R v Mihail Lupu

On a reference under Criminal Justice Act 1988, s 36, the Court of Appeal may interfere with a sentence only where it is outside the range reasonably open to the sentencing judge and is therefore unduly lenient. The sentencing judge is particularly well placed to weigh competing factors, and the jurisdiction addresses gross error rather than borderline disagreement. Under the stalking guideline, the extreme nature of one or more culpability B factors, or their combination, may elevate the case to culpability A. The guideline sequence is to identify the starting point, adjust for aggravating and mitigating features, and then apply any final guilty-plea discount. A sentence may be lenient without being unduly lenient.

The respondent pleaded guilty at Willesden Magistrates’ Court to stalking involving fear of violence and was committed to the Crown Court for sentence. At Harrow Crown Court he received three years’ imprisonment and an eight-year restraining order. The Attorney General sought leave to refer the sentence under s 36 of the Criminal Justice Act 1988 as unduly lenient, alleging that the judge had selected too low a guideline category and double counted mitigation. The central issue was whether the sentence, although lenient, was unduly lenient.

Disposition. Leave to refer was granted, but the reference was refused. The sentence was lenient, not unduly lenient.

1. Under s 36 of the Criminal Justice Act 1988, the first-instance judge is particularly well placed to assess the weight of competing sentencing factors. A sentence is unduly lenient only where it falls outside the range of sentences which that judge might reasonably consider appropriate. Leave should not be granted in borderline cases, and the jurisdiction is directed to cases involving gross error.
2. The stalking guideline permitted elevation from culpability B to culpability A because of the extreme nature of the relevant factors. Persistent action over a prolonged period and conduct intended to maximise fear or distress were present. The judge was therefore right to place the offending in category A1, with a five-year starting point and a range of three and a half to eight years, despite the parties’ agreement that culpability was B.
3. The correct sentencing sequence was to identify the starting point, adjust it for aggravating and mitigating features, and then apply the final guilty-plea discount. Aggravating features included the domestic abuse setting, exploitation of contact with the child and breach of bail. Mitigation included remorse, no previous convictions, positive character, scoliosis requiring medication, work and prospects of returning to work, assistance to his mother, and later steps to address offending behaviour.
4. The sentencing remarks at the adjustment stage were unclear and suggested possible double counting or inadequate explanation. The Court nevertheless considered the reduction to 40 months before plea discount to be lenient, but not so lenient as to justify interference. The final sentence of 36 months therefore stood.

• Court of Appeal (Criminal Division) — On 14 January 2026, leave was granted for the Attorney General’s reference, but the reference was refused; the sentence remained in force: [2026] EWCA Crim 39.
• Crown Court at Harrow — On 20 August 2025, the respondent was sentenced to three years’ imprisonment and made subject to an eight-year restraining order.