Tonga policemen jailed for manslaughter [1]
Wednesday, July 9, 2014 - 18:12. Updated on Thursday, July 10, 2014 - 09:15.
Hon Justice Cato sentenced Police Inspector Kelepi Hala'ufia to 11 years imprisonment and Police Constable Salesi Maile to nine years imprisonment, at the Nuku'alofa Supreme Court this morning, 9 July.
The two police officers were earlier found guilty of manslaughter following the death of a New Zealand Police Officer, Kali Fungavaka, a Tongan while in Police custody.
Kelepi was sentenced to 11-years imprisonment with the final year suspended while Police Constable Salesi Maile received nine-years imprisonment with the final year also suspended.
Both sentences were backdated to their remand in custody on June 6 for sentencing.
A third person, a civilian, Semisi Kalisitiane Manu who punched Kali inside the prison cell received 18-months sentence which was fully suspended for grievous bodily harm.
Condemnation
Mr Justice Cato delivered his sentencing remarks for around two-hours to a full court room said in the case of the two police officers, he had imposed sentences that reflect condemnation or denunciation of their acts.
He said the sentences are also intended to act as a firm deterrent against this kind of behaviour by police officers as they carry out their important duty of maintaining law and order in Tonga.
The judge accepted that Hala’aufia had struck Kali with a heavy blow to the top of his head using a black torch when he was in custody, at the Nuku’alofa Police station on the night of August 17, 2012.
“Medical evidence given by a forensic pathologist from New Zealand where the autopsy took place asserted that the skull was fractured. It is plain that this blow delivered from behind when Kali was held by two officers was with considerable force by Hala’ufia who did have had any regard at all for the wellbeing of his prisoner. I found that this was a material and indeed a substantial cause of his death.”
He said while Kali was being searched inside the watch house Hala’ufia had forced his neck and upper body onto the wall as he was lying on the floor and more relevantly, he strangled him breaking a cartilage in his throat.
The pathologist said this was with extreme force that would have worsened the trauma of the head and brain injury already experienced by the blow to the top of his head. These were two acts I based my verdict of manslaughter against Hala’ufia, he said.
Brutal acts
Justice Cato found Maile had assaulted Kali outside Langafonua but it was not a blow to the head as the prosecution had alleged. But this demonstrated his disposition to use unreasonable and inappropriate force from the outset in Kali’s arrest, he said.
He said the more serious matter that he found Maile guilty of manslaughter was the act of stomping on Kali’s face as he was taken from the watch house to the cell.
When Maile stomped heavily on his face it caused his head to impact with the floor. I have no doubt that this brutal act materially caused and contributed to his death. Evidence was given that Kali had a swelling of the brain which surgery could not improve a subdural hemorrhage and bleeding to other parts of the brain, he said.
The judge said although Kali’s arrest and processing was difficult he did not regard his verbal abuse of police officers as amounting to any kind of provocation that could be said to mitigate their actions or responsibility.
He said police officers are trained to deal with difficult arrests in a civilized way and they are given powers under the Tonga Police Act 2010 to use reasonable and proportionate force to deal with difficult situations.
“When police officer arrests a citizen that citizen falls under the care and control of the police and the police must treat he or she with decency. Police have certain powers that must be exercised reasonably to deal with difficult arrests….arrest does not, however, give a police officer the power to discipline or take the law into their own hands and effect retribution.”
The judge said it is a truism that is sometimes ignored by those in authority, as occurred in this case that police officers are subject to law and they must act strictly within powers given to them by law.
He said Hala’ufia was promoted to inspector in 2010 and was commended for busting a drug importation network. He was also a first time offender.
Denial
The judge said Hala’ufia is adamant that he was not responsible for harming Kali.
On the basis of the evidence I have heard his denial is unrealistic. I do not consider although he had advanced a limited apology to his probation officer that he has displayed any contrition nor did he cooperate with authorities…..Rather in his sentencing submission he seemed to complain of the failure to initiate a police disciplinary inquiry in this case and the lack of police support for financing his defence which tends to suggest he still does not really appreciate or acknowledge the seriousness of his misconduct or how damaging it has been for the reputation of Tonga police, the judge told the court.
Justice Cato said the only reason he allowed any period of suspension was of his former good character.
For Maile he had been in the police for six-years. He only received the final year suspended due to his former good character.
Like Hala’ufia, I consider his protestation of innocence unreal in the face of the evidence I heard. I do not regard him as showing contrition as he did not cooperate with the authority but maintained innocence throughout….I agree with the Crown Prosecutor ‘Aminiasi Kefu’s closing submssion in describing the circumstances of this offending as tragic and the case of profound importance for policing in Tonga. I also agree with his assessment of the circumstances as tragic and would add, very needlessly so. It is to be hoped that lessons were learned, he said.
Suspension
Meanwhile, the civilian Semisi Kalisitiane Manu who was convicted of grievous bodily harm was sentenced to 18-months imprisonment which was fully suspended.
The judge said Manu through his counsel admitted that he hit Kali.
"I sentence him taking into account that he is a first offender and his remorse. His trial was not being so much on the issue whether he punched Kali which was admitted, but whether the punch contributed to his death for causing grievous bodily harm. I consider him being a first time offender and having shown remorse and given up alcohol justifies this," he said.
Manu who was acquitted by a jury of manslaughter was convicted of a lesser charge of grievous bodily harm.
“The verdict of the jury was that Manu did not cause the death and I am in agreement with this verdict. I consider it was inevitable that Kali would have died from his injuries he had recieved earlier on the hands of Hala’ufia and Maile. I interpret the verdict to mean the punch contributed to Kali’s already serious condition, but it did not kill him.”
Justice Cato said due to the seriousness and circumstances of his conviction he ordered the following conditions that he does not commit any offence by imprisonment for two-years, undertake a course on alcohol and drug abuse and perform 70 hours of community work to clean up Vuna road.
Meanwhile, the fourth convicted person and former police constable Fatai Faletau who was found guilty of assault will be sentenced on July 29, so the judge can get his probation report.
Kali died at Vaiola Hospital on August 23, 2012 at age of 38 after being a New Zealand police officer for over six-years.
He leaves behind five children between the ages of 14-6 with his first wife Cally. He married his second wife Audra Watts.
His mother Rosemary was present in court to hear the sentence before flying back to New Zealand today.
Kali who was arrested outside a bar in the CBD for drunkenness was fatally injured in custody on the night of August 17, 2012.