Man given OLR for assaulting woman in woods with intent to rape loses appeal against sentence

About this case:

• Citation:
  [2024] HCJAC 27
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Maximiliano Moreno, aged 22, was given an OLR with a punishment part of 32 months’ imprisonment following his plea of guilty to a charge of assault with intent to rape, along with a concurrent sentence of 18 months in cumulo for three other charges. He argued that his youth and lack of previous offending supported an extended sentence rather than an OLR.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Boyd of Duncansby and Lord Beckett. Ogg, solicitor advocate, appeared for the appellant and Gill KC, advocate depute, for the Crown.

Enduring risk

On 21 June 2022 in a town in the Central Belt, the complainer in Charge 1, then aged 20, was walking home from work alone when she became aware that the appellant was following her. As she walked through a secluded wooded area, he accosted her from behind, put his left forearm around her neck and began squeezing. At first the complainer thought this was a joke, but he said nothing and tightened his grip.

The complainer managed to break free and ran towards her home nearby, taking photos of the appellant as she did so. The appellant removed his hoodie and abandoned a rucksack containing cable ties, pliers, latex gloves, scarves, condoms, and lubricant. After the police were alerted, they found the appellant topless and holding a kitchen knife with a blade of about 5 inches in his trouser pocket. The police later found his hoodie and rucksack nearby.

In a risk assessment report, the appellant was described as having exhibited concerning behaviour at school, for which he was referred to mental health services. Police discovered writings in his home detailing acts of extreme violence to which he might subject more than a dozen people against whom he appeared to hold a grudge. The assessor, Dr Baird, concluded that this was a case which lay between medium and high risk, noting that the appellant had never been confronted with the consequences of his actions before now.

The trial judge concluded that the appellant presented an enduring risk, noting his unwillingness to explain why he committed the offence in Charge 1 and the preparations he made to commit it. In appealing the OLR, counsel for the appellant brought attention to his age, lack of previous convictions, and his early guilty plea as factors demonstrating that the criteria for making an OLR were not met.

View to controlling

Delivering the opinion of the court, Lord Beckett began: “As the appellant accepts, it was for the trial judge to determine the level of risk he presents by applying his experience to the whole circumstances, paying particular attention to the RAR and whether he meets the criterion for an OLR. In practice, the question for the sentencing judge was whether it is more likely than not, meaning probable, that the appellant when at liberty will seriously endanger the public.”

He continued: “The items in possession of the appellant perhaps speak for themselves, but we infer that he had cable ties and pliers with a view to controlling his victim with them as handcuffs or a ligature. His possession of latex gloves shows forensic awareness. For reasons he has not explained, he got so far as to equip himself with various sinister items, identify a target, follow her and assault her by choking her around the neck. He attempted to abduct her and intended to rape her. It was good fortune that the complainer showed the resilience and presence of mind which she did to thwart his attack proceeding further.”

On the effect of the finding of medium risk, Lord Beckett said: “We recognise that the appellant was and is a young offender. His relative youth bears on his culpability and he may mature. He may have greater capacity for change and rehabilitation, the latter being a more prominent sentencing consideration for someone of his age but protection of the public remains a very important consideration in his case. Dr Baird did find some grounds for optimism that he has responded and will respond to confinement and will reduce the risk he presents as he matures and engages in rehabilitative programmes.”

He concluded: “Like the trial judge, we have considered certain references regarding his participation in constructive activities in custody. Nevertheless, when considering the appellant’s preparations, intention and conduct against the background of other violent and troubling behaviours, which persisted through his childhood and into his young adult life, we conclude that the judge was correct in determining, for the reasons he gives, that the risk criteria were met. As such, he was bound to make an OLR.”

The appeal against sentence was therefore refused.