Apologies for the length.
These sentencing remarks can also be accessed as a PDF file at
Sentencing Remarks - Queensland Judgments - Supreme Court Library
SENTENCE R v WATSON
(P Lyons J)
HIS HONOUR: Stand up, please, Mr Watson. You stand convicted
on your plea of guilty of the offence of manslaughter causing
the death of your wife. The offence occurred when you had
both been diving in the vicinity of the historical shipwreck
Yongala some 48 nautical miles east of Townsville.
The deceased experienced difficulties during the dive. You
made some attempts to assist her but these were unsuccessful.
In the course of this, your face mask and deregulator were
dislodged. However, you were able to replace your face mask
and to get an alternative oxygen supply from what is referred
to as a "safe second". When this happened, you could see that
the deceased was sinking but you formed the view that there was nothing
you could do and you swam away with a view to getting assistance.
There are circumstances beyond those I have just described
which are relevant to determining your sentence. You were
clearly a far more experienced diver than the deceased was.
The deceased had what is called an open-water certification,
which I understand to be a basic diving qualification and
which she had attained some months previously. The dive at
the Yongala was a significant challenge for a diver of the
level of experience and competence of the deceased.
On the other hand, you were a diver with substantial
experience, although it is pointed out that much of your
experience was not in open waters where significant currents
could be encountered. You had a number of qualifications,
including a rescue diver certificate which you had obtained
some four and a half years before these events.
The dive was carried out using the buddy system. As your
wife's buddy for the dive, you took responsibility for
providing her with assistance if she encountered difficulty.
The Crown alleges against you that you failed to carry out
your duty to her in a number of significant ways. I accept
that you failed to do so in the following respects: you
failed to ensure that when the deceased had encountered
difficulties she had a supply of oxygen available to her, and,
in particular, you failed to share your oxygen supply with
her; having released the deceased to recover your face mask
and oxygen supply, you did not then take hold of her again or
stay with her, or follow her as she sank; you did not attempt
at any time to inflate her buoyancy control device or remove
the weights which divers often carry to assist them to descend.
It follows from these matters, that you failed to make any
reasonable attempt to take the deceased to the surface. I
therefore accept that you are guilty of a very serious
departure from the standard of care which was incumbent upon
you with the result that your conduct is deserving of criminal
punishment.
An offence such as manslaughter which involves the loss of a
human life is obviously a very serious matter. The deceased
was 26 years old. You were recently married. She had every
reason to look forward to a long and happy life. Her death is also
a great tragedy for her family. I have read the victim impact
statements. They demonstrate that she and her family were
very close and that she was very close to her friend.
They demonstrate how deeply her loss is felt by all of them.
Her family, obviously and naturally, take a very serious view
of your conduct and that, not surprisingly, appears in their
statements. However, there is much in those statements from
which I do not gain assistance in determining your sentence.
I propose to say something about the course of proceedings
which have led to today's hearing. The events which led to
the charge against you occurred in October 2003. You were
interviewed by the police on that day and on some occasions
subsequently. A coronial inquest was conducted in late 2007
and in 2008 resulting in your being committed in June 2008
and a warrant then issuing for your arrest. An indictment
charging you with murder was presented on the
28th of November 2008.
You have voluntarily returned from the United States and have
surrendered yourself into custody in Australia. In my view,
it is quite significant that at the time of your return you
did not know that the Crown would not persist in charging you
with murder, which carries a mandatory sentence of life
imprisonment. You no doubt expected that you would be
sentenced to a term of imprisonment for a substantial period
in what for you is a foreign country. You have, in fact,
acknowledged that you are guilty of manslaughter. You do
not seek to pretend that your actions were other than what
they were. In doing so, you have spared the deceased's family
the agony of a trial.
While in the context of the loss of the deceased's life it may
not be of great significance, it must also be recognised that
you have saved the community the expense of conducting a
trial. I regard your conduct as a recognition by you of your
wrongdoing and an expression of remorse. I am conscious
that you have no criminal history. There is, naturally, no
suggestion of a risk of reoffending.
You have provided a number of references from people who
appear to be quite reputable and to know you well. They
confirm that you are of good character. They also reveal that
you are a person who is known to help others and that you
loved your wife and were devastated by her loss.
I have referred to the delay in the prosecution of the case
against you. It is plainly considerable delay. When there is
delay in the prosecution of a criminal charge, a major
consideration which often works in reduction of the sentence
is the fact that rehabilitation may have occurred in the
period since the offence. That is not a relevant consideration
in this case. However, you have carried the burden of these
events for a substantial period. That is a matter to which I am
prepared to give weight. I consider that that burden has been
increased by the very extensive publicity which these events
have occasioned. That is demonstrated, to some extent, by
the obvious presence of a significant number of representatives
of the media in the court today. I also accept that in that period
you have been subject to accusations of matters of which you
are not guilty.
In addition to the admission constituted by your plea, I
accept that you cooperated with the police at an early stage
and that, generally, the essential matters relied on now for
acceptance of a plea of manslaughter were communicated by you
to the police in about October of 2003. In fact, a
significant number of them appear in the statement you gave to
the police on that day, including your certification as a
rescue diver, the fact that you and the deceased were on this
dive diving as dive buddies, and the circumstances in which
you left the deceased.
There have been, in some of your statements, some
inconsistencies and some attempts to put blame on other
people. There does not seem to be any persistence in your
attempt to put blame on anyone else and I accept that the
responsibility for this loss is yours alone. The
inconsistencies and those attempts, to me, while they do not
speak particularly well of you, should be looked at in the
circumstances in which they occurred. That is, they occurred
shortly after the dive and at a time when you, no doubt, were
deeply upset by the events which have occurred.
I have been referred to a number of authorities. I do not
propose to refer to all of them. There is always a difficulty
in finding authorities which are strongly analogous to the
circumstances of a particular case in which a sentence is to
be given. I do, however, note the submissions made by your
Counsel in relation to the case of Pesnak [2000] QCA 245.
That was a case where the accused had a significant period of
time, a matter of days, in which to identify the worsening
condition of the person who ultimately died.
Your case is quite different. The precise time is unclear,
but it can only have been of the order of two minutes from the
time that the deceased first started to encounter difficulties
until you surfaced, and the time within which you made your
initial decision to leave her was obviously significantly
less. I suspect that once you had made that decision and
decided to go to seek other assistance, there would have been
difficulty in reversing your decision and turning back again
to try to assist her. I accept, nevertheless, that there is a
very serious departure in your case from the requirements
of the duty of care which you had undertaken in the course
of this dive.
The seriousness of the matter, notwithstanding the factors
which I take into account in mitigation, means that it is
necessary to impose a penalty which provides for a substantial
period of imprisonment. I therefore propose to impose a head
sentence of four and a half years.
Because of the mitigating factors which I have identified and
because I accept that for you in Australia time in prison will
be harder than it will be for people who serve a sentence of
imprisonment in their own country, I intend to fix a
suspension date a little earlier than might otherwise have
been the case.
Accordingly, I order that you be imprisoned for a period of
four and a half years. I declare that the period of 23 days
from the 13th of May 2009 until the 5th of June 2009 be deemed
time already served under the sentence.
I order that the term of imprisonment be suspended after a
period of 12 months' imprisonment which will take into account
that 23 day period.
I am required to inform you that you must not commit another
offence punishable by imprisonment within a period of four and
a half years to avoid being dealt with for the suspended term
of imprisonment. For the avoidance of any doubt, I order that
a conviction be recorded.
