Third striker avoids legal worst

possibility of parole after completing one-third of his sentence.

Without the judge making that exception, Fitzgerald, 45, would have served the full seven years.

Fitzgerald approached a stranger in central Wellington, apparently intending to kiss her lips, but the woman managed to turn her head and he kissed her cheek instead. Her friend also struggled with Fitzgerald.

He was found guilty at a judgealone trial of indecent assault, assault, and breaching a noalcohol rule on an extended supervision order imposed for earlier offending.

The assaults took place on December 3, 2016, he has been in custody since, and should be considered for parole in early 2019.

A statement was read for the victim. She said she had tried hard to put memories of childhood sexual abuse and family violence behind her. Fitzgerald’s assault had brought that back.

Fitzgerald’s lawyer, Kevin Preston, had tried to convince the judge to discharge Fitzgerald without conviction but the judge said that was not legally possible.

The Crown did not argue against Fitzgerald having the chance of parole. Without the three strikes law, he would have got a non-custodial sentence, the judge said.

Fitzgerald’s mental health contributed to his propensity to carry out the same type of offence.

Another of the crimes that qualified him for the three strikes had also been a chance encounter on the street when he grabbed a woman’s buttocks.

Preston said Fitzgerald needed treatment. He could be transferred from prison to hospital but as soon as he stabilised he would be sent back to prison.

It is understood two previous offenders have reached the third strike level of a law introduced in 2010. Both received the maximum penalty for the offences they had committed but under the exception for manifest injustice, both escaped non-parole terms.