SUPREME COURT OF QUEENSLAND
R v Watson; ex parte A-G (Qld)  QCA 279
R v WATSON, David Gabriel (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
CA No 153 of 2009 SC No 438 of 2009
Court of Appeal
Sentence Appeal by A-G (Qld)
Supreme Court at Brisbane
18 September 2009
17 July 2009
Chief Justice and Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, the Chief Justice and Chesterman JA concurring as to the orders made, Muir JA dissenting
1. Appeal allowed.
2. The sentence of four and a half years imprisonment suspended after 12 months for an operational period of four years is set aside.
3. The respondent is to be imprisoned for four and a half years, suspended after 18 months for an operational period of four and a half years.
4. The declaration as to time already served (23 days, from 13 May 2009 to 5 June 2009) is to remain in place.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY THE CROWN – where the respondent was convicted on own plea of guilty of manslaughter on the basis of criminal negligence pursuant to s 290 of the Criminal Code – where the respondent was sentenced at first instance to four and a half years imprisonment suspended after 12 months – whether the sentence imposed was so inadequate as to warrant the court’s intervention
Criminal Code 1899 (Qld) s 290, s 669A
House v The King (1936) 55 CLR 499;  HCA 40, cited R v Chard ex parte A-G (Qld)  QCA 372, distinguishedR v Cramp (Unreported, Supreme Court of Queensland, White J, 30 January 2008), distinguished R v Johnson ex parte A-G (Qld)  QCA 76, distinguished R v KU & Ors; ex parte A-G (Qld) (2008) 181 A Crim R 58;  QCA 20, considered R v KU and Ors; ex parte A-G (Qld)  QCA 154, considered R v Lacey; ex parte A-G (Qld)  QCA 274, approved R v Pesnak & Anor (2000) 112 A Crim R 410;  QCA 245, distinguished R v Streatfield (1991) 53 A Crim R 320, considered R v Tientjes ex parte A-G  QCA 480, distinguished
W Sofronoff QC SG, with E Wilson, for the appellant M J Burns SC, with P Morreau, for the respondent
Crown Law for the appellant Roberts Nehmer McKee for the respondent
 CHIEF JUSTICE: The Honourable the Attorney-General appeals, under s 669A(1) of the Criminal Code, against a sentence of four and a half years imprisonment, suspended after one year (for an operational period of four and a half years) imposed in the trial division of this court on 5 June 2009, upon the respondent’s plea of guilty to manslaughter. The respondent had been charged that on 22 October 2003 at the Yongala shipwreck near Townsville he murdered Christina Mae Watson. The Crown Prosecutor informed the learned primary Judge that the Crown accepted the plea to manslaughter in full discharge of the indictment.
 At the time of the offence, the respondent was 26 years old. He had no prior criminal history. He was 32 years old when sentenced.
 In late November 2007 a coronial enquiry was convened, in relation to the death of Christina Watson, who was the respondent’s 26 year old wife. She died during a diving exercise. On 20 June 2008 the Coroner committed the respondent to stand trial for her murder. The respondent was then in the United States of America: he is a US citizen. He voluntarily returned to Australia on 13 May 2009. He was arraigned in this court on 5 June 2009 and it was then that the Crown accepted his plea to manslaughter.
 The basis of that plea was criminal negligence under s 290 of the Criminal Code, which provides:
“When a person undertakes to do any act the omission to do which is or may be dangerous to human life or health, it is the person’s duty to do that act, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.”
The applicable maximum penalty was life imprisonment.
 Section 290 arose because the respondent, an experienced diver, had undertaken to act as the “buddy” of his wife, who was inexperienced: he failed to perform his duty towards her and thereby contributed to her death.
 A statement of agreed facts was tendered at the sentencing hearing. What follows is, however, taken substantially from the appellant’s outline, while allowing for some additional aspects to which the respondent’s Counsel have drawn attention.
 The respondent and Mrs Watson were married on 11 October 2003. This diving trip, aboard the dive boat “Spoilsport”, was part of their honeymoon. The trip director or dive master, a Mr Singleton, for safety reasons assessed their respective diving qualifications and experience. Mrs Watson was classified as an inexperienced diver, whereas the respondent was classified as experienced. In summary, he had gained an open water certificate in May 1998, an advanced open water certificate in August 1998, a rescue dive certificate in April 1999, he had completed 55 dives including six at night time, and over the previous 12 months, he had completed 12 dives, the deepest being to 150 feet. Much of his experience had not been accomplished in open waters with strong currents, though there was no suggestion currents played any particular part here.
 Mr Singleton had recommended in the presence of the respondent that Mrs Watson should undertake a day time orientation dive with a professionally trained diver, but she declined on the basis she was comfortable diving with the respondent. On the morning of 22 October 2003 before the fatal dive, Mr Singleton again suggested to the respondent and Mrs Watson that Mrs Watson should participate in an orientation dive, but she again declined on that basis.
 As Mrs Watson ’s dive “buddy”, the respondent undertook responsibility to assist her in any difficulty. Prior to the dive, the participants were extensively briefed. The briefings included instruction that the divers and the buddies must rehearse necessary hand signals, and as to the procedures for raising an alarm in a “lost buddy” situation.
 Mrs Watson and the respondent dived together. There was nothing wrong with their equipment. The prosecution case was that in the sixth minute of the dive, Mrs Watson descended to the sea bed and the respondent ascended to the surface. A fellow diver, Dr Stutz, saw them together, and then separating in that way.
 Although the respondent subsequently gave varying accounts, over some five occasions, and not necessarily in complete detail, he consistently maintained that Mrs Watson indicated she was in difficulty when they were at a depth of approximately 15 metres, and that they then attempted to return to the access line. He was assisting her by holding her hand, and then her buoyancy compensation device. There was an incident where his mask and deregulator were dislodged, and Mrs Watson sank away from him: it was then that he decided to surface. It took him between one and three minutes to ascend.
 There was nothing in his various statements to suggest that the respondent was in a state of panic, notwithstanding he told Ms Schneider afterwards that he had made a “split second” decision whether to follow his wife or go for help. In his
submissions, defence Counsel described it as a case of panic, but the significance of that is diminished by the absence of such claims in the respondent’s various accounts.
 The learned Judge summarized the matter as follows:
“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.”
 His Honour then remarked upon their comparative diving experience, saying to the respondent:
“You were clearly a far more experienced diver than the deceased was … 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 …”
 His Honour then set out particulars of the criminal negligence basing the plea and conviction:
“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. … you failed to make any reasonable attempt to take the deceased to the surface. I therefore accept that you are guilty of the very serious departure from the standard of care which was incumbent upon you with the result that your conduct is deserving of criminal punishment.”
 Later in his remarks, the Judge noted the significance of the period during which difficulties were encountered, “of the order of two minutes from the time that the deceased first started to encounter difficulties until you surfaced”. He referred to “the time within which you made your initial decision to leave her” as “obviously significantly less”. Then he made these observations:
“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 Judge’s sentencing approach
 His Honour noted a number of additional considerations: the tragic consequences of the death of the deceased for other persons, especially those who provided the victim impact statements; the willingness of the respondent to return to Australia at a time when he was apparently facing a murder charge; the significance of the plea in the administration of justice, which the Judge also accepted was indicative of remorse; references attesting to the respondent’s otherwise good character; one consequence of the delay in the prosecution of the case, which was that the respondent bore the burden of its hanging over his head (meaning, an unresolved allegation/charge of murder); the adverse position in which the respondent found himself because of extensive publicity in the interim; and his generally cooperative approach – notwithstanding some discreditable conduct in seeking falsely to blame others. (On 27 October 2003, five days after the death, he told police officers the crew had failed to offer his wife an orientation dive.)
 The Prosecutor submitted before the learned Judge that the appropriate sentence was of the order of six years imprisonment, before consideration of matters in mitigation. Giving full weight to those factors, including the respondent’s voluntary return to Australia and plea of guilty, the moderated sentence should, it was submitted, be not less than five years imprisonment suspended after the serving of 18 months.
 The Judge made reference to R v Pesnak  QCA 245. He determined upon a penalty of four and a half years imprisonment suspended after 12 months. He explained his decision to suspend the term on the following basis:
“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.”
A consequence of the suspension, presumably, is that the respondent will be deported from or able to leave this country after 12 months, rather than being subjected to a continuing parole regime locally.
The scope of this appeal
 The Attorney-General urges this court to approach the determination of the appeal on the basis of the unfettered discretion provided for by s 669A of the Criminal Code, as follows:
“(1) The Attorney-General may appeal to the court against any sentence pronounced by –
(a) the Court of trial; …
and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.”
 That provision was amended in 1975 to add the word “unfettered”. The court nevertheless continued to construe the section on the basis that to succeed in such an appeal, the Attorney-General must show error in the exercise of discretion by the
sentencing court, as covered in House v The King (1936) 55 CLR 499, and that should an appeal be allowed, the court would be constrained to impose a sentence towards the lower end of the appropriate range (cf. R v Dinsdale (2000) 202 CLR 321, 341).
 The appellant submitted that neither of those constraints applied to the discretion to be exercised under s 669A. The same submission was made in an appeal heard before a court constituted by five judges, on 15 and 16 July 2009: R v Dionne Matthew Lacey; ex parte Attorney-General of Queensland (CA 158 of 2009). The three judges comprising this court were also members of the court which heard the Lacey appeal.
 In the instant appeal, the same submissions were made in support of the appellant’s contention as were made in Lacey.
 Counsel for the respondent, in the instant appeal, substantially adopted the submissions made by Counsel for the respondent in Lacey, with some additional submissions which substantially centred about the reference in s 669A to the imposition of a sentence which the court considered “proper”.
 As those additional submissions ran:
“It is implicit in the terms of s 669A(1) that the court will not be moved to ‘vary’ a sentence imposed below unless it is first satisfied that such a sentence was not ‘proper’ … If the sentence (imposed below) falls within the sound exercise of the sentencing judge’s discretion, it will not be capable of being characterized as other than ‘proper’ … The cases speak with one voice to the effect that more than mere inadequacy is required to be shown; there must be an appreciation at least that the sentence below was not ‘proper’.”
 Those additional submissions do not warrant this court’s taking a different approach, in relation to the scope of the appeal, from that adopted in R v Lacey; ex parte A-G (Qld), in which judgment was given on 11 September 2009: see  QCA 274.
The significance of the approach taken by the Prosecutor
 As I have mentioned, before the learned Judge, the Prosecutor submitted that a head sentence of six years imprisonment would be appropriate, before mitigating factors were taken into account, but that:
“To give full weight to those mitigating factors, your Honour could reflect that in both the head sentence and the period of actual custody to be served. If your Honour reduces the head sentence to five years, then your Honour has the option of suspending the sentence but still mark the seriousness of the offending.
It is, therefore, the Crown’s submission that the moderated sentence, giving full weight to all mitigating factors, should be not less than five years suspended after serving 18 months. Your Honour, the benefits of a suspended sentence rather than a recommendation for parole for the accused are obvious. As I understand it, at the end of such a period, the accused would be deported.”
 The appellant now submits that this court should vary that sentence by imposing a sentence of seven years imprisonment, with a recommendation of eligibility for parole after two to two and a half years. The appellant’s concluding submission, in the written outline, reads as follows:
“A criminally negligent killing of a human being should, in general, warrant a substantial period of imprisonment. A head sentence of four and a half years does not adequately reflect the community’s justified revulsion at conduct admitted to be criminally culpable and by which the respondent killed a young woman.”
 Counsel for the respondent emphasized these observations in the comparatively recent decision of R v KU & Ors; ex parte Attorney-General  QCA 20, at paras 37 and 38:
“… while it is true that the proper sentencing of offenders is always a matter of public interest … that interest will only exceptionally justify an appellate court entertaining an assertion on behalf of the prosecution that a sentence imposed in accordance with the prosecution’s submission was not a proper sentence … the abiding reason for this constraint is that, in the administration of criminal justice, the interests of finality are, save in exceptional cases, of paramount importance as a protection of the individual from ongoing harassment by the State.
… an arguably appellable error cannot, without more, constitute ‘exceptional circumstances’ such as would justify exposing an accused person to the additional jeopardy of a more severe sentence than that previously sought by the Crown.”
That court subsequently held, on the substantive hearing ( QCA 154, para 296) that the “errors, and the resulting miscarriage of justice, were [in that case] so serious, and the circumstances in which they occurred so extraordinary, as to warrant allowing the Attorney-General’s appeals, even though the sentences which were originally imposed were essentially in accordance with the submissions put to the learned sentencing Judge by the prosecution.”
 The question which arises in the present case is whether the sentence which was imposed was so inadequate as to warrant the court’s intervention, notwithstanding its not substantial disconformity with the position advanced by the prosecutor before the sentencing Judge. In speaking of inadequacy of that order, I am specifically not suggesting that as a test for intervention on an Attorney’s appeal against sentence, where the discretion is unfettered. I am advancing it as a circumstance which, if established, would warrant the court’s intervening, notwithstanding the particular position advanced by the prosecution at the sentencing hearing, to ensure an appropriate penalty is ordered, with consequent maintenance of public confidence in the administration of the criminal justice system.
An appropriate sentence
 The learned Judge was referred by the Prosecutor to a number of cases involving criminal negligence. They were R v Milini  QCA 424; R v Pesnak  QCA 245; R v Hile  QCA 17; R v Streatfield (1991) 53 A Crim R 320; R v
Cramp (Unreported, Supreme Court of Queensland, White J, 30 January 2008); and R v Stott & Van Embden  QCA 313.
 The penalties imposed in those cases following pleas of guilty range from four to six years imprisonment. Some involved the discharge of a firearm which the offender believed unloaded, others involved the administration of drugs to willing recipients. They are not particularly helpful here, where the criminal neglect was based on omissions.
 Pesnak, to which the Judge expressly referred in his sentencing remarks, was unique. Those offenders were husband and wife who, together with the deceased, were adherents of the cult of “breatharianism”. The deceased voluntarily commenced a 21 day spiritual cleansing program, supervised by the offenders, who it was accepted intended no harm and genuinely believed her difficulties were caused by a spiritual struggle and that she would come to no harm. The male offender, after a trial, was (on appeal) sentenced to four years imprisonment with a recommendation for parole after 18 months.
 This case is much more serious than one where the relevant risk was not appreciated. Here, that risk should have been appreciated, in light of the respondent’s substantial qualifications and experience.
 This respondent had undertaken a duty to sustain the deceased, which he breached in a criminally negligent way. As put for the appellant:
“Christina clearly trusted the offender as husband and buddy. He had much greater diving experience than her. The respondent took on the responsibility of being her buddy on this dive despite the recommendation that she undertake an orientation dive with a dive master. It was the respondent’s level of experience that led the dive operators to allow her to participate in the dive with the respondent.”
 The respondent’s breach of duty was fundamental, and he must have appreciated that, because of his prior qualifications and experience, including the rescue dive certification. As submitted for the appellant in the written outline, “the consequences to the life of Mrs Watson as a result of his breach of duty were virtually guaranteed. He virtually extinguished any chance of survival by allowing her to sink to the sea bed. This case is therefore quite different from those cases where there is a small risk which an offender had not appreciated or hoped would not eventuate … at no point did the offender change his mind and go back to Mrs Watson and attempt to bring her back to the surface. His breach of duty was not merely a momentary one … it is almost inexplicable that he made the decision to leave her.”
 The gravity of the breach may be summarized as did the Solicitor-General at the hearing of the appeal: the respondent undertook, in potentially serious circumstances, to shield from harm an inexperienced diver, whose inexperience had been declared before him, on the basis he would undertake a duty which a professional would otherwise discharge; the one thing he was called upon to do, to bring Mrs Watson to the surface, was simple to accomplish, and his failure to carry it out is unexplained; and there is no circumstance disclosed, eg panic, which would have explained it.
 There is no appellate decision on facts of comparable gravity.
 As observed in Streatfield (p 329), albeit by me in dissent:
“One must be careful in assessing the applicant’s crime not to excuse the result as accidental, because obviously to do that would be inconsistent with the verdict. He is to be sentenced for a criminally negligent killing, not an accident. Courts which impose minimal sentences for criminally negligent manslaughter may sometimes tend to ignore this: they may focus unduly on the offender, and overlook the horrendous consequences of his actions – in this case, the loss of a woman and child to be. Of course, one must in the end arrive at a sentence proportional to the crime, but those consequences should be given due weight.”
 In determining upon a sentence of four and a half years imprisonment suspended after 12 months, the learned Judge was, in my respectful view, unduly influenced by circumstances personal to the respondent, and unfortunately distracted from a sufficient acknowledgement of the gravity of the crime.
 Allowing for the gravity of the respondent’s offending in this particular case, it is my view that had the respondent not pleaded guilty and been convicted of manslaughter at a trial, a sentence of the order of six to seven years imprisonment would have been appropriate.
 Counsel for the respondent submitted such an approach would elevate this case to the level of deaths resulting from substantial violence (cf. R v Tientjes; ex parte A-G  QCA 480; R v Chard; ex parte A-G (Qld)  QCA 372; R v Johnson; ex parte A-G (Qld)  QCA 076). It does not necessarily follow, however, that the penalty for a serious omission must be less severe than for actual serious violence.
 The respondent’s plea of guilty to manslaughter obviously would warrant a moderation of a term of that order. So would his voluntary return to Australia, not only in recognition of his cooperation personally, but also to signal generally that the court will so respond – alleged offenders should be encouraged to return voluntarily in such situations without the need for extradition.
 These and the other mitigating circumstances to which the Judge referred would be appropriately and sufficiently reflected by leaving the term of imprisonment as that imposed by the learned Judge, four and a half years, but ordering suspension after one-half, that is, after two years three months, rather than after 12 months as ordered by the Judge.
 That position would be sufficiently different to justify this court in intervening, notwithstanding the Prosecutor’s position at sentence, for the reasons previously expressed. Under this order, the respondent would have to serve two years three months, more than double that ordered by the primary Judge.
 Suspension should be ordered rather than the making of a recommendation as to parole eligibility, so that the respondent will be in a position to return to the United States following his release from custody. Being subject to parole would likely tie him to Australia for the full four and a half years, which would be unnecessarily consumptive of Queensland public resources, and unduly punitive for him as a US national.
 It must be emphasized that the respondent did not plead guilty to any intentional inflicting of harm. Some of the reported public reaction to this sentencing may have overlooked that. Nevertheless the respondent pleaded guilty not just to causing his wife’s death negligently, but criminally negligently: a breach of duty of such substantial proportion as to attract sanction in the criminal court. That the respondent should, in those circumstances, have been required to serve but 12 months, was plainly unacceptable. While he was not to be sentenced on the basis of any malevolent intent, he caused a death in criminally derelict circumstances, and that warrants this court’s at least doubling the penalty effectively visited upon him by the sentencing court. It is, ultimately, the gravity of so seriously contributing to the death of a fellow human being, which militated a much graver response than was made at first instance. Allowing for the point made at the beginning of this paragraph, that may be achieved by doubling the period the respondent must serve in actual custody. The four and a half year head term adequately allows for mitigating circumstances. The ordinary position should then apply, namely, parole eligibility or suspension after one-half, the latter being preferable because he is a US national.
 It is however the fact that of the other members of the court, Muir JA would dismiss the appeal, and Chesterman JA would allow it to the extent of ordering suspension of the four and a half year term after 18 months, not after one-half as I would propose. In these circumstances, to secure an operative order of the court, I am prepared to join in an order for suspension after 18 months.
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