R v Mihail Lupu [2026] EWCA Crim 39

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[2026] EWCA Crim 39

IN THE COURT OF APPEAL

Venue Royal Courts of Justice

Date Wednesday 14 January 2026

Strand

London

WC2A 2LL

Before

LORD JUSTICE DINGEMANS

(Senior President of Tribunals)

LADY JUSTICE WHIPPLE

HIS HONOUR JUDGE THACKRAY KC

Recorder of Hull and The East Riding

(Sitting as a Judge of the CACD)

Reference by the Attorney General under s.36 Criminal Justice Act 1988

Between

REXCrown

Between

MIHAIL LUPU

__________

Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

MS J NEWCOMBE appeared for Attorney General

MR J KO appeared for Offender

________

JUDGMENT

Approved

[1]This is the hearing of an application by his Majesty's Attorney General for leave to refer a sentence passed on the respondent (Mr Lupu), who is aged 34 years old.

[2]On 13 June 2025, which was the day of his trial at Willesden Magistrates' Court, Mr Lupu pleaded guilty to stalking involving fear of violence. The matter was committed to the Crown Court for sentence. On 20 August 2025, in the Crown Court at Harrow, Mr Lupu was sentenced to 3 years' imprisonment. A restraining order was imposed for 8 years.

[3]It is submitted on behalf of the Attorney General that the sentence imposed was unduly lenient because the judge fell into error in his approach by double counting mitigating factors leading to a very significant downward adjustment from the starting point, outside the chosen category range which was too low. It is submitted on behalf of Mr Lupu that the judge identified mitigating factors beyond the absence of previous convictions and remorse. It was plain from the sentencing remarks that the matters set out in the pre-sentence report and letters of support and Sentencing Note were all treated as mitigation. It was also submitted that the judge's judgment was one which should be respected by this Court. We are very grateful to Ms Newcombe and Mr Ko for their succinct and helpful submissions. We will grant leave for this Reference, because some of the judge’s sentencing remarks were difficult to follow and it is appropriate to consider whether there was double counting of mitigation. The Facts

[4]Mr Lupu and Ms Ekaterina Lupu began a relationship in 2014. In October 2015 their daughter was born. They were married in November 2015. They separated in 2016 and were divorced in 2017. They then reunited and Ms Lupu moved to the United Kingdom from Moldova in 2019. They separated again in November 2019. In around April 2021, Ms Lupu moved into a flat with their daughter. Mr Lupu frequently attended Ms Lupu's new address without invitation, particularly in the evenings when she was going to pick their daughter up from school. He refused to leave when asked and followed her if she left the flat. He tried to convince her to resume their relationship and when this did not work, he threatened her. On some occasions Ms Lupu was too scared to go and see Mr Lupu, on others Ms Lupu allowed Mr Lupu into the flat to play with their daughter. However, arguments ensued, sometime for several hours, and Mr Lupu refused to leave when asked.

[5]On the evening of 26 September 2021, Mr Lupu stood outside the front door sending messages and asking Ms Lupu to come outside. He sent a video of himself outside her address which made her feel uncomfortable, stressed and intimidated. We have seen her victim personal statement.

[6]In January 2022 Mr Lupu tried to force entry into her home and damaged the door handle. On 27 August 2022 he tried to gain entry to the home address, banging on the door at 3.30 am. On 9 September Mr Lupu followed Ms Lupu to her car. On 10 October Mr Lupu followed Ms Lupu back from school. On 3 November Mr Lupu came to Ms Lupu's flat and tried to engage in conversation. The next day he repeatedly telephoned her. On 5 November 2024 he followed Ms Lupu and tried to hold her.

[7]Throughout December 2024 calls persisted with Mr Lupu asking if they might spend Christmas together. On 11 January, at about 3.30 in the afternoon Mr Lupu knocked on the window of the flat and then tried to get into the flat through the back door scaring their daughter. He then sat outside in his car sending messages and telling Ms Lupu that he would contact the police and Social Services if he was not allowed to see their daughter.

[8]In January 2025 Ms Lupu and her daughter returned to their flat at about 8.30 in the evening and found Mr Lupu parked outside the address. He got out of his car and approached them. Ms Lupu did not speak to him and reported the matter to the police. On 29 January 2025 Mr Lupu was arrested. He gave a "no comment" interview, was released on police bail with conditions not to contact Ms Lupu and his daughter either directly or indirectly.

[9]Cell site data for the period leading up to his arrest showed that Mr Lupu was in the vicinity of the home address on 10 occasions in September 2024, 134 occasions in October 2024, 57 occasions in November 2024 and 180 occasions in December 2024 and on 21 occasions in January 2025. After his release on police bail Mr Lupu breached his bail conditions by contacting Ms Lupu by text and phone. On 31 March the daughter spotted Mr Lupu as she and Ms Lupu came out of the home to walk to school. He followed them to school and tried to engage Ms Lupu in conversation. He was outside the flat when Ms Lupu returned from school. He was there again when she left to collect their daughter that afternoon. Again he followed and tried to speak to her.

[10]Mr Lupu continued to send messages by text and WhatsApp. Between 5 March 2025 and 13 April 2025 Mr Lupu contacted Ms Lupu's phone 157 times, all in breach of bail conditions. On 14 April 2025 he was arrested for breach of his bail conditions and remanded in custody where he has remained since. The Sentencing Hearing

[11]In submissions at the sentencing hearing, prosecution counsel submitted that this was a culpability B harm 1 category case for the offence specific guidelines. The defence submitted that it was a culpability B but harm category 2 albeit at the top end for this offence specific guideline. The prosecution identified aggravating features that the offence was committed in a domestic context and there was some element of Mr Lupu exploiting contact with his daughter in committing the offence.

[12]In mitigation the defence noted previous good character, remorse, positive character and exemplary conduct. There was a reference to mental disorder or learning disability and it seems that the basis for that was that Mr Lupu had suffered scoliosis from childhood, and that had caused him difficulties at school. It was said that he was a sole or a primary carer for a dependent relative. It was said that, although no evidence was provided, he provided financial support for his daughter. It was also said that he provided support for his mother, which appeared to be common ground. It was also said he was determined to address his offending behaviour, and that he had a serious medical condition requiring long-term treatment and that he had a difficult and deprived background and he was working.

[13]In oral submissions it was suggested that his various medical disorders ought to be taken into account when assessing culpability but there was nothing to suggest that they had any connection with the offending.

[14]There was a victim personal statement from Ms Lupu, in which she said that the harassment had intensified when she had moved into her home in 2021. She described becoming a shell of herself, flinching at sudden movements or loud noises, having nightmares and checking the streets. She felt she had lost the ability to think clearly, stand up for herself and remember things.

[15]There was a pre-sentence report. Mr Lupu stated that he had no intention and never had any intention to hurt Ms Lupu and respected her decision not to be with him but he would like to provide for his daughter. He was remorseful in relation to the stalking offence. He experienced scoliosis and there was a document provided to the court from Dr Staris Vitalie to evidence the diagnosis. There were also character references from those with whom Mr Lupu had worked. They described him as kind, hardworking, reliable, respectful, polite and willing to help with a strong moral compass. His sister gave a reference in which she described him as "responsible and caring". His mother described him as "responsible, loving and respectful to other women". His father had left after he had been born. There was, as already indicated, a brief medical report from a Romanian hospital which showed that Mr Lupu suffered from thoracic scoliosis and mentioned the effects of cerebral trauma in the past.

[16]The judge, when sentencing, said the following. It is necessary to set out the remarks in some detail so that the respective cases can be understood. He said:

"I turn, then, to the Sentencing Council Guidelines. The high Culpability B factors which apply are persistent action over a prolonged period, and that was an excessively long period when compared with a great many cases of stalking. In my judgment, there was conduct intended to maximise distress. That is a proper inference to draw from your conduct in myriad ways over that lengthy period, and conduct sometimes in the presence of your daughter. Those two factors, including the very lengthy time over which the conduct persisted, in my judgment take this into Culpability A. Category 1 Harm is demonstrated. That is based on the victim personal statement from your now estranged wife, and I specifically relate that to the stalking offence where it is set out and relevant from that statement. She sets out the very serious distress caused to her and she refers to significant psychological harm caused and the steps taken to deal with that. Either individually or taken together, those factors, in my judgment, cause this to fall into Category 1 Harm. The starting point, then, is five year’s imprisonment, with a range of three and a half to eight years. The aggravating factor is that this was committed in a domestic context. The mitigating feature: you have no previous convictions. I accept you may have been showing signs of remorse. I hope that that is a recognition of what you have done and its effect rather than simply, because you have been remanded in custody. My adjusted starting point for the aggravating and mitigating factors causes the start point to remain at five years or 60 months."

We pause here to note that the submission on behalf of the Attorney General is that effectively the process should have stopped there because the aggravating and mitigating factors had balanced out, and the starting point should have become the sentence, subject to discount for plea. It is submitted on behalf of Mr Lupu that the judge however was in effect saying that he went up with aggravating factors, came down balancing it out with the mitigating feature that was identified but there were other mitigating features. The judge went on:

"There is a presentence report written about you. It is detailed, and I take account of the various positive aspects arising, of course, in your favour. There are various aspects of mitigation set out in the defence written sentencing note, which was submitted as mitigating factors. I do not consider that they were, but they do amount to mitigation on a general level."

Again, we interject to say that it is difficult to follow what the judge was saying in relation to whether the matters set out in the sentencing note were mitigating factors or not. The judge went on:

"There are also various letters of support provided for you which set out knowledge of you in what I would term ‘the public eye’, but which do not reflect, as so often is the case, what happens behind closed doors. I do, though, take account of everything positive written about you in those letters. I also take account of the submissions made on your behalf by Mr Ko essentially everything that he could say for you he has said. My starting point adjusted for mitigation, and that includes ... the current state of the prison system, is one of 40 months’ imprisonment."

The judge then gave 10 per cent credit for guilty plea which reduced the sentence to 36 months or 3 years.

[17]Since the sentencing remarks we have the benefit of a prison report dated November 2025 which shows that Mr Lupu has been helpful, polite and compliant. He is an enhanced prisoner and has taken steps to sign up to courses to address offending behaviour. The offence specific guideline

[18]There is an offence specific guideline for stalking, fear of violence or serious alarm or distress. The levels of culpability are(a) very high culpability,

(b) high culpability,

(d) lesser culpability. So far as high culpability is concerned, the guideline provides that the extreme nature of one or more culpability B factors or the extreme culpability indicated by a combination of culpability B factors may elevate to category A. So far as culpability B is concerned (high culpability), there are two relevant factors. One was conduct intended to maximise fear or distress and the second was persistent action over a prolonged period. It is not necessary to set out the relevant provisions in medium culpability or lesser culpability.

[19]So far as relevant the offence specific guideline provides that after identifying the starting point, there should be then adjustment for aggravating and mitigating features before taking account of any final discounts for plea. This Reference

[20]Relevant principles on hearing a reference by the Attorney General are that: the judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentences; a sentence is only unduly lenient where it falls outside the range of sentence which the judge at first instance might reasonably consider appropriate; leave to refer a sentence should not be granted by this Court in borderline cases; and section 36 of the Criminal Justice Act 1988 is designed to deal with cases where judges have fallen into gross error.

[21]In our judgment, the judge was plainly right to put this offending into category A1, which gave a starting point of 5 years but with a range of 3½ to 8 years. That was because of the extreme nature of the culpability B factors, and notwithstanding that prosecution and defence at the hearing had agreed that this was culpability B.

[22]It is common ground that the judge's sentencing remarks at stage 2, where he adjusted the starting point for aggravating and mitigating factors, were not clearly expressed, suggesting either that mitigation was double counted or that the proper approach had not been properly explained. It is also common ground that it would have been permissible to come down from the starting point having taken account of the aggravating and mitigating factors but, it is submitted on behalf of the Attorney General, that it could not have gone below the range. We will therefore address the starting point, and aggravating and mitigating factors.

[23]We consider that the judge was right to take the starting point of 5 years. There were then aggravating factors which was the domestic abuse setting, the exploitation of the contact with the daughter and the breach of bail after the arrest in January. It is also right that there were important mitigating factors. So far as is relevant there was remorse, which was accepted by the judge and appears to have been accepted in the pre-sentence report. That is an important feature in this case. There were no previous convictions and there was also positive good character. It is also apparent that Mr Lupu has scoliosis for which he requires daily medication including pain relief and, importantly, that he had been in work and that there are prospects of a return to work even after his prison sentence.

[24]We do not accept that Mr Lupu suffered from any mental disorder or learning disability within the meaning of the guidelines. It is apparent that he has provided some assistance to his mother and his mother provided a positive good character reference. It is apparent that he has, albeit after the events before the judge, showed a determination and demonstration of steps taken to address offending behaviour. We do not accept from the evidence we have seen that he had a difficult and deprived background or personal circumstances. His father had left his mother but that is unfortunately a common place incident in modern life. So far as the impact of the prison population crisis is concerned, it is apparent that the respondent's experience in custody has been difficult and there was evidence adduced before the judge by way of submission in relation to the fact of bullying.

[25]Taking the starting point of 5 years, the sentence would have increased to take account of the aggravating factors. There would have been a requirement to reduce the sentence for all the mitigating factors that we have identified. We do consider that the judge's reduction to 40 months, before discount for plea of 10 per cent was lenient, but we do not consider that it was so unduly lenient as to justify this Court interfering with the sentence and resentencing and increasing this sentence.

[26]For all those reasons, we have, as already indicated, granted leave for the Reference but, having considered all the matters, we refuse the Reference finding that the sentence was lenient but not unduly lenient. 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