IN THE COURT OF APPEAL OF TONGA	 AC 14 of 2025	
CRIMINAL JURISDICTION	[CR 65 of 2023]	
NUKU’ALOFA REGISTRY		
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BETWEEN 			SAIMONE VAKA
				Appellant

AND 				REX
				Respondent

Hearing:			10 November 2025

Court:				Randerson, White and Dalton JJ 

Counsel:			David F Corbett for the Appellant
				‘Elisiva Lui for the Respondent

Judgment:			20 November 2025 

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JUDGMENT OF THE COURT
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1.	This is an appeal against sentence.  Leave to appeal was granted on 15 August 2025.
2.	The appellant was found guilty of theft contrary to s 143(a) of the Criminal Offences Act (R v Saimone Vaka & Ors; CR 126-128; CR 19-20/23, 24/5/2024, Langi AJ).
3.	The maximum penalty was seven years imprisonment (s 145(b)).
4.	The appellant pleaded not guilty to the offence and gave evidence.  The trial was before the judge alone.  We therefore have the benefit of the judge’s findings, including her Honour’s findings as to her impression of the appellant.  There is no appeal against conviction.
5.	The appellant was tried with four other co-offenders.
6.	On 8 July 2024 the primary judge pronounced sentence against all four offenders (R v Saimone Vaka & Ors; CR 126-128 of 2022, 19-20 of 2023).
7.	The appellant was sentenced to two years and six months imprisonment.  No part of the sentence was suspended.
Circumstances of the offending
8.	A Mr Raymond Yu conducted a business that included the sale of meat by wholesale.  The appellant lived behind Mr Yu’s warehouse.  One of Mr Yu’s employees, Mr Andy Lavelua, had a key to the meat containers.  They included containers of mutton and whole chickens.
9.	The primary judge found that over the months of July to August 2022 the appellant and Mr Lavelua stole over 200 cartons of mutton and over 200 cartons of whole chickens (Sentencing reasons at [10]-[11]).  We deal below with the question of what was the quantity and value of the meat stolen.
10.	Two of the co-accused were charged with receiving stolen property.  One bought over 20 cartons from the appellant and sold them to different stores and households.  Another bought over 60 cartons and sold them.
11.	The police recovered 53 cartons of mutton and 76 cartons of whole chickens from various stores and householders.  They were returned to Mr Yu.  The appellant relies on this as a mitigating factor.
12.	In her reasons for verdict the primary judge found that Mr Lavelua sought the assistance of the appellant to help him steal the boxes of mutton and chickens to sell them for their benefit and the benefit of others (Verdict reasoning at [70]). She also found that the appellant and Mr Lavelua planned and organised the theft (Verdict reasoning at [69], [70]).  In her Sentencing reasons the primary judge said (at [194]) that the appellant was the ringleader of the offending.  In relation to Mr Lavelua she found that the offence would not have occurred if he had not informed the appellant of having the keys to the container in his possession (at [202]).  These findings are not challenged.  They are supported by an admission the appellant to a probation officer that he was the mastermind of the operation.
Primary Judge’s Reasons
13.	The Crown referred the primary judge to three cases that were said to be comparable to the present.  These were R v Lauaki CA 35/2023, R v Finau & Ors CR 24 & 85/2023 and R v ‘Ulukivaiola CR 6-8/2023. The appellant accepts that these were appropriate comparators but submits that they do not support the primary judge’s decision.  We deal with these decisions below at [26]-[33].
14.	The primary judge summarised the aggravating and mitigating factors contended by the Crown as follows:
“20.	The Crown submits the following as aggravating factors in this case: 
a. 	The Defendant is not a first-time offender.
b. 	The value of the stolen property (20kg x 743 cartons of mutton valued at $300 each and 765 cartons of whole chicken valued at $110) is a substantial amount totally [sic] $307,650.
		21.	The Crown submits the following as mitigating factors in this case:
a.	The Defendant was, to an extent, cooperative with the police during the search.
b. 	Only 20kg x 53 cartons ($15,900) and 76 cartons of chicken ($8,360) were recovered during the course of the police investigation.”
15.	The primary judge found:
“194.	The Crown recommends a starting point of 4 years and 6 months imprisonment.  Taking into consideration the aggravating factors and the sentences passed in the comparable cases outlined and the fact that the accused was the ringleader of this offending, I sent a starting point of 4 years imprisonment;
195.	It was clear from the trial that the accused did not dispute that he was the ringleader and that he did steal several cartons of meat from the complainant’s container.  His case was that the amount he is being charged with is incorrect.  For the mitigating factor of having assisted the police who were able to find and return some of the stolen goods to the complainant, I deduct 2 years from the starting point;
196.	I consider the fact that the accused has previous convictions for property offences a serious aggravating feature in this case.  However, whilst previous convictions are relevant to establish the character of an accused for sentencing purposes and whether he has a predilection to commit a particular type of crime, a sentencing Judge should be on guard against sentencing the accused twice for the same offences on which he had previously been convicted and sentenced.  In R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 Sir Michael Meyers CJ stated at 597
‘The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions.  If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated.  We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime.  But it by no means follows that he [sic] previous convictions must be ignored.  It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and the prisoner’s previous convictions are involved in the question of his character.  Further the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.’
197.	I am mindful that any addition[s] made to the sentence in this case does not punish the accused twice for offences [for] which he has been convicted and sentenced, but his previous convictions for property offences do indicate a predilection to commit the particular type of offences of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.
198.	I add on another 6 months to his sentence for his previous convictions for property offences [of] which I take as serious aggravating factors in this case.  This brings his total term of imprisonment to 2 years and 6 months imprisonment;
199.	I have considered the principles outlined in Mo’unga v Rex in relation to suspension and I am of the view that there is nothing in favour of any suspension in this case.”
Grounds of Appeal
16.	The grounds of appeal are that:
a.	the sentence is manifestly excessive in all the circumstances, including the appellant’s full co-operation with the police, partial recovery of the stolen property and strong community support;
b.	the sentencing judge erred by refusing to suspend any part of the sentence despite the Crown’s concession on mitigation and a probation officer’s report recommending rehabilitative measures;
c.	the sentencing judge failed to give weight to the appellant’s co-operation and partial restitution, expressly conceded by the Crown and recorded in the Pre-Sentence Report;
d.	the sentencing judge erred by imposing a six-month uplift and misapplying R v Casey [1931] NZLR 594;
e.	the sentencing judge failed to distinguish the appellant’s role from co-defendants whose sentences were partly or fully suspended despite comparable or greater culpability;
f.	the sentencing judge adopted a starting point disproportionate to established Crown comparables including R v Lauaki, R v Finau and R v ‘Ulukivaiola without adequate justification.
17.	Clearly many of these grounds overlap.  They are all directed to the over-arching ground that the sentence was manifestly excessive.  It is convenient to deal first with ground f., that the judge adopted a wrong starting point having regard to comparable sentences.  Then with the grounds a. and c. which overlap.  Then with ground d., and then with grounds b. and e. directed to the judge’s refusal to suspend any part of the sentence.
The Starting Point of Four Years Imprisonment: Ground f.
18.	In addressing the issue of whether the judge erred in adopting this starting point the first question, which is not without difficulty, is determining what was the quantity and value of the goods the appellant stole.
19.	As the maximum penalty under s 145(b) applies to any theft to the value of more than $10,000, where the theft is of goods substantially exceeding that value the excess is an aggregating factor.
20.	Mr Yu stated that over 743 cartons of mutton, each of a value of $300 and over 765 cartons of whole chickens, each of a value of $110, were stolen.
21.	In her reasons for verdict the primary judge said that the appellant disputed the amount he was charged with.  But his evidence was rejected in its entirety (Verdict reasoning at [65]).  Nonetheless, her Honour did not then decide how much he stole.  She observed that to prove the charge it was enough to establish that at least one item was stolen (at [69]).
22.	In her Sentencing reasons the primary judge set her starting point at four years imprisonment taking into consideration, amongst other thigs, the “aggravating factors”.  The only aggravating factors identified in her reasons were those in the Crown’s submissions.  These included that the quantity and value of the goods stolen were as stated by Mr Yu and set out at [14] above. 
23.	But no express finding was made that this was the quantity and value of the stolen goods.  The only express finding was at [11], that the appellant stole “over 200 cartons of mutton and over 200 cartons of whole chicken”.
24.	We conclude that the sentencing judge was not able to determine how many cartons in excess of 200 of each product were stolen.  There was evidently no issue as to the value per carton.  Accordingly, the appellant’s sentence should be considered on the basis that the Crown had not proved that the goods stolen had a value of more than $82,000 (200 x $300 + 200 x $110). Mr Corbett, who appeared for the appellant, accepted that the primary judge sentenced on this basis.
25.	We turn to the three comparators.
26.	In R v Lauaki the offender pleaded guilty to a count of theft.  She stole $144,660 over eight months between January to September 2022.  Her culpability was high.  When employed by Luna’eva she had been trained in the use of its EFTPOS machine.  After her dismissal, with the connivance of other staff, she made 18 transfers into her own bank account and one into the bank account of the sister of her de facto partner.  There was evidence that she did so under duress because she was in an abusive relationship with her de facto partner who demanded that she support them both and his wider family.  The judge was sceptical of this evidence. Cooper J adopted a starting period of four years imprisonment which he increased to five years on account of the high value of the amount taken (this was also considered in the starting point), the length of time over which the offending occurred, premeditation, her serious breach of duty as an employee (the offending took place after she had been dismissed) and the prevalence of that type of crime.  It was then reduced by six months on account of good character and her youth, and then discounted for her guilty plea.  The final 18 months was suspended for two years having regard to her prospects of rehabilitation and the impact imprisonment would have on her infant child.
27.	In R v Finau the offender was charged with three offences. One was abetment of theft of a motor vehicle.  A second was serious housebreaking.  The third was the theft of Tongan crafts from a house broken into, to the value of $31,860.  Most of the stolen crafts, to the value of $22,990 were recovered.  The offender was 27 years old and pleaded guilty.  He had previous convictions for theft and conspiracy to commit theft and was then currently serving a term of imprisonment for the earlier offences.
28.	For the theft charge Tupou ALCJ adopted a starting point of two years and six months.  This was reduced to 22 months on account of his early guilty plea and co-operation with the police.  The sentence was ordered to be served concurrently with the larger sentence for housebreaking. 
29.	Part of the final aggregate sentence, which took account of an earlier conviction and sentence being served, was suspended.  This was on account of his youth, co-operation with the police and expressed remorse.
30.	In R v ‘Uluivaiola the offender broke into an office of the Ministry of Revenue at night.  He stole six laptop computers and other goods to the value of $34,650.  The next day he exchanged one laptop for smokes.  The remaining goods were recovered by the police.
31.	He was charged with housebreaking and theft.  For the offence of theft Tupou ALCJ fixed a starting point of four years to be served concurrently with the larger sentence for housebreaking.  Fourteen months was deducted from the four-year starting point on an account of the offender’s early guilty plea, co-operation with the police and high recovery of the stolen items.  No part of the sentence was suspended.  He was a repeat offender and showed no believable repentance or remorse.  (There were further adjustments on account of his currently serving a sentence for a prior conviction.)
32.	The starting point adopted by the primary judge in this appeal was the same as that adopted in R v Lauaki.  There the amount stolen and the degree of culpability was higher than in the present case, although there were stronger points in mitigation.  If that were the only relevant comparator it could well be said that the primary judge’s starting point was too high. 
33.	The primary judge’s starting point was also higher than that adopted by Tupou ALCJ in R v Finau.  But there the value of the items stolen was substantially lower than in this case.
34.	It was in line with the starting point in R v ‘Ulukivaiola, where the value of the goods stolen was also substantially less than in this case.
35.	Although consistency in sentencing is important, the infinite variety of circumstances between offences of the same class requires caution before it can be concluded that a particular sentence is so out of line with other sentences that it demonstrates appellable error.  As the respondent submitted, it is not enough to show that the sentence imposed is different from, or even markedly different from, other examples of sentences in other cases.  At best sentences in other cases stand as yardsticks (Vete v R [2025] TOCA 18; AC 28 of 2024).
36.	Further, the question of whether the sentence is manifestly excessive is to be addressed having regard to the final sentence, not the starting point adopted by the sentencing judge.
Co-operation and Partial Recovery: Grounds a. and c.
37.	Any doubts as to whether the sentence was excessive because the starting point was too high are removed because the primary judge reduced the starting point by two years “(f)or the mitigating factor of having assisted the police who were able to find and return some of the stolen goods to the complainant”.
38.	The fact that the appellant co-operated with the police is a mitigating factor.  But it does not warrant a 50%, or even a one-third, reduction of the sentence.
39.	In the circumstances of this case the fact that some of the stolen meat was recovered is not a mitigating factor for the appellant.
40.	In its submissions before the primary judge the Crown accepted that the recovery of some of the meat was a mitigating factor.  The appellant submitted that the primary judge failed to give weight to the appellant’s co-operation and partial restitution.
41.	To the contrary, the judge gave excessive weight to those considerations because, contrary to the Crown’s submissions below, partial recovery was not a mitigating factor.
42.	The Crown’s Summary of Facts and the judge’s finding was that meat was recovered from stores or householders in Tongatapu.
43.	That is, the meat was recovered from individuals who had paid for it.
44.	It was not suggested that the appellant reimbursed the shopkeepers or householders who had bought the meat recovered by the police.
45.	Although the loss suffered by Mr Yu was reduced by the recovery of stolen meat from storekeepers or householders, that was at the expense of the individuals from whom the meat was recovered.  The harm caused by the appellant’s theft extended well beyond the complainant.
46.	Accordingly, that was not a mitigating factor, in contrast to the recovery of goods in R v Finau and R v ‘Ulukivaiola where the goods had not been sold to third parties.  
Six Month Uplift for Prior Conviction: Ground d.
47.	The next step in the primary judge’s analysis was to add back six months on account of the appellant’s prior conviction for property offences.
48.	The primary judge appropriately warned herself against sentencing an offender twice for the same offence (at [196]).  Her Honour found that the appellant’s previous convictions for property offences (in 2014) evidenced a predilection to commit the offence of theft or like offences. 
49.	The primary judge did not describe the circumstances of the previous conviction. It was common ground that no information was given below about the circumstances of those offences or even the sentences imposed for them.
50.	The appellant submits that no previous conviction was ever properly proved.  But the previous property convictions are now before this Court and there is no dispute of the fact of the convictions and the sentences imposed.
51.	On 21 August 2014 the appellant was convicted in the Magistrate’s Court of housebreaking and theft.  For the offence of housebreaking, he was ordered to serve 40 hours of community service at a police station.  For the offence of theft, he was convicted but discharged.
52.	Nothing more is known about the circumstances of those offences.
53.	The appellant also had a conviction for rape in 2017.  He was sentenced to four years and six months imprisonment with six months suspended.  That undoubtedly reflects on his character, but not in a way that affects the nature and gravity of the crime in question in this case.  The primary judge was correct not to have regard to that conviction in determining the term of imprisonment.
54.	In the absence of information about the circumstances concerning the 2014 property offences and having regard to the lenity of the sentences imposed it was not appropriate to increase the sentence on this ground.
55.	 The appellant’s predilection to commit this type of offence can readily be inferred from his conviction in this case.  Specific deterrence and protection of the public must have been taken into account in fixing a starting point for the sentence.  An apparently minor offence committed eight years previously does not warrant an increase in what is otherwise an appropriate sentence.
Conclusion on Sentence Imposed
56.	The appellant did not plead guilty.  He was not entitled to a discount on that score.
57.	We have held that the reduction of two years was excessive.
58.	Having regard to the appellant’s high level of culpability and the value of the goods stolen, we do not consider that a sentence of two years and six months was manifestly excessive.  Even though we do not accept parts of the primary judge’s reasoning, we consider that the sentence arrived at was within her sentencing discretion.
59.	Mr Corbett cited the statement of this Court in Mo’unga v Rex [1998] TLR 154 at 156 that:
“This Court has said before that imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary.”
60.	Nonetheless, he did not submit that no sentence of imprisonment was appropriate because the circumstances were not unusual.  He accepted that a lesser sentence of imprisonment was appropriate, and submitted it should be partly suspended.
61.	The sentence quoted at [59] above is frequently cited, and as frequently distinguished.
62.	The Court in Mo’unga did not identify the earlier statements to which it was referring.  
63.	The context in which the statement was made must be recalled.  At the time of the appeal Mr Mo’unga was 49.  At the age of 20 he was sentenced to four months imprisonment for stealing a pig.  After his release he embarked on a life of crime.  He had no fewer than 54 convictions, mostly for theft and housebreaking.  His counsel submitted that his criminal life could be traced back to his original imprisonment, where, so it was submitted, he received intensive training in the art of stealing and housebreaking.
64.	We infer that it was to such cases of young first offenders that the Court was intending to refer.
65.	That sentence we have quoted from Mo’unga should not be, nor has it been, read as a legislative dictate.  The penalty prescribed by s 145 for the offence of theft under s 143 is imprisonment.  Community service orders or a fine can also be available pursuant to s 25A or s 31.  In some cases, whipping may theoretically be available, but only as an additional punishment to imprisonment (s 146).
66.	Parliament could not have intended that it was only in unusual circumstances that the principal prescribed punishment should be available.
67.	The sentence quoted was an obiter dictum.  That is, it was not part of the ratio in Mo’unga.  There a sentence of imprisonment was imposed (and partly suspended).  This was because the Court found that the theft was carefully planned and the offender had a long criminal history.
68.	Those are not unusual circumstances, and the Court did not say that they were.
Suspension: Grounds b. and e.
69.	The primary judge found at [199] that she had considered the principles in relation to suspension outlined in Mo’unga v Rex and was of the view there was nothing in favour of suspension in this case.  She did not expound on this conclusion.
70.	The principles are stated in Mo’unga at 157.  They are derived from R v Petersen [1994] 2 NZLR 533.  The first is a negative.  A suspended sentence is intended to have a strong deterrent effect.  It should not be imposed if the offender is incapable of responding to a deterrent.
71.	There is nothing in the materials provided to this Court that would provide a basis for drawing that conclusion.
72.	Of the non-exhaustive considerations identified in Mo’unga for suspending a sentence only two are relevant in this case.  The first is whether it is likely that the appellant would take the opportunity to rehabilitate himself.  The second is his co-operation with authorities.
73.	The primary judge was entitled to infer that it was not likely that he would take the opportunity to rehabilitate himself.  The fact that he had been the mastermind of a criminal organisation only a few years after being released from prison, albeit for a different type of offence, cast doubt on his prospects of rehabilitation.
74.	Contrary to ground b. the probation report did not recommend rehabilitation measures.  Nor were the Crown’s concessions on mitigation relevant to the issue of suspension, except that the Crown acknowledged co-operation with the police.
75.	The appellant’s co-operation with the police was taken into account in fixing the sentence.  It would also be relevant to suspension of the sentence if it suggested remorse and a desire to get his life onto a right track.  Then the Court could be at least hopeful of the prospects of rehabilitation.
76.	The primary judge had the advantage of seeing the appellant give evidence at the trial that led to his conviction.  She found that his nonchalant demeanour in court gave the impression of someone who knew he was guilty but just wanted his day in court (Verdict reasoning, [67]).
77.	The primary judge was entitled not to be satisfied from the appellant’s co-operation with the police, after he and his co-offenders were arrested, that he would be likely to take the opportunity of rehabilitation if the sentence were suspended.
78.	Of the co-offenders, only Mr Lavelua was in a similar position to the appellant.  He was also sentenced to two years and six months imprisonment, but the last year of his sentence was suspended.  The primary judge merely said that she was satisfied that “there are some factors in favour of a partly suspended sentence” (Sentencing reasons at [203]).
79.	The primary judge found that Mr Lavelua had less culpability than the appellant.  His pre-sentence report stated that he was currently working in a hardware store where he was described as a reliable and hardworking employee who was currently posted as the main store staff supervisor (Sentencing reasons at [105]).  The probation officer recommended a custodial sentence and that Mr Lavelua, while serving his sentence, undergo professional counselling with a Rev. Semisi Kava.
80.	These matters would provide grounds for the primary judge to form a different view as to the prospects of rehabilitation for Mr Lavelua than for the appellant.
81.	Although disparity of sentences between co-offenders of equal degree of culpability may give rise to a legitimate grievance, the same is not necessarily true of decisions on suspension of sentence.  Questions of prospects of rehabilitation are critical to a decision whether or not to suspend a sentence and are necessarily particular to the individual.
82.	We do not uphold grounds b. and e.
Conclusion
83.	For these reasons the appeal is dismissed.

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 Randerson J

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 White J

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Dalton J