BRISBANE, Australia — Last week, the Brisbane Supreme Court sentenced American bubble-wrap salesman, Gabe Watson, to a one-year jail term after he pleaded guilty to manslaughter in the scuba diving death of his wife, Tina Watson. The court's decision angered many who have been following the case including the victim's relatives who are demanding that Watson stand trial for murder. The decision also disappointed and alarmed many in Australia's struggling dive industry because it sets a legal precedent that could be used to prosecute "buddy" divers for failing to fulfill "buddy system" responsibilities cited by Justice Peter Lyons in the following sentencing remarks. Justice Peter Lyons' sentencing remarks 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 regulator 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 4½ 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. 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 a 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 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 co-operated 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 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 4½ 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 4½ 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 4½ 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. | | American bubble-wrap salesman, David "Gabe" Watson, and his wife, Christina "Tina" Watson, who died while the couple was scuba diving on their honeymoon with Mike Ball Dive Expeditions. Sentencing submission from the Defence, Steve Zillman YOUR Honour, my ultimate submission is that, by an analysis of the facts and circumstances in this case, and paying due regard to the various authorities, that the court would impose a sentence of the order of four years' imprisonment and would appropriately suspend that sentence after my client has served a period of approximately 12 months. Your Honour, it is traditionally the case that, where a prisoner enters a timely plea of guilty, the court will recognise that by ordering the person to serve of the order of a third of the head sentence. Now, in the event that the court saw the appropriate head sentence of four years, a third of that period would be some 16 months, but there are particular circumstances in this case that I point to that would, in the end, cause Your Honour to order a lesser period of custody to be actually served than 16 months, and I'll address those now. The first matter upon which I rely is simply this. My client made admissions to the investigating police officers which ultimately were the foundation of the Crown case. The second issue is that there then were known to the investigating officers all necessary detail that might have caused his arrest. That is, for the offence for which he has pleaded guilty this morning. The next matter that I specifically identify in these submissions is that although he was not charged until such time as the Coroner charged him with the offence of murder, his case had attracted intense publicity. Thousands upon thousands of words have been written concerning this matter, at least on the internet. He has been for a long period of time publicly accused of a crime or crimes for which he is not guilty. He has had to endure that situation for a period of up to six years. The next matter that I particularly raise: beyond his admissions is his subsequent co-operation with the criminal system of justice. He chose not to contest any extradition proceedings, which obviously were contemplated but which had not commenced. And he voluntarily returned to this country to face a charge of murder. It was not until such time after his return that the DPP indicated that they would accept a plea of manslaughter in discharge of the indictment. And the last matter is, of course, he is not a citizen of this country and all of his family and friends reside in the US, and so any time in prison that he is required to serve will be harder for him than it would be for an Australian citizen. Your Honour, this is a case of a kind at least based in the concepts of criminal negligence and for that reason the references to rehabilitation which appear in those passages are not so much relevant. But it is the second of those principles upon which I particularly rely, namely that where a matter has been hanging over the head of a person, thereby keeping that person in a state of suspense, then that is a matter properly to be taken into account. Your Honour, the facts are very clear. He panicked. He ought, in accordance with the duty imposed upon him, have remained, but he did not. He panicked. His wife was in difficulty, she was panicking and he then panicked. It is of importance to him, of course, that once his sentence is served, that he do return to the United States. So, I do ask Your Honour to proceed by way of partial suspension of the sentence. Sentencing submission from the Prosecutor, Brendan Campbell CHRISTINA, or as she was known to her family, Tina May Watson nee Thomas, died on October 22, 2003, while diving on the shipwreck Yongala 48 nautical miles east of the Port of Townsville. There then followed an extensive police investigation. A coronial inquiry was held in Townsville to the death in late November 2007 and in 2008. On June 20, 2008 the Coroner committed the prisoner to stand trial on a charge of murder and issued a warrant for his arrest. The accused did not attend the coronial hearing, although he was represented. He declined to give evidence before the hearing. On November 28, 2008 the Crown presented an indictment charging the prisoner with murder in the Supreme Court in Townsville. On the 13th of May 2009 the prisoner voluntarily returned to Australia and was arrested at the Brisbane International Airport. In relation to the warrant issued to the Coroner the matter was mentioned before the Supreme Court in Brisbane later the same day and the prisoner was remanded in custody. He has remained in custody since that time, which is a total of 23 days and that should be declared as time served. Obviously his voluntary return is an important matter, and it's also important to note that if he had been the subject of extradition proceedings, that may well have involved the accused spending significant time in custody in the United States while the process was completed. Your Honour, the prisoner's plea of guilty to manslaughter is accepted in full discharge of the indictment. The basis of that can be very simply stated. The prisoner had undertaken to act as the deceased's buddy during the fatal dive. The prisoner, pursuant to Section 290 of the Criminal Code, is held to be criminally responsible for her death as he failed to perform his duty in respect to her. He had undertaken the duty to act as her buddy. The importance of that role is obvious when scuba diving. The recognition of the dangers and the potential risks is precisely why a buddy system is in place and the accused had undertaken that responsibility. Your Honour, that in essence is the – or was the – Crown contention in relation to the statutory alternative charge of manslaughter. At the time of the presentation of the indictment that alternative basis was indicated to the defence and that was really the first opportunity for the accused to plead to manslaughter of that basis of the breach of the Section 290 duty which the Crown has now accepted, and therefore both substantial matters in litigation and should properly be given weight. It must, of course, also be taken into the mix for Your Honour's consideration that in his previous accounts, his previous accounts had involved falsehoods and attempts to wrongly shift blame. However, in the end it would be my submission that there are serious aggravating features, and the circumstances of the offending are such that a significant custodial sentence is required, that even taking into account all of the mitigating factors, a sentence of not less than five years' imprisonment requiring him to serve not less than 18 months in actual custody is required. Your Honour, this is a case where the sentence must reflect the very serious obligation that a person undertakes as a buddy. It is a case that calls for a deterrent sentence, in this context reinforcing that persons must take their responsibilities as a buddy very seriously. |
