The importance of the independence of the judiciary was stated by Tonga's Chief Justice Paulsen yesterday, when he directed that sentencing documents in the case of Lord Tu'ilakepa should be released.

On February 5, the Tongan noble Tu'ilakepa (46) was fined $10,000 to be paid within 14-days and in default to serve six-months imprisonment, on five counts of possession of firearms and ammunition without a license, after pleading guilty on December 19, 2014.

The arms were described as “assault weapons” in the sentencing submissions that were released yesterday.

The Acting Attorney General and Crown Counsel 'Aminiasi Kefu SC, and the Counsel for Lord Tu'ilakepa, Clive Edwards SC, had no objections to two applications to the courts from Viliami Taufa and Vava'u Press Ltd. (Matangi Tonga Online) seeking release of the sentencing submissions in the Crown's case against Nopele Tu'ilakepa.

In releasing the documents the Chief Justice noted, however, that both counsel were concerned that the request was made “against a background of public comment about this case which may impact negatively on judicial independence.”

“These are important matters but... the principle of open justice requires that information be provided,” the Chief Justice stated on February 25.

Assault weapons

Lord Tu'ilakepa (46) was arrested and charged on December 2, 2010 and the case had taken four years and two months to reach sentencing.

Tu'ilakepa is a Representative of the Nobles of Vava'u and a former Speaker of the Legislative Assembly who knew that his arms and ammunitions were unlicensed and that they were supposed to be licensed.

Aggravating features of the case, according to the Crown's sentencing submission, were that the arms and ammunitions were “dangerous assault weapons not for hunting and recreational weapons.”

 “The defendant possessed four guns, including a semi-automatic rifle, a hand pistol, a pump action shotgun and a semi-automatic pistol, [and] 1,401 rounds of ammunition and some with brass plated hollow point.”

The arms and ammunition were found under the defendant's bed, outside his bedroom, in his closet and on his dressing table both at his residences in Longolongo, Tongatapu and Ofu Island, Vava‘u.

The Crown submitted that the defendant had attempted to send instructions to destroy arms and ammunition he knew were kept in his residences in Longolongo and at Ofu.

The Crown also submitted that the mitigating factors were that the defendant had admitted to the police that he had weapons when they executed a search warrant at his home at Longolongo; he had pleaded guilty at the earliest opportunity; and had no previous conviction.

Possession of arms

The defence summarised that the defendant had come into possession of the arms and ammunitions on or about December 2007, when a close relative Fili Vakapuna died. Vakapuna had lived in America but returned to Tonga in 2003 and lived with the defendant travelling frequently between Longolongo and Ofu. Tu'ilakepa failed to surrender the arms to the police after Vakapuna died.

The defendant was appointed to the Tu'ilakepa title and estate in 1992, inherited through his mother who was a sister of the last Tu'ilakepa. He was educated at Liahona High School and employed as a handyman carpenter at the Royal Palace, and a truck driver for the government in the 1980's and later as an LDS missionary worker, before he was elected as a Noble's Representative to the Legislative Assembly in 1993-95, and from 2005 until the present. He has six children aged between 2 years and 19 years. He submitted character references from the community.

Scale of offending

Both the Crown counsel and the counsel for the defendant submitted that the offending was at the "lower end to middle range of the scale of offending.” and that the defendant was remorseful and unlikely to reoffend.

The Crown went further to submit that it was the fourth time that a hereditary title and estate holder was convicted of an indictable offence and the second regarding arms and ammunitions, and that in sentencing: “A message must be sent to the public that, all persons are subject to the law.”

The Crown submitted that an appropriate sentence “Based on the circumstance and other cases, a custodial sentence of 6 to 12 months imprisonment may be available, however the defendant is unlikely to reoffend, and so a fully suspended sentence for two years may be appropriate.”

The Crown also submitted that in addition, or as an alternative, a fine between $1,000 and $1,500 may be appropriate.

Meanwhile, the counsel for the defendant submitted that the pattern of sentencing on possession on arms and ammunitions was not clear and “that a monetary penalty of $2000 in respect of each count would be an appropriate penalty.”

The maximum sentence for the offences in Tongan law is 5 years imprisonment.

After hearing submissions the judge imposed a fine of $10,000  to be paid within 14-days and in default 6 months imprisonment.

Clash

The Prime Minister 'Akilisi Pohiva has publicly clashed with the Acting Attorney General  'Aminiasi Kefu over the sentencing outcome.

The PM was upset that Tu'ilakepa did not receive a two-year sentence and thereby lose his noble title and parliamentary seat.

In a four page open letter released on February 17 the PM scolded the Attorney General for failing to plead for a more severe sentence and for the delay in bringing the case to court. The PM also stated that prior to the sentencing he had met with the AAG, the Solicitor General and the Chief Secretary at the PMO in January, when they had discussed “Lord Tu'ilakepa's pending sentence.”

In the letter the PM claimed that the AAG's sentencing pleadings to the presiding Justice Cato had attempted to reduce the severity of the case and had interfered with the sentence.

“Had Lord Tu'ilakepa been convicted to serve more than two years in prison, apparently he would have lost all his noble entitlements,” stated the PM.

He compared the sentences to Lord Lasike who lost his entitlements over one bullet case.

“Is this the one law for all Tongans as prescribed by the constitution, I doubt it, yeah?”  the PM's letter stated, and went on to admonish the AAG “you clearly chose to ignore my concern, deliberately went against my advice...”.

Response

Yesterday, the Acting Attorney General 'Aminiasi Kefu, who returned from overseas, said he was disappointed that he had not been given an opportunity to respond to the Prime Minister's concerns regarding the criminal prosecution of Lord Tu'ilakepa before the concerns were made public. “The Hon. Prime Minister may have issued it in haste,” he stated yesterday in a three-pages response.

'Aminiasi said he was defending the office of the Attorney General and protecting the independence of the judiciary. As the principal legal advisor to government he had “concerns about the inaccuracies contained in the Hon Prime Minister's letter regarding the judicial process.”

He reminded the Prime Minister that clause 31 of the Constitution separated the powers of government between the Cabinet, the Legislative Assembly and the Judiciary. Also, clause 83A of the Constitution, which required that the constitutional principles underlying the rule of law and “judicial independence shall always be maintained”.

The AAG also indicated that the PM's letter was out of line.

“The indirect criticism of the sentence imposed on Lord Tu'ilakepa, and also the view that the Supreme Court judge was influenced by the Acting Attorney General were public comments that were ...likely to impact negatively on judicial independence,” he stated.

The AAG accepted that as Attorney General he was accountable to firstly, the King in Privy Council “who holds the legal power to dismiss the Attorney General”; secondly, the judiciary; thirdly, the PM and government; and finally the public.

He said he had provided a detailed response in a separate memorandum to the questions raise by the PM to explain the process and results of the prosecution of Lord Tu'ilakepa, which included the reasons for the sentencing submissions provided by the Crown to the Supreme Court.