Neutral Citation Number: [2018] EWCA Crim 2165
Case No: 201704240/B2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 21 September 2018
 
B e f o r e:

LORD JUSTICE DAVIS

MRS JUSTICE SIMLER DBE 
MR JUSTICE DOVE 
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R E G I N A 
v 
JAMES LARKIN 
 
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Computer Aided Transcript of the Stenograph Notes of
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Mr A Waterman QC appeared on behalf of the Appellant
Mr D Enoch QC appeared on behalf of the Crown
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J U D G M E N T (As Approved by the Court)

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LORD JUSTICE DAVIS:  
Introduction 
1.	This appeal against sentence arises in the result of the appellant's conviction on a count of manslaughter.  His conviction followed a trial at the Crown Court at Sheffield before Andrews J and a jury, the verdict being delivered on 9 November 2016.  A few days later he was sentenced by the trial judge to a term of 12 years' imprisonment on the count of manslaughter.  In addition, he was also facing a count of conspiracy to pervert the course of justice in respect of which he was also convicted; and a one year concurrent sentence was imposed on that.
2.	There was a co‑accused, a woman called Laura Marie Ostle, who was convicted of the count of conspiracy to pervert the course of justice.  She was sentenced to a term of 18 months' imprisonment.  The appeal against sentence on the part of this appellant is brought by leave of the single judge.
Background facts
3.	The background facts, relatively shortly stated, is this.  Christopher Larkin was born on 30 June 2014.  His mother was the co‑accused, Laura Marie Ostle, who was 19 years old at the time.  The birth was by way of Caesarean section under general anaesthetic.  The appellant was named as the father on the birth certificate.  He had been in a relationship with the co‑accused since 2012.  However, that relationship had at least temporarily come to an end and there was a possibility that the appellant was not himself the father of Christopher.
4.	The appellant and the co‑accused also had another child, who may be called R, then aged two years.  The appellant was also named on the birth certificate as the father of R.  In fact, the co‑accused had already been pregnant when the two started their relationship.  The actuality was that the appellant regarded himself, and acted nobly, as the father of both children.  
5.	The co‑accused herself had been adopted as a baby and her adoptive parents and their subsequent partners had been closely involved with helping look after both R and Christopher.
6.	On 16 September 2014 at 7.22 in the morning, the ambulance service was called to the address where the appellant and the co‑accused lived.  This was consequent upon a report of a baby who had stopped breathing.  Upon arrival the ambulance crew found that Christopher was in cardiac arrest.  He was resuscitated and taken to hospital.  The co‑accused travelled with Christopher whilst the appellant stayed at home with R.  Christopher was taken to the hospital's children's intensive care unit.  A scan revealed swelling and bleeding to the brain and retinal hemorrhaging.  The injury was considered to be non‑accidental and both parents were arrested.  Tragically, Christopher was unable to survive the injuries he had suffered and he died at 1.18 am on 18 September 2014.
7.	A postmortem report subsequently conducted revealed that he had died of a head injury consistent with baby shaking or a sudden impact on a soft surface.  A full pathology report had stated that there was no medical condition present which contributed to his death.  Specialists in fact recorded two episodes of bleeding, the most recent being the cause of death.  Thus there had been a brain bleed, as it was said, timed some one to three months before the final incident.  The historic retinal hemorrhaging was, however, unlikely to be the causation of the historic bleeding due to Christopher having been born by Caesarean section. 
8.	The appellant and the co‑accused were interviewed.  Both denied being responsible for the injury, claiming that Christopher had been suffering medical problems since he was born.  It was also said that Christopher had been suffering from apnoea attacks and it was felt that these were in some way linked to his death.
9.	On 23 September 2014 the appellant went to the police station stating that he had more things that he wanted to tell the police about what had happened.  (He had already told the co‑accused and one of her adoptive parents certain things by that point and had been asked to leave in consequence.)  He was to say to the police that on the morning Christopher had collapsed and he had accidentally banged Christopher's head on the side of the cot after slipping on a changing mat.  This had caused Christopher to stop breathing and then the appellant shook him to try to get him breathing again.  When further interviewed, he declined to comment.
10.	Subsequently at trial it was suggested, although the appellant did not himself give evidence, that he may have shaken Christopher because he was in a panic that Christopher was not moving. 
11.	All phones belonging to the appellant and the co‑accused were examined and data deleted from them were recovered.  It was considered significant that within a few minutes of the ambulance setting off to the hospital the co‑accused was texting the appellant warning him that the police were on their way and telling him what to say to the police.  She instructed him amongst other things to say that Christopher had been with them in their room and that they were asleep when it all started.  This was not true, as Christopher's moses basket had in fact been in the next door room.  She asked him to sort out Christopher's blankets and to put his moses basket in their room.  In addition, it emerged that text messages had also been sent by the co‑accused to a man called Smalley prior to Christopher's collapse ‑ the prosecution's theory at trial was that this could have been the motive for the appellant losing his temper while handling Christopher borne out of jealousy; but the judge in due course in terms rejected that theory.
12.	During the investigation, it had become clear that the co‑accused had a second mobile phone which was unaccounted for.  This was never produced.  Ultimately, the co‑accused did hand over the missing phone to the police which revealed that data had been deleted from it.
13.	When the trial judge came to pass sentence, she did so in conspicuously full terms, her sentencing remarks covering 19 pages of transcript.  The appellant himself was effectively a man of good character having but one trifling conviction for an offence of dishonesty some years earlier.  The judge was fully to recount the evidence relating to his conduct as a father of R and Christopher.  That evidence had been to the effect that he had been an excellent and caring father to R, indeed one of the witnesses, whose evidence the judge accepted in this regard, had described him as a "brilliant dad".  The evidence also was, as the judge accepted, that he had looked after Christopher no less well up until the time of that incident.
Sentencing remarks of the trial Judge 
14.	At the time when the judge had to pass sentence, there was no relevant definitive guideline on sentencing in manslaughter cases issued by the Sentencing Council.  There has recently been published a guideline for such sentences; but that only applies to cases of manslaughter where sentence is passed on or after 1 November 2018.  However, we are told by Mr Waterman that there were cited to the judge two particular authorities ‑ authorities which have been cited to us and to which we will come ‑ which do provide some degree of assistance in assessing the appropriate level of sentencing in manslaughter cases of this kind involving babies.
15.	As we have said, the judge expressly rejected the prosecution's suggestion that what happened had been borne out of jealousy.  Equally, the suggestion was rejected, as indeed the jury must have rejected, that the appellant had acted in some way in panic as a result of Christopher appearing to be still.  Further, for the purposes of passing the overall sentence, the judge, as she was perfectly entitled to do, elected to treat the conviction on the count of conspiracy to pervert the course of justice as an aggravating factor to be reflected in the overall length of the sentence.
16.	At the outset of her remarks, and having accepted that the appellant had been shown to be a devoted and loving father to Christopher and R and indeed their principal carer, the judge said this:  
"This is, by any standards, a most unusual case.  Tragic though it undoubtedly is, it is far removed from the sadly all too common picture of a helpless child being subjected to sustained abuse over their short lifetime and then eventually killed by an uncaring or sadistic step‑parent.  On the contrary, the evidence in this case, without exception, portrays you as kind, loving and caring towards the children and treating them both alike..." 
The judge then said this:  
"Perhaps the most extraordinary feature of the case is the dynamic of your relationship with Laura Ostle." 
The judge then went on to spell out that extraordinary feature.  That was to the effect that the co‑accused Laura Ostle was the wholly dominant figure in the relationship, frequently treating the appellant dismissively.  In the words of the judge, "she made use of you".  The appellant seems prepared to have tolerated this and the overall upshot was that he effectively had been left as the carer both of R and of Christopher whilst the co‑accused pursued a lifestyle which suited her.  The judge then went on to say this at a later stage of her sentencing remarks:  
"Leaving aside the events of the 16th September 2014, there was no evidence of your ever taking out your anger or frustration on either of the children, or even so much as raising your voice towards them when you had had a falling out with Laura.  By all accounts R was a very happy, well‑adjusted child who was always clean and well cared for, and Christopher was equally well looked after by you." 
One feature of the case related to the health of Christopher.  He had indeed suffered from apnoea involving on occasion breathing fits.  Concern had also been expressed by the co‑accused's parents and their partners about his general development.  As we have said, it was subsequently ascertained as a consequence of the postmortem that Christopher at some stage had previously suffered some form of brain injury, albeit not likely to have been occasioned at birth.  As to that the judge expressly found that there was no evidence to indicate that the appellant himself had been responsible for that.  But the point remained, as the judge observed, that by 16 September 2014 the appellant knew that for whatever reason all was not well with Christopher and that he was vulnerable therefore, over and above the fact that he was only an eleven‑and‑a‑half‑week‑old baby at the time.
17.	As to the circumstances involving Christopher's actual death, the judge found on the evidence that the force needed to cause the injury sustained by Christopher would be "outside the range of normal handling or rough play".  She rejected, as we have said, the suggestion that this might have been a shake in panic.
18.	It transpired that the appellant had, after the events in question, himself given a demonstration of what he said had happened to a particular individual called Mrs Thacker who was to give evidence at the trial.  The judge summarised Mrs Thacker's evidence of the demonstration given to her by the appellant in these terms, stating that her evidence accorded with the expert evidence:  
"Those of us who saw her repeat that demonstration when she gave her evidence in court and she was struggling to find the words to describe and convey the strength of the physical action for the benefit of the tape, will find it very difficult to erase that graphic image from our memories.  She was clearly shocked and appalled.  It was quite obvious to her and to us from her evidence, that what you were demonstrating was not the action of a man gripped by panic endeavouring to save a life, but the action of a man who had been driven by anger, frustration, exasperation, or a combination of all three to completely lose his self‑control." 
It is the recollection of Mr Enoch QC, who appears and appeared for the prosecution, that the demonstration given by Mrs Thacker ran to about 10 seconds in terms of length of time; and, as she was to say, the appellant in giving that demonstration to her only stopped when she (Mrs Thacker) asked him to.
19.	The judge did not in fact make a finding as to the length of the actual shaking that had occurred.  The expert evidence in fact was that a shaking of two or three seconds would have been capable of causing the injury that Christopher suffered: although of course it was entirely possible that that shaking was longer than that, especially, it appears, in the light of Mrs Thacker's evidence.
20.	The judge also did not make a specific finding in her sentencing remarks as to just what level of intent she assessed the appellant as having at the critical time.  But it is plain enough, we consider, from her overall remarks that there was no intent on the part of the appellant to cause harm falling just short of grievous bodily harm.  It was simply not such a case.  Rather, this appears to have been a case more akin to a situation where the appellant violently shook Christopher when he had lost control, as the judge found, through frustration or exasperation or anger, heedless that harm might be caused.  
21.	As to the conspiracy matter, the judge found in her sentencing remarks that the moving spirit behind all that was the co‑accused Laura; the appellant in effect doing what she told him to do and to say.  This in particular had involved the false statement that the Moses basket had been in their bedroom and his then moving it there for that purpose.  Moreover, the appellant had also kept quiet about the co‑accused's second phone, even though he knew that the police were looking for it.  
22.	Overall, as part of the features of the case, the position was that the appellant and the co‑accused had given an untruthful account to police and there had been various false explanations given from time to time.  
Discussion and disposal 
23.	In such circumstances, the principal aggravating features were that this was a very young child (indeed a baby) and further this was a baby with known health issues.  Moreover, lies were told and there was the conspiracy to pervert the course of justice.  Aside from the relatively short‑lived nature of the shaking, the mitigation essentially that this was a man of good character and that what had happened here was out of character, in that otherwise he had been a very good and caring father both to R and to Christopher.  
24.	Sentencing in manslaughter cases of this kind has always been difficult: although it may be hoped that at least some of those difficulties will be removed when the new sentencing guideline comes into operation.  However, we consider that the two authorities referred (as we were told) to the judge and referred to us are of considerable assistance in this regard.  They are the cases of Burridge [2011] 2 Cr.App.R (S) 27, [2010] EWCA Crim 2847 and Attorney General's Reference No 125 of 2010 (Draper) [2011] 2 Cr.App.R (S) 97.
25.	In the former case, that is to say that of Burridge, it was made clear that following the enactment of Schedule 21 to the Criminal Justice Act 2003 crimes which resulted in death should be treated more seriously than heretofore had been the case, and that was equally so in cases of manslaughter involving babies or young children.  The resulting sentence therefore had to reflect the gravity of the fact of there being a death by reason of an unlawful act.  In Burridge, this was also said at paragraph 133:  
"We say immediately that the range of sentences imposed for manslaughter of a small child is wide. This is because there are very real variations in the gravity of the conduct that leads to death and, furthermore, the intent leading to a conviction for manslaughter also covers a broad range, from the intent to commit a minor assault up to an intent falling just short of that necessary for murder. The assessment of these features is obviously highly relevant when considering culpability in a given case..."  
A like approach was also adopted and confirmed in the Draper case.
26.	Mr Waterman QC who appeared at trial on behalf of the appellant and appears before us on his behalf today, placed particular emphasis on those two cases.  He acknowledges, rightly, that each case is of course fact and circumstance specific.  Nevertheless, he draws attention to the facts and circumstances of Burridge.  In that case, a constitution of this court had substituted a conviction of manslaughter for a conviction of murder at trial.  Having so substituted a conviction for manslaughter, this court imposed a sentence of 10 years' imprisonment.  That was a case where the baby had been eight weeks old at the time of death.  Further, wholly unlike the present case, it was found that the intent had been an intent just short of that necessary for murder.  Further, it was a feature of that case that the defendant had been involved in at least one, if not two, previous occasions where the defendant had fractured the ribs of the baby victim.  Moreover, the defendant in the case of Burridge had acted as he did in temper in circumstances where he had previously been warned by his family about this and advised to seek help.  None of these features, stresses Mr Waterman, were present in the instant case.  Yet, the appellant here, he said, has received a sentence two years longer than the sentence imposed in the case of Burridge: when on any view the circumstances of Burridge were significantly worse than the circumstances of the present case.
27.	So far as the Draper case is concerned, the facts are a little closer to the present case.  That involved the fatal shaking of a four‑month‑old baby when the defendant was in a bad mood.  It was not an "end of the tether" case.  In the case of Draper there had in fact been one previous incident of violence involving the defendant, albeit it had caused no damage on that occasion.  In Draper lies had also been told.  In that case, on a plea of guilty, a constitution of this court increased the sentence imposed by the trial judge to one of five years' imprisonment against the background of a plea at the first opportunity.  The court in Draper stressed that Burridge itself was not to be regarded as a guideline case for sentencing purposes.  Mr Waterman submits that the sentencing outcome in Draper also is entirely out of kilter with the sentencing outcome in the present case.
28.	We accept these submissions.  There can be no understating the tragic consequences of the appellant's actions.  He will have to live with them.  But he did what he did in a temporary fit of frustration, exasperation or anger or a combination of all three.  It is the case, as we have said, that Christopher was just eleven‑and‑a‑half weeks old and moreover had the further vulnerabilities arising from his ailments.  Lies were told and there was also the conspiracy to pervert the course of justice.  On the other hand, there was no intent to cause injury falling just short of grievous bodily harm and no previous history of violence.  To the contrary, he had been an excellent and caring father and the incident itself seems to have taken place over a relatively few seconds, although as we have said no express finding was made in that regard.  Further, there were the mitigating factors to which we have made reference.  
29.	It is to be noted that in a number of significant respects the judge had made findings which were positively sympathetic to and favourable to this appellant.  Having done that, the judge gave no reason for reaching a conclusion as she did with regard to sentence and gave no reasons for explaining why this case merited a significantly more serious sentence than had been imposed either in the case of Burridge or in the case of Draper.  
Conclusion 
30.	We do appreciate that this judge had had the benefit of seeing and hearing the evidence unfold at trial.  Nevertheless, we conclude that a total sentence of 12 years' imprisonment was significantly too long.  Such a sentence would reflect a degree of culpability on the part of the appellant which simply was not there on the facts of the present case.  We consider that the sentence imposed was excessive.  Accordingly, we quash the sentence of 12 years' imprisonment on count 1 relating to manslaughter and substitute for it a sentence of eight years' imprisonment which we consider appropriate to the facts and circumstances of this particular case and which, we emphasise, also takes into account the criminality arising under count 2 on the indictment.  The concurrent sentence on count 2 will stand.  The total sentence therefore is now one of eight years' imprisonment.  The appeal is allowed accordingly.  
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