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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