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A recent decision to let a repeat sex offender out in the community with minimal supervision has sparked debate over the value of monitoring methods.
This article contains sensitive material including the discussion of sexual violence
A twice-convicted sex offender who was released from prison with minimal supervision is back in jail.
Mohammed Abdiwali was released from prison in 2023 after serving a two year and eight month sentence for sexual violation. This is after the Somali-born man had already served five years and nine months, after being convicted in 2014 of burglary and sexual violation.
He was released without a extended supervision order (or ESO), in spite of Corrections applying for one. Crown Law did not appeal that decision.
But now he has been remanded in custody for breaching his release conditions.
The Detail looks at what is involved in deciding if an offender is placed under an ESO, and what it means.
Victim advocate Ruth Money was shocked with the decision not to have Abdiwali placed under an ESO, and is concerned about what she calls factual errors that informed the judge's decision.
The judgment records that Abdiwali was acquitted on two charges, but Money says that is not the case.
"He had not been acquitted, the jury couldn't decide. They were a hung jury. If he'd been acquitted that would mean he's not a repeat offender necessarily because that's two charges off his charge sheet, making it a weaker argument that he would be a repeat offender," she says.
Money says the Parole Act outlines the threshold of risk for judges who are determining whether or not an ESO should be granted, and she does not fault judge Brett Crowley's approach to the case of Abdiwali.
"However, he was making it on incorrect information," she says.
Corrections says all decisions regarding whether to appeal court decisions on ESOs are made by Crown Law. In this case, Crown Law has made the decision not to appeal. However, Corrections also says that at the time of our podcast being recorded that Abdiwali is in custody, remanded on an active charge for breaching his release conditions.
"If he is released, he will be closely managed by highly experienced Community Corrections staff, who are dedicated to ensuring compliance with any court or parole board-imposed conditions," the Corrections spokesperson says.
Graeme Edgeler is a Wellington-based barrister and has defended multiple offenders who have ESO applications lodged against them. He says for the defence, often it is not a matter of fighting the application, but rather negotiating between an ESO and a more extreme public protection order.
A public protection order "involves physical detention inside a wire ... where someone looking in from the outside would think it's a prison", he says.
In such cases, the extended supervision order is less restrictive.
Edgeler says he also negotiates the restrictions that his client will have imposed on them under an ESO.
"At its highest a person can be required to be at a corrections facility outside a prison wire where they can be monitored 24/7 by the Department of Corrections staff, they're wearing an electronic bracelet, their phone or internet might be either denied or restricted, they may, if they're ever going out, have to be accompanied by Corrections officers," he says.
Edgeler says other restrictions are very similar to those imposed on an offender who is on parole.
"They can be told, 'you can't go to parks, or you can't enter this particular town where your victim lives.' They can have curfews ... during the first year of an extended supervision order the curfew can be 24/7," he says.
Reoffending in a similar way (for example, a sex offender committing another sex crime) while under an ESO is not common, but nevertheless it does happen, he says.
In 2014, Tony Robertson hit Auckland woman Blessie Gotingco with his car before he took her to his home, raped her and then stabbed to death. He was under an extended supervision order for kidnapping and molesting a five-year-old girl in Tauranga in 2005.
But Edgeler says under New Zealand law, dangerous people are not punished until they commit a crime.
"Which is how our criminal justice system was designed to operate. We punish people after they offend, not before, and when you're talking about someone on an extended supervision order they have been punished already for that offence, they have served literally the entire sentence and now we are doing a level of monitoring.
"But we don't want to keep them locked up forever for something which they committed 10 or 15 years ago, and they've been punished for already."
Money agrees that offenders who have done the time and have been rehabilitated should have the chance to live a normal life, but in the case of Tony Robertson, she believes there was a failure of management.
"He had already shown complete disregard for the ESO, he had also shown escalation in his behaviour, he'd been found around schools and parks, and he is a very dangerous, recidivist sex offender and no one had recalled him even though he was allegedly being closely managed."
Money thinks most offenders under ESOs are managed.
"But I don't believe that the New Zealand justice system, and most of this comes under Corrections, identifies and manages what we call the one-percenters, the most high-risk offenders, I don't believe we have the skill set to be able to do that."
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Where to get help for sexual violence
Victim Support 0800 842 846
Rape Crisis 0800 88 33 00
HELP Call 24/7 (Auckland): 09 623 1700, (Wellington): 04 801 6655 - push 0 at the menu
Survivors Network of those Abused by Priests (SNAP) 022 344 0496
If it is an emergency and you feel like you or someone else is at risk, call 111.