Gabe Watson and Dionne Lacey

By Calvin Gnech, Criminal Lawyer and Legal Practice Director at Gnech and Associates
Date 2020

Introductory Remarks

The Gabe Watson case has obviously triggered a lot of interest amongst police in regard to the prosecution’s position at sentence when considering an appeal. Police become frustrated when a Magistrate makes what are believed to be inappropriate sentences and/or findings of guilt and there is no support by the QPS to pursue an appeal. 

Decisions by a Magistrate are appealed via section 222 Justices Act 1886, so it must be remembered anything appealed from the District Court, like the cases of Gabe Watson’s and Dionne Lacey, do not operate under section 222.

Additionally, it should be kept in mind that in the end, the new position found in R v Lacey was short lived, as on 17 April 2011, the High Court of Australia handed down a decision returning the law to its previous position and overturning the decision of the QLD Court of Appeal – Lacey v Attorney-General of Queensland.

Facts Surrounding the Gabe Watson Case

Watson and his wife Tina were married on 11 October 2003 and honeymooned in Australia. Watson was a highly experienced scuba diver however his wife was not. On 22 October 2003, they participated in a dive at Townsville that others had advised against Mrs Watson doing, as she had not done an orientation lesson. Watson agreed to be her ‘diving buddy’ and look after her.

Some six minutes into the dive, Mrs Watson indicated she was in trouble whilst some 15 metres down, on the sea bed. Watson’s mask was dislodged along with his deregulator at this time, he decided to surface and Mrs Watson sank away from him. It took Watson one to three minutes to ascend.

After a coronial inquiry in November 2007, Watson was committed to stand trial for the murder of his wife. Watson was charged that on 22 October 2003 at the Yongala shipwreck near Townsville he murdered Christina Mae Watson. Later, through what has been readily described as a plea bargain, the Crown Prosecutor informed the learned primary Judge that the Crown accepted the plea to manslaughter in full discharge of the indictment.

Watson’s Plea

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, 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 Failure of Duty

His Honour, the sentencing Justice, then set out particulars of the criminal negligence based on his 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.”

The Prosecutor submitted that a head sentence of six years imprisonment would be appropriate, before mitigating factors were taken into account. It was conceded after mitigation this head sentence may be reduced to five years. The Crown therefore submitted the sentence should not be less than five years suspended after serving 18 months.

Watson was sentenced on 5 June 2009 to four and a half years imprisonment, suspended after one year (for an operational period of four and a half years). There was community outrage and the Attorney-General appealed under s669A(1) of the Criminal Code.

The Attorney General Appeal

On Appeal the Crown now submitted that the sentence should be varied by imposing a seven year head sentence with eligibility for parole after two to two and a half years. The Attorney-General urged the Court of Appeal 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-

• 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.”

Is there a need to show error?

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).[1]

Ultimately the Court of Appeal found unanimously that they were not restrained by the prosecutor’s submission before the trial justice and there was no need to establish error on behalf of the trial justice.  The authority for this came from R v Lacey; ex parte A-G (Qld.)[2]

Facts Surrounding the Dionne Lacey Case

On the evening of 6 May 2007, in a home unit in Nerang, the appellant, Dionne Lacey, shot and killed another young man, Kevin Palmer.  Seconds before the killing, the appellant’s elder brother, Jade Lacey, used the gun he was carrying to shoot Mr Palmer in the thigh.  The victim was within two or three metres of Jade Lacey when he fired and was within a few metres of the appellant when the fatal shot was fired.

After a 14-day trial, the appellant was found not guilty of murder but guilty of manslaughter and sentenced to ten years imprisonment.  In determining the sentence, the primary judge reduced the 12-year term which he regarded as appropriate, by taking into account 733 days served by the appellant in pre-sentence custody in respect of another offence.  

The Attorney-General Appeal

There were a number of grounds for appeal in this matter but here we are strictly considering the issue surrounding Attorney-General appeals. 

The Court of Appeal, four justices to one, concluded the previously accepted approach (that there must be an error by the trial judge[3]) was opposed to the undoubted intention of the Parliament as enacted” in s669A in its current form.

In these circumstances, the Court should not adhere to that erroneous approach but must apply the law as enacted by Parliament.

The Court in exercising its discretion must have regard to the sentence imposed below, but come to its own view as to the proper sentence to be imposed.

Therefore, the Attorney-General appeals do not need to establish an error by the trial justice as the Court of Appeal must act in conformity with the principles relevant to the exercise of judicial power.

It must be remembered that section 222 appeals under the Justices Act are somewhat different and the above authorities do not strictly apply. 

High Court Overturning of the Lacey Judgement

This law was short-lived however as on 7 April 2011 the High Court of Australia handed down a decision returning the law to its previous position and overturning the decision of the QLD Court of Appeal – Lacey v Attorney-General of Queensland [2011] HCA 10 (7 April 2011.)

A very short change in the law!!