By Craig Kapitan, Senior Multimedia Journalist, NZ Herald
- Semisie Pomale, 35, was the last of four men to admit participating in a deadly attack on MMA fighter Fau Vake.
- Judge Peter Winter cited Pomale’s remorse, his recent employment with the Tongan rugby team and the fact he didn’t throw the fatal punch.
- Pomale received a discharge without conviction but must donate $2000 to a charity.
A man who slapped well-known MMA fighter Fau Vake during an Auckland CBD confrontation – moments before a friend delivered a fatal “coward punch” – has been granted a discharge without conviction after a judge learned he’s recently been hired as deputy manager of the Tongan national rugby team.
Semisie Pomale, 35, was the last of four defendants to plead guilty to participating in the May 2021 attack, which ended at 2.54am on a Sunday morning after Vake fell to the pavement and hit his head, causing unsurvivable brain damage.
While previous sentencings have attracted large crowds to the High Court at Auckland that included Kiwi UFC stars Israel Adesanya and Dan Hooker, this week’s hearing was a quieter affair. Pomali sat in the dock of a small, nearly empty Auckland District courtroom as Judge Peter Winter evaluated the discharge without conviction request.
The courtroom scene was reflective of Pomale’s lesser role, defence lawyer Mark Ryan suggested, pointing out that his client was the only defendant to have his charges severed and returned to the District Court. While co-defendants faced manslaughter and assault with intent to injure convictions, Pomale was only ever charged with two counts of common assault, which carries a maximum possible sentence of one year’s imprisonment.
“He says as a result of what happened to Mr Vake, he was shocked to the core,” Judge Winter said, noting that the defendant claims he has stopped drinking alcohol altogether since the incident. “I assess him to be genuinely remorseful.
“I do not consider that he would have been aware of the likelihood of the incident elevating to the extent that it did, where a blow was administered by another person which caused the victim to fall to the ground and suffer the fatal injury he did.”
Vake, whose full name is Lifau Tu’iha’aingana Vake, was with sibling Ika Vake on Symonds St when the confrontation occurred between them and four strangers, according to court documents. The Vake brothers did not throw any punches themselves and were not the aggressors, prosecutors have repeatedly pointed out at previous hearings.
Fau Vake, 25, was known for training alongside New Zealand’s top martial arts fighters at City Kickboxing, but the brothers were outnumbered and he was blindsided with the fatal punch, authorities said. He was taken off life support at Auckland City Hospital nine days after the incident.
Outnumbered
Because of the previously pending charges against Pomale, the media had not been able to give a full account of what happened that morning – until now.
Pomale was the first to resort to violence, according to the agreed summary of facts. He told police he did so because Fau Vake’s brother had verbally threatened to give him a hiding as they passed on the street. He had recently left nearby Edinburgh Castle bar at closing time alongside co-defendants Daniel Havili, Ofa He Mooni Folau and Siofilisi Paongo when the words were allegedly exchanged. It sparked three minutes of violence, caught on CCTV, in which the other three men also jumped in.
Pomale and Folau first turned their attention to Ika Vake, with Folau at first attempting an open-handed slap as Ika Vake was picking up his shoe.
“Ika Vake fled to get away from Mr Folau,” court documents state. “Mr Folau chased after him and squared up to him, goading him to fight. Ika Vake backed away from Mr Folau, who continued to advance, until Ika Vake found himself pressed in against the alcove of a barber shop doorway and could go no further.”
Folau then threw a grazing punch at Ika Vake’s head before grabbing his clothes and following up with an uppercut. As Ika Vake “strained to move away from the alcove towards an open area”, Pomale stepped in and blocked him.
“Ifa Vake bent over in a defensive guard position with his forearms protecting his head,” documents state. “Mr Pomale, gripping his clothing about the shoulders, pulled Ika Vake upright and, in a continuous action, pushed him hard against the barbershop door. The push was sufficiently forceful that the double doors were forced inwards, breaking their lock, and Ika Vake fell back and onto his backside on the floor of the shop.”
Folau, meanwhile, pulled off his shirt and ran to Fau Vake, who was being held by another person in their group. He punched Fau Vake three times in the head, including an uppercut.
Paongo entered the skirmish as Ika Vake was attempting to walk out of the barbershop, grabbing him and throwing two punches.
“At this stage, Ika Vake was doubled over and kneeling on the ground in a guarded position, with his hands gripping Mr Paongo’s legs,” according to the agreed summary of facts. “Mr Paongo was standing over Ika Vake’s head.”
He threw three more punches before he was pulled out of the barbershop. Ika Vake gathered his scattered belongings and started to walk away from the group, but Paongo pursued him and threw another punch.
Fau Vake caught up with his brother and began pushing him away from the strangers. This time it was Pomale, the most recent defendant, who gave pursuit. Fau Vake stood between Pomale and his brother to separate them as they exchanged words. Pomale twice started to walk away, but Ika Vake said something that prompted Pomale to return. The words that were exchanged aren’t known.
“Liufau Vake intervened again, putting his hand on Mr Pomale’s chest to stop him going any farther towards Ifa Vake,” documents state. “Mr Pomale used his open right hand to cuff Liufau Vake once across his face.”
That “cuff” was when the fourth defendant, Havili, approached Fau Vake from his side and without warning threw a left hook – the “coward punch” that caused his death.
“Liufau Vake fell backwards,” documents state. “Mr Havili’s strike meant that Fau Vake could not move his feet to keep his balance or use his hands to brace himself. His hands remained by his side as he dropped and he hit the pavement without breaking his fall. The back of his head heavily hit the asphalt road surface.”
Ika Vake ran to his brother but was attacked again, this time by Havili, who threw two punches then briefly dragged him along the ground by his feet after he had fallen.
“Ika Vake got to his feet and, in a crouch, grabbed Mr Havili by his legs and pushed them both into a nearby car,” documents state. “Mr Havili pushed Ika Vake down towards the ground and using his closed right fist punched him once to the head and kneed him to his head.”
At some point during the confrontation, Ika Vake had also suffered a concussion.
Folau pleaded guilty to two representative charges of assault with intent to injure just months after the incident and was sentenced in August 2021 to six months’ home detention – an outcome that an irate Dan Hooker later described outside court as “an absolute joke”.
Hooker again expressed his anger and disappointment outside court in April 2022, when Havili was sentenced to two years and nine months’ imprisonment for manslaughter. Paongo, a Tongan army veteran, was sentenced weeks later to five months’ home detention for assault with intent to injure and common assault.
Rugby dream at stake
Several years before the incident, Pomale, who has no previous convictions, had started a business exporting goods to Tonga, and then later to other Pacific islands.
His lawyer presented the judge with copies of 178 airline tickets, proof of his extensive international travel over the past several years as he accompanied goods to overseas destinations.
That business initially was the basis for him seeking a discharge without conviction. If he was to have a conviction on his record, he would have to disclose it to border officials every time he entered Australia and could be turned away, which would have a crippling effect on his business, his lawyer argued.
But on Friday, after the sentencing had been postponed multiple times over the past year, Pomale arrived with a new argument in favour of a discharge without conviction. He had been hired in April to serve as deputy manager for the Tongan national rugby team and part of his three-year contract involves travelling the world with the team. His lawyer pointed to the especially rigid border conditions for the United States and Canada, which are among the countries the team is likely to visit.
He included in his submissions an affidavit from head coach Tevita Tuʻifua, who said Pomale’s roles include team management, logistics and strategic planning. Travel restrictions for Pomale would “significantly impact the team’s performance”, the head coach was quoted as saying.
Those travel difficulties, Ryan argued, would result in a punishment out of all proportion to the gravity of the offending.
Crown prosecutor Vanshika Sudhakar opposed the defence request, urging the judge not to view the common assault charges in a vacuum. Even though Pomale didn’t deliver the fatal blow, he should be held to account for contributing to the “tragic circumstances”, she explained.
“The context of the offending must be viewed in its entirety and it can’t be isolated from that situation,” she argued.
But the defence disagreed, and ultimately so did the judge.
“I am not satisfied he was aware such a blow would be inflicted on the victim or he appreciated the consequences that could occur,” Judge Winter said, noting that Pomale has demonstrated his remorse by taking courses to deal with anger management and alcohol abuse. “This offending is out of character for him.”
As a condition of the discharge without conviction, the judge ordered Pomale to donate $2000 to either Auckland City Mission or the Salvation Army within the next month.
Family absent
While the Vake family has provided victim impact statements in the past, they did not contribute ones for Pomale’s sentencing. They have not kept in contact with police as of late, the judge noted, explaining that he did not know if they would have objections to a discharge without conviction.
At Havili’s sentencing two years ago, a statement from Fau Vake’s sister was read aloud in which she recounted grabbing the first flight from Australia to New Zealand after being woken up by a call from her crying mother.
“Why would this happen to such a loving soul?” she asked. “His death was so sudden and uncalled for, which has made it so difficult to accept.”
She described the pain of trying to explain her brother’s absence to his young child.
“It’s the sadness in her eyes when she looks around wanting to see her real-life superhero,” she said, describing her brother as the “heart” of their family and someone who had worked hard to pursue careers in MMA fighting and being an electrician.
“He was taken away from us by a gutless act,” she said. “The hole in our hearts can never be filled.”
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Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
