[8] and [16]. But his appeal is insubstance an appeal against conviction only, as there is no challenge to his sentence if theconviction stands.55 Criminal Procedure Act 2011, ss 233 and 251.allowed and the conviction is set aside: in those circumstances s 233(3)(e) providesfor the court to make any other order it considers justice requires. But in this case wehave decided that the conviction should not be set aside, so the power conferred bys 233(3)(e) is not available. That raises the question whether, where an appeal againstconviction under the CPA is dismissed, this Court can grant a declaration ofinconsistency.[86] The Crown identified a number of other difficulties with this Court consideringthe grant of a declaration of inconsistency as a matter of first impression. There maybe cases where evidence is required to determine whether a provision is inconsistentwith NZBORA; for example, where the Crown wishes to argue that the provision isjustified under s 5 of NZBORA. Discovery may be required in some cases. Therewould be no appeal as of right from the determination by this Court. It is also generallyundesirable for this Court to engage in determining significant public law issueswithout the benefit of a judgment from the High Court. Some of the difficultiesidentified by the Crown are not relevant to the present appeal. The question ofinconsistency with NZBORA can be, and has been, determined without the need fordiscovery or further evidence. But other concerns raised by the Crown have moreforce.[87] As against this, it can be argued that a declaration provides importantvindication of an appellant's rights. That vindication is arguably more, not less,important where s 4 of NZBORA applies with the result that the Court is required togive effect to a rights-infringing statute, and dismiss the appeal. Where the Courthearing a criminal appeal concludes that a statute is inconsistent with NZBORA, it isnot easy to see what practical purpose is served by requiring the appellant tocommence separate civil proceedings in order to obtain a formal declaration ofinconsistency. There are obvious barriers to doing so, not least the cost of suchproceedings and uncertain access to legal aid: the ability to obtain a declaration in thecontext of a criminal appeal would undoubtedly enhance access to justice.56 In56 See Claudia Geiringer "On a Road to Nowhere: Implied Declarations of Inconsistency andthe New Zealand Bill of Rights Act" (2009) 40 VUWLR 613 at 627.Attorney-General v Taylor the Supreme Court confirmed that the grant of a declarationserves a useful purpose over and above an indication of inconsistency.57[88] These are important issues that remain to be considered by this Court. It wouldin our view be desirable for a full court of this Court to hear and determine an appealwhich squarely raises the question whether a declaration of inconsistency can besought in the context of an appeal under pt 6 of the CPA.[89] We considered whether to refer that question to a full court in this case unders 47(4) of the Senior Courts Act 2016. But after much reflection, we have decidedthat it would not be appropriate to do so. Mr Fitzgerald did not initially seek adeclaration of inconsistency. The issue only arose after his appeal had been heard, inresponse to an inquiry from the Court. In this judgment we determine the only issuethat Mr Fitzgerald initially sought to raise in his appeal to this Court. In doing so wehave given a clear indication that s 86D(2) is inconsistent with NZBORA. It seems tous that it would be artificial to segment the appeal by making an order under s 47(4),with the substantive appeal against conviction and sentence effectively determinedand an indication of inconsistency given by this Court before the Full Court heard anddecided the question referred to it. It would be preferable for the question ofavailability of a declaration of inconsistency in a criminal appeal to be determined bya full court in circumstances where the entire appeal is before that Court, and the issuecan be addressed in context.[90] Nor do we consider that a declaration of inconsistency would provide any realbenefit to Mr Fitzgerald over and above the indication already provided, in this case.Our judgment confirms that although Mr Fitzgerald's continuing imprisonment isrequired by the Sentencing Act, and is therefore lawful, it is inconsistent with his rightsunder NZBORA. That indication might for example be relied on by Mr Fitzgerald toseek a further consideration of parole in the near future, in advance of his nextscheduled date for consideration of parole (31 March 2021). That indication may alsobe seen as a relevant factor when the Parole Board next considers whether to grant57 Attorney-General v Taylor, above n 52. The practical relevance of a declaration would beunderscored if legislation is enacted along the lines contemplated by the New Zealand Bill ofRights (Declarations of Inconsistency) Amendment Bill 2020 (230-1), providing for the Executiveand Parliament to consider, and, if they think fit, respond to a declaration of inconsistency.parole.58 It will also be a relevant factor for the Executive when considering theappropriate support to be provided to Mr Fitzgerald to enable him to obtain parole. Aformal declaration is not necessary for those purposes.[91] In these circumstances we have decided that it is not necessary for this Courtto determine, in the context of Mr Fitzgerald's appeal, the issues identified aboveconcerning the availability of a declaration of inconsistency.[92] We therefore dismiss the appeal against conviction and sentence, and formallydecline the application for leave to appeal on a question of law.Result[93] The appeal against conviction and sentence is dismissed.[94] The application for leave to appeal on a question of law is declined.COLLINS JTable of ContentsPara NoIntroduction [95]Background [96]Legislative provisions [101]A right's consistent interpretation of ss 106 and 86D of the Sentencing Act [106]Text and purpose of s 86D(2) of the Sentencing Act [113]Text and purpose of s 106 of the Sentencing Act [118]Can ss 86D(2) and 106 of the Sentencing Act be interpreted in a waythat is consistent with s 9 of the NZBORA? [124]Should Mr Fitzgerald be discharged without conviction? [133]Introduction[95] This judgment focuses upon two issues:(a) Whether s 86D(2) of the Sentencing Act imposes a minimum sentencewithin the meaning of the proviso to s 106 when Mr Fitzgerald wasconvicted for a third time of committing an indecent assault. If it does,58 Miller v Parole Board HC Wellington CRI-2004-485-37, 11 May 2004 at [44].then Mr Fitzgerald is required to be sentenced to seven years'imprisonment, which is the maximum period of imprisonment forindecent assault. That result must follow even though such a sentenceis grossly disproportionate to Mr Fitzgerald's offending and ismanifestly unjust.(b) If, however, s 86D(2) and the proviso to s 106 of the Act can beinterpreted in a way that is consistent with s 9 of the NZBORA so as toalleviate the consequences I have summarised at [95(a)], then it isnecessary to consider whether or not a discharge without conviction isappropriate in Mr Fitzgerald's case.Background[96] It is not necessary to reiterate all of the background. That task has beenadmirably performed by my colleagues. I confine myself to the following three points.[97] First, this appeal concerns only Mr Fitzgerald's conviction for indecent assault.The circumstances of that assault was an unwanted kiss on the cheek of the first victim,a woman whom Mr Fitzgerald did not know. The first victim has not filed a victimimpact statement and accordingly, there is no information about how she was affectedby Mr Fitzgerald's conduct.[98] The most concerning feature of Mr Fitzgerald's offending on 3 December2016, was the way he responded to the attempts by the first victim's friend to restrainhim. Mr Fitzgerald pushed her, the second victim, against a wall and held her there.She was a vulnerable woman, who was distressed by Mr Fitzgerald's actions.The offending against the second victim resulted in a charge of assault for whichMr Fitzgerald was sentenced to three months' imprisonment. That offence is notcovered by the three strikes regime.[99] Second, Mr Fitzgerald is a very troubled man, who has presented numerouschallenges for the courts. His offending in 2012, which attracted his first strikewarning, was serious. On that occasion, Mr Fitzgerald chased a woman, pushed herto the ground and placed his face and hands onto her buttocks as she screamed forhelp. When sentencing Mr Fitzgerald to 11 months' imprisonment, the District CourtJudge referred to Mr Fitzgerald's history of psychiatric illness and the lack of supportfor him in the community.59 Mr Fitzgerald showed, however, signs of promise and awillingness to not offend again. This was reflected in the District Court Judge'ssentencing notes when, after explaining the first strike warning, she said she wasconfident Mr Fitzgerald would not appear again before the courts.60 Regrettably,however, Mr Fitzgerald appears to be unable to learn from his experiences.Mr Fitzgerald's second strike offence was also for indecent assault. His offending onthat occasion involved him slapping the buttocks of three women as they walked pasthim. That offending attracted a sentence of four months' imprisonment.61[100] Third, while any form of indecent assault is inherently serious, Mr Fitzgerald'soffending on 3 December 2016 was at the lowest end of the spectrum ofindecent assaults. By itself, his conviction for the indecent assault upon the first victimwould not attract a custodial sentence.Legislative provisions[101] For ease of reference, I set out the key legislative provisions starting with therelevant sections of the Sentencing Act governing a discharge without conviction:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.(Emphasis added.)107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.59 First strike judgment, above n 8, at [5]–[7].60 At [21].61 Second strike judgment, above n 8.[102] Next, I set out the key provisions of the three strikes regime that was insertedinto the Act in 2010:86D Stage-3 offences other than murder: offender sentenced tomaximum term of imprisonment(2) Despite any other enactment, if, on any occasion, an offender isconvicted of 1 or more stage-3 offences other than murder, the HighCourt must sentence the offender to the maximum term ofimprisonment prescribed for each offence.(3) When the court sentences the offender under subsection (2), the courtmust order that the offender serve the sentence without parole unlessthe court is satisfied that, given the circumstances of the offence andthe offender, it would be manifestly unjust to make the order.[103] Section 86I states that the three strikes regime prevails over any otherinconsistent provisions in the Act. That section provides:86I Sections 86B to 86E prevail over inconsistent provisionsA provision contained in sections 86B to 86E that is inconsistent with anotherprovision of this Act or the Parole Act 2002 prevails over the other provision,to the extent of the inconsistency.[104] Finally, I set out the principal interpretation provisions in the NZBORA:4 Other enactments not affectedNo court shall, in relation to any enactment (whether passed or made beforeor after the commencement of this Bill of Rights),—(a) hold any provision of the enactment to be impliedly repealed orrevoked, or to be in any way invalid or ineffective; or(b) decline to apply any provision of the enactment—by reason only that the provision is inconsistent with any provision of this Billof Rights.6 Interpretation consistent with Bill of Rights to be preferredWherever an enactment can be given a meaning that is consistent with therights and freedoms contained in this Bill of Rights, that meaning shall bepreferred to any other meaning.[105] I have omitted s 5 of the NZBORA from this judgment because I agree withmy colleagues that the breaches of the rights afforded to Mr Fitzgerald by s 9 ofthe NZBORA cannot be justified.A rights consistent interpretation of ss 106 and 86D of the Sentencing Act[106] One of the effects of ss 4 and 6 of the NZBORA is that the courts cannot declineto apply a provision of any enactment solely because the provision in question isinconsistent with the NZBORA. Where, however, an enactment can be interpreted ina way that is consistent with the rights affirmed by the NZBORA then thatinterpretation is to be preferred.62[107] The extent to which courts may venture when interpreting legislation in a waythat is consistent with human rights legislation has tested the limits of statutoryinterpretation in cognate jurisdictions. For example, s 3 of the Human Rights Act 1998(UK) requires all legislation to be read and applied in a way that is compatible withthe European Convention on Human Rights "[s]o far as it is possible to do so". In R vA (No 2), Lord Steyn explained that the effect of s 3 of the Human Rights Act rendersit necessary on occasions "to adopt an interpretation which linguistically may appearstrained".63[108] Similarly, in Ghaidan v Godin-Mendoza, Lord Nicholls said:64 to an extent bounded only by what is "possible", a court can modify themeaning, and hence the effect, of primary and secondary legislation[provided] [t]he meaning imported by application of section 3 [is] compatiblewith the underlying thrust of the legislation being construed.[109] Lord Millett, who dissented in relation to the result in Ghaidan, offered thefollowing comments to illustrate the wide boundaries of s 3:65Words cannot mean their opposite; "black" cannot mean "not black". But theymay include their opposite. In some contexts it may be possible to read"black" as meaning "black or white"; in other contexts it may be impossibleto do so. It all depends on whether "blackness" is the essential feature of thestatutory scheme; and while the court may look behind the words of the statute62 R v Poumako, above n 19, at [37].63 R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45 at [44].64 Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 at [32] and [33].65 At [70].they cannot be disregarded or given no weight, for they are the medium bywhich Parliament expresses its intention.[110] Lord Steyn suggested in R v A (No 2) and Ghaidan that s 3 of the Human RightsAct may be broader than s 6 of the NZBORA.66 In R v Hansen, however, Elias CJsaid she was "unable to accept that there is any material difference between theNew Zealand and the United Kingdom models".67 McGrath J also noted "the languageof s 6 of the New Zealand Bill of Rights is not materially different from the equivalentinterpretative instruction in s 3 of the United Kingdom Act".68[111] The limits on the approach to be taken under s 6 sit within the interpretationexercise that judges are required to undertake. As s 5 of the Interpretation Act 1999makes clear, the meaning of legislation is to be ascertained by reference to its text andpurpose. Words can be interpreted to contain a range of meanings, but statutes cannotbe rewritten by the courts. Thus, it is not possible for a court in New Zealand tointerpret s 86D(2) so as to devise a safety valve within that provision, or otherwise"modify [the] legislation".69 Section 6 is not a "concealed legislative tool".70Nevertheless, where two interpretations of a statute are possible, the courts shouldadopt the interpretation which gives most effect to the NZBORA.[112] This approach to interpretation, which gives primacy to the rights affirmed bythe NZBORA, is reinforced in the circumstances of this case where a citizen's libertyis at issue. Historically, penal statutes have been required to be construed narrowly.71This is consistent with the obligations upon New Zealand courts to impose the leastrestrictive outcome that is appropriate when sentencing an offender.7266 R v A (No 2), above n 63, at [44]; and Ghaidan v Godin-Mendoza, above n 64, at [44].67 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [13].68 At [243].69 At [246].70 At [156].71 Sir William Blackstone Commentaries on the Laws of England (15th ed, A Strahan, London, 1809)vol I at 87.72 Sentencing Act, s 8(g).Text and purpose of s 86D(2) of the Sentencing Act[113] On its face, s 86D(2) of the Act requires a judge sentencing a defendant fortheir "third strike offence" to impose the maximum term of imprisonment prescribedfor that offence.[114] This interpretation is supported by the legislative history to s 86D(2) of the Act.During the passage of the Sentencing and Parole Reform Bill 2009 the Oppositionmoved an amendment to what became s 86D(2). If it had been adopted, theamendment would have permitted a court to avoid imposing the maximum sentenceon a third strike offender where the circumstances of the offence and the offenderwould have made it manifestly unjust to impose the maximum sentence.73 In speakingagainst the proposed amendment, the Minister of Corrections, the Hon Judith Collins,explained that:74[A] stage three sentence is meant to be a very serious penalty in all casesbecause the offender is continuing to commit very serious offences thatvictimise people. [The proposed amendment] would reduce any deterrentforce of the bill. If it is going to deter people from this sort of offending, itneeds to be very certain.[115] Thus, it is apparent that when it enacted s 86D(2), Parliament was intent upon:(a) imposing maximum penalties on third strike offenders who committed"very serious offences"; and(b) achieving certainty in sentencing outcomes for those who committed"very serious offences".[116] Any suggestion Parliament intended s 86D(2) would apply to defendantswhose offending was not serious and at the lowest end of the spectrum of culpability,requires an acceptance of the proposition that Parliament intentionally imposed a veryharsh and indiscriminate punishment regime when it passed s 86D(2). I would notwish to attribute such malevolence to a New Zealand Parliament.73 (18 May 2010) 663 NZPD 10913.74 (18 May 2010) 663 NZPD 10922.[117] Nevertheless, an inadvertent consequence of Parliament's desire for certainoutcomes for those who commit "very serious offences" is that s 86D(2) cannot beinterpreted in a way that is consistent with Mr Fitzgerald's rights under s 9 ofthe NZBORA.Text and purpose of s 106 of the Sentencing Act[118] The proviso to s 106 of the Sentencing Act can be traced to s 42(1) of theCriminal Justice Act 1954. When that section was enacted, magistrates wereempowered to discharge without conviction any person charged with an offence"unless by any enactment applicable to the offence a minimum penalty [was] expresslyprovided for".[119] The concept of a "minimum penalty" was well understood when s 42 ofthe Criminal Justice Act 1954 was enacted. It encompassed penalties such as theminimum periods of disqualification that accompanied certain driving offences, likethose set out in s 41 of the Transport Act 1949.[120] Sections 42(1) and (2) of the Criminal Justice Act 1954 were enacted as s 19of the Criminal Justice Act 1985. When s 106 of the Act was passed, the reference to"minimum penalty" was, however, changed to "minimum sentence".[121] The Select Committee that was considering cl 95 of the Sentencing and ParoleReform Bill, which became s 106 of the Act, removed the proviso from the clause.The Committee explained this proposed amendment in the following way:75Most of us recommend an amendment to cl 95 allowing the court to dischargewithout conviction an offender where there is a minimum penalty for theoffence and also impose a penalty. An example of this is a drink-driving case,in which an offender may lose their job if convicted, but the court should stillbe able to disqualify them from driving.[122] The proviso was reinstated at the Committee of the Whole House stage of theBill's passage. At that point the change was made from "minimum penalty" to"minimum sentence". The proviso to s 106 is now usually interpreted as meaning that75 Sentencing and Parole Reform Bill (148-2) (select committee report) at 21.a defendant can be discharged without conviction and at the same time be subject toan order that involves the imposition of a minimum penalty, such as a statutory periodof disqualification.76[123] The reference to a "minimum sentence" in s 106 of the Act could only haverelated to a very narrow band of offences when s 106 was enacted. As my colleagueshave explained, the only minimum sentences prescribed in New Zealand weresentences of life imprisonment for treason77 and certain types of piracy.78 A mandatorysentence of life imprisonment was also prescribed for those convicted of murder.79That mandatory sentence was, however, changed by s 102 of the Act, which nowprovides for a presumption of life imprisonment unless that sentence would bemanifestly unjust. Thus, today, the only offences that expressly provide for aminimum sentence are treason and certain acts of piracy.Can ss 86D(2) and 106 of the Sentencing Act be interpreted in a way that isconsistent with s 9 of the NZBORA?[124] My colleagues have been persuaded that the High Court Judge had no optionother than to conclude that s 86D(2) required the imposition of the maximum sentenceprescribed for indecent assault and that, as the maximum sentence was also theminimum sentence, the proviso to s 106 means there was no jurisdiction to dischargeMr Fitzgerald without conviction.[125] The countervailing submission, advanced on behalf of Mr Fitzgerald is that theproviso to s 106 of the Act only applies where the substantive offence imposes aminimum sentence. On this approach, treason and certain piracy offences are the onlyoffences caught by the proviso.[126] Both interpretations summarised at [124] and [125] are available. The reasonwhy the interpretation advanced on behalf of Mr Fitzgerald is available, hinges on thephrase "any enactment applicable to the offence" in the proviso to s 106 of the Act.76 Police v Stewart (2004) 22 CRNZ 35 (HC); and Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007 at [27]–[28].77 Crimes Act, s 74(1).78 Section 94(a).79 Crimes Act, s 172 (repealed).[127] When s 106 was enacted, the words "any enactment applicable to the offence"could only have referred to the specific sentence provisions relating to an offence.There were no generic sentencing provisions similar to the three strikes regime at thetime s 106 was enacted. Thus, when Parliament passed s 106 it must have intendedthe proviso would have limited application.[128] The parliamentary records show that when Parliament enacted s 86D(2) itmade no reference to s 106 of the Act. Had Parliament intended to restrict thelong-established powers of the courts to discharge a defendant without conviction, itwould have clearly done so. This observation is particularly relevant when regard ishad to Parliament's dual aims when it passed s 86D(2), namely:(a) imposing the maximum penalty on "very serious" offenders; and(b) achieving certainty in sentencing in cases that involve "very serious"offending.In pursuing those objectives, Parliament chose not to refer to the power to dischargea defendant without conviction. The fact there was no reference to s 106 whens 86D(2) was passed strengthens the argument that Parliament did not intend tocircumscribe the well-entrenched jurisdiction of the courts to discharge defendantswithout convictions in appropriate cases. It is not surprising Parliament did not referto s 106 when it enacted the three strikes regime because, the purpose of the threestrikes provisions was to impose a more severe sentencing regime on those whorepeatedly committed "very serious offences". Persons who would normally beconsidered eligible to be discharged without conviction were not intended to beaffected when s 86D(2) was passed.[129] It is clear Parliament deliberately decided that s 86D(2) would not have a safetyvalve. However, adopting an approach that allows s 106 of the Act to be available inthis case does not involve grafting a safety valve onto s 86D(2). Instead, theinterpretation of s 106 that I favour allows that section to continue to be applied asParliament intended as a stand alone provision, unaffected by the generic three strikesregime. It also recognises that when Parliament passed s 86D(2) its focus was upon"very serious" offenders.[130] This interpretation of s 106 also does not offend s 86I of the Act because, asrecognised by the High Court Judge and my colleagues, if s 106 is available inMr Fitzgerald's circumstances, then that section stands alongside and not in conflictwith s 86D(2). This is because ss 86B to 86E, the sections referred to in s 86I, aresentencing provisions that are only engaged following a conviction. A dischargewithout conviction is an acquittal and once granted no sentence can be imposed.Although s 86I is framed broadly, it should properly be interpreted as referring to anyinconsistencies between ss 86B to 86E and other sentencing provisions followingconviction. This is particularly so in the present circumstances because, as previouslyemphasised, Parliament did not intend to affect s 106 when it enacted the three strikesregime.[131] Importantly, the interpretation of s 106 that I support allows for breaches of s 9of the NZBORA to be addressed in a meaningful way that gives primacy to the rightsaffirmed by the NZBORA. Mr Fitzgerald's circumstances are an unprecedentedbreach of s 9 because, as all in this Court acknowledge, the sentence that has beenimposed is out of all proportion to his offending and manifestly excessive.The discharge power must therefore be interpreted in a way that allows for thebreaches of Mr Fitzgerald's rights under s 9 of the NZBORA to be properly addressed.[132] As this approach to the meaning of the proviso in s 106 is consistent with therights affirmed by s 9 of the NZBORA, it is the interpretation that should prevail.Should Mr Fitzgerald be discharged without conviction?[133] Having concluded there is jurisdiction under s 106 to discharge Mr Fitzgeraldwithout conviction, it is now necessary to determine if that jurisdiction should beexercised in his favour.[134] It is well established that determining a discharge without conviction involvesthe Court engaging in a three-step process:80(a) identifying the gravity of the offence;(b) identifying the direct and indirect consequences of a conviction forthe defendant; and(c) determining whether the direct and indirect consequences of aconviction would be out of all proportion to the gravity ofthe offending.[135] The correct application of ss 106 and 107 should not be conflated with theassessment of a person's rights under s 9 of the NZBORA. A finding that a defendant'srights under s 9 of the NZBORA have been breached through the application ofs 86D(2) of the Act to their circumstances does not necessarily mean they are eligiblefor a discharge without conviction. Discharges without conviction are to be assessedagainst the criteria I have summarised in [134]. In particular, the gravity of the offenceand the offending is a key factor in determining an application for a discharge withoutconviction.[136] The gravity of the offence and offending is collaterally relevant to anassessment under s 9 of the NZBORA only because the gravity of the offence andthe offending are intricately linked to the sentence in issue. This point is illustrated bythe hypothetical example of a defendant who is convicted of rape in circumstanceswhere that conviction constitutes his third strike offence. Absent the three strikesregime the defendant would be sentenced to a lengthy period of imprisonment(for present purposes let us assume eight years). Under the three strikes regime hewould be required to be sentenced to 20 years' imprisonment, the maximum sentencefor rape. He may be able to argue the difference between eight years and 20 years'imprisonment engages his rights under s 9 of the NZBORA. The gravity of the offence80 Scott v R [2019] NZCA 261 at [79]; Prasad v R [2018] NZCA 537 at [11]; and R v Hughes [2008]NZCA 546, [2004] 3 NZLR 222 at [41].and his offending would, however, pose a considerable challenge if he tried to arguethat he should be discharged without conviction.[137] In sharp contrast to the example provided at [136], the gravity ofMr Fitzgerald's offending was at the lowest end of the spectrum of indecent assault.This factor weighs heavily in favour of a discharge without conviction.[138] The direct and indirect consequences of a conviction for Mr Fitzgerald areprofoundly serious. Unless he is discharged without conviction he will be required toserve a sentence of seven years' imprisonment. The fact he is eligible for parole doesnot undermine the gravity of the consequences of a conviction for Mr Fitzgerald. In adecision dated 18 June 2020 the Parole Board declined Mr Fitzgerald's most recentapplication for parole so as to enable him to continue with psychological rehabilitationto reduce his risk of further offending. We do not know if such a programme could becompleted by Mr Fitzgerald in the community. What is clear is that Mr Fitzgerald hasalready served a sentence in excess of three years and six months' imprisonment. Thatin itself is a manifestly unjust outcome.[139] The direct and indirect consequences of a conviction are, in the circumstancesof this case, out of all proportion to the gravity of Mr Fitzgerald's offending.Under normal circumstances, he would in all likelihood, have been dealt with by wayof a non-custodial sentence in relation to his indecent assault on the first victim.Mr Fitzgerald's personal circumstances, including his psychiatric history and inabilityto manage his conduct compound the injustice of him serving a sentence ofimprisonment for this offending.[140] The approach I favour does not open a floodgate that flushes away the effectsof s 86D(2) of the Act. The unique circumstances of this case are unlikely to providea precedent. Those circumstances, which are fully traversed at [34], include the fact:(a) Mr Fitzgerald has been sentenced to seven years' imprisonment incircumstances where his offending would not normally attract acustodial sentence; and(b) he is a very vulnerable man with multiple psychiatric and psychologicalchallenges.[141] I would therefore allow the appeal and discharge Mr Fitzgerald withoutconviction.Solicitors:Crown Law Office, Wellington for Respondent