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R v 'Anitoni [2025] TOCA 22; AC 5 of 2025 (20 November 2025)

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BETWEEN REX
Appellant

AND SITANISELAO ‘ANITONI
Respondent

Hearing: 13 November 2025

Court: White, Harrison and Dalton JJ

Counsel: Ms S ‘Eliesa for the Appellant
No appearance for the Respondent

Judgment: 20 November 2025

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JUDGMENT OF THE COURT
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[1] The respondent, Sitaniselao ‘Anitoni, pleaded guilty in the Supreme Court to counts of serious housebreaking and theft. He was sentenced by Cooper J on 29 November 2024 to a total of three years imprisonment on both charges, The sentence was fully suspended for one year, the Judge describing its ‘... operational effect. [as]...expiring after one year and the sentence comes to an end at that point”

[2] The Crown does not appeal against the finite term imposed of three years’ imprisonment. It appeals against the partial suspension as being wrong in law. The short point made by Ms ‘Eliesa is that the decision is wrong in principle in that the suspension of the three-year term of imprisonment for a lesser period of one year would require Mr. ‘Anitoni on the expiry of the one year’s suspension to serve the two-year balance of the term. We agree with Ms ‘Eliesa submission, for reasons which was can explain with equal brevity.

[3] Section 24 (3) (a) of the Criminal Offences Act provides:

“It shall be lawful for the Court when imposing a sentence of imprisonment to suspend the whole or any part of such sentence for any period up to 3 years”

[4] In a series of decisions this Court has affirmed the principle that the period of suspension imposed by a Judge must always be for not less than the unserved portion of the sentence^[1]. That is because the statutory purpose of allowing for suspension is rehabilitative; it is designed to keep in the community an offender whom the sentencing Judge is satisfied has realistic prospects of rehabilitation, while retaining the deterrent effect of having to serve the unserved balance of the term of imprisonment if he or she reoffends. Its greatest value is in sentencing young offenders. However, its purpose would be defeated in this case if at the end of the one-year offence free suspension period Mr. ‘Anitoni was then required to go to prison for the two-year balance of the finite term.

[5] There is no doubt that suspension was an available sentencing option in this case. Mr. ‘Anitoni was only 14 years of age at the time of offending. He was the youngest and least culpable participant along with two young adult males in a serious break in of the Museum of Tonga. They stole artifacts to a value in excess of $250,000. Only some have been recovered. Those that are lost are of unquantifiable historical, cultural and sentimental value. The emotional harm caused by the offending was deep and lasting, particularly among the artifacts’ custodians.

[6] Mr. ‘Anitoni was 16 years of age when sentenced. He had pleaded guilty and was most remorseful. His most recent years had been unsettled as a result of prolonged parental discord. However, he had shown positive signs of turning his life around. He enjoyed strong maternal, and influential church and community support. He had embarked on a trade training course with what Cooper J described as impressive grades. The Judge had a sound basis for his satisfaction that a suspended sentence coupled with strict conditions and imposition of 40 hours’ community service would meet the established requirements of sentencing.

[7]. It was open to the Judge in law to suspend the three-year term of imprisonment for its full duration. However, he erred in imposing a term of one year’s suspension. Mr. ‘Anitoni will have to resentenced. We accept Ms ‘Eliesa’s submission that we should perform that function rather than remitting the proceeding to the Supreme Court for resentencing.

[8] The appeal is allowed. The sentenced imposed on Mr ‘Anitoni in the Supreme Court is varied by quashing the period of one year’s suspension of the sentence of three years’ imprisonment. In substitution we suspend the term of imprisonment for a period of three years on the amended conditions proposed by the Crown that Mr ‘Anitoni is:

(a) not to commit any offence punishable by imprisonment during the period of suspension
(b) to be placed on probation; and
(c) to carry out a course on alcohol, drug awareness and life skills under the direction of the Probation Office.

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White J

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Harrison J

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Dalton J

^[1] R v Misinale [1999] TOCA 12; CA 13 1999 ( 23 July 1999); Misinale v Attorney-General [2021] TOCA 16; AC 7 of 2021( 1 October 2021); Attorney- General v Tauvaka [2022] TOCA 8; AC 23 of 2021 ( 24 May 2022)