R v Hamdi
[2025] NZHC 1277
•22 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-044-2896
CRI-2023-004-1193 [2025] NZHC 1277
THE KING v
MUSAB HAMDI
Hearing: 22 May 2025 Appearances:
H Brown and S Meyerhoff for the Crown
R Mansfield KC and S Teppett for the defendant
Date:
22 May 2025
SENTENCING NOTES OF BLANCHARD J
Solicitors/Counsel:
Meredith Connell, Auckland Ron Mansfield KC, Auckland
R v HAMDI [2025] NZHC 1277 [22 May 2025]
[1] Mr Hamdi, you appear for sentence on charges across two separate proceedings.
[2]In the first proceeding, you were found guilty of:
(a)sexual violation by rape;1
(b)meeting a young person following sexual grooming;2 and
(c)failing to carry out obligations in relation to a computer search.3
[3]In the second proceeding, you were found guilty of:
(a)indecent communications with a young person under 16;4 and
(b)possession of an objectionable publication with knowledge (x10).5
[4] Sentencing is a formal process that takes some time. That is because I must explain the reasons for the sentence I am to impose. You and all the people in Court, and any court that reviews the sentence, must know the basis upon which I have imposed the sentence.
[5] A key matter I have to decide today is whether to sentence you to preventive detention. That is a sentence of imprisonment for an indefinite period. You would be released only when the Parole Board is satisfied that you no longer pose a risk to the community.
The offending
[6]I will first summarise your offending.
1 Crimes Act 1961, ss 128(1)(a) and 128B. Maximum penalty 20 years’ imprisonment.
2 Section 131B. Maximum penalty of seven years’ imprisonment.
3 Search and Surveillance Act 2012, s 178. Maximum penalty three months’ imprisonment.
4 Crimes Act, s 124A. Maximum penalty three years’ imprisonment.
5 Films, Videos and Publications Classification Act 1983, s 131A(1). Maximum penalty 10 years’ imprisonment.
Rape and grooming offending
[7] In the late evening on 10 September 2022, you contacted the victim via Snapchat using a profile with the false name Carlos Louchiano. You had previously contacted her on Snapchat, but she had not responded until that evening. You claimed you were 17 years’ old. The victim informed you that she was turning 14 in December.
[8] You initiated a video call with the victim where your face was in darkness, and the pair of you spoke for between 30 minutes and an hour. The victim eventually agreed to meet with you. You then drove to her address, which was around 80 kilometres away, a journey of approximately one hour. As you drove, you kept the victim on the phone with you.
[9] At approximately 2.30 am, you arrived at the victim’s address. You induced the victim to sneak out of her house and get into your car. As soon as she got into your car, she realised that she was not meeting a 17 year old.
[10] You began driving towards a remote, unknown location. While driving, you began rubbing and squeezing the victim’s thigh.
[11] You stopped the car at a remote location. You pulled down your trousers and exposed your penis. You invited the victim to get into the backseat, but she refused. She moved away from you, at which point you leaned across to the passenger seat to try and kiss her. She tried to push you away, telling you, “I don’t wanna do this”.
[12] You then then climbed across to the passenger seat and held the victim down against the seat. You forcibly removed her clothes before penetrating her vagina with your penis. She repeatedly told you to stop, but you continued. During the rape, you bit her on the chest.
[13] When you were finished, you drove her home. At her home you asked to see her again soon. Subsequently, you sent her messages on Snapchat. She replied, saying you had raped her, and then she blocked you. She reported the offending to her school counsellor, and then to Police.
[14] In the meantime, you created a new Snapchat profile, and over the following days, you attempted to message her from that profile.
[15] Two weeks later, on 27 September 2022, you were arrested in relation to the offending against the victim. Your cell phone was seized pursuant to a search warrant. When you were asked to provide the passcode to your cell phone, you refused.
Objectionable publications and indecent communications offending
[16] Your phone was subsequently examined. Analysis of the phone identified nine videos and one image containing child sexual exploitation material (CSEM). The CSEM related to the following three individuals:
(a)a 10-year-old girl living in Napier, who I will call Charlotte;
(b)a 10-year-old girl living in Latvia, who I will call Anna; and
(c)an unidentified female infant.
[17] Category A is the most serious type of CSEM, involving penetrative sex, sadistic sexual activity or bestiality. Category B involves non-penetrative sex. Category C involves any objectionable publication involving children which does not come under either Categories A or B.6
[18] Videos one to three, six and eight fall in Category C, depicting Charlotte posing naked and showing her genitalia, anus, and/or nipples. Videos four, five, and seven fall in Category B, depicting Charlotte performing non-penetrative sexual acts. Video nine falls in Category C, depicting Anna posing naked and showing her genitalia, anus and nipples.
[19] The image found on your phone depicts an unknown infant lying on her back with a man positioned above her. Semen runs from the infant’s vagina and the man’s
6 The categorisation of CSEM in New Zealand derives from the Sentencing Council for England and Wales “Sexual Offences Definitive Guideline” (April 2014).
erect penis is resting on the child’s body. Given the indication of sexual penetration, this is a Category A image.
[20] Analysis of your phone also revealed a Snapchat conversation with Anna from 27 September 2022, being the morning that the search warrant was executed. During the conversation with Anna, you sent a number of explicit messages to her including requests to see her genitalia, have intercourse with her, and stating that you wanted her to watch you masturbate.
[21] You elicited video nine from Anna during your Snapchat conversation. You received videos one to eight from Charlotte, who was saved as a contact in your phone. Metadata connected to videos one to eight showed that they had been received by the phone in March 2022, at a time when you were still on parole for your conviction for your 2014 rape.
Victim impact
[22] You have heard the victim impact statement read to the Court this morning. The profound and lasting effects that your sexual offences have had on the victim are clear. The psychological and emotional effects on the victim have been huge.
Finite sentence
[23] Before I turn to whether you should be sentenced to preventive detention, I will determine what your final sentence would be if I impose one. I will do this following a two-step process:7
(a)First, I will set a starting point by looking at the nature and extent of your offending.
(b)Second, I will consider whether any uplifts or reductions should be made to the starting point to take account of your personal circumstances.
7 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
Stage one: starting point
[24] The charge of sexual violation by rape is the lead offence. The tariff case for such offending is R v AM.8 In that case, the Court of Appeal set out four sentencing bands for rape.9 The Crown’s lawyers and your lawyers agree that your offending falls within rape band two. This band is for cases which involve two or three other factors that increase culpability to a moderate degree. It covers offending involving a vulnerable victim and levels of violence. In cases falling in this band, the starting point will be seven to 13 years.
[25] The Crown’s lawyers and your lawyers disagree on where your offending falls within rape band two. The Crown submits that your rape offending warrants a starting point of 10 years’ imprisonment. Your lawyers submit that a starting point of between eight and eight-and-a-half years’ imprisonment is appropriate.
[26] In my view, the appropriate starting point is nine-and-a-half years. I say this for the following reasons:
(a)As a 13-year-old, the victim was highly vulnerable. You were 35 years old. The age difference is significant.
(b)There was significant planning and premeditation on your part.
(c)You detained the victim against her will when you drove her to an unknown remote location.
[27] The starting point must be uplifted for your indecent communications and objectionable publications offending. The Crown’s lawyers and your lawyers disagree on the extent of the uplift. The Crown submits that there should be an uplift of two years. Your lawyers say that the uplift should be 18 months. I agree with your lawyers the uplift should be 18 months.
8 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
9 At [90].
[28] The end result is that the starting point for the totality of your offending is 11 years’ imprisonment.
Stage two: personal circumstances
[29] I now turn to the second stage, which is to consider whether any uplifts or reductions should be applied to the adjusted starting point to take account of your personal circumstances.
[30] The Crown submits that there should be an uplift of 12 months’ imprisonment for your previous convictions and six months’ imprisonment for your offending while on parole. Your lawyers say that the uplift for these factors should be limited to a total of six months.
[31] You have three previous convictions. The most relevant of these is your conviction for your 2014 rape, for which you received a sentence of seven years’ imprisonment.10
[32] As I have previously mentioned, your objectionable publications offending began while on parole for your rape conviction, when you received videos one to eight from Charlotte in March 2022.
[33]I agree with the Crown there should be an uplift of 18 months for these factors.
[34] The Crown says it is not aware of any personal mitigating factors relevant to you.
[35] But your lawyers say that there should be a reduction of 10 per cent in view of your early years in Iraq causing a likely diagnosis of PTSD and, due to time spent in confined spaces, claustrophobia. Your lawyers say that these factors mean a sentence of imprisonment would be disproportionately severe for you.11 I agree your sentence should be reduced by 10 per cent for these factors.
10 R v Hamdi [2015] NZDC 21794.
11 R v Verschaffelt [2002] 3 NZLR 772 (CA).
[36] You have spent approximately 15 months on electronically monitored (EM) bail, on strict conditions, including a 24-hour curfew. There have been no reported breaches. Your lawyers submit that a reduction of at least 10 months is appropriate for your time on EM bail. This equates to a reduction of two thirds of your time on EM bail. The Crown’s lawyers submit that there should be a reduction of 50 per cent. However, your lawyers submit that a reduction of two thirds is consistent with authorities for time spent on strict EM bail conditions.12 I agree.
Summary
[37] In summary, the finite sentence that I would impose if I decided not to sentence you to preventive detention is 10-and-a-half years’ imprisonment. This is calculated as follows:
(a)A starting point of nine-and-a-half years’ imprisonment for the rape and grooming offending.
(b)An uplift of 18 months’ imprisonment, in respect of the remaining offending.
(c)An uplift of 18 months imprisonment for your previous convictions and your offending while on parole.13
(d)A reduction of 10 per cent for your early years in Iraq and your likely diagnosis of PTSD and claustrophobia.
(e)A reduction of 10 months for time spent on EM bail.
Minimum period of imprisonment
[38] If I were to impose a finite sentence, I would also need to decide whether to impose a minimum period of imprisonment.
12 Paora v R [2021] NZCA 559.
13 In court I said “bail”, but I have corrected this slip.
[39] The Crown says that a minimum period of imprisonment of two thirds of the full term of the finite sentence would be appropriate. Your lawyers say that no minimum period of imprisonment is required.
[40] The standard position is that you would be eligible for parole after you have served one third of your sentence.14 A minimum period of imprisonment is applicable where the standard parole eligibility period would not be sufficient to hold you accountable, denounce and deter your offending, and protect the community from you.15
[41] I consider that a longer minimum period of imprisonment than the standard one third is required having regard to these factors, in particular, the need to protect the community from you. As I will discuss when I turn to preventive detention, the evidence before me suggests that there is a high risk of you committing sexual offending in the future — particularly against young people. I consider a minimum period of imprisonment of five years’ imprisonment would be appropriate.
Preventive detention
[42]I now turn to whether I should impose a sentence of preventive detention.
[43] The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.16 I can impose a sentence of preventive detention if I am satisfied you are likely to commit another qualifying violent or sexual offence on release at the end date of a finite sentence. But, in deciding whether to impose a sentence of preventive detention, there are certain matters that I must consider.
[44] To assist me in making my decision, I am required to receive two expert reports.17 To meet this requirement, the Crown has provided me with reports from Dr Alex Jones, a clinical psychologist, and Dr Rishi Duggal, a psychiatrist. Your
14 Parole Act 2002, s 84(1).
15 Sentencing Act 2002, s 86.
16 Section 87.
17 Section 88.
lawyers have also provided me with a report by Dr Peter Dean, who is also a psychiatrist. I have carefully considered these reports.
[45] I said that there are certain matters that I must consider. I will go through these in turn.
Pattern of serious offending
[46] The first factor I need to consider is any pattern of serious offending disclosed by your history.
[47]The Crown says that there is a pattern of serious offending because:
(a)In addition to your present convictions, you have a previous conviction for rape in 2014.
(b)You completed your parole for this conviction on 1 August 2022. Roughly six weeks later, on 11 September 2022, you raped again.
(c)Your objectionable publication offending occurred both while you were on parole for your previous offending and after your parole finished.
[48] The Court of Appeal has said that there does not have to a history of identical offending, only “a propensity mix of dangerous behaviour”.18 Thus, the Court upheld a sentence of preventive detention for a man convicted of rape with no prior sexual offending.
[49] The Crown submits that your history demonstrates a pattern of serious sexual offending targeted at women and girls.
[50] Your lawyers submit that your previous conviction does not necessarily support any specific pattern as the circumstances of the previous offending were different to the current offending. But your lawyers acknowledges that the current
18 Stroobant v R [2018] NZCA 10 at [23].
offending demonstrates a propensity to be sexually attracted to children and to communicate with them and to act out on that attraction.
[51] For the reasons advanced by the Crown, I accept that there is a pattern of serious offending.
Seriousness of harm to the community caused by the offending
[52] The next factor is the seriousness of harm to the community caused by your offending.
[53] The nature of your offending speaks for itself. The victim was only 13 years’ old. There can be no doubt that the harm caused to her is very serious. As your lawyers acknowledge, sexual offending of this nature causes harm to the victims and the wider community.
Tendency to commit serious offences in the future
[54]The next factor is your tendency to commit serious offences in the future.
[55] I have referred to the three expert reports I have received. These reports assist me in determining whether you are likely to commit another qualifying offence.
[56] Dr Jones assesses you as having a high risk of committing further sexual offences. He considers that, if you were to reoffend, it would most likely be a sexual offence against a female child between 10 and 13 years of age.
[57] Dr Duggal considers that you have a clear tendency to commit serious sexual offences, particularly against young and pre-pubescent females and that you are subject to a significantly elevated risk of sexual recidivism.
[58] Dr Dean says that he is unable to predict risk. But he says the best predictor of risk remains past behaviour. He also says that you appear to be most at risk of engaging in sexual behaviour with adult and pre-pubescent females.
[59] Your lawyers say that the Court must determine whether you will have a tendency to commit serious sexual offences at the time of your release, rather than whether you would have such a tendency if you were released into the community now. Your lawyers submit that, if you were to engage in rehabilitation, your risk of reoffending at the time of your release would be reduced. But the difficulty with this is that you have refused to accept any responsibility for your offending. Therefore, it is not possible for you to meaningfully engage in rehabilitation. In the circumstances, I consider that you are a high risk of committing further sexual offences on your release.
Efforts by the defendant to address the offending
[60]The next factor is the efforts you have made to address your offending.
[61] You continue to deny the offending, and you do not demonstrate any remorse for your actions or empathy for the victims. Therefore, while you have told the experts you are open to rehabilitation, it is not possible for you to take any meaningful steps towards rehabilitation. All three experts agree on this.
Lengthy finite sentence is preferable if it provides adequate protection
[62] The final factor that I must consider is the principle that a finite sentence is preferable if it provides adequate protection for society.
[63] The authorities indicate that, if an offender is unlikely to fully engage with treatment, preventive detention is more appropriate.19 On this basis, the Crown submits that an indefinite sentence is necessary because the community will not be protected until you accept your offending and meaningfully engage in rehabilitation, and that is not likely to happen because of the stance you have taken.
[64] Your lawyers submit that a sentence of preventive detention deprives you of the opportunity, as a relatively young man of 37 years, to undertake rehabilitative programmes in prison. Your lawyers say that you have expressed an openness to
19 R v King [2019] NZHC 537 at [81]; Jenkins v R [2015] NZCA 131 at [44]–[45]; and R v Orchiston
[2020] NZHC 224.
complete rehabilitation, and this should be encouraged. But, as I have said, there is no possibility of this because of your refusal to take responsibility for your actions.
Conclusion
[65] Your current and previous offending reveals a pattern of serious sexual offending. The harm caused to each of your victims is serious. You pose a significant ongoing risk to the community. You have not been prepared to take responsibility for your offending which will limit the effectiveness of any rehabilitation. A finite sentence of imprisonment is not sufficient to mitigate the risk you pose. For these reasons, my conclusion is that preventive detention is required.
Minimum period of imprisonment
[66] Because I have concluded that preventive detention is required, I must now impose a minimum period of imprisonment.
[67] The minimum period must be no less than five years.20 Further, it must be the longer of the period required to reflect the gravity of your offending or the period required for the purposes of safety of the community.21
[68] The Crown submits that a minimum period of imprisonment of nine years is appropriate. Your lawyers say this would be disproportionate to the gravity of your offending and that the minimum period of imprisonment should be no longer than five years.
[69]In my view, the minimum period of imprisonment should be five years.
Registration on the Child Sex Offender Register
[70] I am required to let you know you will automatically be registered on the Child Sex Offender Register.22
20 Sentencing Act, s 89(1).
21 Section 89(2).
22 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7.
Sentence
[71]Mr Hamdi, please stand.
[72] On the charge of sexual violation by rape, I sentence you to preventive detention. I impose a minimum period of imprisonment of five years.
[73] On the charge of meeting a young person following sexual grooming, I sentence you to two years’ imprisonment.
[74] On the charge of failing to carry out obligations in relation to a computer search, I sentence you to one month imprisonment.
[75] On the charge of indecent communications with a young person under 16, I sentence you to six months’ imprisonment.
[76] On each of the charges of possession of an objectionable publication with knowledge, I sentence you to one year imprisonment.
[77]All sentences are to be served concurrently.
[78]You may stand down.
Blanchard J