Jersey Unreported Judgments

Inferior Number Sentencing - operating a ship without due care and attention.

[2019]JRC025A

Royal Court

(Samedi)

15 February 2019

Before     :

Sir William Bailhache, Bailiff, and Jurats Blampied and Ramsden

The Attorney General

-v-

Michal Bartlomiej Dorynek

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

1 count of:

Operating a ship in territorial waters without due care and attention or without reasonable consideration for other people, contrary to Regulation 9(2) Harbours (Inshore Safety) (Jersey) Regulations, 2012 (Count 2).

Age:  38. 

Plea: Guilty. 

Details of Offence:

The defendant owned a Malibu Fletcher speedboat named Severe Attitude.  He had become the registered owner on 19^th June, 2017.  The boat had a maximum load capacity of five persons.  The vehicle was insured.

On Sunday 9^th July, 2017, the defendant accompanied by three adult females went fishing in deep water opposite St. Brelade's Bay before heading into the bay to drive round.  There, the defendant invited an adult friend, and four children onto the speedboat in order to take them for a ride.  None of the group were wearing lifejackets and there was no mention of them.

Meanwhile, a friend of the victim set off on his jet-ski from the bay with his friend (the victim) riding pillion.  The jet-ski was a SeaDoo GTX 300 Limited model, jointly owned by the operator of the jet-ski and two others.  It was insured.

The vessels approached each other.  Neither party changed direction and the vessels collided. 

The victim was thrown into the air and hit the water at high speed.

The victim suffered a severely fragmented open fracture dislocation of his left knee.  He was treated in the UK and nearly lost his leg.

The defendant's boat was found to be in poor general condition with numerous defects, including a disabled kill-cord.

Expert evidence concluded that the boat was overloaded (probably in the region of an additional 26.7%) but there would still have been sufficient manoeuvrability to take effective action to avoid a collision; the various physical defects did not contribute to the collision, and that there was insufficient safety provision on board.

The Crown's Expert opined that:

-¢        the jet-ski remained on a steady course and speed right up until the collision, but the operator of the jet-ski did not see the boat approaching;

-¢        the defendant saw the jet-ski but failed to take action to avoid the collision, and

-¢        the operator of the jet-ski also appears to have failed to keep a proper lookout, and that his human error also contributed to the collision.

Details of Mitigation:

Good character; remorse. 

Previous Convictions:

None. 

Conclusions:

Count 2:

£7,500 fine.

Forfeiture Order of the vessel Severe Attitude sought under Article 2(1) of the Criminal Justice (Forfeiture Order) (Jersey) Law, 2001.

Cost order sought in the sum of £2,500. 

Sentence and Observations of Court:

Count 2:

£5,000 fine or 12 months' imprisonment, in default, with 3 months to pay.

No forfeiture or costs orders made.

M. R. Maletroit, Esq., Crown Advocate.

Advocate C. Hall for the Defendant.

JUDGMENT

THE BAILIFF:

1.        There was an accident at sea on Sunday 9^th July, 2017, when a speedboat operated by the defendant struck a jet-ski which was operated by a friend of the victim of the accident who suffered serious injury.

2.        The defendant had become the registered owner of the speedboat approximately 3 weeks before the accident took place.  The accident took place in territorial waters and it seems to the Court to be reasonably clear that both the defendant and the operator of the jet-ski were at fault for this accident, and we say that, conscious that we are operating only on the Summary of Facts given to us by the Crown, and the expert reports provided by the Crown and by the defendant, and therefore we absolutely accept that in a civil case the matter is open to the Court, if it comes before a Court, to reach a different view.  But on the facts that we have been given so far, it appears to us that both the jet-ski operator and the defendant were at fault for this accident. 

3.        The defendant said that he had seen the jet-ski but he assumed that it would move and that may have been an assumption borne out of his inexperience.  The jet-ski operator asserted that he had not seen the speedboat which suddenly appeared and struck his jet-ski.

4.        What is certainly true is that the passenger on his jet-ski has suffered some very serious injuries and we have taken those into account as reflecting that this was a serious case of careless operation of a ship in territorial waters, contrary to regulation 9 of the Harbours (Inshore Safety) (Jersey) Regulations, 2012. 

5.        It is clear from the material we have seen that the speedboat had a number of defects, but it is also clear that those defects had absolutely nothing to do with the accident.  It is also clear from what we have seen that there is at least a very large question mark over whether the speedboat was adequately equipped with lifejackets.  Currently that does not seem to be an offence under any of the relevant regulations, but each of the members of the Court have considerable experience of boating in these waters and we know and want to state that it is absolutely appropriate that you should go to sea properly equipped with lifejackets.  It is irresponsible to do otherwise.  It is irresponsible to take children to sea without proper lifejackets and when this case is reported we hope the media will make a special point of emphasising the irresponsibility of those going to sea without lifejacket protection. 

6.        Advocate Hall makes a number of points in mitigation for this offence, and it is right to say that broadly speaking the Court accepts most of them.  We are conscious that we are looking here at an offence which carries a maximum sentence of £10,000 fine, and we think that that is so because the Court is assessing what is in most cases likely to be, because it is careless and not reckless, a temporary misjudgement, a lapse of concentration, insufficient attention, and nothing that is done deliberately or purposely wrongly. 

7.        We take into account that this defendant entered a guilty plea, not immediately but on we think a timely basis, because it was not unreasonable to have pleaded not guilty on the advice of counsel until such time as a suitable expert report had been obtained in relation to this accident.  So we think that the defendant is probably on that basis entitled to either a full discount or very close to a full discount for the plea, not least because it has saved the time and expense of what would have been a technical and long trial. 

8.        We accept that the defendant has expressed remorse for the accident in the sense that he has expressed that remorse towards the victim who has suffered the injuries he has, and we think that he might well have a sense of unfairness that he is the only one who has been prosecuted given that his immediate response to the police was that he thought it was 50:50. 

9.        Having said all that, this was a case which is in our judgment towards the higher end of careless driving of a ship, and therefore we think that the right fine to impose in relation to this driving was £5,000.  We hit on that figure having regard to good character and having regard to the full discount for the guilty plea and the other features which I have mentioned.  There will be a prison sentence of 12 months if there is non-payment of the fine within 3 months.  If non-payment within that 3 months then subject to any further Court order, 12 months' imprisonment is the default fine.

10.      I wish to add that we have noted that no alcohol was involved in the commission of this offence, and we have also noted that there is really a great similarity between both prosecution and defence expert reports which assert that both the jet-ski operator and the defendant failed to keep a proper lookout in operating their respective ships. 

11.      We are asked by the Crown to note that the decision has been taken not to proceed with the reckless charge because of insurance cover.  This was a public interest factor apparently taken into account by the Crown, as a reason for not proceeding, on the basis that if there had been a conviction for recklessness the insurance cover may not have been in place.  We have not been fully addressed on the rights and wrongs of that, but we do wish to say that we are doubtful about the propriety of taking into account a private matter of that kind in relation to a public interest decision of whether to prosecute.  At all events for today's purposes we are not going to approach this case as nearly reckless if I can put it that way.  We have not approached it in that way.  We have approached it as a case of carelessness. 

12.      We are asked by the Crown to make an order for forfeiture of the boat pursuant to the Criminal Justice (Forfeiture Orders) (Jersey) Law, 2001.  We are told by Advocate Hall that the defendant does not want the boat back.  She tells us that apparently it was left in a not very good state with water in it and it has been in a police compound for some time and effectively now is valueless, whereas at the time of the accident its value was some £2,000.  Article 2(1) of the Criminal Justice (Forfeiture Orders) (Jersey) Law, 2001 gives the Court power to order the forfeiture in question if the boat has been used for the purpose of committing an offence.  We do not think that this case falls within that paragraph.  It does not seem to us that the boat has been used for the purpose of committing the offence any more than one would say that when a person drives a car carelessly the car has been used for the purpose of committing the offence.  It does not seem a natural use of language as far as we are concerned.  It has not been adapted or amended or altered in any sense.  Advocate Maletroit says there is authority which would assist us in the construction of that article.  It has not been produced and it leaves us uncomfortable to make the order for forfeiture and we are not going to make it, recognising that if that authority had been produced we might have reached a different view. 

13.      I am asked to make an order for costs, because this is a decision for me alone rather than for the Jurats, in the sum of £2,500 for prosecution costs and as far as Advocate Hall is concerned for the costs of the defence for a particular period, between 31^st October when a plea was offered to careless operation of the ship and 12^th December, when the Crown confirmed it would accept that plea.  When I asked Advocate Maletroit for the reasons why we should make a costs order against the defence he said the defendant had not been full and frank from the outset and had been dishonest with the police as to who was present on the boat.  We do not accept that the defendant was dishonest.  We think he made a mistake.  He was offered an interpreter by the police but did not take it up and when he gave an answer that there were four people on the boat we can well see that he might have been referring to the four other adults apart from himself and not taking into account the children.  We can understand how that misunderstanding in language could have taken place, so we are not going to find that there had been any dishonesty.  Advocate Maletroit said there had been a long drawn out process before the guilty plea was entered, and we have already said that we consider that the process was as much down to the Crown as it was to the defendant, and therefore we did not think it was unreasonable to plead not guilty until such time as the expert report had been received.  In those circumstances I am not going to make an order for costs against the defendant, not least because I also take into account the loss of the boat which the defendant has suffered which he will have no compensation for, so that seems to me to be as broad as it is long.

14.      The last question was the question of whether I should make any order for costs in favour of the defendant for the period I have mentioned.  I am not going to make any order of that kind.  The reasons for that are that trial of the hearing of recklessness was not fixed until January and the actual trial itself was not fixed until a date in February, and that sort of level of costs which Advocate Hall has set out seems to me to be much more aimed at preparation costs for substantive hearings and that therefore those costs were incurred too soon.  In the exercise of my discretion I think that is a reason why I should not make such an order for costs.  Secondly, I take into account that the Crown itself was waiting for receipt of its expert report.  It could easily be said the Crown should have got that report at an earlier stage, but having not done so and being faced with the defence expert report it does not seem to me to be unreasonable that the Crown would then want to have its own expert report before making any concession on the charge and so I am not going to make any order for costs in favour of the defendant against the Crown. 

15.      You are fined £5,000 which you must pay within 3 months and in default there will be a sentence of 12 months' imprisonment. 

Authorities

Harbours (Inshore Safety) (Jersey) Regulations, 2012.

Criminal Justice (Forfeiture Orders) (Jersey) Law, 2001. 

Road Traffic (Jersey) Law 1956

Costs in Criminal Cases (Jersey) Law 1961

Police Force (Disposal of Property) (Jersey) Regulations 1975

Magistrate's Court Sentencing Guidelines for Motoring Offences