R v Kafalava [2022] TOSC 32; CR 173-175 of 2020 (5 May 2022)

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

CR 173 – 175 of 2020

REX

-v-
Motuku Ve’evalu KAFALAVA

Maka Manase FILIHIA

Meili VALELE

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Mr. F. Samani for the Prosecution
Mr. S. Fili for the Defendants
Date of Sentence : 5 May 2022

1. On 29^th October 2021 Motuku Ve’evalu Kafalava and Maka Filihia were convicted of murder and Meili Valele of manslaughter for the killing of Fanaafi Misifane on the night of 5^th going into 6^th October 2019.
2. Mr. Fanaafi Misifane’s death was a tragedy.
3. He had that very morning returned from 6 months’ seasonal work in Australia. He was back home with his wife, children and friends in Tonga to celebrate quietly at home that evening. But that was all ended for him that very night.
4. He had a small group of friends come to greet his return at his home in Holonga; about half a dozen joined him. They were drinking in the kitchen in the evening when Motuku Ve’evalu Kafalava arrived some time around 2200 hrs or thereabouts.
5. He was uninvited and unknown to either Mr. Misifane or his wife. Yet he came into their house, started helping himself to their alcohol, grabbing bottles from their table.
6. Even in his police interview he accepted that he was uninvited and that his presence led to an argument with Mr. Misifane.
7. Mr. Misifane wanted him out. The evidence was that Mr. Kafalava was drunk and loud. That type of behaviour of coming into a stranger’s house at their private gathering and making demands for drink could not be much less provocative. As we shall see, being aggressive and provocative was part of Mr. Kafalava’s behaviour that day.
8. He was told to leave and eventually he did.
9. But, he returned, this time with Mr. Filihia in the red car that the latter was driving.
10. Earlier that day both Mr. Kafalava and Mr. Filihia had been together. They had driven into Nuku’alofa together and bought and consumed alcohol.
11. As they made their way home they had encountered Meili Valele and had given him a lift from Holonga, where he lived in town, before they all three drove back there later.
12. In his police interview Meili Valele had provided some detail as to what that car journey was like. He had been with a friend of his, Ricky.
13. Both had been walking together when they encountered the first two defendants in Mr. Filihia’s car.
14. They all drove into town and then Mr. Kafalava and Mr. Filihia happened to cross paths with Mr. Valele and his friend as the latter pair were making their way back to Holonga.
15. Mr. Filihia called Ricky haughty and an arse hole, Mr. Kafala joined in. Both started to chase him down the road. They then drove off and when they passed Ricky, Mr. Kafalava got out of the car and attacked him.
16. Mr. Kafalava used a piece of pipe that was in the car to attack Ricky, hitting his ear. It is to be noted that this was an unprovoked attack on an unarmed person.
17. In his police interview Mr. Valele was asked if he thought it was in the nature of his co-defendants to behave like this, he replied “Yes, they’re bad drunks.”
18. Whilst inadmissible at trial, I accept what Mr. Valele said about the conduct of both defendants that afternoon in respect of that behaviour.
19. It is with that context to their behaviour in mind that I return to what happened next at Mr. Misifane’s home.
20. Having once already been at his home and behaved as he did, Mr. Kafalava returned and this time his driven onto Mr. MMisifane’sisifani’s property by Mr. Filihia. There they parked, got out and again tried to get for themselves drink from the party.
21. Mr. Misifane and his wife had gone briefly to the store in Holonga and they returned to find Mr. Kafalava and Mr. Filihia arguing with their guests.
22. Again Mr. Misifane told the intruders to leave.
23. Mr. Filihia drove the car off the property and parked close by in the road and then for a third time Mr. Kafalava returned. Mr. Filihia with him.
24. Mr. Kafalava was punched and the two retreated into the road and started to shout challenges to the group on Mr. Misifane’s land to fight them. They were unarmed at this time. But, I conclude that they had wanted to stir trouble to this sort of a pitch from the start.
25. Four, including Mr. Misifane chased these two down the road at the end of which Mr. Valele lived, half way down there being a cemetery.
26. Two in Mr. Misifane’s group had picked up machetes and Mr. Misifane had a Tanetane stick.
27. They chased the first two defendants. Mr. Filihia drove off and Mr. Kafalava remained on foot.
28. The shouts of “Ta ta ke mate” (“Fight to the death”) that were heard by Mr. Valele’s mother that night, coming from down the road, towards her home, I have no doubt came from Mr. Kafalava’s group and in all likelihood from himself.
29. As Mr. Misifane and two others with him came abreast the cemetery, Mr. Misifane appears to have been caught on his own.
30. Mr. Kafalava had armed himself with a piece of iron pipe. It was dark coloured and about 2 meters in length.
31. Mr. Kafalava hit Mr. Misifane with that weapon. It immediately span his head right around and sent him to the ground. After that strike, no witness ever saw him move of his own volition again.
32. Mr. Kafalava stood over his victim and yelled to his friends “Come and fight, if not he will die”.
33. When they did not, he started to club the defenceless Mr. Misifane to his head with the pipe.
34. Mr. Filihia joined in. He had driven as far as the Valele home at the end of the road, parked and ran onto their property and pulled from the ground a section of scaffold pole.
35. It was this that he carried to where Mr. Kafalava was, striking Mr. Misifane’s head he joined in the attack. He struck him to the head with his weapon at least once.
36. Amongst all this, Mr. Valele joined in taking a tanetane branch and using it to strike the then badly injured Mr. Misifane to his head.
37. That branch was found the next day by a neighbour, Enifila Filimoe’atu. She saw blood on it; a solid area of staining on one side with splatter marks trailing up from that point.
38. Mr. Misifane was killed on the ground where he lay. Sudden and savage he had no chance at all.
39. His head was bashed in. Brain was found to have come out of an open fracture to his forehead.
40. He also suffered a depressed fracture to his skull. His teeth were badly damaged. He was killed by blunt trauma, caused by the two defendants with the iron pipes.
41. He had been bludgeoned to death.
42. All three defendants had been identified at the scene and were swiftly arrested.
43. Mr. Kafalava in his police interview readily admitted that he had killed Mr. Misifane and on his account he appeared to suggest it was revenge for the injury he had suffered in the altercation on the road.
44. Mr. Filihia in his interview admitted to being involved in fighting with Mr. Misifane, first saying that he himself had only had a stick, before going on to claim it was just a tent pole.
45. He claimed that his involvement was the defence of Mr. Kafalava; that Mr. Misifane was never attacked as he lay on the ground and rejected the allegations against him.
46. Mr. Valele told the police he watched as his co-defendants attacked Mr. Misifane with the iron pipes and that he had a tanetane branch in his hands, but never struck Mr. Misifane with it or at all.
47. None gave evidence during their subsequent trial. All three were convicted. Both Mr Kafalava and Mr. Filihia for murder, Mr. Valele for manslaughter.
48. Mr. Misifane, 35 years old, had returned from seasonal work that day.
49. As the victim impact statement reveals, this he had done that for the last 6 years, saving and sending money home to support his wife and their 4 children. Their ages range from 11 years old to 3.
50. I have no doubt words can not convey the terrible impact on the whole family. Signs of it are in the way their eldest has struggled with her schooling since. Or, their first Christmas without their father, Mrs. Misifane’s husband; children going without because their mother lacked the money. Their financial security as a family eroded, making their loss all the more profound.
51. The victim impact report notes that since Mrs. Misifane gave evidence she has been able to start moving on with her life. She needed the support of her parents to raise her children. Now they have all come back to live with her.
52. She holds no ill will towards the defendants and asked the court to show them mercy.
53. It is noteworthy that the first two defendant’s families met with her to apologise; but the defendants themselves never have, she says.

Pre-sentence reports

54. Mr. Kafalava is 25 years old now and described as growing up in an unstable environment. His mother abandoned him when he was young and his father had already left the family home. His grandparents brought him up. But when he discovered their true relationship to him it left him dethatched and he started to withdraw.
55. As for education he only has 4 years of high school having dropped out twice.
56. When asked about this offence he stated he did not want to talk about it. He apparently appeared to be in his own world during the interview with probation. Asked about his feelings towards the victim, he simply smiled.
57. The town officer of Kolonga described him as a very challenging young man.
58. Mr. Filihia is now 23 years old. He was someone who had completed his schooling, gone on to complete technical college; a 2 year course in mechanical engineering and then secured work as a prison officer.
59. He is a first time offender.
60. He grew up in a loving and stable family and was the centre of attention; an only child.
61. He has apparently expressed regret and genuine remorse.
62. Mr. Valele is now 23 years old. He grew up with his parents, though his parents separated last year. He was in school through primary, middle and then went to Liahona High, but left after year 5 both a lack of finances effected that decision as did a deterioration in his behaviour.
63. His town officer in Holonga reports that he is involved with negative peer groups and there are reports of drunken behaviour as well as smoking marijuana. It is a sad reflection on him that the town officer reports that the people of his village, Holonga, are pleased that he has been locked up, his negative behaviour where he lives having been felt too keenly.
64. The report notes that he accepts the verdict against him.

Previous convictions

65. Mr. Kafalava has previous convictions for housebreaking and theft in 2016.
66. Mr. Filihia was of previous good character, having no convictions recorded against him.
67. Mr. Valele had in 2017 three convictions for housebreaking and one for theft. In 2020 a further conviction for common assault is recorded against him.

Sentence for murder

68. In R v ‘Inoke Silonga F.Tonga CR 128/2021 Lord Chief Justice Whitten QC reviewed the authorities considered the approach to be adopted.
69. There are only two alternatives; the death penalty or a life sentence.
70. I remind myself of the guidance that Webster CJ provided in R v Vola [2005] Tonga LR 404; principally that the death penalty is a rejection of any hope of rehabilitation and how that approaches could be maintained in this Christian Kingdom.
71. I also consider the right to life, Article 3 the United Nations Universal Declaration of Human Rights; Article 2, Human Rights Act, UK.
72. That for persons convicted of murder, life imprisonment should be the rule and death sentence the exception. While not making rigid standards; death sentences ought to be reserved for only the most rare and heinous offences.

Sentence for manslaughter

73. This offence carries a maximum sentence of 25 year’s imprisonment.
74. R v Siafa Nai & ors 222-226/2019. Three defendants were involved in setting upon the victim. They were all sentenced after a trial. The first two beat him and dragged him out of the bar where the fight had started. He was stamped on and his head kicked. The third defendant joined in this attack after the others. He stamped on the victim’s head once, when he was on the ground.
75. Cato J imposed for that defendant a starting point of 10 ½ years, which was reduced by 21 months for mitigation and suspended the last 2 years.
76. I have gone on to consider cases such as R v Kalavai [2015] TLR 542; the striking of the victim to the head with a piece of wood multiple times during the course of a robbery. A starting point of 14 years was imposed.
77. R v Tapueluelu [2021] 10/2021 where a petty disagreement about borrowing the victim’s T-shirt escalated to the point where the defendant crushed his head with a stove as he lay on the floor. Chief Justice Whitten QC adopted a starting point of 14 years which he reduced to 12 to reflect a guilty plea, albeit a late one.

Aggravating features

1. Use of a weapon;
2. Repeated strikes to the head;
3. victim defenceless on the ground;
4. Group attack;
5. Repeated provocation of the victim’s group;
6. Provocation to fight came from the first two defendants who were repeated intruders at the welcome-home party of the victim and his family at their home.
   

Mitigating features

1. Their youth.

Mr. Kafalava & Mr. Filihia

78. Their sentence is fixed by law and each I sentence to life imprisonment.
79. Both are to complete life skills and drink and drug awareness courses in prison.

Mr. Valele

80. For Mr. Valele, I keep in mind that he joined the attack much later. He was not with his co-defendants taunting and disrupting the party at the victim’s house earlier. His weapon was entirely different. I also note his age and remorse.
81. Bearing all this in mind I take a starting point of 10 years for Mr. Valele. I reduce this by two years to reflect those elements of youth and remorse. That gives a sentence of 8 year’s imprisonment.
82. During his term of imprisonment he is to complete courses in both life skills and alcohol and drugs awareness.
83. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
84. The defendant is young and shown remorse. He has capacity and the will to change
85. Accordingly I will suspend the last 18 months of his sentence for two years on the following conditions :
    1. He report to probation within 48 hours of his release;
    2. Live where directed by probation;
    3. Commit no offence punishable by imprisonment, and;
    4. Complete such work as his probation officer orders.
       

Total sentence

86. Mr. Kafalava and Mr. Filihia are sentenced to life imprisonment.
87. Mr. Valele to 8 years’ imprisonment, the last 18 months suspended for 2 years on conditions, his sentence is backdated to 29^th October 2021 when he was first remanded.
    

NUKU’ALOFA N. J. Cooper

5 May 2022 J U D G E