Vete v R [2025] TOCA 18; AC 28 of 2024 (16 May 2025)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

AC 28 of 2024
[CR 154 of 2024]

BETWEEN
SIAOSI HALAHOLO VETE
Appellant

AND
REX
Respondent

Hearing
5 May 2025

Court
Randerson, Harrison and Morrison JJ

Counsel
Alyssa Kafoa for the Appellant
‘Elisiva Lui for the Respondent

Judgment
16 May 2025

JUDGMENT OF THE COURT

Background

[1] The appellant pleaded guilty three counts:
(a) Count 1 – serious housebreaking contrary to s 173(1)(b) and (5) of the Criminal Offences Act;
(b) Count 2 - theft, contrary to s 143(1)(a) and s 145 (b) of the Criminal Offences Act; involving goods valued at $16,000; and
(c) Count 3 - theft, contrary to s 143(1)(a) and s 145 (b) of the Criminal Offences Act; involving goods valued at $30,798.

• [2] In respect of each count, the appellant was sentenced by Lord Chief Justice Bishop KC, to two years’ imprisonment with the final six months suspended for a period of six months.
• [3] The appellant now seeks to challenge those sentences contending they are manifestly excessive and that the final period of suspension should have been be increased to 12 months.
• [4] The appellant was 42 years old at the time of sentence. One complainant was his sister and the other was her husband. The incidents took place while the complainants were overseas. Only some of the property were recovered. The appellant had previous convictions, the most recent of which was in 2022. He had no previous convictions for housebreaking or theft. He entered a plea of guilty at the earliest opportunity and cooperated with police.

Sentencing remarks

[5] The sentencing remarks reveal how the learned sentencing judge approached the task of fixing an appropriate sentence. After setting out the nature of the offences and the Crown’s Indicative Sentence, His Lordship referred to the following:
(a) the pre-sentence report which recommended full suspension and referred to the appellant’s methamphetamine addiction;
(b) that the offences occurred on two occasions whilst the owners (his sister and her husband) were abroad; the conduct was “singularly reprehensible” in that it was the sister’s home and she was away with her husband;
(c) the property involved a “substantial amount”, and “much of the goods has not been recovered”;
(d) the offences were carried out so the goods could be pawned and used to feed the appellant’s methamphetamine addiction;
(e) the appellant had previous convictions though none for theft;
(f) the cases urged as comparable sentences;
(g) the forgiveness by the appellant’s sister and her husband was taken into account;
(h) the offending conduct was “part of a concerted enterprise”, therefore calling for no differentiation between the appropriate sentence on each count; and
(i) the start point was 3 years 6 months, reduced by 12 months in light of the early plea, and a further 6 months to recognise the “attitude of the losers and the prospects which that suggest may lead to a repair of family relations”.

The grounds of appeal

[6] The notice of appeal relies on two grounds though, in truth, the second is but an aspect of the first:
(a) the sentences were manifestly excessive; and
(b) the period of suspension should have been 12 months.

Appellant’s contentions

[7] The appellant contends that manifest excess is established by reference to the following:
(a) the start point should have been two years and six months; a 12-month deduction should then have been made for the plea, remorse and recovery of some of the goods;
(b) the complainant is appellant’s sister; both live in their parents’ compound; the property stolen was the parents’ property; a family feud between the complainant and the appellant led to the offences being reported to the police;
(c) the property recovered should be deducted from the total value of what was alleged to be stolen, or at least taken into account when setting the start point; and
(d) insufficient discount was given for the early plea, the appellant’s remorse, the forgiveness by the appellant’s sister and her husband, and the recovery of property
(e) the final period of suspended sentence (six months) should have been increased to 12 months, to recognize:

• (i) the opportunity to heal and preserve the family bond; and
• (ii) the fact that his sister and her husband have forgiven the appellant.
  • [8] The appellant draws attention to the pre-sentence report which referred to the appellant as being remorseful and having made an apology to his sister and husband, and the sister as making a plea that the appellant not be imprisoned but rather given assistance for his methamphetamine addiction.
  • [9] The appellant also referred the Court to several cases which, it was submitted, showed a disparity from the sentences imposed in this case. They were:

(a) Rex v Patelesio [2008] Tonga LR 26: that involved a remorseful first time offender who assisted in stealing a motor vehicle and concealed his identity; he was sentenced to 9 months’ imprisonment, fully suspended for 1 year on condition that he perform community service;
(b) Rex v Tevita Fifita CR 74/2018: the offender pleaded guilty to serious housebreaking and theft, the values being $21,664.12; the sentence was two years’ imprisonment for the theft, to be served concurrently with the other sentence;
(c) R v Finau [2023] TOSC 49: this involved theft of a vehicle which was recovered; a start point of two years and six months was adopted, then discounted by eight months, the resultant sentence being 22 months; the final 10 months was suspended for two years;
(d) Rex v Kalolaine Fainga’a CR 27/2023: this involved theft of a vehicle which was recovered; a start point of 2 years was adopted; six months was then deducted for mitigating features (guilty plea and recovery of the vehicle); as to suspension of a period, there were particular factors, including, (i) the influence on the offender of her husband’s drug use, (ii) a suicide attempt which left her vulnerable in a prison environment, (iii) realisation of her neglect of her children, and (iv) her desire to be a better person; the sentencing judge considered sending her back to prison would not be ideal for her, and so, with a degree of caution, the sentence was fully suspended.

Respondent’s submissions

[10] For the Crown it was submitted:
(a) the start-point of three and a-half years was supported by authority, namely R v Uasi,^[1] where it was said:

“[26] Previous cases involving serious housebreaking and theft involving amounts up to $15,000 have generally warranted starting points just under 4 years.”

(b) the learned sentencing judge took into account the family relations between the appellant and the complainants, making a specific reduction in that regard; and
(c) apart from advancing the same point concerning family relations, nothing has been raised to suggest the period of suspension was inappropriate.

Consideration

[11] It has long been established that to succeed on the ground of manifest excess in sentencing, it is not enough to show that the sentence imposed was different from, or even markedly different from, other examples of sentences in other cases. Rather, it is necessary to demonstrate that there must have been a misapplication of principle or that the sentence imposed is “unreasonable or plainly unjust”.^[2]
[12] Further, it has long been held that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach, and as accords with the statutory regime that applies. Cases that are said to be comparable do not mark with precision the outer bounds of a sentencing judge’s discretion in imposing a sentence in another case. At best they stand as yardsticks.
[13] To succeed the appellant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate that the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range or is otherwise affected by an error of fact or law.
[14] In our view the appellant has not demonstrated that the sentence imposed was manifestly excessive. There are several reasons for that conclusion:
(a) the start-point was one amply supported by authority;
(b) the reductions made (12 months for the early plea and a further six months for the complainants’ forgiveness and the family prospects) cannot be said to be so out of the range of possibilities that they demonstrate error;
(c) the period of suspension cannot be said to be beyond the range of possible outcomes, given:

• (i) much of the stolen property had not been recovered;
• (ii) the offending was on two occasions, against the same complainants;
• (iii) the learned sentencing judge took into account the appellant’s background, which included the fact that his offending was to feed a drug addiction.

Result

1. The appeal is dismissed.

Randerson J

Harrison J

Morrison J

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^[1] R v Uasi [2023] TOSC 13, at [26].
^[2] Markarian v The Queen (2005) 228 CLR 357, [2005] HCA 25 at [25], [27]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; R v Pham [2015] HCA 39; (2015) 256 CLR 550 at [28]; Obeid v R [2017] NSWCCA 221, at [443]; R v Turner [2022] QCA 175 at [49]-[50].