Twice-convicted rapist Musab Hamdi given indefinite prison term for Auckland attack
'There is no possibility of [rehabilitation] because of your refusal to take responsibility for your actions. You pose a significant, ongoing risk to the community.'
Preventive detention is a prison term without an end date designed to protect the community from the nation's most high-risk offenders.
Justice Blanchard ordered that Hamdi serve a minimum of five years before he can apply for parole. But the Parole Board now has the power to reject his requests as many times as needed if Hamdi's refusal to engage in rehabilitation means he remains a high risk.
Napier, Auckland victims
Hamdi's first trip to prison was in 2015 after he was found guilty of having raped an 18-year-old woman a year earlier. He was sentenced to seven years' imprisonment and released on parole in August 2019 despite not having engaged in rehabilitation while incarcerated.
His parole ended in August 2022 and about six weeks later he got into a conversation with the 13-year-old on Snapchat after having tried unsuccessfully to get her to reply previously. He said he was 17 and the girl said she would be 14 in three months.
They chatted over video, but Hamdi remained in the shadows. When the child agreed to meet him, he kept her talking as he drove about 80km to her grandmother's house, arriving about 2.30am.
'You induced the victim to sneak out of the house,' Justice Blanchard said today as he recounted the facts of the case, adding that by the time she realised his true age and intentions it was too late.
Hamdi drove the child to a remote location and invited her into the back seat, which she refused. He then forced himself on her.
'She tried to push you away, telling you, 'I don't want to do this',' the judge recounted. 'She repeatedly told you to stop.'
After dropping her off at home, Hamdi said he'd like to meet her again sometime. The girl, however, told him bluntly that he had raped her and she blocked him on Snapchat. He tried opening a new Snapchat account to contact her, but the ruse didn't work.
The girl told her school counsellor the following Monday and two weeks later police were at Hamdi's home with a search warrant.
On his phone, authorities found illegal child sexual exploitation videos and photos, including from a 10-year-old Napier girl he had contacted in March that year while still on parole and a photo depicting an unidentified infant being raped.
Police also found an explicit Snapchat conversation and video with a young girl from Latvia. The social media app is known for self-deleting messages but their exchange had happened on the same morning as the search.
'Sickened and disgusted'
A district court jury found Hamdi guilty of rape last July. Auckland District Court Judge Peter Winter found him guilty of possessing the objectionable material discovered on his phone after a judge-alone trial in October.
Both cases were transferred to the High Court after the Crown announced its intention to seek preventive detention.
Hamdi's 13-year-old victim did not attend today's sentencing hearing but watched with her grandmother via an audio-video feed.
'I didn't want to do this,' she said in a written victim impact statement that was read aloud by prosecutors. 'I feel sickened and disgusted. Everything has been so, so stressful.'
The victim, now 16, said Hamdi made it worse by continuing to deny the charge, forcing her to come to court. She described uncontrollable shaking and a nosebleed that wouldn't stop before giving evidence.
'I can't think about it without being sick,' she said of the offending. 'It's been years and I still cry about it.
'I regularly have flashbacks and then it feels like everything is upside down. You did this to me. You made me feel scared of the people in this world.'
She said she hopes Hamdi does get the help he needs while in prison so that no other girls are victimised when he is eventually released.
'You took a sweet, innocent girl and left something else,' she said.
Don't extinguish hope
The crux of the Crown's case for preventive detention was that Hamdi can't be rehabilitated while continuing to deny the offending.
'He consistently states it either didn't occur or there's a conspiracy against him,' Crown prosecutor Helen Brown said. 'There's just not a realistic prospect he would engage in any rehabilitation. There has been no effort and there is highly unlikely to be any effort in the future.'
Two psychological reports presented by the Crown assessed Hamdi to be a high risk of reoffending without treatment. A third assessment, provided by the defence, was inconclusive about his future risk.
Brown warned the judge against taking the defendant at his word, noting that he said he's never used drugs and denied any sexual thoughts or sexual experiences while on parole. Texts from the three months before the search warrant show he was looking for methamphetamine almost every day, she said.
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Defence lawyer Ron Mansfield, KC, emphasised that at 37, his client has only been to prison once before. Preventive detention, he argued, was an outsized reaction given Hamdi's limited history.
Mansfield said an extended supervision order – allowing parole-like restrictions to remain in place after a finite sentence is completed – would be a less restrictive and more proper response if Hamdi continues to refuse rehabilitation. Without an end date, he said, there would be little incentive for his client to engage in such treatment.
'We shouldn't seek to extinguish that opportunity for him to do so,' Mansfield said, adding that preventive detention is a 'last resort' for those who 'show no hope' – not those facing only their second prison sentence.
Had Justice Blanchard imposed a finite sentence, the judge said he would have settled on 10 and a half years' imprisonment, with a minimum term of imprisonment of five years.
That sentence would have reflected an uplift for Hamdi's history and having offended again while on parole, as well as a 10% reduction for his background. He suffered PTSD and claustrophobia stemming from his youth in Iraq, which will make prison disproportionally severe for him, the judge agreed.
But in the end, the judge told Hamdi, the overriding concern had to be the protection of the community.
'I accept this is a pattern of serious offending,' he said before referring to the 13-year-old victim's impact statement. 'There can be no doubt the harm caused to her is serious.'
Hamdi sat quietly in the courtroom dock as the sentence was imposed. It was a stark contrast to some earlier hearings.
During a brief callover hearing in September to set the sentencing date, Hamdi appeared via audio-video feed from a prison conference room, frequently interrupting Justice Mathew Downs until the judge ordered that he be put on mute.
'Mute me? Who the hell do you think you are muting me?' Hamdi yelled before the judge ordered that the feed be cut altogether, concluding the hearing without him.
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