When the rules on sexual and violent offenders fall down

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 last year 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 an extended supervision order (or ESO), despite Corrections applying for one. Crown Law didn’t 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 convicted person 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 Abdiwali was acquitted on two charges, but Money says that’s 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 neccessarily 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 doesn’t fault Judge Brett Crowley’s approach to the case of Abdiwali.
“However, he was making it on incorrect information,” she says.
In a statement, Corrections told The Detail all decisions on whether to appeal court decisions on ESOs are made by Crown Law. In this case, Crown Law decided not to appeal. However, Corrections also said that at the time of our podcast being recorded that Abdiwali was 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,” says the Corrections spokesperson.
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’s 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 supervison order is less restrictive.
Edgeler says he also negotiates the restrictions that his client will have imposed 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.
Edgeler says reoffending in a similar way (for example a sex offender commits another sex crime) while under an ESO isn’t common, but nevertheless it does happen.
In 2014 Tony Robertson hit Auckland woman Blessie Gotingco with his car before he took her to his home, where she was raped 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 aren’t 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,” he says.
Money agrees 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,” she says.
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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