By Linny Folau

An appeal by Viliami Makahokovalu Tuputupu, the former master of the M.V. ‘Otuanga’ofa, against his two-year prison sentence, was dismissed by the Appeal Court in Nuku'alofa.

Appeal judges Randerson, White and Harrison, in a judgment on 20 November, upheld the original sentence, which they found reflected the seriousness of the offending and the need for passengers' safety. In this appeal on points of law they found no error.

Magistrate Kaufusi sentenced the appellant to two years imprisonment on the first count and six months on the second, the sentences being served concurrently with no part of suspended. Then on 24 March this year, Justice Tupou dismissed his appeal to the Supreme Court against sentence.

The first count was proceeding to sea improperly related to sailing the vessel when the total number of passengers exceeded the Survey Certificate of 400. The second was serving on a ship without proper certificate, which related to sailing without a current Master's Certificate of Competency.

The appellant's Certificate of Competency expired on 17 April 2023. Although he paid for the renewal of his certificate he had not received confirmation of renewal by 19 April 2023, when he sailed the vessel from Tongatapu en route to Vava'u, with 272 passengers on board.

From then until the return of the vessel to Tongatapu on 22 April 2023, the vessel stopped at a number of locations with varying passenger numbers. The maximum number permitted was not exceeded until the vessel departed from Nomuka on the last stage of the return journey. There were 420 passengers on the vessel, an excess of 20.

The Appeal Court stated that when these matters were raised with him, he stated in an email that 60 passengers had boarded the vessel in Nomuka on the return journey to Tongatapu.

In his email, the appellant admitted knowingly deciding to board an extra 20 passengers on the vessel in excess of the permitted number from the last stop giving various reasons why he did so. These included the fact that individual passengers were hurrying back to Tongatapu for example, to catch flights or for scheduled hospital check-ups.

The maximum penalty for the first count is a fine not exceeding $50,000 or a term of imprisonment not exceeding five years or both. The maximum penalty for the second count is a fine of $5,000 or imprisonment not exceeding six months, or both.

In sentencing the appellant, the Senior Magistrate referred to aspects of the evidence at trial, including the fact that he had been told prior to departure on the sailing in question that his Certificate was currently being processed. He had also apologized that the permitted number of passengers had been exceeded and evidence that he had been asked upon arrival back in Tongatapu to sign a document relating to the number of passengers.

He then asked that the excess number be removed and declined to sign the relevant documentation.

Senior Magistrate Kaufusi noted that the appellant had "a criminal record of similar nature" and had served a term of imprisonment in 2011. He also noted that Parliament had the clear intention of having regard to the safety of the public.

He observed that, in 2022, Parliament had increased the penalty from $30,000 or a term of imprisonment of up to three years or both to a fine of $50,000 or a term of imprisonment of up to five years or both.

The Senior Magistrate also took into account that the appellant knew his Certificate had expired on 17 April 2023, he knew that he was not fit to travel because his Certiifcate had expired; Parliament had prioritised the lives of the public in increasing the penalty in 2022 and it was shown that this appellant had not learned because he committed an offence of "similar nature" in 2011, for which he had served imprisonment.

After referring to a sentence by Justice Cato in R v 'Evona 'Akau, the appellant was sentenced to the prison term he is now serving.

Judgement

In the 11-page judgment, the Appeal Court detailed many points that led to its ruling.

“However, we are not persuaded that the learned Magistrate misunderstood the nature of the previous conviction or that this led him to impose a sentence that was longer than that which would otherwise have been imposed,” stated the Appeal Court.

The Appeal Court  determined that the sentence reflected the seriousness of the offending, Parliament's concern for passenger safety and took into account the appellant's previous conviction.

"We accept there was no actual harm caused to any passenger, but the Courts below were entitled to take into account that the fixing of safeguards such as the number of passengers permitted on vessels recognised ;the public interest in measures designed to reduce the risk of loss of life or harm should those limits be exceeded."

The appellant was not entitled to any discount for a guilty plea, nor did he have an unblemished record. The lower Courts took into account the favourable references placed before the Court and his family circumstances.

“Given the seriousness of the offending, the appellant's age and previous record the courts below were right to rule out the possibility of a suspended sentence,” the Court stated.

"An appeal submission relying on manifest excess could not be regarded as a point of law for present purposes unless there was a material error of principle. We do not detect any such error. In any event we conclude that the final sentence imposed of two years imprisonment was within the appropriate sentencing range and was not shown to be manifestly excessive."

“In regards to refusal to admit further evidence on appeal, the mariner's evidence could with reasonable diligence have been obtained and presented before the learned Magistrate but was not.

“Secondly, Justice Tupou accepted on appeal that the appellant had in fact paid the relevant fees prior to departure. The difficulty for the appellant was that he was aware his certificate had expired but went to sea knowing that it had not been renewed,” it added.

"As to the evidence of the master mariner, Tupou J accepted that his evidence would not have altered her conclusions about the sentence. We are not pursuaded it would have assisted the Court. It would have constituted a point of law if the Supreme Court had adopted a wrong principle in refusing to admit the additional evidence but there is nothing to support any such error."

“The decision of the Magistrates Court in this case should be treated as a decision of the Supreme Court with the consequence that there was a direct right of appeal to this Court.”

The appeal was then dismissed