By Linny Folau

Siosaia Tu Maile (20) was sentenced yesterday to eight-years imprisonment for the manslaughter death of Ned Cook (67), the Salvation Army Team Leader in Nuku'alofa in 2020.

Lord Chief Justice Whitten QC sentenced Maile at the Nuku'alofa Supreme Court on July 30, after a jury found him guilty of manslaughter, at the conclusion of a trial on June 24.

Ned Cook died in hospital, from injuries suffered in an altercation when he was walking home on 'Itafua'atonua Street between Salote and Vuna Roads at Ma'ufanga, at around 9:00pm on 15 May 2020.

The Chief Justice disregarded the defendant’s evidence at trial, where he maintained to the probation officer that the deceased punched him in the back of the head, prior to the defendant landing the fatal blow.

"Even though the defendant only threw one punch, and there was no weapon involved, the force of that punch, as described by the eyewitnesses, which lifted Ned’s whole body off the ground and could be heard from more than a hundred metres away, and the damage it did to his face before his head hit the ground, can only be described as brutal."

Lord Chief Justice Whitten said “this case must serve to dispel any belief that such behaviour is acceptable (save in cases of genuine self-defence) as grossly erroneous and as a message that such conduct will be met by the Courts with condign punishment.”

"When such behaviour results in the tragic and needless destruction of human life, severe sentences must be imposed."

Brutal blow

The Lord Chief Justice said the defendant’s actions could not be regarded as a sudden retaliation.

The attack was not sustained and there was no evidence of premeditation. In returning a verdict of guilty to manslaughter, the jury had rejected that part of the defendant’s version. He must be sentenced on that basis, he said.

"This was not a case where the defendant was charged with murder and to which the jury returned a verdict of manslaughter by reason of provocation."

Meanwhile, the Court heard on May 15, 2020 at around 3:00pm, Ned finished up his volunteer work at the Catholic Church and headed to the Billfish Bar and Restaurant for a drink.

One of the Crown witnesses, who lives on ‘Itafua’atonua street, testified that between 8:00 and 9:00pm, she heard Ned, who she knew, out on the street in front of her house arguing with a boy.

After a while, they walked off towards Vuna Road. She noticed the boy was limping.

Defendant

The defendant, who also lived in Ma’ufanga, gave evidence that around 9:00pm, he walked from his home up to the Davina House building to purchase alcohol from Lion Liquor. The store was closed. He then sat on the seaward side of Vuna Road.

The defendant then saw Ned, whom he did not know, swaying in front of the same closed liquor store. As the defendant crossed Vuna Road, Ned staggered across the road towards him.

According to the defendant, Ned was intoxicated and by his facial expression, appeared angry. As Ned came closer, he stretched out his arms as if to grab hold of the defendant.

The defendant walked around Ned and continued to the other side of Vuna Road and then down onto the right side of ‘Itafua’atonua Street toward Salote Road. Ned followed the defendant, a few metres behind, and on the left side of the street.

A security guard from the Davina House, who was sitting in her car in the rear carpark, saw Ned, who she also described as being obviously ‘too drunk’, approach the defendant from behind on three occasions with his arms outstretched as if he was trying to hug him.

As he touched the defendant, Ned was heard to say words to the effect “why are you being like this?”

The guard described Ned as trying to calm the defendant. On each occasion, the defendant angrily shrugged off Ned’s approach and told him to stop annoying him and to go away.

The defendant again in his evidence said that after the third approach, Ned threw punches to the back of his head, with one connecting causing him to fall halfway to the ground. He said he then got up, turned towards Ned and punched him once in the face.

Violence

The Lord Chief Justice said, none of the three Crown witnesses who witnessed the punch, and the events immediately preceding it, corroborated the defendant’s claim of self-defence.

"Clearly, the jury rejected it too."

He said these Crown eyewitnesses all recounted the defendant deliberately moving from one side of the road to the other to punch Ned.

“One, who was working at a hair salon on the corner of the Davina House and who had been walking behind the two, described the defendant punching Ned without any provocation on Ned’s part.

“Kepueli, who lived closest to where the assault occurred said that the punch was so forceful that he saw Ned’s whole body lifted about six inches off the ground. So too, another, who was a lifetime friend of the defendant, described how he heard the punch from more than a hundred metres away. 


"The punch evidently rendered Ned unconscious before he hit the ground. Witnesses described how Ned fell without ever trying to break his fall. The back of his head hit the road. His arms were outstretched beside his body. Blood trickled onto the road."

According to the Crown eyewitnesses, the defendant then ran off down the street.

Several bystanders gathered and attended to Ned. He was eventually taken to the hospital and, at around 4:00am, he was admitted to the surgical ward with severe head injuries and suspected aspiration pneumonia.

His condition deteriorated rapidly and he passed away at 7:00am on May 17, 2020.

An autopsy was conducted in New Zealand a few days later by Dr Simon Stables. He opined the cause of death as the result of blunt force head injuries, consisting of one or more blows to the face causing Ned to fall and impact the back of his head.

That impact caused a number of injuries including a skull fracture, which in turn led to the acute bleeding, swelling and displacement of the brain, he said.

Sentencing 

The Crown here submitted a starting point of nine-years’ imprisonment; reduced by two-years for mitigation and the final three-years suspended on conditions.

In addition, it provided statements from Ned’s widow and grandson in New Zealand. She spoke of how Ned spent most of his life in New Zealand, working to improve the lives of vulnerable youth, addicts, those with mental health issues and offenders.

"Upon his retirement, Ned wanted to ‘give back’ to his homeland Tonga. And so, in a bitter twist of irony, he returned and committed himself to helping those in need here."

Lord Chief Justice Whitten said, the approaches by Ned did not involve any aggression or physical threat of harm, nor did they warrant retaliation by the defendant in punching Ned as he did.

“It was entirely open to the defendant to continue to walk away. He chose not to. The most likely interpretation of his actions is that he was angry and annoyed by Ned’s approaches and decided to end them with violence,” he said.

"In that split second of senseless brutality, one life was ended and the liberty of another must now be severely curtailed."

The defendant abandoned Ned, did not assist in getting him to the hospital and then threatened Kepueli with more violence, he said.

Severe punishment

At the same time, Lord Chief Justice did not agree with the Crown’s submission, that the defendant’s not guilty plea at trial, should be viewed as a circumstance of aggravation.

“His claim of self-defence was rejected by the jury. As a result, he has deprived himself of the not insignificant discount which would have been available had he pleaded guilty at the earliest opportunity,” he said.

"In Tonga, there is a particular propensity among some, particularly males, in the community to resort to violence to address any annoyance, no matter how small and regardless of whether alcohol, kava or illicit 
drugs are involved."

He said, this case, and others like it, must serve to dispel any belief that such behaviour is acceptable (save in cases of genuine self-defence) as grossly erroneous and as a message that such conduct will be met by the Courts with condign punishment.

"When such behaviour results in the tragic and needless destruction of human life, severe sentences must be imposed in order to denounce, punish and provide specific and general deterrence."

The defendant was sentenced to eight-years’ imprisonment. 


“However, the defendant is young and although he does not have an unblemished record, he does not have any previous convictions for violence.

“The material presented in his favour suggests that he is likely to take the opportunity offered by the sentence to rehabilitate himself. Despite the gravity of the offence, there is some diminution of culpability through lack of premeditation and a very minor degree of provocation,” he said.

The final two-years of his eight-years sentence was then suspended for two-years, on conditions.

Meaningful penalty

"For completeness, I record that I have not been able to agree with the Crown’s submitted sentence formulation, which would have resulted in a net sentence to be served of less than four-years, assuming some remission. That, in my view would not be regarded by fair-minded members of the community, having regard to all the circumstances of the case, as a meaningful penalty for killing a man."

The defendant was also given credit for the period spent remanded in custody between May 7, 2020 to January 29, 2021.