REGINA v MAWSON [2007] NSWSC 1473

New South Wales Supreme Court

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…"