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Tuputupu v R [2025] TOSC 20; AM 22 of 2024 (24 March 2025)

IN THE SUPREME COURT OF TONGA

APPELLATE JURISDICTION

NUKU’ALOFA REGISTRY

AM 22 of 2024

______________________________________________________________________________

BETWEEN:

VILIAMI MAKAHOKOVALU TUPUTUPU

Appellant

AND:

REX

Respondent

______________________________________________________________________________

JUDGMENT

______________________________________________________________________________

BEFORE: HON. JUSTICE TUPOU KC

Appearances: Mr T ‘Aho for the Appellant

Mr J. Fifita for the Respondent

Date: 24 March, 2025

1. The appellant, Viliami Makahokovalu Tuputupu, was convicted after a trial by Senior Magistrate Kaufusi on two counts, namely;
   1. Count 1 - proceeding to sea improperly, contrary to s.122(1)(a) and (2) of the Shipping Act; and
   2. Count 2 - serving on a ship without proper certificate, contrary to s.60(1) and (2) of the said Act.
2. The maximum penalty for count 1 is a fine not exceeding $50,000 or a term of imprisonment not exceeding 5 years or both. The maximum penalty for count 2 is a fine of $5,000 or imprisonment not exceeding 6 months, or both.
3. On 18 November, 2024, Senior Magistrate Kaufusi sentenced the appellant to 2 years imprisonment on count 1 and 6 months imprisonment on count 6 to be served concurrently to count 1. No part of the sentence was suspended. This appeal relates to sentence only.
4. It is contended that the sentence is excessive on the following 4 grounds:
   1. it was not in line with other comparable cases and no reasons were provided for the imposition of the sentence;
   2. the Learned Magistrate failed to properly assess the mitigating circumstances in the case;
   100. the Learned Magistrate did not take into consideration good character of more than 12 years from the appellant’s previous offending; and
   4. the Learned Magistrate erred in his analysis that the principles in Mounga was not relevant.

5. In addition, the appellant applied to introduce fresh evidence, being:

a) a statement by Mr. Semisi Tangataevaha of 2 March, 2025; and

2. a receipt dated 18 April, 2023 for the appellant’s payment for the renewal of his Master certificate.

6. The Crown is opposed to both the appeal and the application to introduce fresh evidence. I shall deal with the application to introduce fresh evidence first.

Application to introduce fresh evidence

7. The application is made pursuant to S.79 of the Magistrate Court Act which state that:

“The decision of the Supreme Court on the hearing of appeals shall be given on the written evidence forwarded by the clerk, but the Supreme Court may in its discretion examine all or any of the witnesses produced before the Magistrate and, on good cause shown by either party, may in its discretion admit fresh evidence and if necessary may adjourn the hearing for that purpose.”

Statement from Mr. Tangataevaha

8. Mr. Tangataevaha is a Master Marine with a Master Certificate of Competence and a Diploma in Naval Architecture from Lloyd’s Maritime Academy in England. He is presently employed as a technical advisor to the Tofa Ramsay Shipping Company.
9. From November, 2015 to September, 2022, he was a Marine Surveyor for the Marine and Ports Division of the Ministry of Infrastructure. In that role he surveyed all Tongan Flag Domestic Vessels and one International Vessel flying a Tongan flag at the time. Prior to that he worked on Foreign vessels for 14 years as a Deck Trainee up to a Senior position before returning home.
10. In his affidavit dated 11^th March, 2025 he attached a statement dated 2 March, 2025, which he said is to “assist the court in Tuputupu’s appeal by providing an expert comparative analysis of the cases of Évona Ákau CR 181/19, Tevita Ílangana CR185/23 and Viliami Makahokovalu Tuputupu.”
11. Mr. Tangataevaha’s analysis is based on the risks to the ship due to size, stability of the vessel, loadline and lifesaving appliances on board for excess passengers.
12. He opined that the case of ‘Ilangana is more relative to this instant case in terms of the number of excess passengers where in Ílangana there were 29 and in this case it was 20 passengers in excess of the number stated on the survey certificate issued by the Ministry of Infrastructure. Notwithstanding that, the passenger’s accommodation was sufficient, there was enough lifesaving appliances for each passenger at the time, loadline and boat stability were above sea level.
13. In contrast, the Évona Akau case had an excess of 206 passengers which would have resulted in overcrowding possible requiring some passengers to occupy the cargo space because it is a much smaller vessel.
14. He indicated that the number of passengers can be legally increased with the approval of the Marine and Ports Division. This approval was obtained in the Ílangana case. It was not obtained in this case but Mr. Tangataevaha asserted that had it been applied for, it would have been approved.
15. Lastly, Mr. Tangataevaha acknowledged that in his days as a Marine Surveyor, they checked the overload of cargo and passengers and if they caught a ship in the act, they would stop the vessel, unload the cargo and passengers before the ship departed. He declared that the cases discussed in this action demonstrate the Safety Authority are permitting ships to depart with excess passengers and it is the Ship Masters who face the consequence.
16. Mr. Áho argued that Mr. Tangataevaha’s statement distinguish the circumstances in Ákau as materially different and therefore the sentence ought to have been adjusted to suit the circumstances of the instant offending.

Receipt of payment for renewal of Certificate of Competency

17. The second document is a receipt dated 18 April, 2023 for the payment made by the appellant to renew his Masters Certificate of Competency.
18. The argument as I understand it was the receipt demonstrates the appellant did pay for his Certificate of Competency.
19. Mr. ‘Aho further argued that counsel for the respondent’s submission that even if these fresh documents were admitted they would not change the sentence amounted to a consent to admit them.
20. In opposition Mr. Fifita relied on Cocker v Cocker [2002] Tonga LR 249, where Ward CJ adopted the principles pronounced by Lord Loreburn LC in Brown v Dean [1910] AC 273 and Denning LJ in Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489 and dismissed the application to admit fresh evidence and held that:

“There were three conditions that must be fulfilled before fresh evidence could be admitted. The first was that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trials; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive, thirdly, the evidence must be apparently credible, though it need not be incontrovertible. The first two of these conditions were not satisfied.

21. 21. Mr. Fifita urged the court that the application be refused as both documents failed to meet the first and second condition required in Cocker above. Both Mr. Tangataevaha and the receipt were available for the appellant to use at the time of sentencing but did not.
22. He further argued that even if the documents were before the Learned Magistrate, it would not have changed his starting point and/or sentence. Consequently, the appellant should not be allowed to re-litigate the sentencing by the introduction these documents on appeal.

Considerations

23. In considering whether the appellant has established a good cause to admit Mr. Tangataevaha’s statement and his receipt for the renewal of his Master’s Certificate of Competence, I adopt the approach in Cocker and ask whether the documents meet the 3 prerequisite features required in that case.
24. Firstly, it was not disputed that Mr. Tangataevaha and the receipt were available at the time of trial and sentencing.
25. Secondly, in considering Mr. Tangataevaha’s statement, I find nothing in it that may change the sentence imposed for the following reasons;
    1. It is a technical opinion on the risks, structure and capacity of the vessels concerned to carry excess passengers, an irrelevant consideration after breach of the law has been found. Ought the court consider it as a mitigating factor for sentencing? It is hard to see how that would be possible.

Without a doubt, experts were involved in instituting the law and regulations around the safe number of passengers for a vessel and had considered those features in the process.

By his own admission, Mr. Tangataevaha told the court, as a Marine Surveyor, he stopped and unloaded excess cargo and passengers from vessels in breach before they may depart. To further his point, he blamed the Marine Surveyor and Safety Authority for Mr. Makahokovalu’s dilemma.

There is nothing in Mr. Tangataevaha’s statement to say that as a Marine Surveyor when he found vessels in breach of the passenger certified limits he undertook an assessment of the risk, structure and capacity of those vessels before they are stopped. From his evidence his task involved ensuring those limits were not surpassed and if they were, he would unload them. In other words, he wound ensure strict compliance with the relevant law and regulations.

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.

Those parts of the statement seek to diminish the appellant’s culpability and to absolve him of any responsibility expected of a Ship Master with his experience. That does not assist his case.

2. Further, the statement sought to distinguish Ákau as more serious based on a comparative analysis of the number of excess passengers carried when the offending occurred and therefore it was wrong to adopt that starting point here because there was only 20 passengers in excess. However, that analysis ignore that Ákau was decided prior to the 2022 amendment and the maximum penalty for a ship master then was a fine of $30,000 or 3 years imprisonment. To that effect, the starting point of 2 years is about 67% of the maximum penalty, clearly reflecting the seriousness of the offending.

In contrast, and as mentioned the starting point of 2 years here is 40% of the maximum penalty of 5 years imprisonment. Although the Learned Magistrate adopted the starting point in Ákau he had in mind the seriousness and intentions of Parliament to protect lives at sea when it increased the provision for penalty concerned.

The respondent sought to lift the starting point by months to reflect the appellant’s recidivism. That was not accepted by the Learned Magistrate and fixed the starting point at 2 years imprisonment. I cannot fault with the starting point fixed by the Learned Magistrate.

100. Thirdly, I accept Mr. Makahokovalu paid for his certificate of competency prior to departure. That does not negate the fact that when he set out to see he did not hold a valid certificate of competency.

I reject the argument that Mr. Molisi consented to his sailing to sea. According to his evidence, Mr. Molisi said he did not have any authority to stop the vessel and he was called to the ship in relation to an engine problem. He only asked about Mr. Makahokovalu’s certificate because there was a discussion about it at the office that day. There is no evidence to support the conclusion that Mr. Molisi consented to Mr. Makahokovalu departing without a current certificate of competence contrary to law.

Mr. Makahokovalu himself as the Ship Master is responsible for his conduct in leaving the port without a current Masters Certificate of competence and passengers in excess of the certified limit without approval and contrary to law. Mr. Molisi cannot be blamed for that.

The production of the receipt does not assist and would not have changed the sentence imposed.

26. For the reasons stated above, the application to introduce fresh evidence is dismissed.

The Appeal

27. I now turn to the appeal. I have considered the submissions from both parties.
28. In summary, the submission for the appellant can be summaries into 3 main points.
29. Firstly, that it was erroneous for the Learned Magistrate to consider the appellant’s previous conviction of manslaughter by negligence similar in nature to the present offending. The previous conviction was a charge made under the Criminal Offences Act and distinct to the present offending under the Shipping Act. Notwithstanding that, Mr. Áho did accept that the offences are common in that they occurred at sea.
30. Mr. Áho asserted that the Magistrate’s “fatal misrepresentation” of the appellant’s previous record “emanated from the Learned Magistrates adoption of the aggravating factors set out at paragraph [9(1)] of the respondent’s sentencing submissions in the Court below.....”.
31. That submission ignores the same characterisation made in the appellant’s own sentencing submissions^[1] where the aggravating features were listed as:

“a) the defendant holds a previous conviction of the same nature for which he served time in prison; and

2. the seriously dangerous nature of the offence is it involves the safety of many lives at sea.”

32. Arguing against those concessions is the actual misrepresentation and more importantly impermissible on appeal.
33. Secondly, it was argued that the adoption of the starting point in ‘Akau was wrong because of the disparity in the number of excessive passengers involved, namely, 206 in Ákau and 20 in the instant case. I asked Mr. ‘Aho if this argument was raised below. He said it was not. I do not see how it can be raised or considered on appeal.
34. There is no question the starting point of 2 years’ imprisonment in Ákau reflected the seriousness of the offending and circumstances in that offending in relation to the maximum penalty at the time as mentioned.

In the present case, with the increased maximum penalty from 3 years to 5 years imprisonment, a starting point of 2 years was reasonable.

35. The Learned Magistrate set out his considerations at pages 3-4. He considered the previous conviction, the favourable references, the intentions of Parliament to protect lives at sea by increasing the maximum penalty under the relevant s.122 of the Shipping Act, and the following aggravating factors; (a) the appellant was aware his certificate of competency has expired; (b) he was aware he ought not sail the ship as a result; and (c) the appellant had not learnt from his previous conviction 2011 where he served 6 months in prison.

In rejecting the respondent’s submission to lift the starting point by 6 months for the appellant’s recidivism, the Learned Magistrate in exercise of his discretion set the starting point at 40% of the maximum penalty.

It was a considered approach and the claim that the starting point and indeed the sentence was manifestly excessive has not been substantiated.

36. Lastly, that the Learned Magistrate was wrong when he stated that the principles in Moúga for suspension did not apply to the appellant despite the favourable references, the 13 year crime free gap, the submissions that he had demonstrated contrition and took responsibility for his actions.
37. Mr. Áho referred to the Court of Appeal decision in AG v Filimone [2022] TOCA 21 where the Court of Appeal stated:

“[30] In Misinale, this Court observed that the Móunga factors are not the only considerations and that:

“...Also relevant may be the seriousness of the offending, the need for an effective deterrence, the effect on the victim, and the personal circumstances of the offender or those dependent on him or her. There may well be others. But although these are the factors that may be taken into account in considering whether, and if so for how long, to suspend part or all of a sentence, the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender. If it is not, or if for any reason rehabilitation is not relevant to the sentence to be imposed, suspension of any part of the sentence is in general not appropriate.”

38. Again, the sentencing submissions for the appellant did not challenge the submission by the respondent below that Mounga v R [1998] Tonga LR 154 did not favour the appellant and was therefore not entitled for any suspension. The Learned Magistrate was entitled to accede to the submissions of the respondent.
39. The Moúnga principles for suspension are:
    1. where the offender is young, has a previous good record, or has a long period free of criminal activity;
    2. where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself;
    100. where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender; and
    4. where there has been co-operation with the authorities.
40. Clearly, the appellant was not young and did not co-operate with the authorities. The Magistrate considered that although the appellant was convicted some 13 years ago he had not learnt from that offending. He noted that the 2 present offendings 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.
41. 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.
42. In Hoko v Police [2004] Tonga LR 84, the court considered suspension as an important element in sentencing and had this to say:

“The only way that this court on appeal can be certain that a magistrate has at least considered the question of suspension is if reference is made to the issue in his decision. If the decision is silent on the point then an appellant would seem to have a basis for submitting on appeal that the magistrate had overlooked an important element in the sentencing process and, hence, that the sentence must be wrong in principle.”^[2]

43. The Learned Magistrate considered that the principles in Mo’unga did not assist the appellant. Further, in the same case, the word “manifestly” in manifestly excessive was defined as “clear and obvious”. The court in that case held that:

“It has been stated many times that this court will not intervene in the exercise of a magistrate’s discretion on sentencing unless the sentence in question is manifestly excessive or manifestly inadequate or wrong in principle. Something is “manifest” when it is clear and obvious. A sentence will not be interfered with on appeal, however, merely because this court might consider it to be on the severe side. An appellant needs to be able to show that the sentence imposed was excessive in the sense of being outside the appropriate range for the particular offence and the particular offender....”^[3]

Considerations

44. 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 2 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^[4]. The Magistrate was entitled to accept the respondent’s submissions.
45. In examining the reasons set out in the Learned Magistrates sentencing, including the lifting of the penalty in 2022, the circumstances of the offending and the appellant set out at paragraphs 1-5 at page 2, and pages 3-4, and submissions by both parties made in the court below, I have difficulty in arriving at a conclusion that the sentence imposed was manifestly excessive and/or outside the appropriate range for the particular offence and the particulars of the offender.
46. 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.

Result

47. For the reasons stated, the appeal is dismissed.
48. The sentence stands.

P. Tupou KC

Nuku’alofa: 24 March, 2025 J U D G E

^[1] Pg.2 para.C. 9(1) and (2)
^[2] Pg,87, para.151
^[3] Pg.86, para. 100
^[4] Makoni v Koloamatangi & Filipe [1990] Tonga LR 50