Maximiliano Moreno v. His Majesty’s Advocate [2024] HCJAC 27

Note of appeal against sentence:- On 25 March 2004, following a plea of guilty to four charges at a Continued Preliminary Hearing at Glasgow High Court, the appellant was made the subject of an Order for Lifelong Restriction with a punishment part of 32 months imprisonment fixed. The OLR related to charge 1 (assault with intent to rape) with a cumulo sentence of 18 months imprisonment imposed in relation to charges 2, 3 and 4 (charge 2 -a contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010; charge 3 - possession of a knife in a public place contrary to section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995; and charge 4 - an attempt to pervert the course of justice, with both sentences to run concurrently with both backdated to 23 June 2022. The Risk Assessor, Dr Baird, judged in the Risk Assessment Report (RAR) that the risk presented by the appellant lay between medium and high risk. The appellant was 22 at the time of the RAR and was 20 when he committed the offences. The sentencing judge recognised the possibility that the appellant would address his issues so that he would not present an enduring risk to the public, however, given the nature of the offence, his unwillingness to discuss it, the issues which had arisen in childhood and his detailed preparations to commit charge 1, the judge concluded that the appellant presented an enduring risk and would be likely to commit a similar offence when released from prison and was satisfied the risk criteria were met and imposed an OLR. The appellant appealed against the sentence imposed it being contended that the criteria for making an Order for Lifelong Restriction were not met due to:- (1) his age when he committed the crime and at the date of sentencing; (2) his early plea and acceptance of responsibility; (3) his lack of previous convictions; (4) his progress whilst remanded in custody; (5) his work since leaving school; (6) his supportive family; (7) his lack of substance misuse issues; (8) his co-operation with the risk assessor; (9) his willingness to undertake offence focussed work including a motivation to address his problems and behaviours with scope for further maturing; and (10) certain positive observations made by the Risk Assessor concerning the appellant’s level of risk including inter alia his potential to change and to be managed. It was submitted on behalf of the appellant that the judge erred in concluding that, on a balance of probability, the risk criteria were met and the imposition of an extended sentence was appropriate. Here the court refused the appeal. The court recognised that in light of the appellant’s age he might have greater capacity for change and rehabilitation, however, protection of the public was a very important consideration. The court was of the view that, in light of the appellant’s preparations, his intention and his conduct in the context of other violent and concerning behaviour throughout his life, the sentencing judge was correct to hold that the risk criteria were met and that the imposition of an Order for Lifelong Restriction was the inevitable sentence.