R v Jason Larkin

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IN THE COURT OF APPEAL CRIMINAL DIVISON ON APPEAL FROM THE CROWN COURT AT MOLD (HIS HONOUR JUDGE SIMON MILLS) [60EW0991523] Case No 2025/01796/A1 [2025] EWCA Crim 1222 B e f o r e: Royal Courts of Justice The Strand London WC2A 2LL Thursday 24 June 2025 THE VICE-PRESIDENT OF THE COUT OF APPEAL, CRIMINAL DIVISION (Lord Justice Holroyde) MRS JUSTICE CUTTS DBE MR JUSTICE CALVER ____________________ ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 ____________________ R E X - v - JASON LARKIN ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _____________________ Miss J Newcombe appeared on behalf of the Attorney General Mr J Talbot appeared on behalf of the Offender ____________________ J U D G M E N T (Approved) ____________________ Thursday 24 July 2025 LORD JUSTICE HOLROYDE: 1. Jason Larkin, to whom we shall refer as "the offender", pleaded guilty to an offence of controlling or coercive behaviour in a family relationship, contrary to section 76 of the Serious Crime Act 2015. He was sentenced to 43 weeks' imprisonment and made subject to a restraining order for five years. 2. His Majesty's Solicitor General believes the sentencing to have been unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed. 3. The victim of the offence was the offender's former wife. They married in October 2017. By early 2021, Mrs Larkin wanted to end the marriage. She carried out research on the internet, including identifying a local firm of solicitors. The Facts 4. The offender was originally charged on an indictment containing three counts. On the day fixed for his trial, a new count 4 was added by way of amendment. The offender was re- arraigned and pleaded guilty to that count. It alleged an offence contrary to section 76 of the 2015 Act and gave the following particulars of the offence: "Jason Larkin between the 22nd day of February 2021 and the 18th day of June 2023, at a time when he was personally connected to Susana Larkin, engaged in behaviour towards Susana Larkin that was controlling or coercive namely, 1) On 23rd February 2021, he tied Susana Larkin to a chair, placed a pillowcase over her head, placed a duvet over her head making it difficult for her to breathe and made threats to her. 2) On 7th October 2022, poured Coca Cola into her mouth thereby choking Susana Larkin; brandished a knife and placed a bean bag over Susana Larkin's face. 3) On 17th June 2023, pushed Susana Larkin against a wall, causing difficulties in breathing through fear; behaved in an aggressive and overbearing manner; made threats towards Susana Larkin which had a serious effect on Susana Larkin namely that it caused Susana Larkin to fear, on at least two occasions, that violence will be used against Susana Larkin, at a time when he knew or ought to have known that the behaviour will have a serious effect on Susana Larkin." 5. The facts of the three specific incidents referred to in the indictment can be summarised as follows. 6. On 23 February 2021, the offender became angry because he had learned that his wife was considering divorce. He took hold of her, dragged her to the floor, dragged her to a nearby chair and used the ties from her dressing gown to tie her hands to the chair. He then used other items, including a dressing gown belt, to tie other parts of her body, including her legs, to the chair, with one of the ties going around her body. He made threats towards her, including as to the use of items. For example, he picked up a lamp and told Mrs Larkin that he wanted to "smash her skull" with it. Mrs Larkin was so frightened that she wet herself. The offender then put his hand over her face and told her to go to sleep. He told her not to call him by his name, but to call him "Lucifer" – no doubt with a view to making himself more frightening. At one point he put a pillow case over Mrs Larkin's face, causing her to struggle to breathe. He made other threats and told her not to tell anyone about what he was doing. 7. Mrs Larkin did in fact tell some work colleagues about that incident. They came to the house and found her in a distressed state. The police were informed. A few days later the offender was arrested. No prosecution was brought at that stage. 8. The fact of arrest clearly did not have any deterrent effect, because on 7 October 2022 the offender again assaulted his wife. He took hold of her face in a manner which covered her nose and mouth. He then poured Coca Cola into her mouth, causing her to choke. He picked up a knife and said to his wife, "You think you're smart". He then put the knife down, but picked up a beanbag and pushed that down onto her face. 9. It may be noted that when Mrs Larkin on more than one occasion asked the offender why he had treated her in the ways that he had on those occasions, his replies were to the effect that she had caused him to do so. 10. By early 2023 the marriage was plainly at an end, although it is not entirely clear whether a decree nisi of divorce had by that stage been granted. However, some of the offender's property remained at the former matrimonial home, and he visited from time to time to collect items or to work on vehicles which he kept there. 11. One such occasion was on 17 June 2023. Mrs Larkin offered the offender a cup of tea. For a time they were polite towards one another, but then Mrs Larkin asked him to move out the rest of his belongings. At this, the offender stood up and began to shout at Mrs Larkin. He effectively manoeuvred her backwards and pushed her against a wall. There was a closed-circuit television camera in the living room where this occurred. We have seen the footage. The offender's behaviour is aggressive and frightening. His wife immediately adopted a defensive posture. 12. We would add that it appears that by the time of that incident the offender had formed a new relationship with another woman. 13. The offender appeared before a magistrates' court on 7 March 2024 and was sent to the Crown Court for trial. The Better Case Management Form filled in on that occasion recorded, amongst other things, that he denied being controlling and coercive. 14. There was a plea and trial preparation hearing in the Crown Court later that month, at which it is to be inferred that the offender pleaded not guilty to the charges he then faced. However, the form completed on that occasion did not identify any specific issues in the case; nor does it appear that a Defence Case Statement was ever filed. 15. The offender was granted bail to await a trial date, which was to be more than a year later. However, he breached the conditions of his bail and was remanded in custody. 16. By the time of the sentencing hearing on 28 April 2025, he had been in custody for several months. The Sentencing Hearing 17. No pre-sentence report was thought to be necessary. A report has, however, subsequently been prepared for the assistance of this court. 18. The judge was provided with a victim personal statement written by Mrs Larkin on 6 October 2023, nearly four months after the last of the three incidents which we have summarised. In the statement she described that she lived in fear day by day as a result of the incidents. She had regular flashbacks and panic attacks. She had been off work for two years and continued to struggle with her mental health. She had been diagnosed with post traumatic stress disorder. She was prescribed medication for that disorder, although she was unhappy with the quantity of medication she had to take. She had, on one occasion, tried to take an overdose. She had cut her hair short to avoid any further incident of being dragged by her hair. She felt humiliated. She spent days in bed, or crying, and was neglecting herself. She felt constantly scared of loud voices and was fearful whenever she saw a man with red hair. She said: "Although I want to forget the past, I cannot do so." 19. The judge considered the Sentencing Council's definitive guideline for offences contrary to section 76 of the 2015 Act, and also the overriding principes in the Sentencing Council's Domestic Abuse Guideline. 20. Both counsel submitted, and the judge agreed, that it was a case of category A higher culpability because there had been "persistent action over a prolonged period". 21. As to harm, counsel made submissions as to whether this was a case of "very serious alarm or distress which has a substantial adverse effect on the victim" in category 1, or a case of "serious alarm or distress which has a substantial adverse effect on the victim" in category 2. Prosecution counsel submitted that the court could conclude that very serious alarm or distress had been caused to Mrs Larkin in the February 2021 incident and may be able to conclude that the case fell into category 1. Defence counsel accepted that the incidents would have caused some serious harm or distress which had a substantial adverse effect on Mrs Larkin and therefore submitted that the case fell into category 2. He made submissions about text messages which Mrs Larkin had sent to the offender, which counsel suggested put the relationship into context because they indicated a willingness not to pursue the criminal proceedings if agreement could be reached about the financial orders consequent upon the divorce. 22. The judge, in his sentencing remarks, noted that category 1A has a starting point of two years six months' custody, and a range from one to four years' custody; whilst category 2A has a starting point of one year's custody and a range of 26 weeks to two and a half years' custody. He observed that cases do not always clearly fall into one category rather than another. He said that the offending clearly passed the custody threshold, but that in his judgment it did not comfortably attract a starting point as high as two and a half years' custody. He said: "… I have decided, balancing all the factors in this case, to take a sentence starting point, and I stress starting point, before applying credit for a guilty plea, of 15 months' imprisonment." 23. The judge then identified mitigating features. He accepted that, as a result of a serious assault which the offender had suffered in the past, the offender had mental health issues. The judge noted that there were clearly two sides to the offender, who had behaved well in custody and had acquired a trusted role in the prison. He also noted that although the offender had a number of previous convictions, they did not include any for offences involving domestic abuse, and that the last conviction of any sort had been in 2015. 24. The judge reached the following conclusion: "I am going to reduce your sentence starting point, bearing in mind your mitigation, including such evidence as there is about your mental health and your conduct whilst in remand, I am going to reduce the sentence starting point to one of 12 months." The judge went on to say that there had been discussions between counsel about a possible plea and that he felt it appropriate to give credit of one-sixth for the plea entered on the day of trial. It was in those circumstances that he imposed the sentence of 43 weeks' imprisonment. The Submissions to this Court 25. No issue arises about the restraining order, and we need not need to refer to it further. 26. As to the length of the prison sentence, Miss Newcombe for the Solicitor General submits that the custodial term was unduly lenient, in particular because the judge should have placed harm into category 1, and not into category 2, and because the judge must have given too much weight to such mitigating factors as there were. She makes helpful submissions as to why the harm suffered by Mrs Larkin should have been regarded as "very serious", rather than "serious". As to matters of mitigation, she submits that the court should be cautious about observations by the sentencing judge about there being "two sides to every story". She reminds us that in the Sentencing Council's Domestic Abuse Guideline, under the subheading "Mitigating Factors", the guideline notes that as a general principle a court will take account of an offender's positive good character, but continues: "However, it is recognised that one of the factors that can allow domestic abuse to continue unnoticed for lengthy periods is the ability of the perpetrator to have a public and a private face. In respect of offences committed within a domestic context, an offender's good character in relation to conduct outside these offences should generally be of no relevance where there is a proven pattern of behaviour." 27. For the offender, Mr Talbot (who did not appear below) submits that the judge adopted a careful and entirely proper approach to sentencing, and that the sentence cannot be said to fall outside the range properly open to him. 28. We are grateful to both counsel, whose respective submissions were, if we may say so, admirably clear and focused. Analysis 29. We regret to have to begin with yet another reminder to judges and practitioners of the proper use of the term "the starting point". Where, as here, the Sentencing Council has published a relevant offence specific definitive guideline, the effect of section 59(1) and section 60(4) of the Sentencing Code is that the judge is under a duty "to decide which of the categories most resembles the offender's case in order to identify the starting point". 30. Section 60(5) provides an exception for the rare case where a court is of the opinion that none of the categories in the guideline sufficiently resembles the offender's case. Those rare exceptions apart, we emphasise that section 60(4) imposes a duty, not an option. 31. Identification of the appropriate category gives the judge the only starting point, namely the guideline starting point for that category. There may be particular features of culpability and/or harm which make it appropriate for the judge to make an initial adjustment to that starting point, upwards or downwards, before considering any aggravating and mitigating factors, and deciding whether the balancing of those factors results in a further adjustment. But we emphasise, once again, any such process is an adjustment of the one and only starting point, not the selecting of a different starting point. 32. There will, of course, be cases which have features of both a higher and a lower category, and it may well be that the same provisional sentence will be reached whether the judge selects the higher category and makes an appropriate initial adjustment downwards, or selects the lower category and makes an appropriate initial adjustment upwards. It nonetheless remains important for the judge to follow the correct process, to balance culpability and harm factors so far as necessary, and to select the appropriate category. The defendant, the victim, the public and this court are all entitled to know which category the judge identified as most closely resembling the offender’s case; whether the starting point appropriate to that category was adjusted upwards or downwards; and, if so, why. 33. Here, with all respect to the judge, the correct process was not followed. The judge did not specifically identify which category he had selected (though we infer that it was probably category A2), and therefore did not identify the appropriate guideline starting point. 34. In any event, we accept the submission of the Solicitor General that the case clearly fell into category 1 harm. It would, of course, have been preferable if the victim personal statement had been updated shortly before the sentencing hearing. The statement showed, however, that Mrs Larkin had been so alarmed and distressed by the series of incidents that her mental health had been affected; she had been off work for two years; she had been diagnosed with PTSD and medicated accordingly; and she lived in daily fear. Any expression by her of willingness not to pursue the criminal proceedings if ancillary relief issues could be resolved was irrelevant, for two reasons: first, because it could readily be explained by a desire to achieve a clean break from her abusive former husband; and secondly, because it was not in her power to decide that a prosecution should not be pursued. 35. At the sentencing hearing, it was rightly conceded on the offender's behalf that Mrs Larkin's alarm or distress had had a substantial adverse effect on her. The issue, therefore, was a narrow one: was her alarm or distress "serious" or "very serious"? 36. The answer, in our view, is clear. On 22 February 2021, she was tied to a chair, threatened with severe violence and was so scared that she wet herself. She was then suffocated and ordered not to tell anyone what the offender had done. On 7 October 2022, her nose and mouth were covered and she was caused to choke, then threatened with a knife, and then suffocated with a beanbag over her face. Even in the third incident on 17 June 2023, which did not involve actual violence, the offender behaved in a way which the judge described in his sentencing remarks as "aggressive, overbearing, threatening and terrifying", with the result that "she was clearly absolutely terrified". 37. We are therefore satisfied that the category in the guideline which must closely resembled the offender's case was category 1A and that the appropriate starting point was therefore two years six months' imprisonment. 38. We cannot see anything in the circumstances of this case which makes it appropriate for any initial downwards adjustment from that starting point to be made. There were some mitigating factors, albeit of comparatively little weight. In the end, the judge reduced the sentence which he had in mind by three months to reflect that mitigation. We think that appropriate. 39. It follows that in our judgment the appropriate provisional sentence, before any reduction for the guilty plea, was not less than two years and three months' imprisonment (27 months). 40. As to the credit for the very late guilty plea, we have reflected on the submissions helpfully made by Mr Talbot as to why it was appropriate for the judge to give more than the credit of ten per cent which is usually the maximum reduction for a guilty plea on the day of trial. The plain fact of the matter is that the very late guilty plea achieved none of the benefits of an early guilty plea. It was not until after she had attended court on the day fixed for trial that Mrs Larkin was relieved of the anxiety that she would have to give evidence about these matters in a public court. Whilst we readily accept that there had been discussions between counsel, at no point prior to the day of trial had the offender given an unequivocal indication of willingness to plead guilty to an offence in the terms of the eventual count 4. 41. Applying the guideline, and familiar case law from this court, we can see no basis for the offender being given any greater credit than ten per cent for his very late plea. 42. We therefore grant leave to refer. For the reasons which we have given, we are satisfied that the sentence imposed by the judge was unduly lenient. The least sentence which could properly have been imposed, having reduced the provisional sentence by ten per cent to reflect the guilty plea, and rounding slightly in the offender's favour, is one of two years' imprisonment. 43. We therefore quash the sentence imposed below. We substitute for it a sentence of two years' imprisonment. 44. The effect of our decision, from the offender's point of view, is that his sentence is now one of two years' imprisonment. ______________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________ 14