Victim Wishes Do Not Determine Sentence in Domestic-Context Stalking: Leave Granted to Correct Misleading Remarks, but Conditional Discharge Not “Unduly Lenient” Where Custody Already Served

1. Introduction

This Attorney General’s Reference concerned sentencing for two offences of stalking involving serious alarm or distress committed in a domestic context. The respondent (the offender) had pleaded guilty to both counts and, in December 2025, received concurrent conditional discharges of one year.

The Solicitor General argued the sentence was unduly lenient because the sentencing judge placed excessive reliance on (i) the victim’s second victim personal statement indicating a wish to resume the relationship and opposing a restraining order, and (ii) time already served in custody (and on qualifying curfew) when deciding against a custodial disposal.

The appeal therefore raised two interlocking issues:

• Victim wishes and domestic abuse context: to what extent may a court be influenced by a victim’s expressed desire that the offender avoid imprisonment or a restraining order?
• “Time served” and sentence structure: how should a court approach sentence where the custody threshold is crossed but a short custodial term has already been effectively served before sentence?

2. Summary of the Judgment

The Court of Appeal:

• Granted leave to refer, because the sentencing remarks risked conveying an incorrect principle—namely, that a victim’s expressed views might be determinative of whether custody is imposed in domestic-context offending.
• Dismissed the reference, holding that although many judges might have imposed a high-level community order, the conditional discharge did not fall outside the range of sentences reasonably open to the judge and was therefore not “unduly lenient”.

In short: leave granted to correct the message; reference dismissed on outcome.

3. Factual Background (Condensed)

The respondent and the complainant (“B”) had a short relationship in 2024 and separated. The respondent then engaged in persistent unwanted contact: numerous calls/messages (including via relatives’ landline), following B, attending locations where she was present, and causing property damage by striking her car door with his van. He repeatedly breached police and court bail conditions not to contact B, attended addresses linked to her family, and on one occasion was found hiding in a wardrobe at B’s address.

After an initial charge and a later guilty plea, a second set of stalking conduct occurred in October 2025 in breach of bail, including repeated calls/messages and an incident at B’s son’s workplace where the respondent grabbed B’s keys and police were called. The respondent was remanded in custody from 18 October 2025 until sentence (19 December 2025), undertook some courses, and addressed mental health issues.

4. The Sentence at First Instance

The parties agreed both stalking offences fell within category C2 of the offence-specific guideline, with:

• Starting point: 12 weeks’ custody
• Range: high-level community order to 35 weeks’ custody

Aggravating features included repeated breaches of bail, domestic context, and B’s vulnerability (anxiety and depression). Mitigation included the respondent’s mental health difficulties, employment history, and apparent benefit from time in custody.

The judge treated time spent in custody (nine weeks) plus qualifying curfew (calculated as a further 25 days) as meaning the respondent had already served the equivalent of roughly 20 weeks, and imposed concurrent conditional discharges. The judge referred to B’s second victim personal statement as a reason a custodial sentence was not “sensible” and treated a restraining order as “out of the question”.

5. Analysis

5.1 Precedents Cited

R v SA [2022] EWCA Crim 1790

The court noted R v SA was unreported and did not state a new principle. It was used illustratively: in that case the sentencing judge (as characterised in the reference) missed aggravating factors and was “distracted” by time spent on curfew. The relevance here was to caution against letting mechanistic “time served” arithmetic obscure guideline structure and seriousness assessment.

R v Mohamed [2025] EWCA Crim 235

Similarly unreported and not treated as establishing new law, R v Mohamed involved wrong harm categorisation and a judge indicating time in custody had “tipped the balance”. The reference served as a reminder that categorisation and guideline methodology must come first; crediting time already served is typically a later-step adjustment rather than a substitute for a proper sentencing decision.

Important nuance: The Court of Appeal treated both authorities as fact-specific illustrations rather than binding statements of new principle. The heavy lifting in this case was done by sentencing guidelines and established Attorney General Reference principles.

5.2 Legal Reasoning

(A) The “unduly lenient” test and why leave was granted

The court restated well-known principles for references under s.36 Criminal Justice Act 1988:

• Deference to the sentencing judge’s evaluative judgment on competing factors.
• A sentence is “unduly lenient” only if it falls outside the range a reasonable judge could impose.
• Leave should be granted only in exceptional (not borderline) cases.
• The mechanism is aimed at gross error.
• Even if unduly lenient, the Court retains a discretion whether to intervene.

Despite ultimately dismissing the reference, the court granted leave because the sentencing remarks were capable of being read as endorsing an incorrect approach in domestic-context cases: that the victim’s wishes might determine whether custody is imposed.

(B) Victim personal statements in domestic-context offending

The court relied on the Sentencing Council’s Domestic Abuse: Overarching Principles, emphasising that sentence must be determined by the seriousness of the offence, not the victim’s wishes. The rationale is public and protective:

• Sentencing serves the wider public interest, not only the parties’ preferences.
• No victim is responsible for the sentence imposed.
• Victims may seek leniency due to fear, coercion, threats, or ongoing manipulation.

The Court of Appeal’s concern was not merely doctrinal: it identified a concrete systemic risk—offenders might target victims to procure a “plea for mercy” in a victim personal statement, undermining public confidence and safety in domestic abuse prosecutions.

(C) Time in custody and tagged curfew credit: sequencing matters

The court reiterated that the offence guideline (and guideline approach generally) indicates that credit for time spent on tagged curfew is considered at the end of the sentencing exercise (“step 10”). This preserves the logical sequence:

• Assess seriousness and select type/length of sentence first;
• Apply plea credit;
• Then apply appropriate adjustments/credits such as qualifying curfew.

Even so, the court acknowledged the practical difficulty here: the custody threshold was crossed, but the respondent had already served a period that broadly covered what an immediate custodial term might have been.

(D) Why the sentence was not “unduly lenient” despite the problematic remarks

The court accepted:

• The offences were serious enough to cross the custody threshold.
• An immediate custodial sentence would have resulted in release on licence (albeit brief), which can have protective value.

However, it also highlighted the Sentencing Council guideline on Imposition of Community and Custodial Sentences (Thresholds), which states that even where the custody threshold is passed, custody should not be imposed if in all the circumstances a community order would meet sentencing purposes.

Against that framework, the court treated the case as one where:

• Any immediate custodial term would have been short, and
• It had, in effect, already been served via remand time (plus credited curfew), and
• A suspended sentence was problematic because breach would merely trigger a term already served, potentially creating an incoherent enforcement structure.

The court concluded that while many judges would have chosen a high-level community order (notably with unpaid work), it could not say the conditional discharge fell outside the reasonable range. Therefore, it did not meet the high bar of “unduly lenient”.

5.3 Impact

(A) Message-correction function of granting leave

A notable practical effect is the court’s willingness to grant leave even where it will not alter the sentence, where the sentencing remarks risk disseminating an incorrect or unsafe message—particularly in domestic-context cases where victim autonomy can be compromised.

(B) Domestic-context sentencing: reaffirmation rather than innovation

The decision reinforces a strict separation:

• Victim views may inform the court about impact, risk, and context;
• But they do not determine whether custody is imposed or whether protective orders are appropriate.

(C) “Custody already served” cases and the limits of AG references

The case illustrates the court’s restraint under s.36: even if an appellate court might have imposed a different sentence (here, a high-level community order), it will not intervene unless the sentence is outside the reasonable range. In practice, where:

• Guidelines indicate short custody, and
• Remand time has already covered that span,

sentencing judges may have some latitude in selecting a non-custodial outcome—provided they do so for principled reasons tied to sentencing purposes, not victim preference.

6. Complex Concepts Simplified

6.1 What is an “Attorney General’s Reference”?

Under s.36 Criminal Justice Act 1988, the Attorney General (or Solicitor General) may ask the Court of Appeal to review certain sentences alleged to be “unduly lenient”. It is not an ordinary appeal: the threshold is high, and the Court’s focus is on whether the sentence was outside the reasonable range, not whether it was merely on the low side.

6.2 “Unduly lenient” vs “lenient”

A sentence can be lenient but still lawful. It becomes unduly lenient only if it is one that no reasonable sentencing judge could impose on the facts and within the guidelines.

6.3 Victim Personal Statement (VPS)

A VPS tells the court how the offence affected the victim. It can inform seriousness, harm, and risk. But in domestic abuse contexts, a victim’s request for leniency is treated with caution because it may be influenced by fear, coercion, or ongoing control—and sentencing is a public act.

6.4 Tagged curfew credit

When a person is subject to qualifying electronic-tag curfew, the court may reduce the sentence to reflect the restriction already endured. Guidelines typically treat this as an adjustment applied at the end of the sentencing calculation, after seriousness and plea credit are addressed.

6.5 Conditional discharge

A conditional discharge imposes no immediate punishment, but the offender must not commit a further offence during the discharge period; if they do, they may be re-sentenced for the original offence as well as the new offence.

7. Conclusion

Johnson, R. v [2026] EWCA Crim 550 is best read as a dual-outcome decision:

• Normative clarification: In domestic-context offending, sentencing is driven by offence seriousness and public protection, not by a victim’s expressed desire for leniency; courts should avoid remarks suggesting otherwise.
• Appellate restraint: Even where custody is crossed and the judge’s reasoning is imperfectly expressed, the Court of Appeal will not substitute its own preferred sentence unless the disposal is outside the reasonable range—particularly where short custody has already been effectively served and the sentencing judge must still craft a coherent, purposive outcome.

The decision therefore strengthens the communicative and safeguarding function of sentencing in domestic cases, while reaffirming the high intervention threshold under s.36.