Rex v Vola [2005] TOSC 31; CR 065 2005 (10 November 2005)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR 65/2005

REX

-V-

TEVITA SIALE VOLA

BEFORE THE HON CHIEF JUSTICE WEBSTER

SENTENCING DECISION

TEVITA VOLA, you have been found guilty by a Jury of the crime of the murder of Salesi or Paini Taufalele at Tatakamotonga on 31 January this year by repeatedly hitting his head with an iron bar and thus causing his death.

In making that finding the Jury did not accept the defence put forward on your behalf that you had been provoked by Paini.

This is the first verdict of murder in Tongatapu in over 20 years.

Circumstances of offence

The circumstances of the offence were that both you and Paini were drunk. The two of you started arguing and it appeared that you were the aggressor, although from the evidence it also seemed that Paini was coming to get you. But you had gone to get Nelson and Tongakilo to assist you and Nelson came armed with a long, thick iron bar 2-3 feet long and around 1-2 inches in diameter. You and Paini then fought and at first Paini got the better of you and you fell to the ground with Paini standing over you and punching you. From that position you called to your friends to come to your assistance and to attack, and Nelson hit Paini on the back of the head with the iron bar. Paini then crumpled and fell down, allowing you to get up. You took the iron bar from Nelson and stood over Paini and hit him repeatedly with the iron bar. In your interview with the police you admitted hitting Paini 2 or 3 times and one eyewitness described you as wielding the bar like an axe. As your Counsel accepted, the use of a weapon on a party lying helpless on the ground was an aggravating feature. Paini must have died almost instantaneously, and he was dead when Seionala arrived shortly afterwards.

As I have already mentioned, the Jury did not accept the defence put forward on your behalf that you had been deprived of the power of self-control by extreme provocation given by Paini in the form of an unlawful assault committed upon you by him, which was of such a kind either by reason of its violence or of accompanying words, gestures or other circumstances of aggravation as to be likely to deprive any person of ordinary character, being in the circumstances in which you were, of the power of self-control, in terms of section 89(a) of the Criminal Offences Act.

Punishments for murder

Under section 91 of the Criminal Offences Act there are only 2 alternative punishments for murder, to be sentenced to death or to imprisonment for life. The alternative to be imposed is within the discretion of the Court, to be exercised judicially after considering all relevant factors. The Court has no power to impose any lesser sentence.

Your Counsel Mr Tu’utafaiva has made persuasive submissions to assist me in that decision.

Death penalty

As I have to consider those 2 alternatives I must start with a consideration of the death penalty. There is much international legal authority about the death penalty and its effect and effectiveness, and although these do not apply directly in Tonga, the principles in these cases are very important. My duty is not to consider whether or not the death penalty should exist in Tonga – that is a matter for Government and Parliament. However I do have to understand the death penalty to be able to take an informed decision between it and life imprisonment. I accept what Mr Tu’utafaiva has said about the sanctity of human life.

Much of the international legal authority is set out and discussed in a landmark case in the Constitutional Court of South Africa in 1995 after the end of its apartheid policy, State v Makwanyane; and in a recent case from the Caribbean country of Belize in the Privy Council in London in 2002, Reyes v The Queen. Both of these also refer to the well-known and much cited US Supreme Court Case of Furman v State of Georgia in 1972.

In Makwanyane the President of the Court, Justice Chaskalson, said:

“The death sentence is a form of punishment which has been used throughout history by different societies. It has long been the subject of controversy. As societies became more enlightened, they restricted the offences for which this penalty could be imposed.” [Para 33]

The statement of Justice Stewart in the American case of Furman v State of Georgia, further cited by Justice Scalia in another US Supreme Court case, Harmelin v State of Michigan, in 1991 also deserves repetition:

"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity." [306]

There are other legal cases which I have taken into account, but I shall not take up time reading them out now, but I have set them out in an Appendix which I shall attach to the printed copy of this important sentencing decision.

Arbitrariness

There is also the question of the arbitrariness of the death penalty. Article 6.1 of the International Covenant on Civil and Political Rights 1966 provides that:

“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

Although Tonga does not appear to be a party to that Covenant, again the principles it sets out are important.

On the issue of arbitrariness, Justice Brennan observed persuasively in the case of Furman that:

"... the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others." [274]

He pointed out that no one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison.

It is virtually impossible to avoid elements of arbitrariness in the imposition of any punishment.

Exercising the discretion

In relation to how the Court should decide between imposing a sentence of death and one of life imprisonment, the Privy Council in London in the Belize case of Reyes referred to the Supreme Court of India enlarged bench decision in 1980 in the case of Bachan Singh v State of Punjab. The Court referred to special reasons for imposing the death penalty being aggravation of an abnormal or special degree or being extreme depravity. The Court also referred to examples of possible aggravating or mitigating circumstances, but did not lay them down as guidelines. The Supreme Court’s view can be summed up in 2 passages:

“It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by the Supreme Court, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy ... , viz, that for persons convicted of murder life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” [255 E-H, 256 A-C]

and in a passage referred to in the case of Reyes in the Privy Council in London, which as mentioned was a case from Belize, which held:

“14. This problem of differential culpability has been addressed in different ways in different countries. In some a judicial discretion to impose the death penalty has been conferred, reserving its imposition for the most heinous cases. Such was the solution adopted in South Africa before its 1993 constitution, when it was held that the death penalty should only be imposed in the most exceptional cases where there was no reasonable prospect of reformation and the object of punishment would not be properly achieved by any other sentence: State v Nkwanyana ... . Such is also the solution adopted in India where the rule has been expressed by Sarkaria J in the Supreme Court in Bachan Singh v State of Punjab ... in these terms:

“(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.

(b) While considering the question of sentence to be imposed for the offence of murder under [the] Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the Court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence.”

[at 515]”

These Indian Supreme Court statements were made against the background of its own Penal Code. I believe that in considering the position in Tonga, where the Court also has a discretion to select the death penalty or life imprisonment, the principles set out in all these decisions of the highest courts in other countries to which I have referred are highly persuasive and that it is right that this Court should adopt their reasoning in reaching its decision on the exercise of that discretion in this case.

Circumstances in this case

In your case, in mitigation I take into account all that Mr Tu’utafaiva has put forward on your behalf. The relevant circumstances to which I have had regard are:

You were indicted and convicted of murder under section 87(1)(b) of intending to cause bodily injury to Paini which you knew was likely to cause death and were reckless whether death ensued or not: but you were not charged or found guilty of the more culpable charge under section 87(1)(a) that you intended to cause the death of Paini;

This murder was not pre-meditated, except in so far as you went intending to attack Paini;

You were on the ground being punched by Paini only a minute or so beforehand; and he certainly went looking for you. The Jury did not consider that that amounted to extreme provocation under the law, but it is still right for the Court to take it into consideration when passing sentence;

Although this murder was horrible, it did not involve extreme brutality nor exceptional depravity;

Intoxication does not constitute a defence or excuse to a criminal charge under the law of Tonga.

You will have to live with what happened for the rest of your life.

Your motivation to change.

You have no previous convictions in Tonga, though you have in the US.

Your remorse and concern and the acceptance of a customary apology, the forgiveness from Paini’s family and his widow Lute, and her plea for mercy and leniency and that you change and give your life to God.

Your cooperation with the authorities throughout.

I therefore did not find that your offence was of an exceptionally depraved and heinous character or constituted, on account of its design and the manner of its execution, a source of grave danger to the society at large. I did not find circumstances evidencing aggravation of an abnormal or special degree. I accept that it is probable that in due course you can be reformed and rehabilitated. This is not one of the rarest of rare cases where the alternative option of life imprisonment is unquestionably foreclosed.

Sentence

THE COURT THEREFORE SENTENCES YOU TO LIFE IMPRISONMENT. I shall also recommend that while you are in prison you should undergo courses in alcohol awareness and anger management. As I have said earlier, the Court has no further discretion to impose any lesser sentence, but you are a young man with your life before you and a life sentence will last a very long time. Having heard all your case and the mitigating circumstances advanced by your Counsel Mr Tu’utafaiva, I shall recommend that, if your conduct in prison remains good, you take these courses in prison, and you avoid further violence, you should be considered for parole or release on licence after you have served around 15 years.

You have expressed concern for your own safety. I must add a warning against anyone taking the law into their own hands for retribution; and say that the law will treat anyone who does so with just as much severity.

10 November 2005

R M Webster MBE,
Chief Justice

APPENDIX

APPENDIX TO SENTENCING DECISION

R v TEVITA VOLA CR 65/05

Legal authorities

State v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (South Africa)
Reyes v The Queen, [2002] UKPC 11, 11 March 2002.
Furman v State of Georgia [1972] USSC 170; 408 US 238 (1972)
Harmelin v State of Michigan [1991] USSC 120; 501 US 957 (1991)
Bachan Singh v State of Punjab [1980] 2 SCC 475, [1980] AIR 890
State v Nkwanyana [1990] ZASCA 95; 1990 (4) SA 735 at 743E-745G

Death penalty

The distinctive features of the penalty were emphasised by Justice Brennan in the case of Furman v State of Georgia, when he wrote that:

“Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering ...” [287 & 288]

and he said that:

“Death is truly an awesome punishment. The calculated killing of a human being by the state involves, by its very nature, a denial of the executed person s humanity. The contrast with the plight of a person punished by imprisonment is evident .... A prisoner remains a member of the human family ... In comparison to all other punishments...the deliberate extinguishment of human life by the state is uniquely degrading to human dignity.” [290 & 291]

In Makwanyane Justice Chaskalson, the President of the Constitutional Court, said:

“Death is the most extreme form of punishment to which a convicted criminal can be subjected. Its execution is final and irrevocable. It puts an end not only to the right to life itself, but to all other personal rights which had vested in the deceased under ... the Constitution. ... In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment.” [Para 26]

and in the same case of Makwanyane Justice Kentridge said:

“It may be said that if the punishment is cruel so was the act of the murderer. That cannot and should not be denied. ... proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading. But that does not mean that the State should respond to the murderer's cruelty with a deliberate and matching cruelty of its own. ... that would imply that punishment must not merely fit the crime, but repeat the crime.” [Para 197]

Also in Makwanyane, Justice O’Regan quoted Justice Brennan in the case of Furman:

“The true significance of [cruel and unusual] punishments is that they treat members of the human race as non-humans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause [in the Constitution] that even the vilest criminal remains a human being possessed of common human dignity.”

[272 & 273]

Arbitrariness

Justice Brennan also stated in the case of Furman (in a context .. where a vast number of murders are committed, a large number of accused charged and convicted but relatively few ultimately executed) that:

"No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison. Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain, on that ground, the execution of such a tiny sample of those eligible .... Nor is the distinction credible in fact." [274]

On the issue of arbitrariness, Justice Ackermann said in Makwanyane:

“I am mindful of the fact that it is virtually impossible (save in the case of rigidly circumscribed mandatory sentences - which present other dangers) to avoid elements of arbitrariness in the imposition of any punishment. Arbitrary elements are present in the difficult decision to send an offender to prison for the first time, or in deciding what the appropriate length of the prison sentence should be in any case where it is imposed. However, the consequences of the death sentence, as a form of punishment, differ so radically from any other sentence that the death sentence differs not only in degree but also in substance from any other form of punishment. A sentence which preserves life differs incomparably from one which obliterates life. The executed person has, in fact, "lost the right to have rights." In this sense the death sentence is unique and the dimension and consequences of arbitrariness in its imposition differ fundamentally from the dimension and consequences of arbitrariness in the imposition of any other punishment.” [Para 164]

Exercising the discretion

In Bachan Singh v State of Punjab the Supreme Court of India stated:

“The Supreme Court should not venture to formulate rigid standards in an area in which the Legislature so warily treads. Only broad guidelines consistent with the policy indicated by the Legislature can be laid down. But this much can be said that in order to qualify for inclusion in the category of "aggravating circumstances", ... circumstances found on the facts of a particular case, must evidence aggravation of an abnormal or special degree.” [243 E-F, 254 B-C]

“For making the choice of punishment, ... the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because "style is the man." ... In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" [for imposing the death penalty] can legitimately be said to exist.”

[251 G-H, 252 A-C]

“There are numerous other circumstances justifying the passing of the lighter sentence, as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts ... .” [255 E-H, 256 A-C]

In the case of Bachan Singh the Indian Supreme Court, while not laying them down as guidelines, did refer to examples of aggravating circumstances where a Court might in its discretion impose the penalty of death, such as the murder having been committed after previous planning and involving extreme brutality; or if the murder involved exceptional depravity; or the murder of a member of the armed forces, the Police or a public servant in the course of duty. In the same manner, that Court also noted mitigating factors, such as the offence being committed under the influence of extreme mental or emotional disturbance; the young or old age of the accused; the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society; the probability that the accused can be reformed and rehabilitated; that in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence; that the accused acted under the duress or domination of another person; or that the condition of the accused showed that he was mentally defective and that that defect impaired his capacity to appreciate the criminality of his conduct.