Richley, R. v

For serious maritime-safety offending, sentencing should assess both culpability and harm. A sequence of negligent decisions in undertaking and continuing an inadequately equipped coastal towage operation may justify immediate custody, even without a blatant disregard of warnings.

Where death results from serious negligence, it is a relevant and serious aggravating feature although death is not an ingredient of the offence under the Merchant Shipping Act 1995.

The appellant, the owner and master of the workboat Endurance, towed an unmanned motor cruiser from Dover in deteriorating weather. The towline parted. The sole crewman attempted to re-establish the tow without a lifejacket, fell into the sea and drowned.

The appellant pleaded guilty in the Crown Court at Southampton to offences under sections 58(4) and 100(1) of the Merchant Shipping Act 1995. Following a Newton hearing on disputed particulars, the judge imposed concurrent sentences of eight months’ imprisonment. The appeal concerned whether immediate custody, and the length of the sentences, were wrong in principle or excessive.

1. Appeal dismissed. The judge was entitled to impose immediate imprisonment, and concurrent sentences of eight months were not excessive.

2. The Court held that the sentencing assessment properly considered both culpability and harm. This was not an isolated negligent act. The appellant undertook a commercial coastal towage operation although Endurance was inadequately equipped. The towline was in poor condition, the vessel left Dover despite forecast adverse weather, and there was only one crewman. There was also no jackstay or safety harness.

3. Those deficiencies made the foreseeable consequences of a parted towline especially dangerous. In poor wind and sea conditions, the appellant permitted the crewman to try to board the tow and make a towing connection without a lifejacket. Taken together, the conduct was unseamanlike and seriously negligent.

4. The absence of a blatant disregard of warnings did not prevent the offending from being very serious negligence. There was a real risk of loss of life and that risk materialised. Although death was not an ingredient of either statutory offence, it was a relevant sentencing consideration and seriously aggravated the offending: R v F Howe and Son [1992] 2 Cr App R(S) 37.

5. The sentencing judge had adequately allowed for the appellant’s remorse, lack of relevant convictions, personal mitigation, co-operation with the investigation, and remedial steps taken after the incident. No shorter custodial term was warranted.

• Court of Appeal (Criminal Division): Dismissed the appellant’s sentence appeal in [2015] EWCA Crim 1256.

• Crown Court at Southampton: Following guilty pleas and a Newton hearing on disputed particulars, imposed concurrent sentences of eight months’ imprisonment for offences under the Merchant Shipping Act 1995.