R v Ilangana [2024] TOSC 81; CR 185 of 2023 (17 October 2024)

BETWEEN:
REX
-Prosecution

AND:
TEVITA ILANGANA
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr J Fifita & Mr G. Aleamotu’a for the Crown Prosecution
Mr S Fili for the Accused
Date: 17 October 2024

THE CHARGES

1. On 29 January 2024, the Accused pleaded not guilty to the following charge and elected trial by Judge with a Jury.
   1. Count 1: Proceeding to Sea Improperly, contrary to section 122(1) and (2) of the Shipping Act.
2. On 26 August 2024, the Accused’s trial commenced before Acting Justice Langi.
3. On 28 August 2024, the Jury found the Accused guilty of the charge on Proceeding to Sea Improperly.
   

CROWN SUBMISSIONS

4. The Crown submitted that they had asked the Ministry of Infrastructure whether they would make any application to forfeit the ship, we have not received any such application, and the Crown will not be pursuing any such application.
5. The Crown also filed their sentencing submissions on 9 October 2024 which included aggravating and mitigating factors, and the following caselaw:
   1. R v ‘Evona ‘Akau, CR 181 of 2019
6. Final recommendation from the Crown was 18 months fully suspended for two years, complete 50 hours of community service, and report to the Probation Office within 48 hours.
   

PRESENTENCE REPORT

7. A presentence report was received from the Probation Office on 15 October 2024.
8. This report detailed the Accused’s personal history, lack of previous conviction, employment history and their recommendation on sentencing.
9. The Probation Officer recommended a fully suspended sentence on the condition that the Accused complete community work and not commit any further,
10. I take the contents of this report into account in considering the Accused’s sentence.
    

DSCUSSION

11. I’m minded following the guidance given by the Prosecution for a suspended sentence and community work.
12. Tevita Ilanganaa, the purpose of the rules for Sea Farers is to ensure the safety of passengers. You must know this with your experience that overloading your ship in the way that you did inevitably puts them at risk if anything happened to the ship, because I doubt there was sufficient lifeboats on the ship to deal with the additional passengers, or anything were to happen to ensure that if anything life would have been saved. This is a serious matter.
13. I well understand that the pressure to take people onboard because of the failure of another vessel to operate at the time was difficult for you, but as a professional in charge of the ship you ought to have resisted that and said “I can't do this as the law does not permit it” as a result you didn't do it and nothing untoward happened thankfully.
14. Just think, supposing your ship running around, and supposing a life was lost, how would you have felt then? You would not have been able to live with yourself, would you?
15. However I have regard for the fact that you have no previous convictions, are of previous good character, an experienced captain and a well-regarded member of your fleet.
16. With those reasons I regret to say that this is a case which must be marked by imprisonment bearing in mind what I have said about you personally and considered from the presentence report and crown sentencing submissions.
    

FINAL RESULT

17. I have decided to suspend your sentence of 12 months’ imprisonment for a period of 2 years on the following conditions:
    1. You must report to the Probation Office within 48 Hours
    2. You must not commit any further offence punishable by imprisonment.
    100. You must complete 40 hours of community service as directed by the Probation Office within the next 12 months.
         

NUKU’ALOFA HON. MALCOLM BISHOP KC 17 October 2024 LORD CHIEF JUSTICE