R v Saw

Case [2004] VSC 117 16 March 2004

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1504 of 2003

THE QUEEN

BERNARD MICHELL SAW

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JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2004
DATE OF SENTENCE:	16 March 2004
CASE MAY BE CITED AS:	R v Saw
MEDIUM NEUTRAL CITATION:	[2004] VSC 117

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Sentence – Murder – Plea of guilty – Severe depressive illness – Elderly offender.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S Cooper	Ms K Robertson, Solicitor for Public Prosecutions
For the Accused	Mr G Lyon	Victoria Legal Aid

HIS HONOUR:

Bernard Michell Saw, you were arraigned before Teague J on 2 December 2003 and pleaded guilty to the murder of Alan George Barker on 7 March 2003.

At the time of his death, Alan George Barker, aged 84, your first cousin, once removed, lived alone in an apartment at 193 Domain Road, South Yarra, his wife having died some seven years earlier. For many years Mr Barker had conducted a successful business dealing with the manufacture of precision instruments. He had introduced speed cameras and radar guns into Australia many years ago. As a consequence of his business, Mr Barker became a wealthy man and was a collector of valuable antiques which he kept in his apartment.

The offence

Mr Barker had a housekeeper, Ms Mary Scott, who would call in each day to tidy the apartment. On Friday, 7 March 2003 Mr Barker told his housekeeper that he had received a surprise telephone call from you, describing you as the grandson of his uncle George. Mr Barker said that you were coming to visit him that afternoon. Some five years previously you had visited him at his South Yarra apartment for a family function. Mr Barker appeared surprised by your intended visit. You had had little to do with him and met him only on infrequent family occasions.

That same morning a close friend of yours, James Marr, who gave evidence on your plea, visited you to repay a minor debt. You seemed to him to be normal when he spoke with you that morning.

The building supervisor at the building in which Mr Barker lived, observed you with a suitcase at about 2.30 p.m. as you were speaking to Mr Barker on the intercom. He overheard you telling Mr Barker that you weren't sure what floor he was on. The supervisor approached you and asked whether he could help. You told him you were going to visit Alan Barker in his apartment.

Security video footage later obtained showed you carrying a suitcase walking to the security intercom system shortly after 2.30 p.m. The security video records you leaving the building at 8.01 p.m., some five hours later.

Ms Scott left Mr Barker at the apartment at around midday. She had expected a phone call from him that evening and when she was unable to make contact with him by telephone, the next morning she returned to the apartment at 11.30…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Saw

Details

AGLC: R v Saw [2004] VSC 117
Case: [2004] VSC 117
Decision Date: 16 March 2004

CaseChat Overview and Summary

The defendant in R v Saw pleaded guilty to murder and was sentenced to life imprisonment. The case arose in the Supreme Court of Victoria, where the defendant, Saw, faced charges for the murder of an elderly man. The primary dispute centred on the appropriate sentence to impose, with consideration given to Saw's severe depressive illness and advanced age at the time of sentencing.

The legal issues before the court involved balancing the culpability of the crime with the mitigating factors presented by Saw's mental health and age. The court was tasked with determining the appropriate sentence, considering the principles of justice and the need to provide deterrence, as well as rehabilitation and protection of the community. It was necessary to examine the impact of Saw's severe depressive illness on his capacity to control his actions and the potential for his rehabilitation.

The court, in its reasoning, acknowledged the gravity of the crime but also recognised the mitigating factors presented by Saw's severe depressive illness and his age. The court concluded that while the murder was a heinous act, the mitigating factors warranted a sentence that reflected both the need for punishment and the potential for rehabilitation. Consequently, the court determined that a life sentence was appropriate, with Saw eligible for parole after serving a specified period. The final orders of the court included Saw's conviction for murder and a life sentence with parole eligibility, taking into account the mitigating factors of his illness and age.

Orders