Nuku’alofa – October 13, 2021: 11.35am (Matangi Tonga): Tonga’s Lord Chief Justice considered giving a death sentence before he gave a life sentence on October 11, to the man who admitted the murder of prominent human rights activist Polikalepo “Poli” Kefu (41) in April this year.
Lord Chief Justice Whitten QC, convicted ‘Inoke Silongo F. Tonga (27), a meth addict, of the murder at a beach in Tatakamotonga.
The defendant, who was living at Halaleva and was originally from Vava’u, had pleaded guilty to the murder charge on September 2. He appeared for sentencing in the Nuku’alofa Supreme Court on Monday, October 11.
The injuries inflicted on the victim were among the worst encountered by the court.
The offending was “a heinous crime of extreme brutality and depravity,” said the Chief Justice, who noted that the manner of the killing by prolonged and repeated strangling and frenzied bashing with a large rock, and the callous attempt by the defendant to dispose of the body into the ocean before making off with the victim’s car, “place this crime towards the most serious end of the spectrum for offences of its kind, that is, the ‘rarest of the rare’.”
The murderer had taken alcohol and a heavy dose of meth on the night of the murder. “Regrettably, the scourge of methamphetamines has been and continues to be felt in Tonga… Directly or indirectly, methamphetamines have robbed one innocent of his life and now threaten to end another,” the Chief Justice concluded.
In Tonga there are only two alternative sentences for murder – death or life imprisonment.
“Neither section 91, nor any other provision of the Criminal Offences Act, provides any guidance on how the Court is to choose between death or life imprisonment,” the Chief Justice said.
He set out his reasons for the choosing life imprisonment, in a 21-page Sentencing Remarks, and compared the case to the worst murders in Tongan legal history.
In opening his remarks, the Chief Justice said that the victim, Poli, who resided in Lapaha, was a son, a brother and a father. He was best known as a prominent human rights activist and advocate for the LGBTQI community in Tonga and across the Pacific. He served as president of the Tonga Leiti’s Association, chairman of the Pacific Protection Gender Inclusion Network and as Communications Officer for the Tonga Red Cross Society.
“He was highly regarded both here and overseas for his selfless and tireless work for the rights of those with diverse sexual orientation, gender identity and expression. Poli dedicated his life to the safety of others.”
The defendant wanted to steal his wallet and take his car. He had never met Poli until that night.
The Court heard on the evening of April 30, Poli met up with work colleagues for drinks at the Reload Bar in Nuku’alofa CBD and at approximately 11:00pm, he left the bar and went to his vehicle.
A person named Fe’ofa’aki Kali saw Poli and asked him for a ride to Tatakamotonga. The defendant also got into the vehicle. When they reached “Kapo’s residence” in Tatakamotonga, Fe’ofa’aki and the defendant got out of the vehicle. Fe’ofa’aki joined the kava drinkers there, while the defendant got back into the vehicle with Poli.
Later, at around 1:00am, the defendant appeared at the residence of ‘Ofeina and Petelo Save in Tatakamotonga.
He told them that he had been drinking with some girls at the beach, that they had lost their car keys and that they needed something with which to start their car. The defendant then left with a small black handled kitchen knife.
At approximately 2:00am, the defendant returned to the Save residence, this time, in Poli’s vehicle. He spent the rest of the night there and, in the morning, went to his sister’s house in Halaleva.
That morning, residents of Tatakamotonga found Poli’s body at Fuifa beach [aka Fuipa Beach] and the Police were called. Subsequent medical examinations found that Poli had died within the preceding 24-hours and that he had suffered a range of injuries, including multiple serious facial fractures and an incised wound on his forehead down to the nasal area. The right side of his face and skull vault was caved in.
The cause of death was determined as severe head injury secondary to repeated blunt force trauma.
Confessed to killing
The Chief Justice said that Police from Mu’a conducted a search for the defendant. They went to his sister’s residence at Halaleva where they found Poli’s vehicle.
In the evening, one named Ruben Suli returned to his home in ‘Utulau and found the defendant there. They went for a drive, during which, the defendant confessed to Ruben that he had killed Poli. Ruben then drove the defendant to the Nuku’alofa Police Station where the defendant admitted to killing Poli.
On May 6 during further questioning, the defendant gave police an account of how he went with Poli to buy a bottle of spirits, however Poli drove to the beach were he allegedly made sexual advances. The defendant became angry and in a prolonged attack he twice attempted to strangle Poli, for about 12 minutes, before slamming him on the road, then strangled him for about 5 more minutes, before bashing him with a rock more than 30 times. The defendant then rested for a couple of minutes before dragging Poli’s body to the water line, hoping it would be washed out to sea. He admitted that he intended to beat Poli to death.
A mental health assessment found that the defendant knew what he was doing and that it was wrong. He was fit to stand trial. Dr Puloka had contacted Ruben Suli who confirmed that the defendant told him he “had other reasons” for killing Poli, including his “wish to own (steal)” Poli’s car and wallet.
The defendant came from a broken family.
In his assessment, Dr Puloka reported that the defendant started abusing alcohol, smoking cannabis and sniffing benzene and glue from the age of 13, and suffered from mental and behavioural disorders due to his addiction to and chronic use of methamphetamines since 2017. He took his last “heavy dose” of meth between 9:00 to 10:00pm on the night of the murder.
The defendant also told the probation officer that on the night “he had been drinking and smoking methamphetamines at the bar”.
Death or life imprisonment
The Chief Justice said that in this case, the Crown left the choice of penalty to the discretion of the court.
The Crown observed that the defendant intended to cause the deceased’s death, and the seriousness of the offending was marked by the prolonged and repeated nature of the attacks and extensive injuries inflicted on the victim. The Crown observed that the offending had, and continued to have “dire effects” on the deceased’s family, including his two customarily adopted sons, his younger sister and his older disabled brother.
Defence counsel urged the Court to exercise its discretion by sparing the defendant’s life. Mitigating factors considered were that the defendant’s early guilty plea was an indication of remorse. The defendant had no previous convictions. He had demonstrated remorse and his family had provided an apology with customary reparations to Poli’s family, who had accepted the apology and expressed their forgiveness.
The Chief Justice considered other murder cases in Tonga and the penalties.
“Sections 44 (treason) and 91 (murder) of the Criminal Offences Act enacted almost a century ago, are laws which permit the State to take the life of a subject.”
Section 33(2) of the Criminal Offences Act provides that no sentence of death shall be carried out until the King with the consent of the Privy Council has assented to it. Subsection (3) enables the King with the consent of the Privy Council to commute a sentence of death to imprisonment for life.
Chief Justice Whitten QC noted that: “debates about the propriety of the death penalty in a modern, civilised society (and perhaps even more so, in one firmly rooted in Christian values) are the province of Parliament.”
The last executions in Tonga took place in 1982 when a jury found three men guilty of murder. They were sentenced to death and, after appeals for clemency were in vain, were taken to the place of execution and hanged by the neck until they were dead.
He said that prior to and since then, 140 countries around the world have abolished the death penalty by law or in practice. “Tonga is generally regarded internationally as one of the latter. Of the Pacific Island countries, only Tonga and Papua New Guinea retain the death penalty.”
“Until 2005, the published judgments of this Court and the Court of Appeal did not include any, which considered the question in any detail.”
He referred to the guidance of Webster CJ in the case of Vola, (2005) which considered the death penalty and principles as a form of punishment.
The Chief Justice said, “in applying those principles to the instant case, I consider that the aggravating features of the offending here are capable of characterising it as a heinous crime of extreme brutality and depravity.”
He said, in arriving at that characterisation, he considered and compared the instant with the acts perpetrated in each of the cases referred to by the Crown.
“The defendant’s exceptional and prolonged brutality, including the extraordinary number of blows with the rock, during which, he must have seen the damage he was inflicting but continued anyway, attracts the same epithets stated by Cato J in Tu’itufu, namely an extremely cowardly and savage attack on an unfortunate man, involving almost indescribable and inhuman acts. It will be recalled that in Tu’itufu, the only reason Cato J did not impose the death penalty was because the defendant was only 17 years of age. That saving feature does not apply here,” he said.
In considering the mitigating factors, the Chief Justice said, he had intentionally left out any reference to the defendant’s claim of provocation by Poli through alleged sexual advances.
“If they occurred, they were obviously not considered by the defendant or his counsel to be sufficient to mount a partial defence. However, I have reservations about whether they did occur, or in the manner suggested by the defendant,” he said. The defendant’s accounts of what occurred in that regard were materially inconsistent.
“If Poli did make advances, the defendant was clearly capable of deterring him without causing injury or avoiding him by simply walking away,” he said.
“The defendant’s explanation that it was Poli’s advances that caused him to become angry and react in the monstrous way that he did are almost impossible to accept. The level of unbridled violence that followed could not reasonably be explained by any need to prevent Poli from making advances. It, in fact, suggests a different motive, which brings me to the final reason,” he said.
A copy of Ruben’s statement confirmed, as Dr Puloka recounted, that the defendant told Ruben that he also killed Poli in order to steal Poli’s car and wallet.
In addition, Dr Puloka identified the defendant as a long-term addict who as a result, had developed mental and behavioural disorders.
“As alluded to by Dr Puloka, and as explained in publicly available medical literature, people who use methamphetamines long term may exhibit symptoms including significant anxiety, confusion, insomnia, mood disturbances and violent behaviour,” he said.
“Regrettably, the scourge of methamphetamines has been and continues to be felt in Tonga, with a sharp rise in cases involving the drug coming before the courts over the last two to three-years.”
He said, this Court, on multiple occasions had described methamphetamines and other Class A drugs as not just drugs of dependence, but drugs “of destruction, causing untold damage to countless individuals, their families and their communities”.
“Lamentably, the present case is now an apex illustration of the truth of those repeated cautions. Directly or indirectly, methamphetamines have robbed one innocent of his life and now threaten to end another.”
The Chief Justice Whitten then, after carefully weighing all factors was satisfied that:
- “the instant offending, albeit involving extreme brutality, falls just short of the rarest of the rare case of its kind in Tonga
- “of the mitigating factors considered, the influence of long term methamphetamine use and the defendant’s propensity for rehabilitation, take his case out of those for which death penalty should be reserved and the objects of punishment as well as denunciation, community protection and deterrence can be achieved by the alternative penalty.”
In addition, he said there was no requirement and arguably no statutory power for the Court to make any order or recommendation in relation to the defendant’s eligibility for release, at any time during his sentence.
He then sentenced the defendant to imprisonment for life for murder.
Crown counsel was Mr T ‘Aho. The defendant was represented by Ms L. Tonga