By Linny Folau

Viliami Makahokovalu Tuputupu, the former captain of Tonga's inter-island domestic ferry, the MV ‘Otuanga’ofa, who is serving two years in prison, had his appeal against his sentence dismissed by a Supreme Court judge.

The Supreme Court in Nuku’alofa upheld the original sentence, emphasizing the need for public safety and adherence to regulations.

In November 2024 after trial by a Magistrate, Tuputupu was sentenced to two years in prison for taking excess passengers and operating without a valid Certificate of Competency. He had faced two charges: allowing the vessel to proceed with 420 passengers instead of the permitted 400 and sailing with an expired competency certificate, when on 22 April 2023 in Nomuka, Ha’apai, as the Master of the MV ‘Otuanga’ofa, he knowingly permitted the vessel to proceed to Tongatapu.

He appealed his sentence in the Supreme Court.

Justice Tupou in a judgement on 24 March in the Supreme Court, dismissed his appeal, stating that the sentence was appropriate given the serious nature of the offenses and the need for deterrence.

Arguments

Tuputupu argued that the sentence was excessive and did not consider his good character or mitigating circumstances. However, the court found no merit in these claims.

An attempt to introduce new evidence from a marine surveyor, Semisi Tangataevaha, was rejected as it did not impact the sentencing outcome, reinforcing the requirement for compliance with maritime laws.

“Mr. Tangataevaha’s explanation of the process involved in his experience as a Marine Surveyor clearly indicates the requirement that Ship Masters comply with the law. There is no evidence to substantiate placing blame on the Marine and  Ports Safety Authority and is rejected.”

In the meantime, the judge stated that, clearly, the appellant here did not cooperate with the authorities. 

At trial, the Magistrate had considered that although the appellant was convicted some 13 years ago the appellant had not learnt from that offending. He noted that the two present offences were committed knowingly and despite admitting the offence to officers in the Ministry he had pleaded not guilty. He went further to refuse signing the papers presented to him by officers, noting the 20 excess passengers because they did not remove them from the paperwork.

“Even on this appeal, he has continued to distance himself from the offending by presenting a plethora of excuses via Mr. Makahokovalu's statement to blame the Marine and Ports and Safety Authority and Mr. Molisi to distance himself and diminish his culpability.

“Considering the concession that the appellant’s previous offending was of similar nature and involved the safety of lives at sea presenting no challenge to the respondent's suggestion of a starting point of two years adopting the starting point in Ákau; or the submission that the principles offered in Moúnga for suspension did not apply to the appellant and therefore not entitled to any suspension in the court below, they cannot be raised and re-litigated on appeal,” she stated.

In examining the reasons set out in the Magistrate’s sentencing, including the lifting of the penalty in 2022, the circumstances of the offending and submissions by both parties made in the court below, the Judge stated that she had difficulty in arriving at a conclusion that the sentence imposed was manifestly excessive or outside the appropriate range for the particular offence.

"Instead, I find the sentence aligns with the concern of Parliament manifested in its increasing of applicable penalty, principles of personal and general deterrence to Ship Masters who intend to adopt this lax attitude putting lives at risk, denunciation and the need to protect the public. The sentence is therefore upheld," stated Justice Tupou.