Lee Connors AKA Lee Andrew Hunter v. Her Majesty’s Advocate [2018] HCJAC 5

Note of appeal against sentence:- In February 2016, at the High Court, the appellant was convicted after trial of a number of charges including attempted murder using a firearm. In light of the circumstances of the offence the trial judge considered that the risk criteria, as defined in section 210E of the Criminal Procedure (Scotland) Act 1995, may be met and made a Restriction Assessment Order and sought a Risk Assessment Report. The judge who had made the Risk Assessment Order was unavailable when the case next called and a different judge, having regard to the content of the RAR and the conclusions of the Assessor, along with the appellant’s solicitor-advocate’s concession that the imposition of an Order for Lifelong Restriction was appropriate, was satisfied that the risk criteria were met and imposed an OLR. The appellant appealed against his sentence and it was contended that the imposition of the OLR was inappropriate as the sentencing judge had erred in holding that the risk criteria were met. It was submitted that the assessor had not adequately considered any risk that the appellant would present at a time in the future when, other than with the imposition of an OLR, he would be at liberty and no longer under any post-release supervision. It was contended on behalf of the appellant that the judge had simply accepted the RAR’s conclusions, which were formed at a time when the appellant denied his offending, whereas he had now acknowledged his offending behaviour and had been engaging with the authorities within the custodial setting. It was submitted that the judge had paid insufficient regard to a number of positive matters relating to the appellant. Here the court refused the appeal. The court considered that the sentencing judge had properly and carefully addressed the issue of risk and the factors referred to in Ferguson v HMA 2014 SLT 431. The assessor in the present case considered that the appellant presented a high risk and in Ferguson the court stated where a judge accepts such a categorisation then that would be a strong indicator of the imposition of an OLR. Whilst the court noted that the appellant appeared to now acknowledge his guilt and had become more compliant within the prison system that did not of itself invalidate the judge’s decision to impose an OLR. The court noted that the assessor’s view was that whilst within a custodial setting the risk presented by the appellant was easier to manage. The court also observed that on 8 March 2016 the appellant pled guilty to possession of a further firearm and was sentenced to 5 years imprisonment.