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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Richley, R. v [2015] EWCA Crim 1256 (18 June 2015) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/1256.html Cite as: [2015] EWCA Crim 1256, [2015] 2 Cr App R (S) 77

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		18th June 2015

LORD JUSTICE TREACY: I shall ask Mr Justice Teare to give the judgment of the court.

MR JUSTICE TEARE:

1. On 3rd February 2013 the workboat Endurance set off on a voyage from Rochester to Brighton via Dover towing Sirius M, an unmanned motor cruiser, which was being used as a houseboat. The flotilla arrived at Dover at about 2130 on the same day. At about 0845 on 4th February it left Dover. There were gale warnings in force and the weather was deteriorating. Endurance was under the command of the appellant, who was its owner. There was one crewman, Stephen Trice. The towline was worn out and suffered from abrasions and chafe. There were no sleeves on it to protect it against chafe and rubbing.
2. At about 2337 on 4th February the towline parted. At the time there was a westerly force 6 to 7, gusting to gale force 8. The sea was moderate to rough, with a 2 metre swell from the west. In the darkness it was difficult to locate the tow, but it was found. A decision was made to re- establish the towage connection. Stephen Trice attempted to cross from Endurance to Sirius M with a lighter towline. He was not wearing a lifejacket. Stephen Trice fell into the sea and was drowned about two and a half miles southwest of Beachy Head. The appellant contacted the Dover coastguard, but the search and rescue efforts were unsuccessful. Stephen Trice was aged 53. He was unmarried and with no dependents, but he is missed by his elderly parents and his brother. His body was recovered some weeks later under Beachy Head.
3. The appellant was charged with two offences under the Merchant Shipping Act 1995. Under count 1 he was charged with failure to discharge his duties as master in such a manner as was likely to cause death or serious injury, contrary to section 58(4) of the Act. Under count 2 he was charged with failing to take all reasonable steps as owner to ensure that the vessel Endurance was operated in a safe manner, contrary to section 100(1) of the Merchant Shipping Act 1995.
4. On 27th June 2014, in the Crown Court at Southampton, the appellant pleaded guilty to count 1. On 15th January 2015 he pleaded guilty to count 2. Only certain of the particulars of the offences were admitted, and so on 20th January 2014 there was a Newton hearing before His Honour Judge Ralls QC. On 20th February 2015 the judge gave his ruling on the disputed particulars. He sentenced the appellant to eight months' imprisonment on each count, to run concurrently. But he granted bail and certified the case as fit for appeal.
5. On this appeal the question is whether the sentence of eight months' imprisonment was either wrong in principle or excessive.
6. On count 1 the appellant admitted that he was not licensed to act as Master of the Endurance on this voyage. He was the holder of a Boat Master's License which entitled him to operate in the River Medway and River Thames, up to 3 miles offshore and 15 miles from the point of departure. He did not have a Yacht Masters Offshore Certificate of Competence.
7. Endurance had an SCV2 Certificate, which restricted her operation to favourable weather. Endurance did not have a towing endorsement. The appellant further admitted that Endurance was not properly manned. The judge found that there ought to have been another hand. As the judge explained, in the event of a man overboard the remaining person on board would be in an impossible position. The judge further found that the appellant had set out in unsuitable weather conditions. The appellant accepted that Endurance was not properly rigged for towing. In addition, the judge found that he did not put adequate safety procedures in place. There was no provision for any jack stay and no form of safety harness. The judge said that the vessel was usually engaged in river work and in such work such safety equipment was not considered necessary. The judge was unable to accept the appellant's evidence that he told Stephen Trice to wear a lifejacket, or that he thought that he did. Thus, the appellant had allowed Stephen Trice to attempt to re-attach the towline when he was not wearing a lifejacket.
8. On count 2 the judge found that the appellant permitted Endurance to go to sea undermanned, and failed to equip her with safety equipment. The appellant accepted that he failed to provide appropriate towing equipment, and that he permitted the voyage to proceed when the tow was not certified to be towed.
9. The judge said that there was a catalogue of disasters which went beyond mere errors of judgment. It was, he said, a disaster waiting to happen. Bad decisions were made when the appellant decided to perform the tow, given that Endurance was not properly equipped to do so, when he decided to continue the voyage from Dover in the face of forecast bad weather and when he decided to attempt to recover the tow. The judge therefore considered that, in terms of culpability, there had been several failures; and in terms of harm, a death had been caused. He concluded that an immediate custodial sentence was appropriate. He took into account that the appellant was 39 years of age, with a wife and family, and had no relevant previous convictions. He accepted that the appellant was truly remorseful. Mr Trice was his good friend. The judge allowed 15 per cent credit for the pleas of guilty, but no more because of the limited admissions and the need for a Newton hearing. He sentenced the appellant to eight months' imprisonment.
10. We note that the appellant has spent his working life on the river. He has worked as a lighterman and in about 2008 bought Endurance which he fitted out as a working vessel. Since then he has performed various items of marine work, including towing.
11. This sentence will be his first experience of custody. We have noted his and his wife's fears as to its effect on their lives and on his business. We have also noted the other letters written about the appellant by those who know him and have worked with him on the river. We note that he co-operated with the authorities investigating the incident, and that since the incident he has taken steps to remedy the deficiencies of the Endurance.
12. The maximum sentence for the appellant's offences is two years' imprisonment. There are no applicable sentencing guidelines. It was submitted that there ought to have been a community penalty, or, at most, a suspended sentence. Attention was drawn to the fact that in other health and safety cases the court had considered whether there had been a blatant disregard of warnings, and it was submitted that there was no such disregard in this case. The incident was described as isolated, and it was submitted that insufficient credit had been given for personal mitigation.
13. We are grateful to Mr Pawson-Pounds, who appears for the appellant, for the clarity of his submissions and the care with which they were prepared. We are also grateful to Miss Gibbons for the content and clarity of her skeleton argument.
14. In our judgment the judge was right to consider both culpability and harm. We consider that, in terms of culpability, this was not a case of an isolated act of negligence. Rather there were, as the judge noted, a number of negligent acts. The appellant took on a commercial towage operation in coastal waters when Endurance was not properly equipped to do so. Most importantly, the towline was in poor condition. The appellant chose to leave Dover in the face of forecast bad weather. Thus, the risk of the towline parting was real. If that risk materialised, Endurance was ill-equipped to deal with the consequences. There was only one crewman, and there was no jackstay or safety harness. Yet, in poor wind and sea conditions the appellant permitted Stephen Trice to attempt to board the tow and make fast a towage connection. Looked at as a whole it was, as the judge said, unseamanlike and negligent to go to sea in those circumstances on a towage operation.
15. We accept that this is not a case of blatant disregard of warnings, but it is a very serious case of negligence. In terms of harm, there was a real risk of loss of life, which in the event materialised. In those circumstances the judge's decision that there must be a sentence of immediate imprisonment was not wrong in principle. Although death is not an ingredient of the offence, the fact that death resulted from the appellant's serious negligence must be a relevant consideration when considering the appropriate penalty. It seriously aggravates the offence, as was stated in R v F Howe and Son [1992] 2 Cr App R(S) 37. We also consider that the period of eight months' imprisonment was not excessive. We consider that no shorter period could have been ordered, and that adequate account was taken of the available mitigation.
16. For these reasons we have concluded that the appeal must be dismissed.