Regina v Mawson

[2007] NSWSC 1473

CITATION:	REGINA v MAWSON [2007] NSWSC 1473 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20 July, 31 August, 16 November 2007
JUDGMENT DATE :	14 December 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	The offender is sentenced to an overall term of seven years' imprisonment from 11 January 2006, comprising a non-parole period of four years and a balance of term of three years. The offender is eligible to be released on parole on 10 January 2010.
CATCHWORDS:	Manslaughter - diminished responsibility - sentence
LEGISLATION CITED:	Crimes Act 1900 s23A
PARTIES:	Regina Philip MAWSON
FILE NUMBER(S):	SC 2007/378
COUNSEL:	Ms M Cunneen SC (Crown) Mr M Ramage QC with Mr M Dennis (Offender)
SOLICITORS:	Mr I Knight (Crown) Murphy's Lawyers, Inc. (Offender)

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

ADAMS J

14 December 2007

2007/378 Regina v Philip MAWSON

JUDGMENT ON SENTENCE

HIS HONOUR: On 20 July 2007 Philip William Mawson was indicted for the murder of Brett Driscoll on 11 January 2006 at Padstow. To this charge he pleaded not guilty of murder but guilty of manslaughter. The Crown prosecutor accepted the plea of guilty of manslaughter in full satisfaction of the indictment. It was quite proper that this course was taken. The prosecutor informed the Court that the medical evidence demonstrated that, at the time he killed Brett Driscoll, Mr Mawson’s action fell within the meaning of s23A of the Crimes Act 1900 in that his long-established post traumatic stress disorder and acquired brain injury resulted in an abnormality of mind affecting his ability to reason and his judgment of right and wrong and significantly affected his capacity to control his actions. These impairments were so substantial as to warrant liability for murder being reduced to manslaughter. Mr Mawson’s condition resulted principally from the effects of his military service in Vietnam.

1 Mr Mawson was almost sixty-one years of age at the date of the offence whilst Mr Driscoll was thirty-two years old. The chain of events leading to their fatal meeting was a long and tragic one of which perhaps the most significant feature was the mental unwellness suffered by both of them. Had either of Mr Mawson or Mr Driscoll been mentally well, this tragedy would not have happened.

2 Let me first deal with Mr Mawson. Tendered on Mr Mawson’s behalf in the proceedings were reports from Dr Olav Nielssen, Dr Jeremy O’Dea, Dr Bruce Westmore and Dr Karl Koller, all psychiatrists, and Mr W John Taylor, a psychologist. What follows is largely taken from those reports. Dr Koller saw Mr Mawson for the first time on 6 May 1993 on behalf, as I understand it, of the Department of Veterans’ Affairs. Dr Koller’s opinion at that time was that Mr Mawson suffered from chronic posttraumatic stress disorder, the result of extraordinarily stressful experiences in Vietnam in 1967.

3 Mr Mawson grew up in a suburb of Sydney, the youngest of three brothers. He left high school after completing his second year and then successfully undertook a five-year apprenticeship as a shoe clicker, cutting out leather for shoes. After completing the apprenticeship, he went fruit picking in southern Queensland and was conscripted into the Australian Army in 1967 at the age of twenty-one. He had been a keen and active sportsman as a teenager, playing rugby union and boxing professionally. It seems clear that he had suffered a number of head injuries in boxing matches and also had been knocked out on several occasions as a result of assaults upon him.

4 Mr Mawson served in Vietnam as a Private Rifleman from 13 November 1967 to 5 November 1968 having volunteered for this service. On arrival in Vietnam he served for six weeks in the 7th Battalion as a reinforcement, engaged in active duty at Nui Dat. He described to the psychiatrists a number of very distressing experiences in Vietnam including one of shooting a female civilian whom he had mistaken for an enemy combatant only two weeks after he arrived, and which continuously preyed on his mind. When telling Dr Koller in May 1993 about this the doctor said his guilt feelings were obvious and he wept. Mr Mawson was involved in fighting around Hue in the Tet offensive in which his unit suffered casualities and he saw many dead bodies and badly injured servicemen and civilians. On one occasion whilst on duty at Nui Dat his unit was ambushed in the early hours of the morning whilst on patrol. Following the detonation of explosives he became disorientated and, thinking he was running back to his platoon, in fact found himself running towards the enemy. When he realised he was running with the enemy instead of away from them, he went to ground and started firing indiscriminately. He could hear enemy combatants screaming and dying around him. At this time an artillery barrage was brought down on the enemy position which was, of course, where Mr Mawson also was. He was terrified for his life. Mr Cripps is a friend of Mr Mawson’s who served with him in Vietnam and gave evidence in the proceedings. He also was involved in the ambush in which Mr Mawson found himself running in the wrong direction. He confirmed Mr Mawson’s account and added that when “he eventually got back to the platoon he was covered in blood which we found was not his and he was shaking and seemed really strange. After the ambush incident he continued to do his duty, but was never the same bloke again. Up until then he had not been a drinker, but after that he drank increasingly heavily.” After this incident Mr Mawson seemed to have a very short fuse and would overreact to situations. Mr Cripps kept in touch with Mr Mawson on their return to Australia and over the years had often discussed with him the problems with sleeping, nightmares and flashbacks to Vietnam. He told Mr Cripps that he drank to dull his memories.

5 During his service in Vietnam, Mr Mawson was trained to shoot enemy combatants in the head, whether they were injured or already dead, as he was told it was thought that the Vietnamese believed that a bullet wound to the head would cause their spirits to escape into the jungle, something which was greatly feared. The troops were instructed to leave the enemy dead with such head wounds in locations where their bodies would be readily found by survivors in order to frighten them. Mr Mawson carried out his duties in accordance with these instructions. He has suffered intrusive thoughts and nightmares about this aspect of his service since his return to Australia. Overall, he has experienced flashbacks, continuous nightmares, disturbed sleep, depression, irritability, outbursts of anger, hyper-vigilance, intrusive thoughts, anxiety, social withdrawal and paranoia to a greater or lesser extent since his return from Vietnam in 1968. Since Vietnam he has developed excessive alcohol consumption to such an extent as probably to have caused brain damage.

6 Another of Mr Mawson’s long-time ex-army acquaintances was a Mr Kajan who, in late 2005, invited Mr Mawson to go back with him on a trip to Vietnam. He said that he was aware that Mr Mawson had served in Vietnam and had nightmares and flashbacks and the like and thought perhaps going back to Vietnam would help him to deal with these matters. It is unnecessary to go into the details of their visit except to say that the response of Mr Mawson was a bad one. Indeed, Mr Kajan described him as “a mess when he came back”. It seems clear that this visit exacerbated Mr Mawson’s symptoms during the months leading up to the commission of the offence.

7 Mr Mawson’s eldest daughter, Mrs Taylor, gave evidence about her father’s behaviour at home. She said that her bedroom was next to that of her parents and she would often hear him crying out at night. He would be yelling and talking. She said that every Sunday night her mother worked and her father would drink. This was before he retired in 1995 from his job as an inspector with Fairfield Council. She said that Sunday nights became a ritual. Mr Mawson would talk for hours about what happened in Vietnam. She stayed to listen. Her siblings would hide in their bedrooms. Some incidents would be vividly described, some were very blurry. Often he would break down and cry and ask to be left alone. She said she stayed because, although she heard the same stories again and again, particularly about being trapped with the Vietcong in an ambush and an incident in which he had accidentally shot a Vietnamese woman thinking she was the enemy, she thought that letting her father talk might do him some good.

8 Mr Mawson returned from Vietnam as one of the walking wounded. His wound could not be seen: it was to his mind. But it was deep, it was permanent, it was painful, it profoundly changed his personality and it was suffered in the course of doing his duty for his country.

9 Now I come to deal with Mr Driscoll. It necessary that I deal with his conduct because it is of fundamental importance in understanding what happened and how he came to be shot. It is a rare case where this must be done. I am conscious that it will cause further distress to his family and I regret the necessity of doing so but it is inescapable.

10 Mr Driscoll had been a friend of Mr Mawson’s children for many years, including in particular, his son-in-law, Fred Alarcon. It appears that they got to know him through attending karate classes together. They became friends in about 1996 or 1997. Mr Alarcon got to know Brett in Year 7 at high school. He moved away after a couple of years but then moved back into the Padstow area and, in about 2002, he became involved in a scaffolding business. He met up with Brett on one occasion, who was looking for work and employed him on a fulltime basis as a labourer/scaffolder. He said he found Brett very reliable and he worked for him for about two years. Mr Alarcon says that Brett then moved away from Sydney and would telephone him from time to time. After a year or so, as Mr Alarcon recalls it, Brett made his way back to his parents’ place in Padstow and the two men made arrangements to meet up with each other. This was some time in 2004 as Mr Alarcon recalls it.

11 Mr Alarcon stated the following –

“I went to Brett’s house one afternoon…I met him at the front door. Brett was home by himself. When I walked inside the house, there were about twenty candles burning in the lounge room area. Brett said to me, ‘Have you heard the voices?’ I said, ‘No, I haven’t heard anything’. I didn’t know what he was talking about. Brett started saying things like, ‘Victoria [his former girlfriend] is possessed by the devil, don’t worry, you’ll hear the voices, tonight, tomorrow or next week’”.

12 Mr Alarcon said that he did not feel comfortable, that Brett was not the same as he had known him to be and he left the house. There were later conversations about hearing voices. He said –

“Every couple of weeks Brett would still make contact and we would catch up now and again. Brett would always bring up the subject of hearing voices. He kept telling me, ‘You’re part of the army of angels, we have to go out there and help other people. They are raping our kids. We have to rape their women and come inside them and get the devil out of them.’ This was too much for me. I told him, ‘Brett, you need help’.”

13 Mr Alarcon said that he suggested to Brett’s brother that maybe if Brett came back to work for him that might help him as he would have something to do and all the other boys would there at work so he could talk to them. After only three days on the job, he had to let him go as the other workers complained that he was too dangerous to work with. On one of the days Brett came back to work he disappeared during lunchtime. He was found arguing and swearing and cursing at somebody, but no one was there. Mr Alarcon said that Brett would throw things around while he was working and he would pass things in a way that was aggressive and unsafe. The other workers were scared to work with him. The first time that Brett behaved in this way, Mr Alarcon told him not to do it but Brett acted as though nothing was wrong and said he did not know what Mr Alarcon was talking about.

14 It was a few weeks after Mr Driscoll was let go that he started to go around to the home of Mr Alarcon to yell abuse and make threats. I move now to the evidence about these incidents.

15 It appears from an affidavit of Bianca Mawson, Mr Mawson’s daughter, that, on 4 June 2004 in the early afternoon, Mr Driscoll stood out the front of her house violently ranting and cursing and making threats to her then fiancée, Mr Alarcon, and towards their daughter and herself. He yelled at the top of his voice that he would “teach us all a lesson and he will burn the house down”. She said that Bankstown police were called and a report was made about this. However, in the morning of the following day, when Ms Mawson was alone with her six year old daughter, Mr Driscoll again stood out at the front of the house screaming, cursing the family and talking in gibberish as though, Ms Mawson thought, “he was placing a curse on us”. Bankstown police were again notified and another report was made. Ms Mawson said that these were not the only incidents involving Brett standing outside her home and abusing and threatening herself and her family. She says that before these occasions there were about six or eight of these incidents which took place at night. She could hear Brett’s voice although she could not see him. After the incidents of 4 and 5 June 2004, Ms Mawson says there were about six more incidents of a similar kind in which Brett would scream abuse and “threaten to kill us and threaten to burn our house down”.

16 Ms Mawson said that during this time she was seeing her parents frequently and, not surprisingly, would discuss her concerns about Brett Driscoll with her father. She said that she wanted him to be fully informed about what was happening as her parents lived close by and could be contacted quickly for help if the need ever arose. She said that her father’s response about Brett was that he was sick and that she should stay away from him and that he also would say that he did not want anything to do with him.

17 Ms Skye Mawson, another daughter of Mr Mawson, was living with her parents in January 2006. She says that she recalled, a few weeks before Brett died, he came around to the house and gave her a green bag with some documents inside it for her father, which she gave to him in due course. I will return to this matter shortly. She says that a couple of weeks later, Brett came around to speak to her father, although she was not present when this happened. However, she said that her father appeared to be angry. Ms Mawson said that in the early hours of 9 January 2006 she was asleep in bed at the home when she heard two big bangs which woke her up. Her father was not at home at the time. She said that she heard a male person outside the house screaming but could not understand what that person was saying. Mrs Mawson said that when she got downstairs she looked through the glass panel on the door and could see a small fire burning on the front lawn. She said that at first she did not worry about this very much as it was only small and was not close to the house. At all events, it was raining slightly. However, when she tried to open the door to see what had happened she found that it was partly blocked by a broken pot plant base which had shattered against the door. She said that she could not open the security door to get out of the house. It seems that the explosive sound that had been earlier heard was caused by the pot plant being thrown against the front door. Mrs Mawson heard a male yelling out, ‘I’m going to kill you fucking women’. She did not recognise the person but her daughter Skye did. It was Brett Driscoll. On the following morning, Ms Mawson told her father about what had happened on the night before. He was on holidays in Canberra at the time. On the morning of the following day, 10 January 2006, they noticed when they woke up that there was a lot of fire damage to the front lawn of the house and to the vegetation near the front door. The steps to the front door appear to have been blackened by fire and there was smoke all through the house downstairs. They had not heard anything the night before. Brett had been seen by a neighbour of the Mawsons outside the premises at the time of the fire. He was swearing and yelling abuse in a loud voice. The neighbour told Ms Mawson what he had seen.

18 The offender arrived home at about lunchtime on 10 January 2006. He was shown the fire trail on the front lawn of the premises leading up to the blackened area on the steps at the front door by Ms Mawson who expressed her great concern to him about the fire and the actions of Brett Driscoll. Mr Mawson closely examined the fire trail and was unusually quiet. He appeared to his daughter to be in a state of shock.

19 It will be recalled that some weeks before the killing the deceased had delivered some documents to Mr Mawson’s home. It appears that he had asked Mr Mawson to help sell this “book” to his army and motorbike club friends. Mr Mawson told Dr O’Dea that the book was “about how to bring the army and navy in to get the Lebanese out of Australia”. He said that he told Brett that he had handed the book on but in fact he had not. He gave it to Mr Alarcon to prove that Brett was dangerous and should not be employed in his scaffolding business. Mr Mawson told Dr O’Dea that Brett began to harass him about the book and about the money he believed Mr Mawson owed him from its sales. I have been handed a collection of papers which were addressed to Mr Mawson by the deceased which commenced with the following –

“I’m escaping Banks House tomorrow. I’m supposed to be receiving something from the Rebs [interlined $500,000 - $1,000,000 cash…]
I can’t ask any gangs to hide me, but you can get the boys to make sure, Mental Health and Cops stay away and respect me.
I will be at your house approx 10a – 2p tomorrow.
I know a lot of bad things happen to my woman, she was too scared not to comply, they made her look bad.
I need help now, no strings, let’s not talk to each other about…you know…”

The document goes on for another nineteen pages. It shows plainly that the deceased was seriously mentally unwell and delusional at the time it was written. Although it does not contain any direct threats, I think it is a very troubling document for anyone to receive. It shows beyond question that Mr Driscoll was beyond reasoning, a conclusion reinforced by the bizarre, aggressive and potentially very dangerous behaviour involving threats to kill Mr Mawson’s family and going so far as to light fires in the near proximity of his home.

20 Medical information about Mr Driscoll confirms a history of admissions to Bankstown Hospital in July 2002, September 2002, April 2003, April 2004, May 2004, June 2005 and December 2005. He was discharged on community treatment orders and was known to abuse amphetamine.

21 If Mr Mawson thought that Brett Driscoll was dangerous and potentially homicidal, as he plainly did, I say with regret that he had every good reason to think so. The fact that Mr Driscoll was obviously mentally unwell did not mean the danger was less. To the contrary, it made him more unpredictable and, of course, impervious to reason. Mr Mawson’s paranoid thoughts and protective feelings for his family were therefore based on solid facts, for all that in his unwell mind they may have been irrationally enhanced and his capacity to respond appropriately was distorted.

22 The following account of Mr Mawson’s response to the attacks on his home and family is taken from the history given to Dr O’Dea. It differs in some respects from the histories given to the other doctors but I do not think anything turns on this. Mr Mawson told Dr O’Dea that he had decided to wait up during the night of 10 January armed with a baseball bat to see if Brett would “come and try it again”. He told Dr O’Dea that he was “going to take him out with [the baseball] bat…break his legs and scare the shit out of him…” He said that he sat up drinking all night waiting for Brett but he did not come. He said that he eventually went to bed at about 8am on the morning of 11 January and slept until about noon. He started to drink heavily. Indeed, at about 5.30pm when Mrs Mawson came home they had an argument about his drinking alcohol. Mr Mawson decided he would walk to the local liquor shop to purchase some more alcohol and armed himself with a .22 magnum pistol which he placed in a holster attached to a parachute cord hanging from his neck. He told Dr O’Dea that he carried the weapon in this manner to reduce the likelihood of detection if he were searched. He said that he took the gun with him, “in case I ran across [Brett Driscoll]…I was going to shove it up his nose, cock it and say, ‘back off from my family or you’re dead’ and see what he says”.

23 Mr Mawson said that on his way to the liquor store he had walked past the end of the street where Brett Driscoll lived. It was then about 7.30pm; it was dark and raining. He said that he had not intended to walk down the street to Brett’s house but “because of his mum and dad…I wouldn’t do it to them…they are good people…I just wanted to scare [Brett]…” He said that as he was walking past the end of the street he saw Brett reverse his car out of the driveway with a female in the passenger seat, whom he knew to be a neighbour. He said that Brett saw him and he yelled out, “You’re fucking dead, Mawson”. He thought that he was about thirty feet away at this point. Mr Mawson said that he then “raced up to the car…pushed the gun through the window of the car towards his head and said, “you’re the one who’s going to be dead if you don’t leave my family alone – then it went pretty blurry. The car kangaroo-hopped, the gun went off and that’s where I lost it. I snapped.” Mr Mawson thought that there must have been a scuffle as Brett got out of the car. He told Dr O’Dea that he thought that the smell of the firearm had “sent me back to Vietnam, to one of the search and destroy missions”. He added that, “apparently the neighbours came out and I was standing over [Brett] on top of him, screaming Vietnamese at him”. He said that he had emptied the revolver with eight shots into Brett and had come to his senses “still clicking the gun at the time”. He told Dr O’Dea he asked himself, “Shit, what have I done?” Mr Mawson said that the female passenger had run off when she had seen him with the gun. He said that after the shooting when he looked down at the body he saw a familiar gunshot pattern he had learned in Vietnam, “one [bullet] on each side [of the chest] and one through the forehead…we call it the cross”. He stood over the body until the police arrived. A blood sample later taken from Mr Mawson showed .008 grams of alcohol per 100mml of blood, which translated to a likely blood alcohol concentration at about 8 o’clock of 0.118 per 100mmls. Significantly, I think, no dothiepin was detected. Dothiepin was the drug which had been prescribed for him to relieve the symptoms of his PTSD, which he had been taking for many years.

24 I note that the agreed statement of facts does not refer to the threat Mr Mawson claimed to Dr O’Dea had been made by Brett. It may be that Mr Mawson believed that something like this had been said. The statement of facts says that Mr Mawson stood about a metre from the driver’s seat and yelled at Brett, “I told you not to fuck with me”, holding the gun in his hand. Brett said, “Oh shit” or something like that. The offender walked closer and pointed the gun at his head saying again, “I told you not to fuck with me”. Brett accelerated the car, the passenger screamed and heard the gun go off, got out of the car and ran away, hearing further shots as she did so.

25 The deceased’s ex-girlfriend, Ms Pickering, was in the bedroom of the house when she heard Brett start the car. She saw it reversing and suddenly heard sounds like a car backfiring, perhaps three, and heard screams. She ran to another bedroom and looked out of the house. She saw Mr Mawson standing next to the driver’s side of the car holding a gun with his right hand raised. He fired two shots at the deceased. He seemed to reach in closer for the second shot. She saw the deceased open the door and it hit the offender who took a step back. She saw the offender raise his right hand again and heard more shots aimed at the deceased. He got out of the car and stumbled, running to the back of the car and into the middle of the road. She saw Mr Mawson shoot at him as he walked towards him. Mr Mawson was standing at the rear of the car shooting at the Mr Driscoll, who stumbled and fell to his knees. After he fell to the ground Mr Mawson approached him, stood beside where he was lying and shot him. Ms Pickering came out of the house and stood in the driveway. She heard Mr Mawson say, “Get out of here”, apparently directed to drivers of cars that went past. A truck drove passed and stopped and the passenger heard Mr Mawson say, “I just killed a dog”. He also said to some other witnesses, “I’ve just killed the cunt. Call the cops if you want to”. Ms Pickering asked him why he had done this saying, “Has he done something bad to you, has he hurt anybody in your family?” Mr Mawson replied, “He threatened my family, my daughter and my wife. I’m sick of him threatening my family”. She asked to see him and Mr Mawson said, “No, get out of here, get back to the house”. Shortly after the police and arrested Mr Mawson at the scene. A constable asked him, “What did you do?” Mr Mawson replied, “He got what he deserved. He tried to kill my family last night. Payback’s a bitch”. Whilst in the caged police vehicle on the way back to the police station Mr Mawson said to the police sergeant who was there at the time, “I got him coming out of the driveway…he teaches my kids karate and he tried to burn my house down last night, this is payback”.

26 The post mortem showed that Brett Driscoll died as a result of gunshot wounds to the head and trunk but the agreed facts does not state how many bullets actually struck him.

27 Mr Mawson told Dr Westmore, in effect, that he had taken the gun with him that day in case he came across Brett Driscoll who might attack him and “in hand to hand he could kick the shit out of me”. He agreed that he had taken the gun so that he could have an advantage over the deceased, and commented, “Yes, because sometimes he would drink in our hotel”.

28 I am satisfied that Mr Mawson did not go looking for Mr Driscoll and that it was a tragic coincidence that he saw him in the car as he (Mr Mawson) was on the way to the bottle shop. In my view, the sight of Mr Driscoll triggered the feelings of anger, fear and frustration he had about his attacks upon his family and home and provoked a violent response that was largely if not completely beyond his capacity to control, a conclusion supported by the very circumstances of the shooting.

29 I accept the opinion of Dr Nielssen that Mr Mawson has an underlying condition within the meaning of s23A of the Crimes Act 1900 in the form of a chronic and long-established posttraumatic stress disorder with acquired brain injury. His condition resulted in an abnormality of mind in the form of increased vigilance, perception of threat and a tendency to return to states of mind associated with former trauma. His condition significantly affected his perception of events, including the level of threat posed by Mr Driscoll, although that threat in my view was very serious. His state of mind also affected his judgment of right and wrong, because he believed he and his family were in danger. His heightened state of arousal and underlying brain damage is likely to have significantly affected his capacity to control his actions. The final shot to Mr Driscoll’s forehead – if this actually occurred – is likely to have been in part due to symptoms of PTSD, during which Mr Mawson experienced his state of mind during the war and behaved in a way associated with his military training.

30 Dr Nielssen’s succinct summary of the position is, I think, correct –

“Mr Mawson’s offence is the result of a collision between the increased risk associated with an armed, brain-damaged, hyper-vigilant and alcohol-affected former soldier and circumstances arising from the threat posed by an irrational, mentally ill person who had apparently attempted to burn his house down and who had made serious threats to his family.”

31 This is not, of course, to excuse Mr Mawson from criminal responsibility in relation to his acts. The wide range of chronic symptoms which would have been aggravated at the relevant time which derived from his posttraumatic stress disorder and organic brain disease substantially impaired his capacity to control his actions in relation to the deceased but did not completely do so. He was aware that what he was doing was against the law. Nor was he so mentally ill that he did not know that shooting the deceased was morally wrong. I am certain, however, that had he not been mentally unwell to a significant degree, he would not have done what he did. Nor would anything like this have happened if he had not been seriously provoked by the grave threat presented to his family’s well being by the deceased.

32 Senior counsel for the Crown submitted that Mr Driscoll’s actions had not actually resulted in any injury and his actions were little more than an annoyance to Mr Mawson’s family. Certainly no injuries occurred and perhaps there was no attempt to injure. But the threats were dire and the fires had escalated to the front door of their home. It obvious from what I have already said that I reject the Crown’s characterisation of the threat posed by Mr Driscoll’s behaviour.

33 So far as the future is concerned, I think it is very unlikely that Mr Mawson will offend again. The circumstances that led to his killing of Brett Driscoll were unique. As I said, had Mr Driscoll not attacked his family, I am quite sure that Mr Mawson would not have committed this offence. Having seen Mr Mawson initially in July 2006, Dr Nielssen saw him again on 28 August 2007. Dr Nielssen’s mental state examination was as follows –

“Mr Mawson looked in much better physical health than at the time of the previous assessment. He had lost weight and his physique had improved as a result of increased activity and training. His emotional responses were not as labile as during the first interview and his underlying mood was not thought to be depressed. He still had problems hearing, but his communication seemed to have improved, probably because he was more alert. Some of his answers wandered from the point onto irrelevant anecdotes, but overall his intellectual performance was thought to be within normal limits from the detailed history he was able to provide and his knowledge of current events. There were no features of psychotic illness.”

34 Dr Nielssen considered that several of the risk factors that had contributed to Mr Mawson’s behaviour appeared to have been addressed, as Mr Mawson had reported that he no longer had any interest in possessing a firearm or any other weapon, that he had given up drinking and also that he was much less affected by PTSD symptoms now that he was receiving effective treatment. The doctor noted, however, that the underlying brain damage is permanent but it seemed that there was some improvement in mental performance because of continued abstinence from alcohol and the improvement in mood. Accordingly, Dr Nielssen regarded Mr Mawson’s alcohol abuse disorder as being in remission and his chronic PTSD in relative remission (because of medication, I think) although he had continued post traumatic brain damage.

35 Although I notice from Mr Mawson’s record that there was a previous example of criminal violence in 1991 involving an offence occasioning actual bodily harm, he was fined $400 in relation to this offence, so it was plainly not one of serious criminal culpability. In 1973, he was convicted of assaulting and hindering police for which he was sent to gaol for three months. It seems to me that this criminal record highlights the unlikelihood that Mr Mawson will commit any further offences and reinforces my opinion that this offence was a tragic combination of unique circumstances most unlikely to occur again.

36 I should say something about the Victim Impact Statements that have been tendered. On the sentencing hearing victim impact statements were received from Mr Driscoll’s parents, brothers and Ms Pickering. They express in moving terms the dreadful loss they have suffered from the death of their loved one. Despite his mental problems, he had many good qualities: he loved and was loved. His tragic and untimely death will be a cause of continuing grief and loss, which can never be assuaged. Least of all by anything that this Court can do.

37 It is important to understand, however, that by permitting victim impact statements to be received in a hearing such as this, the law does not thereby place them in the scales of justice to be weighed by the Court in determining sentence. The taking of a life is the gravest injury known to the criminal law. It cannot be made more serious because the victim’s death is the cause of pain or grief to others, however intensely felt. The life of one person cannot be regarded as more valuable than the life of another, or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. To do this would undermine the moral standards essential to the maintenance of the rule of law. It would be wrong to take one day from an otherwise appropriate sentence for unlawful killing because the deceased was selfish, obnoxious or mentally disturbed and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was honourable, loved and missed dreadfully by friends and family, one or more of whom have suffered as a consequence of the death. If this were not so, counsel for the killer might rationally submit that as the victim was unloved or unlovely, his or her death mattered less and the sentence should be more lenient, and the Crown Prosecutor, by pointing to a grieving family, angry onlookers, or an indignant media, submit the penalty should be greater. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process.

38 For these reasons, although it is entirely proper that Brett Driscoll’s kith and kin should be able in this place to express their feelings of grief and loss at his sad and tragic death, the Court cannot take this into account in sentencing the offender.

39 Mr Mawson’s eldest daughter gave evidence in the proceedings about visiting her father with her mother almost Friday since his arrest on 11 January 2006. She said –

“We do not discuss the shooting as my father gets upset and we are only allowed one hour visits. The only talk about the shooting is my father telling us how sorry he is that it happened. He talks about the pain it has caused everyone. He repeats that it shouldn’t have happened. My father says how hard it must be for Brett’s family to lose a child and he couldn’t imagine the pain they must be going through. He has many times spoken of his sadness for Brett. He is emotional and teary eyed when he speaks about it.”

40 I am satisfied that Mr Mawson is truly remorseful and contrite over what he did.

41 In my view also, Mr Mawson’s sentence should be moderated to some degree because of his war service, that had such a catastrophic effect on him. His mental unwellness not only substantially affects Mr Mawson’s criminal culpability but also makes it inappropriate to take into account any significant degree of general deterrence. So far as personal deterrence is concerned, I am satisfied that his prospects of rehabilitation are good and it is most unlikely that he will offend in this way again.

42 I bear in mind that Mr Mawson has been in custody since 11 January 2006 and kept in maximum security for that time. Had he been sentenced at an earlier point, he would I think have been quickly moved to a lesser security prison. His sentence, of course, will commence on 11 January 2006.

43 It was agreed by the Crown prosecutor that the plea of guilty was entered on the first practicable occasion. In accordance with the judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] 49 NSWLR 383; [2000] NSWCCA 309, the sentence that I would otherwise impose should be reduced by twenty five per cent.

44 Having regard to the fact that this is, for practical purposes, the first sentence of imprisonment, that his mental condition makes it more difficult to cope with the prison environment and that he will need a more extensive period of supervision on parole than would be provided by the statutory ratio in s44 of the Crimes (Sentencing Procedure) Act 1999, there are special circumstances justifying the variation of that ratio.

45 Making allowance for a utilitarian discount of twenty five per cent, I sentence the offender to an overall term of seven years’ imprisonment from 11 January 2006, comprising a non-parole period of four years and a balance of term of three years. The offender is eligible to be released on parole on 10 January 2010.

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14/12/2007 - Judgment date omitted - Paragraph(s) Coversheet