The Supreme Court has allowed an appeal by a three strikes offender, who is serving a seven-year sentence for forcibly kissing a stranger.
Daniel Fitzgerald, 48, who suffers from schizophrenia, has already served more than four years in Rimutaka Prison.
The majority of judges found his sentence was so disproportionately severe it breaches the Bill of Rights and he should be re-sentenced.
In December 2016, Fitzgerald tried to kiss a woman on her mouth as she walked along Wellington’s Cuba Street. The woman moved her head so that he kissed her on the cheek.
Fitzgerald was convicted of indecent assault, and since it was his third serious offence, he was given the maximum sentence.
His lawyer, Kevin Preston, appealed for him to be discharged without conviction, but this was dismissed by the court.
The three strikes law came into force in 2010, under a National Government as a way to crack down on hardened criminals. The Labour Government has promised to repeal it but progress has been slow.
At least 17 people are on their third strike and more than 500 are on their second.
The Supreme Court held that Parliament did not intend for judges to impose penalties that breach the Bill of Rights protection against disproportionately severe sentences.
Three of the judges said that where a third strike sentence breaches the Bill of Rights, the offender should instead be sentenced in accordance with ordinary sentencing principles.
Chief Justice Helen Winkelmann found that the Fitzgerald case came very close to being one of the rare third strike cases in which a discharge would be appropriate, and might have been such a case were it not for public safety concerns.
The court ordered for Fitzgerald to be re-sentenced in the High Court, in accordance with ordinary sentencing principles and taking into account his significant mental health issues.