R v Tonga

[2025] NSWCCA 100

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Tonga [2025] NSWCCA 100

Hearing dates:

21 May 2025

Date of orders:

2 July 2025

Decision date:

02 July 2025

Before:

Stern JA at [1];
Cavanagh J at [65];
Rigg J at [139]

Decision:

The Crown’s appeal under s 5D of the Criminal Appeal Act 1912 (NSW) is dismissed.

Catchwords:

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy

Legislation Cited:

Crimes (Sentencing Procedure Act) 1999 (NSW), s 3A

Crimes Act 1900 (NSW), ss 86(3), 112(3)

Criminal Appeal Act 1912 (NSW), s 5D

Firearms Act 1996 (NSW), s 7(1)

Cases Cited:

AA v R [2024] NSWCCA 132

Aryal v R [2021] NSWCCA 2

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

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Franklin v R [2018] NSWCCA 245

Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64

Green (a pseudonym) v R [2018] NSWCCA 146

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

Hiliv The Queen (2010) 242 CLR 520; [2010] HCA 45

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Kirby v R [2021] NSWCCA 162

Kliendienst v R [2020] NSWCCA 98

Lee v R [2023] NSWCCA 70

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nabalarua v R [2020] NSWCCA 68

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

O’Brien v R [2023] NSWCCA 41

Portnoy v R [2025] NSWCCA 60

R v Campbell [2014] NSWCCA 102

R v Dinh [2010] NSWCCA 74; (2010) 199 A Crim R 573

R v Evans (No 3) [2017] NSWSC 1523

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Sukkar [2011] NSWCCA 140

Sarhene v R [2022] NSWCCA 79

Tammer-Spence v R [2013] NSWCCA 297

TM v R [2023] NSWCCA 185

Veen v The Queen (No 2) (1988) 164 CLR 465

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

York v R [2025] NSWCCA 81

Category:

Principal judgment

Parties:

Rex (Crown)
Valali Tonga (Respondent)

Representation:

Counsel:
B Hatfield SC and F Sullivan (Crown)
S Talbert (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Tang Lawyers (Respondent)

File Number(s):

2023/85127

Publication restriction:

Non-publication orders were made pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of the names and dates of birth of the victims; the victim impact statement of the victim PV; the video recordings relating to the ransom communications by the offenders and co-accused; the photographs of the injuries sustained by the victim PV; and CCTV footage of exit from Brenan Street.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

6 December 2024

Before:

Harris DCJ

File Number(s):

2023/85127

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between 9 and 14 March 2023, Valali Tonga, together with a number of other men, was an active participant in two joint criminal enterprises. The first involved an armed invasion, assaults and intimidation of the occupants and abduction of a 26 year old man, PV, from a home in Smithfield, Sydney (Smithfield house) in the early hours of 9 March 2023. The second involved the detention of PV at a house in Belmore, Sydney (Belmore house), for ransom.

In the early hours of 9 March 2023, Mr Tonga, with five other men, entered the Smithfield house. At least two of the men (including Mr Tonga) were armed with pistols. A third man was armed with a sledgehammer and used it to force the front door open. The men went upstairs, forced PV’s bedroom door open with the sledgehammer, and entered the bedroom, forcing him out of bed. The men then forced PV, dressed in only his underwear, out the front door and into a black SUV. Mr Tonga closely followed the black SUV in a separate vehicle. PV was taken inside the Belmore house, his hands were secured in front of him with a fabric tie and he was asked a number of questions about himself and about Tran Dinh, who was the intended target of the offences.

PV was detained in the vacant Belmore house from 6 am on 9 March 2023 until his rescue by police at 5.15 pm on 14 March 2023. His detention was solely to hold him for ransom. For the entire period of his detention, he remained in his underwear, his hands bound by zip ties, and his head fully secured in a bloodied pillowcase. He was fed minimal food and water over the six day period. He was subject to extreme physical violence and threats, which were filmed and sent as part of the demands for ransom, which were made to Mr Dinh using Threema (an end-to-end encrypted messaging application). The serious assaults included a blade being run across PV’s back and three of his front teeth being extracted with pliers and a hammer.

On 14 March 2023, a video was sent to Mr Dinh which showed Mr Tonga holding a gun to PV’s head and forcing PV to say something. On the same day, the police conducted a covert operation that involved placing $150,000 in cash inside a parked vehicle and Mr Dinh sending a message via Threema indicating the location of the money. The cash was collected by Mr Tonga, who was holding a pistol in plain sight, and another co-offender. This cash was never recovered.

Mr Tonga was arrested on 14 March 2023. He pleaded guilty to offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon contrary to s 112(3) of the Crimes Act 1900 (NSW), specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm contrary to s 86(3) of the Crimes Act and possessing an unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 (NSW).

At the time of his arrest, Mr Tonga was 20 years old and in the early stages of establishing a successful career as an artist in a band. Mr Tonga expressed remorse and acknowledged the harm to PV and his family. He was assessed at a medium-low risk of reoffending. On 6 December 2024, Mr Tonga was sentenced by Harris DCJ to an aggregate sentence, having regard to a reduction of 25% for his guilty plea, of 8 years and 6 months imprisonment with a non-parole period of 5 years and 4 months.

The Director of Public Prosecution (the Crown) appeals against Mr Tonga’s sentence on the ground that the sentence is manifestly inadequate.

The Court (Stern JA, Rigg J agreeing, Cavanagh J dissenting) held, dismissing the appeal:

Per Stern JA, Rigg J agreeing

(1) The extent of an individual offender’s participation in a joint criminal enterprise can be reflected in the sentencing process. Mr Tonga actively participated in the offending on the morning of 9 March 2023, when he was present in the Belmore house for some hours on 14 March 2023 during which time he pointed a pistol at PV and told him to plead for Mr Dinh to pay the ransom (as recorded in the video), and in collecting the $150,000 on 14 March 2023. Beyond this, there is no evidence of him participating in any of the Threema group chats or of him assaulting PV or being present when PV was assaulted, although it was an agreed fact that he was aware that PV’s teeth were forcibly removed on 13 March: [49]-[50].

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49, applied.

(2) The sentencing judge clearly placed weight on Mr Tonga’s youth, capacity for sound judgment and susceptibility to peer group pressure. Notwithstanding the fact that Mr Tonga was 20 years old at the time of offending, and that that may not be regarded as something which would be given material weight in sentencing in the generality of cases, given the evidence before the sentencing judge, she was entitled to give weight to Mr Tonga’s youth. Her Honour was also clearly influenced by her finding that, for Mr Tonga, rehabilitation was a real possibility and thus should be promoted and found that his prospects of rehabilitation were good. Her Honour was plainly entitled to take that into account when sentencing Mr Tonga: [54].

Sarhene v R [2022] NSWCCA 79; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379, applied.

(3) The maximum penalties and the standard non-parole periods provided for the offences clearly support a conclusion that the sentencing judge would not have erred had she imposed an aggregate sentence, and non-parole period, higher than that imposed on Mr Tonga. However, the sentence imposed on Mr Tonga, and the indicative sentences identified for the individual offences, are all significant sentences, particularly if considered before the 25% discount for the guilty plea. As for the non-parole period, this was affected both by the 25% discount and by the alteration to the statutory ratio on account of special circumstance: [55]-[57].

(4) Although the Crown relied on what is said to be a comparable case of O’Brien v R [2023] NSWCCA 41, there are important distinctions between the facts of O’Brien v R and the present case. Further, there is questionable utility in comparing a finding of objective seriousness in a case under appeal with a single decision for the purpose of a submission as to manifest inadequacy: [60]-[61].

(5) The sentence imposed on Mr Tonga, whilst clearly lenient, is not an affront to the administration of justice, nor does it risk undermining public confidence in the criminal justice system. This was a case where there was a potentially large range of sentences available, having regard both to the matters going to objective seriousness and those going to moral culpability, specific and general deterrence and rehabilitation: [62].

Per Cavanagh J dissenting

(6) It is evident that the sentencing judge placed significant weight on the need for rehabilitation and Mr Tonga’s youth which is of course appropriate however, a sentence needed to be imposed which also reflected the need to denounce such conduct, to recognise the very significant harm to the victim and so as to provide a deterrence to those who may be tempted to engage in such conduct: [97].

(7) There is a disconnect between the indicative sentences and the sentencing judge’s findings as to the seriousness of the offending. This is not explained by the findings as to subjective circumstances, as the subjective case was not remarkable. For example, there was no finding of a reduced moral culpability or any casually related (or not) mental health problem. Mr Tonga’s childhood and background was not one of disadvantage: [110]-[112].

(8) The aggregate sentence imposed does not reflect the total level of criminality involved. This is either because the starting point for the indicative sentences was too low or because the level of concurrency is too high: [117].

(9) In terms of the exercise of the residual discretion, the sentence calls for strong denunciation in respect of both offences. The sentence imposed does not serve that purpose and may be considered an affront to the administration of justice in that regard: [123].

(10) The aggregate sentence his Honour would impose would be 13 years and 6 months, with a non-parole period of 8 years and 6 months: [136].

JUDGMENT

1. STERN JA: Between 9 and 14 March 2023, Valali Tonga, together with a number of other men, was an active participant in two joint criminal enterprises. The first involved an armed invasion, assaults and intimidation of the occupants and abduction of a 26 year old man, whom I will refer to as PV, from a home in Smithfield, Sydney (Smithfield house) in the early hours of 9 March 2023. The second involved the detention of PV at a house in Belmore, Sydney (Belmore house), for ransom, from around 6 am on 9 March 2023 until 5.15 pm on 14 March 2023 when PV was rescued by police. During this period of detention PV was kept in appalling circumstances and was subject to multiple serious assaults and threats of violence.

2. At the time PV was living at the Smithfield house with his then partner and her parents, brother and brother’s girlfriend. None of Mr Tonga or his co-accused were known to PV at the time. Indeed, the intended target of the offences was Tran Dinh, who is referred to in some detail below and who appears to have been believed to have been wealthy and/or have access to drugs, and not PV.

3. Mr Tonga was arrested on 14 March 2023. He pleaded guilty to offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon contrary to s 112(3) of the Crimes Act 1900 (NSW) (sequence one), specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm contrary to s 86(3) of the Crimes Act (sequence two) and possessing an unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 (NSW) (sequence seven). The first and second of these offences each carried a maximum penalty of 25 years imprisonment, sequence one attracted a standard non-parole period of 7 years and sequence seven attracted a standard non-parole period of 4 years.

4. On 6 December 2024, Mr Tonga was sentenced by Harris DCJ to an aggregate sentence, having regard to a reduction of 25% for his guilty plea, of 8 years and 6 months imprisonment with a non-parole period of 5 years and 4 months. He will be eligible for release on parole on 13 July 2028. The indicative sentences, taking into account the 25% reduction, were, 6 years and 9 months with a non-parole period of 4 years and 3 months for sequence one, 7 years for sequence two and 3 years with a non-parole period of 20 months for sequence seven.

5. Mr Tonga’s sentencing hearing occurred on the same days, and before the same judge, as that of Mr Liavaa, one of his co-accused. Mr Liavaa also pleaded guilty to offences under ss 86(3) and 112(3) of the Crimes Act arising from the events of 9 to 14 March 2023. Mr Liavaa’s sentence was identical to that of Mr Tonga and his indicative sentences and non-parole periods for sequences one and two of his offending were identical to those of Mr Tonga.

6. The Director of Public Prosecutions (the Crown) appeals against Mr Tonga’s sentence under s 5D of the Criminal Appeal Act 1912 (NSW) on the ground of manifest inadequacy.

7. For the reasons set out below, the appeal should be dismissed.

Background

8. This summary of relevant background comes from the statement of agreed facts upon which Mr Tonga was sentenced. The statement of agreed facts uses the term “co-accused” or “offenders” when referring to the other males involved in the offending. For convenience I have adopted that language, but nothing in this judgment should be taken to suggest that any identified person (other than Mr Liavaa who also pleaded guilty to the charges against him) was in fact involved in the offending.

9. In February 2023, an associate of one of Mr Tonga’s co-offenders, who was employed by Service NSW, dishonestly used the Roads and Maritime Services (RMS) database to access details relating to a Lexus Sedan driven by PV and also records relating to Mr Dinh. Mr Dinh was married to a relative of the family of PV’s partner and his Service NSW details listed his address as being the Smithfield house but he did not actually live there.

10. On 1 March 2023, PV and his partner arrived at the Smithfield house at around 10 pm. Shortly after exiting the Lexus, the details of which were accessed in the RMS database, they were assaulted by four men. At least two of the men were armed with a crowbar, wooden plank or baseball bat. Both PV and his partner were struck. The men then fled the scene. PV sustained injuries to his eye sockets, arms, head and back. The Crown could not prove that Mr Tonga was involved in this incident which was described in the statement of agreed facts as an attempted kidnapping. This conduct is relevant only by way of background to the offences of which Mr Tonga was convicted and it was not suggested by the Crown that Mr Tonga was in any way involved in this incident.

The sequence one offence

11. At 12.14 am on 9 March 2023, Mr Liavaa received detailed instructions in a Threema (an end-to-end encrypted messaging application) group chat as to how to carry out the sequence one and two offences, including as to the need to plan everything before “heading in” and to switch cars on the way from the Smithfield house to the Belmore house. The message referred to there being different teams carrying out the offending. The Crown could not establish whether Mr Tonga received this message or whether he used Threema to communicate with the co-offenders.

12. The first established involvement of Mr Tonga in preparation for the offending was at 12.42 am when he was detected on CCTV leaving his home with one of the co-offenders. At around 4.20 am on 9 March 2023, Mr Tonga arrived outside the Smithfield house in a white hatchback with the same co-offender. They waited in the car until a black SUV carrying four men arrived at 5.19 am. At 5.20 am, Mr Tonga, with the five other men, ran from the cars to the entrance of the house. All of the men were wearing dark hooded clothing, face masks and balaclavas. At least two of the men (including Mr Tonga) were armed with pistols. A third man was armed with a sledgehammer and used it to force the front door open. Mr Tonga held his pistol in plain sight as he entered the house. The Crown did not allege that Mr Tonga broke down the front door.

13. All six men then entered the house, went upstairs, forced PV’s bedroom door open with the sledgehammer, and entered the bedroom, forcing him out of bed. One of the men held a gun to PV’s face. PV’s partner’s brother attempted to intervene and was hit by one of the men with the sledgehammer before being attacked by three other men, causing a fracture to his left forearm.

14. One of the men pointed a pistol at the mother of PV’s partner and her brother’s girlfriend and threatened to shoot them. PV was grabbed and forced downstairs. The mother of PV’s partner tried to grab one of the men and was punched twice in the chest.

The sequence two offence

15. At 5.23 am the men forced PV, dressed in only his underwear, out the front door and into the black SUV. Two men were in the front seats and a man was on either side of PV in the middle rear seat. They put a pillowcase over PV’s face before punching him in the head, nose and eyes. One of the men said to him: “Don’t do anything stupid or we will shoot you”. PV felt his nose start to bleed and found it difficult to breathe. The white hatchback, in which Mr Tonga was travelling, closely followed the black SUV.

16. The occupants of the black SUV changed cars at one point. At that point, PV was told:

“We’re going to get out. You’re going to get into another car and you’re not going to do anything stupid, you’re not going to scream, you’re not going to run or we’re going to shoot you”.

17. The car then carrying PV arrived at the Belmore house at 6.09 am. PV was taken inside and his hands were secured in front of him with a fabric tie.

18. Inside the Belmore house, PV was asked a number of questions about himself and about Mr Dinh (referred to as “whitey”) and he told the men everything he could. He heard a noise like the trigger of a gun and a man placed a gun to the back of his head. A towel or piece of rolled up fabric was put in his mouth and tied at the back of his head. He was told to lay down but after a while he heard footsteps and was struck on the side of the head. He could feel someone holding a gun to his head. He was kicked in the back and then, when he sat up, struck to the shoulder and knee with a sledgehammer. He was told to “[j]ust give [Mr Dinh] up or we’re going to cut your fingers off”. The man then ran a blade across PV’s back and said:

“Feel how blunt that is? I’m gonna cut your fingers off. Don’t move. Tell me everything you know about Tran... You better think of something important to tell us about Tran or we’re going to cut your fingers off the next time we come back.”

19. PV’s hands were then tied behind his back and he was instructed to sleep. After a short while someone punched him in the face, at which point his mouth gag was removed and he was force-fed chicken nuggets. He was then instructed to sleep. After a few hours he awoke to someone striking him in the face. He was then hit in the back and the back of the head with a sledgehammer.

20. At 10.11 am on 9 March 2023, Mr Tonga was seen on CCTV returning to his home address, wearing the same clothing he had been wearing earlier that day.

21. On 13 March 2023, a gun was placed against PV’s head and he was told to open his mouth. He felt pliers inside his mouth attempting to extract his front right tooth. Another man then entered the room and struck him in the teeth several times with a hard object until his front teeth became loose. The men then removed three of his front teeth.

22. The Crown could not prove that Mr Tonga was present inside the Belmore House on 9-13 March 2023, including when PV’s teeth were forcibly removed, however he was aware that it occurred and continued to participate in the criminal enterprise.

23. A number of ransom demands were made to Mr Dinh using the Threema handle “whitey whitey” over this period:

1. At 6.31 pm on 9 March 2023, a message was sent saying: “Going to make dis clear no1 negotiating we set a price 5mil or work if you can’t meet up 2 our requirements, we cut ur boy up bit by bit until you give us what we want”;

2. At 9.19 pm on 9 March 2023, a message was sent saying: “Want his body in pieces? Get the 5mil ready let me know will be released”;

3. At 1.18 pm on 10 March 2023, an image message was sent which featured PV’s bruised abdomen and blood on his left hand;

4. At 1.22 pm on 10 March 2023, another image message was sent which showed a large laceration (slash marks) across PV’s back and white cloth material over his head;

5. At 2.54 pm on 10 March 2023, a message was sent saying: “You have 24h to cough up something nice. We waiting, times ticking”;

6. At 7.25 pm on 10 March 2023, Mr Dinh requested evidence that PV was alive and he was sent an image of PV with a pistol in his mouth;

7. At about 8.39 pm on 10 March 2023, a video file was sent to Mr Dinh accompanied by the demand “in 24 hours cough up $5mil plus all your work. You will never see his face again”;

8. At 9.10 pm on 10 March 2023, a video was sent to Mr Dinh showing PV repeatedly begging: “Tran help me. They’re gonna fucken kill me” with at least two men holding him while another forced a pistol inside his mouth;

9. After Mr Dinh, under the supervision of police, negotiated a payment of $150,000, at 5.23 pm on 13 March 2023, a message was sent to him saying: “Drop that bag off let me know when ready. This is your last week to get your shit together and come up with money or else we chopping fingers off everyday you are late and sending them to you. This is the last warning”;

10. At 8.44 pm on 13 March 2023, a video file was sent to Mr Dinh featuring PV bound to the rear with a bag over his head. He was forced to open his bleeding mouth revealing missing front teeth;

11. At 10.58 pm on 13 March 2023, a message was sent saying: “We gave you an option to dead drop and you didn’t go on with it. Sit there and watch this dog slowly suffer. Every day your late one finger will be coming off and sent to you. That 150k get dropped tonight to Bannyrigg or we start chopping up tomorrow morning onwards ... playing ball or delaying us? You have one week to gather 3.5m. You have one week to gather 50kgs of H or eye. An another 50kgs”; and

12. At 10.16 am on 14 March 2023, a hostage video and demands were sent to Mr Dinh. The video showed Mr Tonga holding a gun to PV’s head and it appears that only one of the other co-offenders were in the house. Mr Tonga is filmed saying “[g]o on, say it” and PV says “Tran do the fucking drop. I just want to go home. Stop delaying it man.” The accompanying message said “150k you will drop somewhere for us soon. That comes of the 3.5M”.

24. Over the course of 14 March 2023, Mr Dinh communicated with “Whitey whitey” for the release of PV. The police conducted a covert operation that involved placing $150,000 in cash inside a parked vehicle and Mr Dinh sending a message via Threema indicating the location of the money. The cash was collected by Mr Tonga, who was holding a pistol in plain sight, and another co-offender. This, together with the video at 10.16 am on 14 March 2023, formed the basis of the firearms offence of which Mr Tonga was convicted. The firearm (which was later seized) was examined and found to be working but unloaded.

25. At 5.15 pm on 14 March 2023, police stormed the Belmore house and recovered PV. He was found with a bloodied pillowcase tied around his head and his hands tied behind his back with cable ties. His injuries included a large bruise over his entire left shoulder, three missing front teeth, bruising and swelling to his face, bruising to his right ear and left knee and lacerations across his back. Mr Tonga was arrested while parking at the Belmore house, having returned the motorbike he rode to pick up the $150,000 at his garage. The cash was never recovered.

26. PV was detained in the vacant Belmore house from 6 am on 9 March 2023 until his rescue at 5.15 pm on 14 March 2023. His detention was solely to hold him for ransom. For the entire period of his detention, he remained in his underwear, his hands bound by zip ties, and his head fully secured in a bloodied pillowcase. He was fed minimal food and water over the six day period. He was subject to extreme physical violence and threats, which were filmed and sent as part of the demands for ransom.

Victim impact statement

27. A victim impact statement, tendered in the sentence proceedings, spoke to the very significant impacts of the offending on both PV and his family. He suffered extensive injuries which had lasting impacts, including on his mental health. His injuries are a constant reminder of what happened to him whilst detained. As at October 2024 he had not yet been able to have his teeth replaced, and looking in the mirror is a further reminder of the horrific ordeal he endured. He has had constant nightmares and whenever he falls asleep he feels as if he will wake up to the events that unfolded on the night he was taken. All aspects of his, and his family’s life, including their work, have been affected. He no longer feels safe doing any of the things he thought of as normal. He feels that he will never be able to return to the person he once was.

Mr Tonga’s subjective case

28. Mr Tonga’s subjective case was presented by way of a sentencing assessment report of Community Corrections Officer Nicole Doyle dated 14 August 2024, several character references, an affidavit of Oktavi Fonua, the director of the record label which he was contracted to, and a letter of apology which he had prepared.

29. Mr Tonga was 20 years old at the time of the offending. He was raised in a tightknit family group where he was the third youngest of 11 children. His family environment was described as safe and loving by his church’s minister who also said that he was a dedicated member of the church youth group. Character references attested to Mr Tonga’s active membership in the local community.

30. At the time of his arrest, he was in the early stages of establishing a successful career as an artist in a band, “Sydney Yungins”. The group has won both platinum and gold ARIA awards. The group is managed by BHQ records, and Mr Tonga was contracted to BHQ until 2027. He had performed at over 43 live music events since joining the group, whose music is available on streaming services and has attracted millions of streams from which the group receives royalties.

31. In the sentencing assessment report it was said that Mr Tonga had accepted his wrongdoing and was prepared to accept the consequences. He denied being a violent person but admitted to using his physical size to his advantage. He regularly consumed drugs and alcohol in the lead up to the offending and linked this to the lifestyle prevalent in the music industry. He was sober when he offended. He expressed remorse and acknowledged the harm to PV and his family. He was assessed at a medium-low risk of reoffending according to the “Level of Service Inventory – Revised”. In custody he had successfully completed a positive lifestyle course and five sessions of the Remand Addictions group.

32. He had also engaged positively in the correctional centre’s music program and he was described by the facilitator of that program as “a calm, curious, polite and helpful member of the group [who] displays great talent and potential for future growth”.

The remarks on sentence

Objective seriousness

33. Consistent with Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29], the sentencing judge identified the facts, matters and circumstances that bore upon sentencing, without offering any label to characterise its objective seriousness.

34. Her Honour identified a number of matters that heightened the seriousness of the offending comprised in sequence one, the offence of specially aggravated break and enter and intimidation. First, the multiplicity of co-offenders increased the level of intimidation of the occupants of the Smithfield house. Secondly, the offenders were armed with two dangerous weapons held in plain sight and used in a menacing way with explicit threats of occupants being shot, increasing the capacity to instil fear of serious harm or even death. Mr Tonga was armed with one of the pistols. Her Honour also highlighted that the offenders wore face masks and dark hooded clothing, the method of entry was particularly violent and involved a sledgehammer and this was also used to enter PV’s bedroom which “undoubtedly [added] to the terrifying nature of the experience of those asleep inside”. There was little or no opportunity for PV and the other occupants to defend themselves and the intimidation was of a high order.

35. The statutory aggravating features were the use of violence, that the offence was committed in the home of the victim, that the offenders were aware that there were people inside and there was a level of planning and organised criminal activity beyond that which might be assumed, although the extent of Mr Tonga’s knowledge and involvement in the planning was considerably less than the other co-offenders.

36. As for the sequence two offence, the specially aggravated kidnapping for advantage, her Honour identified a number of circumstances of note, being that PV was ambushed, taken from his bed at gunpoint and forced into a vehicle (whilst Mr Tonga was in the support vehicle and not the vehicle carrying PV the sentencing judge considered that this had little mitigating value given his role in the joint criminal enterprise), the kidnappers were strangers and he did not know what they were capable of, he was kept isolated in an unknown, unfamiliar location, he was in only his underpants for six days, he was gagged, blindfolded, had his hands tied and a pillowcase over his head and at the same time was aware that the offenders were armed, he had limited access to food, water and a toilet and was kept with his hands secured behind his back, he was threatened, including with firearms and threats to cut off his fingers, he was subjected to serious physical violence, substantial actual bodily harm was inflicted with no medical treatment or basic care and the victim was filmed in a state of hostage and those photographs were distributed among the offenders. The purpose of the offending was a substantial ransom of $5,000,000 and Mr Dinh was exposed to genuine threats of serious harm to PV, who was his nephew, if he did not comply with the demands. The $150,000 paid was never recovered.

37. The sentencing judge also noted that whilst there was no evidence that Mr Tonga was present during the assaults or inside the house other than on 14 March 2023, on that day he was inside for several hours and held a pistol to PV’s head telling him to plead for money in the video on 14 March 2023.

38. Statutory aggravating factors included the use of actual violence, the level of planning and organised criminal activity and the substantial, ongoing and likely long-lasting injuries and emotional harm sustained by PV.

39. As to the sequence seven offence, the sentencing judge identified that this was a serious and genuine firearm in working order. It was carried by Mr Tonga brazenly in broad daylight on a suburban street and the purpose of the possession was closely associated with the criminal enterprise to which he was a party. Although there was no evidence that the firearm was loaded, Mr Tonga had access to ammunition in the vehicle in which he was arrested.

Plea of guilty and criminal history

40. As set out above, a 25% discount was allowed for Mr Tonga’s early guilty plea. He was afforded a degree of leniency for his very limited history of criminal conduct.

Subjective features

41. Having regard to the matters at [33] above, her Honour was satisfied that “Mr Tonga’s membership of a band on an upward trajectory is likely to be beneficial to him and his rehabilitation rather than harmful”, although he would have to address his drug and alcohol use. Her Honour also noted his active membership in the local community, that he was working prior to his incarceration and that he had been industrious in various positions while in custody. Her Honour also noted that Mr Tonga expressed to Ms Doyle “his intention to avoid any future contact with his co-offenders” and that he had “a supportive prosocial group of friends in the community and believes their influence will help reduce his risk of reoffending”.

42. Her Honour found that, whilst general deterrence is a principal sentencing consideration for each of the offences, Mr Tonga’s relatively young age called for an emphasis on rehabilitation. Her Honour observed that the planning and execution of the offences lent towards a finding of adult behaviour rather than immaturity but that social media exposure of young people to criminal activity and violence tended “to blur the lines between immature parroting of that exposure and what might, in the past have been considered an adult choice”. Her Honour said:

“In sentencing Mr Tonga I have taken into account his relatively young age, capacity for sound judgment and what is likely to have been, at that age, his susceptibility to peer group pressure. I have also taken into account at 22 years of age with no other relevant history, his rehabilitation is a real possibility and ought to be promoted as far as an appropriate sentence will permit.”

43. Her Honour later said, as regards the principle of totality, that she was “cognisant to avoid a crushing sentence for a 22 year old”.

44. Her Honour also found, on the evidence of Ms Doyle’s report and Mr Tonga’s letter to the court, that he had “developed appropriate insight and is remorseful for what he did”. She also found that he had demonstrated a willingness to engage in interventions and that “he clearly still has a promising career in music”. Her Honour concluded her discussion of subjective features by saying:

“Despite the extremely serious and voluntary engagement of the offender in the commission of the offences and taking into account his approach to custody, his support in the community and what is likely to be the salutary experience of his arrest and detention, I find that his prospects of rehabilitation are good.”

Sentence

45. The sentence her Honour imposed included some notional accumulation to reflect the different elements of the offences, the conduct itself and additional criminality between them, but also a level of concurrency having regard to the temporal nature of the offences and Mr Tonga’s overall criminality and the principle of totality. Her Honour found special circumstances and varied the statutory ratio including for reasons of rehabilitation, and because it was a lengthy sentence for a young man and he will require an extended period under supervision to re-establish himself in the community and to address his history of drug use. On this account her Honour reduced the statutory ratio to 63%.

The Crown appeal – manifest inadequacy

46. I have set out the principles relevant to a Crown appeal against sentence alleging manifest inadequacy in my judgment in R v Liavaa; Liavaa v R [2025] NSWCCA 101, which was heard at the same time as this appeal. I do not propose to repeat that analysis here.

47. In this case, the Crown contends that the sentence imposed was below the range of sentences that could justly be imposed. The Crown relies in this regard upon a number of matters.

48. First, the Crown contends that the offending with respect to each charge was of the utmost seriousness. Such terminology is not helpful. I would, however, accept that the sequence one and sequence two offences were certainly serious.

49. Given his participation in the two joint criminal enterprises, Mr Tonga should be sentenced on the basis of the enterprises as a whole. However, as was held in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [71], the extent of an individual offender’s participation in a joint criminal enterprise can be reflected in the sentencing process. The relevant principles were explained by Spigelman CJ in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [161], [166] (see also McClellan CJ at CL, Howie and Johnson JJ at [213]), recently cited with approval in York v R [2025] NSWCCA 81:

“It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with precision, because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise. Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced … .

…

Whilst recognising that some differentiation in culpability amongst co- offenders in a joint enterprise is often appropriate, there are limits to which this can occur with respect to the objective seriousness of the offence, because of the existence of the common purpose to commit the offence. Differences in subjective circumstances will, however, result in differences, sometimes significant differences, in the end result.”

50. Here, as the sentencing judge found, Mr Tonga actively participated in the offending on the morning of 9 March 2023, when he was present in the Belmore house for some hours on 14 March 2023 during which time he pointed a pistol at PV and told him to plead for Mr Dinh to pay the ransom (as recorded in the video), and in collecting the $150,000 on 14 March 2023 before returning to park outside the Belmore house. Beyond this, there is no evidence of him assaulting PV or of being present when PV was assaulted although it was an agreed fact that he was aware that PV’s teeth were forcibly removed on 13 March and he continued to participate in the enterprise. There is no evidence that he participated in any of the Threema group chats or that he attended the Belmore house between mid-morning on 9 March and the morning of 14 March 2023. All of those matters are relevant when considering the objective seriousness of his offending notwithstanding his responsibility for the joint enterprise as a whole.

51. Secondly, as regards subjective factors, the Crown submits that the most noteworthy aspect of Mr Tonga’s subjective case was his youth but that the significance of youth should not be overstated or undervalued. The Crown also relies upon the observation of Beech-Jones J in Nabalarua v R [2020] NSWCCA 68 at [56] that “[g]enerally, the principles applicable to youthful offenders have little or no application to offenders in their twenties, although a lack of maturity and impulse control may still be operative at those ages”. The Crown also notes that the sentencing judge did not find that Mr Tonga’s immaturity was a significant factor in his offending. The Crown contends that the sentencing judge appeared to have “given a significant allowance for the respondent’s relative youth by taking it into account to affect an unspecified reduction to the indicative terms, and also as a basis for a finding of special circumstances”. The Crown contends that youth aside, Mr Tonga’s subjective case was unremarkable.

50. The Crown does not contend that there was error by the sentencing judge in having regard to Mr Tonga’s youth. Rather, it is the manifest inadequacy of the sentence flowing from the weight given to that factor that the Crown relies upon on appeal.

51. The Crown’s contention that there was some unspecified reduction in sentence on account of subjective factors is baseless. Rather, it is clear that her Honour approached the sentencing task by taking all relevant subjective and objective matters into account to arrive at a starting pre-discount figure in accordance with the required approach of “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

52. I would infer that it was Mr Tonga’s subjective case that was given weight by her Honour in imposing the undoubtedly lenient sentence that she did. Her Honour clearly placed weight on Mr Tonga’s youth, capacity for sound judgment and susceptibility to peer group pressure. Notwithstanding the fact that Mr Tonga was 20 years old at the time of offending, and that that may not be regarded as something which would be given material weight in sentencing in the generality of cases, given the evidence before the sentencing judge, she was entitled to give weight to Mr Tonga’s youth. The range of ways in which an offender’s youth may be relevant on sentence have been helpfully summarised by Hamill J in Sarhene v R [2022] NSWCCA 79 at [25]. In particular, as Hodgson JA observed (Rothman J agreeing) in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [5], the age of maturity is not necessarily 18 years given that “emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties”. Ms Doyle had explained in her report that Mr Tonga said that he had a consistent tendency to be swayed by his peers and a strong desire to impress his peers. Her Honour was also clearly influenced by her finding that, for Mr Tonga, rehabilitation was a real possibility and thus should be promoted and found, as set out above, that his prospects of rehabilitation were good. Again, her Honour was plainly entitled to take that into account when sentencing Mr Tonga. Similarly, her Honour was entitled to take into account what she clearly found to be appropriate insight and genuine remorse.

53. Thirdly, the Crown relies upon the maximum penalties of 25 years for both the sequence one and sequence two offences, and of 14 years for the sequence seven offence, and the standard non-parole period of 7 years for the sequence one offence and 4 years for the sequence seven offence as legislative guideposts. As observed in Muldrock v The Queen at [31], the maximum penalty “serves as an indication of the relative seriousness of the offence”. As for the standard non-parole period, s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that:

“the standard non-parole period represents the non-parole period for an offence … that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.”

56. The standard non-parole period does not take into account aggravating or mitigating factors which bear on sentencing in an individual case: Muldrock v The Queen at [31].

57. Both the maximum penalties and the standard non-parole periods clearly support a conclusion that the sentencing judge would not have erred had she imposed an aggregate sentence, and non-parole period, higher than that imposed on Mr Tonga. The former, which serves as a yardstick, supports a conclusion which would in any event be readily apparent, that the offences here are serious offences for which significant custodial sentences may be imposed. But I would regard the sentence imposed on Mr Tonga, and the indicative sentences identified for the individual offences, as all significant sentences, particularly if considered before the 25% discount for the guilty plea. As for the non-parole period, this was affected both by the 25% discount and by the alteration to the statutory ratio on account of special circumstances.

58. Fourthly, the Crown points to what it says are the inadequate indicative sentences (in particular for sequence 2), the degree of concurrency and the extent of the reduction of the statutory ratio for special circumstances. Whilst the Crown accepts that, as (for example) stated in AA v R [2024] NSWCCA 132 at [4] (Ward P and Wilson J), there can be no appeal against indicative sentences, the Crown contends that the inadequacy in the indicative terms signals an error in the aggregate term. The Crown submits that there is a substantial disconnect between the seriousness of the offending and the corresponding indicative sentences. The Crown also contends that the reduction in the statutory ratio for special circumstances was unduly generous, in particular given that Mr Tonga’s youth was taken into account as a subjective circumstance going to moral culpability and general deterrence.

59. Consistent with observations I have already made, I would certainly agree that the indicative sentences here are lenient. I would also agree that the extent of concurrency here is significant, in particular having regard to the significant intimidation and fear, not to mention bodily harm, caused during the sequence one offence. As against that, however, as Mr Tonga submits, the three offences were all part of a single episode of criminal conduct.

60. Fifthly, whilst noting the limitations of comparative cases, reliance is also placed by the Crown on what is said to be a comparable case of O’Brien v R [2023] NSWCCA 41. The offender in that case was convicted of three offences, robbery in company, specially aggravated kidnapping contrary to s 86(3) of the Crimes Act, and taking and driving a conveyance without consent. He was convicted following a trial. An aggregate sentence of 14 years with a non-parole period of 9 years was imposed, with indicative sentences of 7 years for the robbery, 13 years for the kidnapping and 2 years for the taking and driving without consent. The offender appealed, including against his sentence on the ground that it was manifestly excessive. Without descending into detail, some important distinctions between the facts of O’Brien v R and the present case should be noted. First, the offender was not entitled to the leniency of a first-time offender. Second, the offender expressed no remorse, did not accept responsibility and expressed a belief that the allegations had been falsified. Third, his motive was greed and resentment. Fourth, the offender’s prospects of rehabilitation were found to be guarded. These factors were all relied upon by Button J (with whom Bell CJ and Garling J agreed) in rejecting the offender’s contention that the sentence was manifestly excessive: at [88]-[90].

61. Furthermore there is questionable utility in comparing a finding of objective seriousness in a case under appeal with a single decision for the purpose of a submission as to manifest inadequacy: see, by analogy Lee v R [2023] NSWCCA 70 at [47] (Dhanji J).

62. Having regard to the matters set out above, I am satisfied that the sentence imposed on Mr Tonga, whilst clearly lenient, is not an affront to the administration of justice, nor does it risk undermining public confidence in the criminal justice system. This was a case where there was a potentially large range of sentences available, having regard both to the matters going to objective seriousness and those going to moral culpability, specific and general deterrence and rehabilitation. In light of this, I am not satisfied that the sentence is manifestly inadequate.

63. The Crown’s appeal should thus be dismissed.

Conclusion

64. The order I propose is that the Crown’s appeal under s 5D of the Criminal Appeal Act 1912 (NSW) is dismissed.

65. CAVANAGH J: I have had the considerable benefit of reviewing the judgment of Stern JA, with whom Rigg J agrees.

66. Whist I agree with much that is said by Her Honour, I take a different view as to the outcome of the Crown appeal on sentence. I would allow the appeal.

67. As mine is a minority judgment, I will state my reasons succinctly, although it is necessary to reiterate some of the matters already referred to by Stern JA so as to explain the bases of my decision.

68. The Crown relies on one ground of appeal, that is, that the sentence is manifestly inadequate. A finding of manifest inadequacy is a conclusion which is not dependent upon the identification of any specific error by the sentencing judge, although it must be that the sentencing process miscarried in some way (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], per Gleeson CJ and Hayne J).

69. That statement is particularly apt in this matter as it is plain from the sentencing judge’s well crafted and considered judgment that her Honour had regard to the important sentencing principles. The Crown is unable to point to any specific failure or identify a factor of significance which the sentencing judge failed to consider.

70. Further, a consideration of an appeal based on manifest inadequacy is undertaken having regard to the principle that there is no single correct sentence, and that the determination of the sentence is a discretionary exercise on the part of the sentencing judge, having regard to all objective and subjective sentencing factors.

71. The Crown must establish that the sentence was unreasonable or plainly unjust (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]). Intervention by this Court is not justified just because the sentence might be different from sentences imposed for the same types of offences in other cases or because this Court might have imposed a different sentence (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]). The exercise is not simply intuitive. It requires consideration of all the matters that are relevant to fix the sentences, leading to the forming of the conclusion of manifest inadequacy or excess (Hiliv The Queen (2010) 242 CLR 520; [2010] HCA 45 at [60]).

72. I have regard to all those important principles in considering the Crown appeal and reaching the conclusion that the sentence imposed was manifestly inadequate.

73. Mr Tonga was sentenced as follows:

Seq	Offence	Maximum penalty	Indicative	Pre-discount
1	Specially aggravated break and enter and commit the serious indictable offence of intimidation being in company and armed with a dangerous weapon S 112(3) Crimes Act 1900	25 years imprisonment SNPP 7 years	6 years 9 months NPP 4 years 3 months	9 years
2	Specially aggravated detain person with intent to hold them to ransom being in company and occasioning actual bodily harm S 86(3) Crimes Act 1900	25 years imprisonment No SNPP	7 years	9 years 4 months
7	Possess unauthorised pistol S 7(1) Firearms Act 1996	14 years imprisonment SNPP 4 years	3 years NPP 1 year 8 months	4 years
Aggregate sentence			8 years 6 months NPP 5 years 4 months

74. The circumstances of the offending have already been set out in detail in the judgment of Stern JA. It is only necessary that I summarise the relevant events as follows:

1. On 9 March 2023 at approximately 5.19am, six men forced entry into a home at Smithfield. Mr Tonga was one of them. All of the men wore dark clothing with hoods, face masks and balaclavas. Two of the men (one was Mr Tonga) carried pistols and a third carried a sledgehammer, which was used to force open the front door of the premises. At the time there were six people sleeping in the house. None had any prior involvement with the men. They were all innocent victims, sleeping in the supposed safety of their home.

2. All of the men went into the house and went upstairs, where they forced entry into the principal victim’s (PV) bedroom with the sledgehammer. They dragged him out of bed. A gun was held to his face. When PV’s partner’s brother intervened, he was struck with the sledgehammer and physically attacked by three men leading to the fracture of his left arm.

3. One of the men then pointed a pistol at PV’s partner’s mother and PV’s partner’s brother and threatened to shoot them. The mother of PV’s partner again tried to intervene by grabbing one of the men. She was then punched twice in the chest.

4. The men then dragged PV downstairs and down through the front door. He is shown on CCTV footage being held as he is taken out of the front door dressed only in his underwear. He was put into one of the vehicles in which the six men had come to the house, being a black SUV. He was placed in the middle rear seat. A pillowcase was placed over his head. He was then punched in the head, nose and eyes. One of the men told him not to be stupid or else he would be shot. PV was having difficulty breathing and his nose was bleeding. Both vehicles then drove away. At some point they changed cars. At this point, PV was again threatened with being shot if he did anything stupid, such as screaming or running.

5. PV was then taken to a house in Belmore. He still had the pillowcase over his head. He was again threatened that he would be shot if he did anything stupid. After being taken inside, his hands were tied in front of him.

6. He remained inside that house held against his will from the morning of 9 March 2023 until such time as he was rescued by the police on 14 March 2023 at 5.15pm. During that period, he was beaten, tortured, subject to extreme violence, threatened and not given sufficient food and water.

7. The acts against him included:

1. Being kept for a period of five days in his underwear with a pillowcase over his head and his hands tied together;

2. Being questioned under threat of violence;

3. Whilst not being able to see, hearing the noise of a trigger of a gun and feeling a man place the gun to the back of his head;

4. The placement of a towel or piece of fabric in his mouth and tied at the back of his head, that is being gagged;

5. Being struck on the side of the head whilst he was lying down again whilst feeling someone holding a gun to his head;

6. Being kicked in the back and then struck in the shoulder with a sledgehammer;

7. Being threatened with having his fingers cut off;

8. Feeling a blade being run across his back whilst being threatened with his fingers being cut off; and

9. Being punched in the face on two occasions as he was trying to sleep and then being further attacked on the back of his head with the sledgehammer.

8. All of this violence was inflicted on PV whist he was defenceless.

9. Then on 13 March 2023 a gun was placed against his head and he was told to open his mouth. Pliers were used in his mouth in an attempt to extract a tooth. When that did not work, one of the men struck his teeth several times with a hard object causing his front teeth to become loose. Three of his front teeth were then forcibly removed.

10. Between 9 and 13 March, PV’s uncle received ransom demands, which included threats to chop off PV’s fingers, threats to kill him and images of PV with cloth over his head, his arms bound and slash marks on his back.

11. At some point prior to 10.16am on 14 March 2023 a hostage video was made. The video shows Mr Tonga holding a gun to PV’s head and forcing PV to say something.

12. When he was found by the police, he still had the bloodied pillowcase tied around his head, his hands were tied behind his back with cable ties. He was demonstrating significant injuries.

75. Mr Tonga was convicted on the basis of his participation in a joint criminal enterprise. The doctrine of joint criminal enterprise was explained by Hayne J in Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 at [110] as follows:

“In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission [McAuliffe v The Queen (1995) 183 CLR 108 at 114].”

76. All the participants in the joint criminal enterprise are equally guilty of the crime regardless of the part played by each in its commission. By pleading guilty, Mr Tonga has accepted his guilt on this basis.

77. However, the sentencing of an offender is a process of individualised justice. Each offender must be sentenced as an individual and, to the extent that it is known, regard should be had to the actual role played by the particular offender and the acts performed by the particular offender in determining the appropriate sentence. In R v Sukkar [2011] NSWCCA 140, Davies J said (Simpson J and Grove AJ agreeing):

“[36] … Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, (Johnson v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision (R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced (R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche & Ors [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]).”

See also York v R [2025] NSWCCA 81 per Davies J, Kirk JA and Wright J agreeing at [39]-[41]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [71].

78. Each participant is liable for all of the acts constituting the crime. It is just that a lesser or greater participation will be taken into account in determining the appropriate sentence for each individual.

Mr Tonga’s role

79. Mr Tonga arrived at PV’s house in the white hatchback. He then entered the house with the other five men. He was armed with a pistol. He held his pistol in plain sight as he entered the house, although it has not been established that he was the one who held the gun at PV’s face. He was present during the acts of violence inside the house. He travelled in the white hatchback after they left the premises and to the Belmore house, returning to his own home at 10.11am on 9 March 2023.

80. The Crown did not prove that he returned to the Belmore house at any particular time although it was an agreed fact that he was aware of the torture and assaults and ransom demands. He continued to participate in the criminal activity. This is highlighted by his participation in the hostage video. The video shows him holding a gun to PV’s head and telling PV to say certain things.

81. Mr Tonga collected the $150,000 in cash. He was seen holding a pistol. This was the basis of the firearms offence although the pistol was later examined and found to be working but unloaded.

82. Mr Tonga was arrested when he returned to the Belmore house.

83. Mr Tonga was plainly an active participant in the joint criminal enterprises constituting the offences set out in sequences 1 and 2.

84. Mr Tonga’s subjective case is summarised in some detail in the judgment of Stern JA. It is unremarkable. The Crown has not suggested any error in any findings of the sentencing judge in respect of the subjective features.

85. He was 20 at the time of the offending. He came from a good home with a supportive family. He was developing a career in the music industry and was working part time as a labourer. Although the Crown submitted on sentence that his music glamorised criminal activity, the sentencing judge did not make that finding. He had been using drugs for a short period leading up the offending, but it is not suggested that he suffered from any condition which might reduce his moral culpability. The sentencing judge accepted that he was remorseful and that he had good prospects of rehabilitation. Her Honour appropriately highlighted his youth as a relevant sentencing factor. Her Honour said that she was cognisant of not imposing a crushing sentence on a 22-year-old.

The nature of the offending

86. Section 112 specifies three levels of offending. The basic offence is set out in s 112(1) for which an offender is liable to imprisonment for 14 years. Section 112(2) specifies an aggravated offence, that is, if a person is guilty of an offence under subsection (1) in circumstances of aggravation, then the person is liable to imprisonment for 20 years.

87. The offence to which Mr Tonga pleaded guilty was a specially aggravated one as set out in s 112(3). It carries a maximum penalty of 25 years.

88. The same regime applies under s 86 of the Crimes Act. Section 86(1) specifies the basic offence with an offender being liable to imprisonment for 14 years. Section 86(2) specifies an aggravated offence with an offender being liable to imprisonment for 20 years.

89. Mr Tonga pleaded guilty to the specially aggravated offence under s 86(3). A person is liable to imprisonment under s 86(3) for 25 years.

90. The sentencing judge found aggravating features to the offence under s 112(3) being:

1. The use of actual violence during the break in;

2. That the offence was committed in the home of the victim;

3. That the offenders were aware that there were people inside; and

4. That there was a level of planning.

91. Similarly, the sentencing judge found aggravating features in respect of s 86(3) being:

1. The use of violence;

2. That the offence was planned;

3. The facts reflect a level of planning and organised criminal activity beyond what might be assumed noting in particular the manner in which the victim was taken and the use of the hostage house; and

4. The injury and emotional harm suffered by PV was substantial, ongoing and likely to be long-lasting.

92. Both the standard non-parole period and the maximum penalty are legislative guideposts. As explained in R v Campbell [2014] NSWCCA 102 at [28], a legislative guidepost is of itself meaningless but it may be used to measure the relevant features of a crime against a worst case: Markarian v The Queen at [30]-[31], and in the case of a standard non-parole period, in the mid-range of objective seriousness.

93. As Stern JA has pointed out, it was not necessary that the sentencing judge place the offending at a particular point in the range, but it is evident that her Honour considered the offending to be serious offending, having regard to her observations about the level of violence and the aggravating features. This must be so particularly in respect of sequence 2, having regard to what I would describe as the extreme violence, the ransom video and the length of time that PV was held.

94. The specially aggravated offence under s 86(3) incorporates all of that conduct, including the numerous beatings over a number of days, the psychological and physical torture of being kept tied up with a hood on, being made to speak into a camera with a gun to his head, and the extraction of teeth as part of the ransom process. The description or categorisation of the offending as submitted by Mr Tonga on the sentencing hearing as above mid-range hardly does justice to its extreme nature.

95. Further, in my view, describing the conduct as “serious” hardly provides an adequate description of that which occurred. The offending (both sequences 1 and 2) was not impulsive or spontaneous. It was planned and carried out with a view to extract a large sum from the victim. It was carried out by a group of armed men. There was more than one victim. All of the persons in the house were victims, albeit not all suffered serious injury. Each specially aggravated offence is intended to incorporate all of the conduct.

The purposes of sentencing

96. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure Act) 1999 (NSW) as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

97. It is always a matter for the sentencing judge to give such weight as is appropriate to each of those factors in the exercise of the sentencing discretion. Sometimes the factors will point in different directions (He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42]; Tammer-Spence v R [2013] NSWCCA 297 at [56]; Veen v The Queen (No 2) (1988) 164 CLR 465 at 476). It is evident that the sentencing judge placed significant weight on the need for rehabilitation and Mr Tonga’s youth which is of course appropriate but, in my view, a sentence needed to be imposed which also reflected the need to denounce such conduct, to recognise the very significant harm to the victim and so as to provide a deterrence to those who may be tempted to engage in such conduct.

Other cases

98. As is well known, reliance on other cases often has limited utility (Hili v The Queen at [54]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41]). This may be particularly so in a Crown appeal.

99. Much depends on the particular facts and circumstances of the other cases. Differing subjective cases and the application of discounts can sometimes lead to quite different sentences for similar type offending. Caution must be exercised in relying too much on other sentences as some form of yardstick. However, whilst the range for offending under s 112(3) and s 86(3) is necessarily broad, a comparison with some other cases tends to demonstrate that the sentence imposed on Mr Tonga was very lenient, to say the least.

100. The Crown referred to O’Brien v R [2023] NSWCCA 41. In that matter the offender and a co-offender were convicted of the offence under s 86(3) and a further offence of robbery in company contrary to s 97(1) of the Crimes Act. The co-offenders had entered a hotel in the early hours of the morning, with the idea of robbing the hotel. They approached a night auditor in the manager’s office, held a knife to his face and tied his hands with duct tape. The safe was opened and $30,000 was stolen. They then stole a van, placing the victim in the rear of the van, again secured by duct tape. The victim pleaded to be released but he was threatened, and threats were made to him about his family. As the van was being driven away, the victim jumped out suffering injury. The offender had a somewhat unremarkable subjective case, although he had become involved in drugs prior to the offending. He had previously worked in the hotel.

101. The offender was sentenced to an aggregate sentence of 14 years with a non-parole period of 9 years (after trial). The sentencing judge had found that the offending under s 86(3) was above mid-range and towards the upper range. This Court (per Button J, with Bell CJ and Garling J agreeing), dismissed the appeal based on manifest excess finding that the sentence imposed was well within the available range. The indicative sentence for the kidnapping offence was 13 years. The victim did sustain injury when he jumped from the van, but it is notable that he was detained only for a short period (perhaps less than an hour). He was threatened but not subjected to the violence perpetuated on PV over a period of five days.

102. In Franklin v R [2018] NSWCCA 245, the offender was convicted of offences under s 112(3), and under s 86(2)(a), that is the aggravated kidnapping offence but not the specially aggravated offence. The specially aggravated offence under s 86(3) was taken into account on the Form 1 as was an additional charge under s 86(2)(a). An aggregate sentence was imposed. The sentencing judge considered that the offending conduct was not far below the upper end of the range for the s 112(3) offence and provided an indicative sentence of 20 years imprisonment. The sentencing judge provided an indicative sentence of 15 years for the offence of detain in company with intent. As it turned out, the offender was entitled to substantial discounts for his early plea and assistance (a total of 45%).

103. The Court did not accept that the sentence was manifestly excessive, albeit it allowed the appeal on the basis that the sentencing judge had failed to have regard to the fact that the offender had only been charged with the aggravated rather than the specially aggravated offence. On resentence, the offender was sentenced to an aggregate sentence of 12 years and 6 months. Before discount, the sentence was 18 years and 6 months for the offence under s 112(3) and taking into account the two matters on the Form 1.

104. The circumstances of the offending in that case were that three co-offenders had entered a house and beat one of the residents such that he was rendered unconscious. His partner’s hands were bound with tape. They then found other residents and bound them with tape and placed pillowcases over their heads. The victim who had been beaten suffered very serious injuries. This was obviously a very violent home invasion for the purposes of stealing money and other items.

105. The co-offenders became involved in another violent home invasion at Badgerys Creek. One of the occupants was killed. A co-offender was charged with murder but also other counts including break, enter and steal in circumstances of special aggravation and detain with intent to obtain a financial advantage while in company. Indicative sentences of 18 years and 20 years were suggested for the s 112(3) offending (R v Evans (No 3) [2017] NSWSC 1523).

106. In Green (a pseudonym) v R [2018] NSWCCA 146, the offenders had entered the home of the victim and pressed a handgun into his stomach. They struck his head with a gun and tied him up and placed tape over his mouth. He was then forced into a car and then taken to the local bowling club. He was struck in the head whilst he was in the car. He was detained for over an hour and suffered injury during the detention. The offending was considered to be a serious type of offending.

107. This Court allowed the appeal, not on manifest excess grounds, but resentenced the offender with a starting point before discount of 13 years for the s 112(3) offence, taking into account a s 195(1)(b) offence on the Form 1, and 11 years for the s 86(3) offence. The conduct comprising the s 86(3) offence included violence being inflicted on the victim but he was only held for one hour. After discount, an aggregate sentence of 7 years with a non-parole period of 4 years and 3 months was imposed.

108. It may be that some of the offending conduct to which I have referred might be viewed as similar, but there is no case which contains similar facts to the s 86(3) offence in this matter. There is no case which contains similar facts such as the prolonged period of detention and violence and a ransom video.

The indicative sentences

109. An appeal does not lie from the indicative sentences, but regard might be had to the indicative sentences as a reason for a manifestly inadequate or excessive aggregate sentence (JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]). As Beech Jones J (as his Honour then was) said in Kirby v R [2021] NSWCCA 162 at [45]:

“In the case of an appeal from an aggregate sentence, the indicative sentences are not appellable in their own right but they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; “JM”) although, even if an indicative sentence is considered excessive, that is not determinative (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The ultimate question will be “whether [or not] the aggregate sentence reflects the totality of the criminality involved” (JM at [40]).”

110. I agree with the Crown submission that there is a disconnect between the indicative sentences and the sentencing judge’s findings as to the seriousness of the offending. This is not explained by the findings as to subjective circumstances, as the subjective case was not remarkable. For example, there was no finding of a reduced moral culpability or any casually related (or not) mental health problem. Mr Tonga’s childhood and background was not one of disadvantage.

111. The offending was not related to drug use or in some way linked to deprivation. Indeed, he was developing a successful career at the time.

112. As the sentencing judge found, he is remorseful and had good prospects of rehabilitation, but those factors hardly explain the very lenient starting point.

Aggregate sentencing and totality

113. Whilst no specific error is identified, an explanation of manifest inadequacy in an aggregate sentence may lie either in the indicative sentences being too low or the aggregate sentence not reflecting the total criminality involved. An appeal based on manifest inadequacy in respect of an aggregate sentence necessarily involves a consideration of whether the aggregate sentence reflects the totality of the criminality involved (JM v R, per R A Hulme J, Hoeben CJ at CL and Adamson J agreeing at [40(13)]).

114. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, Gageler, Nettle and Gordon JJ observed at [64]:

“Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.” (footnotes omitted)

115. The principles applicable to aggregate sentencing are set out in JM v R and have recently been discussed in Portnoy v R [2025] NSWCCA 60 at [27]-[33] (per Sweeney J, Davies and Huggett JJ agreeing).

116. It is only necessary to emphasise the following matters:

1. The principle of totality is an important principle in applying an aggregate sentence (Portnoy at [30]; Aryal v R [2021] NSWCCA 2 per R A Hulme J at [40]);

2. The degree of accumulation and concurrence is a matter of discretion for the sentencing judge (Kliendienst v R [2020] NSWCCA 98 per N Adams J at [77]), but the sentencing judge is still required to assess the criminality of each offence separately before imposing an aggregate sentence (JM v R per R A Hulme J at [39]).

3. As N Adams J observes in Kliendienst at [85]:

“A common complaint to this Court when alleging manifest excess (or manifest inadequacy) of an aggregate sentence is to contend that the sentencing judge has erred in the degree of accumulation and concurrence. Such a complaint will be upheld in obvious cases, such as when the aggregate sentence is the same length as one of a number of indicative sentences showing there was no accumulation (as occurred in Rae cited above). But the failure to properly apply the totality principle must be able to be gleaned from the indicative sentences when compared with the aggregate sentence. That will often not be the case. This Court will not intervene where the failure to apply the totality principle is not apparent, nor when there is a complaint that the judge has failed to specifically state the degree of accumulation and concurrence. That this is so can be seen by reference to a number of decisions of this Court addressing this question.”

117. Mr Tonga received an aggregate sentence (after discount) of 8 years and 6 months with a non-parole period of 5 years and 4 months, incorporating the firearms offence as well. In my view, the aggregate sentence imposed does not reflect the total level of criminality involved. This is either because the starting point for the indicative sentences was too low or because the level of concurrency is too high.

118. In my view, the offending conduct in respect of both sequences provides a very serious example of the offences of that nature. The aggregate sentence must reflect the fact that both offences were specially aggravated offences.

119. I acknowledge that the aggregate sentence also incorporates sequence 7, for which the sentencing judge provided an indicative sentence of 3 years after discount, but I would not consider that the indicative sentence for that offence to be of significance in the aggregate sentence imposed.

120. There may be a number of ways of looking at an aggregate sentence and the sentencing judge was not required to explain how she came to the total sentence but, in reality, the total sentence is only 18 months more than the indicative sentence for sequence 2. In my view, the aggregate sentence does not reflect even the appropriate sentence for the s 86(3) offence.

121. I acknowledge that the sentencing judge was cognisant not to impose a crushing sentence on Mr Tonga but consideration of that important principle does not obviate the need to impose a sentence which reflects in an appropriate way all of the purposes of sentencing to which I have already referred. Even assuming the indicative sentences were not too low, the substantial concurrency imposed by the sentencing judge led to an aggregate sentence which did not accurately reflect the totality of the offending.

Conclusion

122. For the reasons I have set out I consider that the sentence was not just lenient, it was manifestly inadequate. The aggregate sentence fails to reflect the totality of the criminal conduct involved in the three offences. It was unreasonable and unjust.

The residual discretion

123. I am also satisfied that the Court should not decline to intervene. As I said, this particular type of specially aggravated offending in combination is unusual. It is of the type that the Court should resentence and impose an appropriate sentence for the offending (R v Dinh [2010] NSWCCA 74; (2010) 199 A Crim R 573 at [79]). The sentence calls for strong denunciation in respect of both offences. The sentence imposed does not serve that purpose and may be considered an affront to the administration of justice in that regard.

124. The Crown identifies a number of matters which are not present which might otherwise attract the exercise of the discretion, including that there has been no delay in the institution of the appeal, that the Crown did not contribute to the manifest inadequacy of the sentence, and that Mr Tonga is not due for release to parole until 13 July 2028, which in not imminent. I accept those matters.

125. I also accept the principal submission of the Crown that the need to give appropriate weight to the various purposes of sentencing (to which I have already referred) would be undermined by allowing the sentence to stand.

Resentence

126. I am required to resentence (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]). Again, as mine is a minority judgment, I will indicate the sentence I would have imposed in brief terms.

127. There is no challenge to the factual findings of the sentencing judge, which have already been set out. I adopt them, except in one respect. I consider that some of the violence involved in the s 86(3) was gratuitous cruelty. Forcibly removing PV’s teeth, hitting him whist he lay defenceless in the Belmore house and pulling the trigger of a gun so that he would hear the noise whilst he could not see are examples of that. It was hardly necessary to serve the essential purpose of the criminal activity. This is another aggravating feature, in addition to those found by the sentencing judge which I adopt.

126. I adopt the findings as to Mr Tonga’s subjective case but as I have already said, the subjective case is not so strong as to provide a basis for significant leniency. Youth is an important factor but in circumstances in which the offending was planned and, in respect of sequence 2, carried out over a number of days, the significance of the fact that he was 20 at the time of the offending should not be overstated.

127. As Yehia J observed in TM v R [2023] NSWCCA 185 at [49], the gravity of the offending may not of itself diminish the significance of youth but aspects of the offending such as planning may serve to lessen the importance of the offender’s youth. Further, his general conduct and background rather detracts from the notion that much weight should be given to his youth. He was already developing a career in the music industry, showing a degree of intelligence and maturity. There was nothing about his role which might be indicative of youthful impetuosity and naiveite.

128. I also consider that the fact that the offending conduct occurred over five days with Mr Tonga engaging in egregious conduct at the end of that period (the ransom video) rather diminishes the overall importance of his youth in the exercise of the sentencing discretion.

129. I have regard to the affidavit of Mr Tonga dated 19 May 2025 as to his post-sentence conduct (no offences in custody) and his participation in programmes in music and business as part of the process of rehabilitation. His prospects of rehabilitation appear to be good, as the sentencing judge found.

130. The Crown submits that the s 86(3) offending is towards the high end of the range. For the reasons I have set out and for the purposes of resentence, that is an appropriate description. The indicative sentence must reflect that, and the level of concurrency should not be such that the total sentence does not appropriately reflect the criminality involved in each offence.

131. The sentence must reflect all of the purposes of sentencing including the importance of rehabilitation in an offender of his age but in particular the need to denounce the conduct, the very great harm to the victim and the need to deter others. These matters are of significance in the exercise of the sentencing discretion.

132. The offender is entitled to a 25% discount on account of his early plea of guilty. Further, I accept that there are special circumstances for the reasons set out by the sentencing judge and vary the statutory ratio in setting the non-parole period.

133. I provide indicative sentences as follows:

Sequence 1: 8 years and 3 months (11 years before discount).

Sequence 2: 9 years and 9 months (13 years before discount).

Sequence 3: 2 years and 3 months (3 years before discount).

136. The aggregate sentence I would impose would be 13 years and 6 months, with a non-parole period of 8 years and 6 months.

137. The orders I would propose would be:

1. Crown appeal allowed.

2. Quash the sentence imposed in the District Court on 6 December 2024.

3. In lieu thereof, the respondent is sentenced to a term of imprisonment of 13 years and 6 months commencing on 14 March 2023 and expiring on 13 September 2036. I impose a non-parole period of 8 years and 6 months.

138. The respondent will therefore be eligible for parole on 13 September 2031.

139. RIGG J: I agree with Stern JA.

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Decision last updated: 02 July 2025