Following his guilty plea to a charge of assault with intent to rape, 22-year-old Maximiliano Moreno received an OLR with a punishment component of 32 months’ imprisonment coupled with a concurrent sentence of 18 months in Qumulo for three other counts. He maintained that rather than an OLR, his young age and lack of past offence merited a longer sentence.
We listened to the appeal with Lord Boyd of Duncansby, Lord Beckett, Lord Carloway, and the Lord Justice General. Attached for the Crown was Ogg, the solicitor advocate, representing Gill KC, advocate depute.
The complainer in Charge 1, then twenty, went home from work alone in a town in the Central Belt when she noticed the appellant trailing her. She was walking across a remote woodland area when he approached her from behind, placed his left forearm around her neck, and started to squeeze. The complainer first assumed this was a joke, but he said nothing and tightened his hold.
The complainer broke free and fled towards her house close by, snapping pictures of the appellant as she went. The appellant pulled off his hoodie and dropped a bag containing wire ties, pliers, latex gloves, scarves, condoms, and lubrication. The appellant was topless and carrying a kitchen knife with a blade of roughly five inches in his trouser pocket when the police were alerted. Later, officers discovered his knapsack and hoodie close by.
The appellant was referred to mental health services after displaying worrying conduct at school, according to a risk assessment report. Police found notes in his house outlining acts of terrible violence to which he seemed to be grudging more than a dozen persons against whom he seemed to have a resentment. Dr Baird, the assessor, concluded that this case fell between medium and high risk and pointed out that the appellant had never before been faced with the results of his acts.
Observing his refusal to explain why he committed the act in Charge 1 and the preparations he made to do so, the trial judge decided the appellant presented an ongoing risk. Counsel for the appellant appealed the OLR, highlighting his age, lack of prior convictions, and early guilty plea as evidence that the requirements for an OLR were not satisfied.
Speaking for the court, Lord Beckett started: “As the appellant agrees, it was for the trial judge to decide the level of risk he provides by applying his experience to the overall circumstances, giving particular emphasis to the RAR and whether he fulfils the threshold for an OLR. Practically, the sentencing judge asked if it is more likely than not, or probable, that the appellant, under liberty, will seriously imperil the public.
He said: “The goods in possession of the appellant perhaps speak for themselves, but we infer that he possessed cable ties and pliers intending to control his victim with them as handcuffs or a ligature. Having latex gloves reveals forensic awareness. He came so far as to equip himself with several nasty items, identify a target, follow her and attack her by choking her around the neck for reasons he has not explained. He set out to rape her and tried to kidnap her. It was lucky that the complainer displayed the resilience and presence of mind she did to stop his attack from moving ahead.
Regarding the medium risk discovery result, Lord Beckett said: “We acknowledge that the appellant was and is a young offender. His relative youth calls for his responsibility, and he might grow up. While the protection of the public remains an essential factor in his instance, he may have more capacity for change and rehabilitation; the latter is a more significant sentencing element for someone of his age. As he ages and participates in rehabilitative programmes, Dr Baird found reasons to hope he will react to confinement and lower the risk he provides.
“Like the trial judge, we have considered certain references regarding his participation in constructive activities in custody,” he said. Still, given the appellant’s preparations, intention, and behaviour against the backdrop of other violent and disturbing activities that persisted through his childhood and into his young adult life, we find the judge right in concluding—for the reasons she lists—that the risk criteria were satisfied. He was so compelled to make an OLR.
So, the appeal against punishment was turned down.
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