Date: Jan 15, 2026

Lenient but Not “Unduly Lenient”: Category Elevation in Stalking and Appellate Restraint Despite Unclear Mitigation Accounting

Introduction

R v Lupu [2026] EWCA Crim 39 is an Attorney General’s Reference (unduly lenient sentence) determined by the England and Wales Court of Appeal (Criminal Division) on 14 January 2026 (Lord Justice Dingemans, Senior President of Tribunals). The Attorney General sought leave to refer—and ultimately to increase—the respondent’s sentence for stalking involving fear of violence, imposed after a guilty plea.

The respondent (Mr Lupu, 34) pleaded guilty on 13 June 2025. On 20 August 2025 the Crown Court at Harrow imposed 3 years’ imprisonment and an 8-year restraining order. The Reference alleged that the sentencing judge erred by double counting mitigation, producing a large downward adjustment from a guideline starting point and (arguably) moving outside the applicable category range.

The underlying facts were of prolonged, repeated and escalating domestic stalking of Ms Ekaterina Lupu (his ex-wife), including repeated attendance at her home, attempts to gain entry, following her to school and to her car, extensive messaging, and breaches of police bail. Cell-site evidence showed very frequent presence near the victim’s home across late 2024 into early 2025. The victim described serious and sustained psychological impact.

Summary of the Judgment

The Court granted leave to refer the sentence because the sentencing remarks were “difficult to follow” and it was appropriate to consider whether mitigation had been double counted.
The Court held the judge was plainly right to classify the offence as Category A1 under the offence-specific guideline, notwithstanding that both prosecution and defence had suggested culpability B at first instance.
The Court accepted there were significant aggravating features (domestic context; exploitation of child contact; breach of bail) and meaningful mitigation (remorse; no previous convictions; positive good character; medical condition requiring medication; work history and prospects; difficulties in custody were raised).
The Court concluded the sentence was lenient but not unduly lenient, and therefore refused the Reference and did not increase the sentence.

Analysis

Precedents Cited

The judgment did not cite prior appellate case authorities by name. Instead, it relied on:

Section 36 of the Criminal Justice Act 1988 (the statutory basis for Attorney General’s References for unduly lenient sentences), emphasising that the mechanism is designed for cases of gross error, not mere disagreements about outcome.
The offence specific guideline for stalking, fear of violence or serious alarm or distress, including the structure of culpability (A–D), harm categories, starting points and category ranges, and the instruction that courts should adjust for aggravating/mitigating factors after identifying the starting point, and only then apply plea credit.

Although not “precedents” in the conventional sense of reported cases, these materials framed the Court’s approach: the appellate test under section 36 (restraint and deference to the first-instance judge’s assessment) and the correct sequencing under the guideline.

Legal Reasoning

(1) Categorisation: “Extreme” Culpability B Factors Can Elevate to A

A central feature of the decision is the Court’s endorsement of the trial judge’s move from culpability B to A. The guideline expressly allows elevation where the extreme nature of one or more culpability B factors, or their combination, indicates very high culpability.

Here, the Court found the judge was “plainly right” to treat the case as A1 because:

the stalking involved persistent action over a prolonged period to an “excessively long” degree; and
there was conduct intended to maximise distress, including aspects occurring in the presence of the parties’ daughter.

Harm category 1 was supported by the victim personal statement describing significant psychological harm. The resulting A1 starting point was 5 years’ imprisonment, with a category range of 3½ to 8 years.

(2) Aggravation and Mitigation: What Properly Counted

The Court identified clear aggravating factors:

Domestic abuse setting;
Exploitation of contact with the daughter as part of the stalking dynamic; and
Breach of bail after arrest (continuing contact and following).

It also accepted material mitigation:

Remorse (supported by the pre-sentence report and accepted by the judge);
No previous convictions;
Positive good character (including work-related references);
Scoliosis requiring daily medication (relevant to personal mitigation, not culpability for the offence);
Employment history and prospects of returning to work.

Conversely, the Court rejected or downplayed certain asserted mitigatory themes:

Mental disorder or learning disability “within the meaning of the guidelines” (not made out on the evidence; and no link to offending was shown).
A difficult and deprived background (not established; the fact of paternal absence was not treated as exceptional).

The Court noted (without making it decisive) the contention about prison conditions (including evidence of bullying and the prison population crisis), and it took note of a later prison report showing positive custodial behaviour and engagement with courses, while recognising these post-sentence matters were not the basis of the original sentence.

(3) The “Double Counting” Concern and the Need for Clear Sentencing Remarks

The Attorney General’s complaint focused on the sentencing judge’s explanation: after stating that aggravation and mitigation left the starting point at 5 years, the judge then spoke of further mitigation (pre-sentence report, letters, submissions), and reduced to 40 months before applying 10% guilty plea credit (arriving at 36 months).

The Court agreed the remarks were not clearly expressed and created the appearance that:

mitigating features may have been counted twice, and/or
the methodology (how the judge moved from starting point to final figure) was insufficiently explained.

Nonetheless, the Court approached the sentence substantively: even if the explanation was imperfect, the question under section 36 remained whether the outcome fell outside the range reasonably open to the sentencing judge.

(4) Why the Sentence Was “Lenient” but Not “Unduly Lenient”

The Court accepted that, from a 5-year starting point, proper accounting for aggravation would tend to move the sentence upward, and mitigation downward. It described the reduction to 40 months (pre-plea) as lenient.

Crucially, however, it held that leniency alone is not enough: section 36 intervention requires the sentence to be unduly lenient—i.e., outside the range a reasonable judge could impose. Applying that restrained test, the Court concluded this sentence, though generous, did not justify appellate replacement.

The practical effect is that even where (i) sentencing remarks are unclear and (ii) a sentence may sit at or slightly below the guideline range, the Court may still decline to intervene if, overall, the sentence remains within the reasonable ambit of first-instance discretion.

Impact

Guideline categorisation discipline: The case reinforces that parties’ positions at sentence (e.g., both suggesting culpability B) do not bind the court. Where culpability B factors are “extreme” in duration/persistence and intent to maximise distress, elevation to Category A is not only permissible but may be required.
Attorney General References remain exceptional: The decision reiterates appellate restraint: even an arguably mistaken or poorly explained sentencing process will not automatically translate into an “unduly lenient” outcome.
Clarity in sentencing remarks: While the Court did not increase the sentence, it effectively cautions sentencing judges that unclear reasoning—especially around mitigation—invites References and appeals. Transparent sequencing (starting point → aggravation/mitigation → plea credit) is essential.
Limits on asserted mitigation: The Court’s refusal to accept “mental disorder/learning disability” without proper evidential foundation, and without a nexus to offending, signals a rigorous approach to guideline-defined mitigation.
Domestic stalking aggravation: The judgment underscores the seriousness of stalking in a domestic context, particularly where a child is used as leverage and where bail is breached, both of which can materially aggravate sentence.

Complex Concepts Simplified

Attorney General’s Reference (unduly lenient sentence): A mechanism allowing the Attorney General to ask the Court of Appeal to increase certain Crown Court sentences. The Court will only intervene if the sentence is not just low, but outside the range a reasonable judge could impose.
“Unduly lenient” vs “lenient”: A sentence can be generous (“lenient”) yet still lawful because it remains within the reasonable spectrum. “Unduly lenient” is a higher threshold: it denotes a sentence that is wrong in principle or falls outside the permissible range.
Starting point and category range (Sentencing Council guidelines): The “starting point” is the guideline’s baseline for a typical case in that category. The “range” shows the usual upper and lower bounds, but it is not a rigid tariff; judges may depart where the overall justice of the case requires.
Culpability and harm: “Culpability” measures the offender’s blameworthiness (e.g., planning, intent, persistence). “Harm” measures the impact on the victim (e.g., psychological injury, fear, distress). Together they place the offence into a guideline category.
Double counting mitigation: Treating the same mitigatory feature more than once when reducing sentence—e.g., first saying mitigation “balances out” aggravation (leaving the starting point unchanged), then applying the same matters again to reduce further—can improperly over-reduce the sentence.
Plea credit: A discount for a guilty plea, applied after the court has reached a provisional sentence reflecting seriousness and aggravation/mitigation. Here, the judge applied 10%.
Restraining order: A court order prohibiting contact/approach (and related conduct) to protect the victim, breach of which is a separate criminal offence.

Conclusion

R v Lupu illustrates two connected themes in sentencing law for serious domestic stalking. First, where persistence is extreme and conduct is intended to maximise distress, cases can properly be elevated to Category A1 even if advocates initially frame them as culpability B. Second, in Attorney General References, the Court of Appeal will distinguish between a sentence that is merely lenient and one that is unduly lenient: even unclear sentencing reasoning and a generous downward adjustment will not necessarily justify intervention unless the final sentence falls outside the reasonable range.