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Court of Criminal Appeal 2 July 2025

R v Tonga

[2025] NSWCCA 100

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
CRIME A PPEALS C ROWN APPEAL NO MANIFEST INADEQUACY

Citation: R v Tonga [2025] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 2 July 2025
Judges: Stern JA (majority); Rigg J (agreeing with Stern JA); Cavanagh J (dissenting)

Background

Over five days in March 2023, the offender participated in two connected joint criminal enterprises involving a group of men. The first was an armed home invasion in the early hours of 9 March 2023, during which the group broke into a Smithfield house, forced a 26-year-old man (referred to as PV) from his bedroom at gunpoint, and abducted him. The offender followed the vehicle transporting PV in a separate car.

PV was then held captive in a Belmore house for approximately five and a half days, restrained in his underwear with his hands bound and his head covered by a bloodied pillowcase. He was given minimal food and water, subjected to severe physical violence (including having three teeth extracted with pliers and a hammer, and a blade drawn across his back), and filmed during assaults to support ransom demands sent to the intended target via an encrypted messaging application.

On 14 March 2023, the offender appeared in a video holding a pistol to PV's head, demanding the ransom be paid. He later collected $150,000 in cash, pistol in hand, before being arrested that same day. He subsequently pleaded guilty to specially aggravated break and enter with intimidation in company while armed with a dangerous weapon, specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm, and possession of an unauthorised pistol. He was 20 years old at the time of the offending.

  • Whether the aggregate sentence of 8 years and 6 months imprisonment (with a non-parole period of 5 years and 4 months), imposed by the District Court on 6 December 2024, was manifestly inadequate.
  • Whether the sentencing judge was entitled to place significant weight on the offender's youth, prospects of rehabilitation, and limited participation relative to co-offenders when setting sentence.
  • Whether the residual discretion should be exercised to dismiss a Crown appeal even where the sentence is found to be lenient.

Decision

The majority (Stern JA, Rigg J agreeing) dismissed the Crown appeal, finding that although the sentence was "clearly lenient," it did not cross the threshold required for intervention on a Crown appeal. That threshold requires the sentence to constitute an affront to the administration of justice or to risk undermining public confidence in the criminal justice system. The majority found the sentence, while low, did not reach that standard.

The majority accepted that the sentencing judge was entitled to give weight to the offender's youth (despite him being 20 at the time), given the specific evidence before her about his susceptibility to peer group pressure and his capacity for sound judgment. The sentencing judge was also entitled to find that rehabilitation was a real possibility and to reflect that in the sentence. Importantly, the majority noted that the offender's participation in the joint criminal enterprise, whilst serious and involving active roles on key occasions, was more limited than that of other participants, with no evidence of him assaulting PV directly or participating in the group communication channels.

The majority also observed that the maximum penalties and standard non-parole periods for the offences would have supported a higher sentence, and that the sentencing judge would not have erred in imposing one. However, a "potentially large range of sentences" was available given the interplay between objective seriousness, moral culpability, deterrence, and rehabilitation, and the imposed sentence fell within that range. The Crown's reliance on a comparable case was treated with caution, as the majority noted the limited utility of comparing objective seriousness findings across individual cases in the context of a manifest inadequacy argument.

Cavanagh J dissented, concluding that the aggregate sentence did not adequately reflect the total criminality involved. His Honour found a disconnect between the sentencing judge's findings on the seriousness of the offending and the indicative sentences imposed, which was not sufficiently explained by the subjective circumstances. Cavanagh J considered that the sentence failed to achieve the necessary denunciation, recognition of harm to the victim, and deterrence, and would have allowed the appeal and substituted an aggregate sentence of 13 years and 6 months with a non-parole period of 8 years and 6 months.

Orders Made

The appeal was dismissed by majority. No orders varying the sentence were made. The orders proposed by Cavanagh J in dissent (set out below) did not carry:

  • Crown appeal allowed (dissent only).
  • Quash the sentence imposed in the District Court on 6 December 2024.
  • Impose an aggregate term of imprisonment of 13 years and 6 months commencing 14 March 2023, expiring 13 September 2036.
  • Non-parole period of 8 years and 6 months, with eligibility for parole on 13 September 2031.

Key Takeaways

  • A Crown sentencing appeal under s 5D of the Criminal Appeal Act 1912 (NSW) requires more than a finding that the sentence was lenient: the sentence must constitute an affront to the administration of justice or risk undermining public confidence in the criminal justice system before appellate intervention is warranted.
  • In dismissing the appeal, the majority confirmed that an offender's degree of participation within a joint criminal enterprise is a legitimate and material consideration in the sentencing process, even where all participants are equally liable for the substantive offences.
  • Youth, even at age 20, may be accorded meaningful weight in sentencing where evidence specifically establishes susceptibility to peer group influence and genuine prospects for rehabilitation, rather than as a general proposition applicable to all offenders of that age.
  • The Court of Criminal Appeal treated comparisons to a single decided case with scepticism as a basis for establishing manifest inadequacy, noting the limited utility of such comparisons given the fact-specific nature of sentencing exercises.
  • A significant divergence of opinion between majority and dissent (with the dissent proposing a sentence nearly 60% longer) illustrates the breadth of the available sentencing range in cases of this complexity, and the difficulty of establishing that any particular sentence within that range is manifestly inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(3), 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW), s 5D
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- AA v R [2024] NSWCCA 132
- Aryal v R [2021] NSWCCA 2
- Franklin v R [2018] NSWCCA 245
- Green (a pseudonym) v R [2018] NSWCCA 146
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Kirby v R [2021] NSWCCA 162
- Kliendienst v R [2020] NSWCCA 98
- Lee v R [2