R v Saw [2004] VSC 117

Supreme Court of Victoria|2004-03-16|Before: Redlich J

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

1 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.

3 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.

4 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.

5 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.

6 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.

7 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 am. She found the security door to Mr Barker's apartment ajar and she unlocked the wooden door. When she opened the door she discovered Mr Barker lying just inside the door. A huge and heavy French figurine which usually stood on a table just inside the doorway was smashed with some pieces over the deceased and bits and pieces on the floor. The deceased's head and upper body were spattered with blood and there was a great deal of blood on the floor and walls adjacent to the front door. Ms Scott observed that the cupboards throughout the apartment were open and things appeared to have been taken.

8 Based upon the evidence of the Victoria Forensic Science Centre Crime Scene Unit, it appears that after being let into Mr Barker's apartment by him, you struck him with multiple blows upon the head and upper body using the figurine which was just inside the front door. After initially striking Mr Barker you continued to hit him whilst he was lying on the floor close to the front door. You subsequently moved Mr Barker from that position so that you could open the front door to leave on your departure from the apartment.

9 At autopsy, it was shown that Mr Barker had 28 injuries to the head and the neck including fractures to the head and face. You had struck him to the back, front and left side of the head causing multiple lacerations and de-gloving of the scalp. He had multiple injuries to the chest including fractures of the ribs and multiple injuries to both the right and left arms. Within a very short time after you had entered the apartment, you rendered the deceased unconscious as you continued to rein blows to his head. You sustained a number of lacerations to your hands at the time that you attacked Mr Barker. Your DNA was found on a door handle near the lift, the lift button and on a wall inside the deceased's apartment.

10 Following your savage attack on Mr Barker you spent some five hours in his apartment gathering valuable antiques and a Pro Hart painting whilst he lay dead in the entrance hallway. Such conduct may be viewed as cold, calculating and bizarre. It illustrates your lack of insight or judgment at this time.

11 On 8 March 2003 you sold a gold South African Krugerran, which you had stolen from Mr Barker for $550 at an antiques store in Little Collins Street.

12 When arrested at your home on 10 March 2003, your suitcase packed with Mr Barker's antiques was located in your garage and the Pro Hart painting was located in a chest of drawers in your apartment. The Yellow Pages telephone directory was open at "antiques businesses" and I was invited to draw the inference that you had been making inquiries about how you might dispose of the property that you had stolen from the deceased.

13 Ms Scott subsequently identified a number of antiques including vases, silver tankards, silver candlestick holders, figurines and urns as being part of Mr Barker's collection of antiques. The Pro Hart painting which had been removed from its frame was also identified as having been taken from Mr Barker's apartment. A value of $21,000 was placed upon the items you had removed.

14 It appears that shortly after Mr Marr visited you on 7 March 2003, you had made up your mind to visit Mr Barker with the intention of robbing him. Although it was submitted on your behalf that you did not plan to kill Mr Barker or to cause him really serious injury, I indicated to Mr Lyon, who appeared on your behalf, that evidence would need to be placed before me if I was to be persuaded to that effect. In accordance with the sentencing principles set out in Weininger v R[1]; R v Olbrich [2]; R v Storey[3] and Cheung v R[4], I should not act on facts adverse to you unless they have been established beyond reasonable doubt. The absence of persuasion about a fact adverse to an offender does not become the equivalent of persuasion of the opposite fact. R v Weininger[5] I am not required to take the most lenient view of the evidence. R v Hill[6]

15 It was submitted on your behalf that your plan to steal from your cousin was unsophisticated, crude and foolhardy. You made no attempt to conceal your identity in calling your cousin, in attending the apartment, in speaking with the caretaker, in remaining at the apartment for a lengthy period of time, in selling the Krugerran or in keeping the various items that you had stolen in your garage. I accept the submission made on your behalf that your plan to rob your cousin was conceived after a relapse of your major depressive disorder in the aftermath of a serious suicide attempt on 2 March 2003.

16 I am satisfied that at the time that you killed Mr Barker you were showing little insight or judgment as to your conduct. You were not reasoning in a sound manner. You went to Mr Barker's apartment with the intention to steal. That is not in dispute. Usually a thief or robber who wishes to avoid detection will seek to conceal his identity from the victim and anyone else who might place them at the crime scene. You had made an appointment to see Mr Barker and you informed the building supervisor of your intention to visit the deceased.

17 I accept the submission made both by your counsel and the learned prosecutor that I should not find that you attended Mr Barker's apartment with the intention to kill him. As no evidence has been placed before me, I am not persuaded on the balance of probabilities that you did not have such an intention. I make no finding of fact however in that regard.

18 I am satisfied that you contemplated that to give effect to your plan to steal from Mr Barker, it would be necessary to cause him some harm. By your plea, you acknowledged that at the time you struck the fatal blows, it was at least, your intention to cause Mr Barker really serious injury.

19 During the plea I received Victim Impact Statements from Mr Alan Barker's brother and his wife. Mr Albert Barker suffers from serious heart disease and depression. Prior to the death of his brother, Mr Albert Barker had only recently been discharged from hospital after suffering an episode of severe angina. After learning of his brother's fate Mr Barker had to be re-admitted to hospital the following day due to a significant recurrence of chest pain. He remained in hospital until 25 March 2003. Mr Albert Barker was significantly depressed and withdrawn during this period. He has had increased episodes of unstable angina and has required further admissions to hospital due to chest pains. His mood has remained low and he is yet to return to the same activities that he was pursuing prior to the death of his brother. It is clear that the deceased's death has had a significant impact upon Mr Barker, both physically and psychologically. The grieving process has been a painful and emotional one, both for Mr Albert Barker and his wife Ingrid. Their statements are a timely reminder of the human dimension to your tragic conduct.

20 You were born in Melbourne on 29 September 1938. At the time of Alan Barker's death you were 64 years old. You were the only child born of professional parents in Melbourne just before the outbreak of World War II, both your father and mother having been teachers. Your father enlisted when you were two and he was not repatriated until 1947. Your parents divorced the following year. Your mother remarried in 1950 when you were 12 years of age. Your stepfather was a returned prisoner of war who had a number of psychological and emotional problems as a result of his war-time experience. He was prone to angry outbursts and had perpetrated acts of violence towards your mother.

21 You attended a number of primary schools as a consequence of your mother's moves and you were a boarder at Mentone Grammar for a short time which apparently had a negative impact upon you. You attended Scotch College and Camberwell High School. You were an above average student with particular aptitude for science-based subjects. You showed no behavioural problems during your schooling, though, as the evidence called on your behalf reveals, you were an isolated child with few close relationships and no intimates. This pattern of isolation appears to have continued throughout your life.

22 Your mother divorced again in 1955 during your matriculation year and following your matriculation you went to live with your father in Belgium for a short time, he having re-married and relocated in Brussels. Though you yearned for fatherly company and guidance, this reunion was not a particularly happy one. He showed little interest in you and so you returned to Australia. Since finishing schooling you commenced some university level training which you did not finish. You then worked in a number of clerical positions and then in the personnel section of the Snowy Mountain Authority and subsequently in a number of professional capacities, much of that being in the field of computing and information technology.

23 You married in 1975 and you were divorced in 1980. You have no children of your own, though your wife had three sons from her previous marriage. When your wife and her sons unexpectedly left you after three years, you went to live with your mother until 1995 when she died. Her death had a deep effect on you and coincides with the onset of a serious depressive illness. You lived on your own in an apartment but as the evidence discloses, you became even more isolated from your relatives than before. In 2002 you refused all invitations from family including the refusal of invitations to attend any Christmas gatherings in late 2002 or early 2003.

24 Some 15 years ago you established your own business developing software for medical applications. The business was successful and you eventually bought out your partner. You now believe that you paid too much for the business and you encountered increasing financial problems in servicing the debts of the business. In the 12 months before this offence, the financial situation of the business deteriorated and in the last six months you had become increasingly despondent about the prospect of ever trading your way out of your financial difficulties. You told investigating police that you owed between $50,000 and $60,000 to Westpac on credit cards and some $15,000 to the Commonwealth Bank. You had exhausted your inheritance and regarded yourself as financially destitute. These facts were confirmed on your plea.

25 There are a number of factors, however, that operate in your case to reduce the sentence which I might otherwise impose. They are your good character, your prospects of rehabilitation, the remorse shown by your plea of guilty, your age and your serious depressive illness at the time of this offence.

26 Let me turn to your depressive illness. You first reported the onset of depression in 1993 and you were treated by your local doctor with an anti-depressant, Zoloft. In 1995 you suffered an acute exacerbation of that depression when you took a suicidal overdose and you were treated at the Monash Medical Centre Intensive Care Unit. You then had three months of periodic treatment by a private psychiatrist at the Melbourne Clinic and your dose of Zoloft was increased from 100 mgs to 200 mgs daily. Between 1995 and 2003 you continued with treatment with Zoloft, which your general practitioner prescribed at 100 mgs per day. In February 2003 it was again increased to 200 mgs.

27 Included in the depositional material is a report from the Alfred Hospital Psychiatric Unit dated 17 March 2003. It reveals that five days before this offence you were admitted to the hospital's psychiatric ward via ambulance with a police escort on 2 March 2003. You had told the ambulance officers that you felt you could not afford to go on living any more due to impending bankruptcy. You were severely depressed. You had climbed to the top level of a car park where you had placed yourself with the intent of jumping off and killing yourself. Following successful negotiation you were pulled back from the ledge and taken to the Alfred Emergency Department for psychiatric assessment. A history of depression was noted with an overdose in 1995 which rendered you unconscious for three days. You suffered from insomnia, low moods, decreased appetite and the marked loss of interest in usual activities.

28 You told the Psychiatric Registrar at the Alfred Psychiatric Unit of a history of escalating financial problems over the previous 12 months, this being the consequence of your computer software business encountering financial difficulties. In the past few weeks you had been facing the decision of whether or not to declare yourself bankrupt. You told the Registrar that you found the thought of being poor and of going on a pension as quite frightening. In what you described as your last will and testament dated 28 February 2003, you stated that you were bankrupt, that you had done everything and that living on had no appeal. As to your financial position you stated that you had no assets and that the bank would write-off the credit card debts. You described your life as a "very good innings" but that you did not wish to fade away as your mother did over her last years. This was a telling document which reflects the despondency with which you viewed your circumstances.

29 On the morning of 3 March 2003 following the incident at the car park, you were examined by Dr Pinto whose report dated 12 January 2004 was tendered on your plea. Dr Pinto reported on your earlier wish to kill yourself because your business had declined, your reference to being in debt to the sum of $100,000 and that you would go bankrupt and would live a life of poverty in your senior years with the loss of your current comfortable lifestyle. You had been using Oxazepam to help you sleep and you had been severely depressed since the start of 2003. Dr Pinto noted that you were not suffering from a psychotic illness or any intellectual impairment.

30 Dr Pinto concluded that you had suffered a recurrent episode of the major depressive disorder of February 2003, this being exacerbated by financial stresses and the impending loss of your lifestyle. At the time you were discharged from the Alfred Psychiatric Unit on 4 March 2003, ideas of suicide had subsided and you were reported "safe". You were willing to co-operate with treatment on a voluntary basis at the Melbourne Clinic but after being accompanied there you decided not to remain and you returned to your home on 4 March 2003.

31 In your biographical notes, which were tendered on the plea, you described an increasingly severe depression from August 2002 made worse by financial difficulties leading towards bankruptcy. Following your attempt to commit suicide on 2 March 2003, and after you had discharged yourself from the Melbourne Clinic, you described your position in these terms:

"At this stage, although understanding the difference between right and wrong, I became obsessed with obtaining money, regardless of the consequences. In this state of mind I contacted Mr Barker and killed him before taking items of value. I spent the weekend alone in my flat, starting to comprehend the horror of what I had done and I was arrested on the Monday."

You told Mr Newton, psychologist, who undertook a psychological assessment of you that this attempt to remedy your financial difficulties was not only grossly unacceptable, but foolhardy in the extreme.

32 On 12 March 2003 a telephone call from the Melbourne Assessment Prison between yourself and a cousin, Gillian Pavlovski was intercepted. You asked her to extend your apologies for the tragedy to Wendy, the step-daughter of Alan Barker. You said that you were "completely delusional" at the time and that "it hadn't been meant as a personal attack" on Mr Barker but was "a crazy scheme to try to get money". You referred to the fact that you had been committed to a psychiatric ward at the Alfred Hospital on the previous Sunday, Monday and Tuesday.

33 The psychological assessment conducted by Mr Newton revealed that you had a high IQ placing you in the upper 2% of the population having extremely good reasoning skills and good adaptive capacities. Your memory was unimpaired and your capacity to deal with day to day tasks was unimpaired. Your social skills however showed significant deficits, you being withdrawn, introverted and largely uninterested in social contact with others, having experienced significant anxiety in social circumstances which had led you to an impoverished and insipid emotional existence. At the time Mr Newton saw you in February 2004 he found you to be suffering symptoms of depression which were being treated with anti-depressant medication. It is anticipated that you were likely to experience some resurgence of your depressive symptoms after sentencing.

34 I am satisfied that you presently suffer from a major depressive disorder and that you also exhibit personality traits which are a consequence of a pattern of severe social withdrawal and lack of interest in social interaction. It is to be hoped that during the period of your sentence you can receive ongoing psychiatric and psychological intervention to address your depressive symptoms, that you will be reviewed on a regular basis and that there be particular attention given to your welfare in the immediate aftermath of my sentencing you.

35 It is not disputed that at the time of this offence you were suffering from a serious depressive illness, only a few days after you had attempted suicide and having been admitted as an involuntary in-patient to a psychiatric ward. It is an illness which reduced the moral culpability of your offence. I am satisfied that your depressive illness affected your judgment and insight into your conduct and it was a substantial cause for the commission of this offence. Fox and Frieberg[7]; R v Tsiaras[8] and Anderson v R[9] I am also satisfied that the prison sentence that I must impose will weigh more heavily upon you than a person in normal mental health. R v Danaher[10] I have in mind the concerns expressed by Mr Newton and the recommendations contained in his report to which I have referred. I must give appropriate weight to general deterrence as an important element of the sentence that I should impose but its effect should be sensibly moderated in view of the illness from which you suffered. Champion v R[11]; R v Richards & Gregory[12]; R v Yaldiz[13]; R v Kelly[14] and R v Vodopic.[15]

36 You pleaded guilty to this offence on arraignment before Teague J on 2 December 2003. Although the Crown case against you was an overwhelming one, you are entitled to a substantial discount from the sentence that I would otherwise have imposed because of your plea. R v Donnelly[16]; R v Duncan[17]; Cameron v R[18]; R v Diep[19] and Fox and Frieberg[20] The provisions of the Sentencing Act 1991 (Victoria) require it. R v Gray[21] The extent to which a plea of guilty should mitigate punishment depends upon the considerations enumerated by Callaway JA in R v Duncan[22]. As His Honour stated, a plea of guilty that evidences genuine remorse and prospects of rehabilitation normally justifies a high discount.

37 The clear implications of your plea, confirmed by other evidence to which I have referred is that you do have genuine remorse for what you have done.

38 You are presently 66 years of age. Cummins J in DPP v Kien[23], after setting out the sentencing principles relevant to an offender of old age, concluded that "old age is central to but not determinative of the quantum of sentence to be imposed"[24]. Your age does not permit me, however, to impose an inappropriate sentence, but rather I must take your age into account in determining what justice requires: R v Bazely[25] and R v Cumberbatch[26]

39 The learned prosecutor acknowledged your age was a mitigating factor permitting me to impose a sentence which is shorter than otherwise might be the case. DPP v Kien[27] and Austin v R[28] It will be necessary to impose a minimum term which may, however, have the effect of requiring you to spend the whole of the remainder of your life in custody. Holyoak v R[29] and DPP v Kien[30] The fact that each year of the sentence which you must serve will represent a substantial portion of the period of life which is left to you is a weighty consideration which I shall not overlook. R v Hunter[31]; R v Yates[32] and Crowley & Garner v R.[33]

40 While due attention must be paid to your age, I must also ensure that confidence in the administration of justice is maintained by imposing a sentence which reflects the gravity of your crime. The sentence must reflect the basic principal, in the case of murder, that the sanctity of life remains paramount. R v Whyte[34]

41 The significance of old age as a mitigating factor is that general deterrence may be required to surrender some ground to the need to exercise mercy, to take account of the possibility that you may not live to be released. Austin v R[35]

42 General deterrence in the context of the sentencing of an elderly offender must be considered in the light of the impact upon public perception of a gaol sentence upon a man of such advanced years upon whom the sentence will bear more heavily. Holyoak v R[36]

43 In DPP v Kien, Cummins J observed that the question of general deterrence is not unimportant in elderly homicides because of the ageing population and the increasing number of cases of elderly persons convicted of serious offences[37]. His Honour, in the course of sentencing an 82 year old offender for murder stated that there was no evidence of a current depressive illness, that is a psychiatric illness as distinct from a state of unhappiness,[38] though the offender was suffering from a mental illness which fell short of mental impairment at the time of the offence. Applying the principles set out in R v Tsiaras[39] his Honour concluded that both general and specific deterrence should be muted in the light of her mental condition which reduced her level of moral culpability and bore upon the manner in which the sentence would weigh upon her.

44 Flatman J in R v Cumberbatch[40], followed the decision of King CJ in R v Smith[41] reasoning that where imprisonment would be a greater burden on the offender because of their health, physical or mental, punishment may be mitigated though caution is required as to the influence which such a factor should have upon the sentencing process. The offender in Cumberbatch was 72 years of age at the time she murdered her husband. Flatman J's review of the principles of sentencing is illustrative of the balance which must be struck between general principles of sentencing and the personal circumstances of an offender of such an age. On 15 March 2004 the Court of Appeal dismissed an appeal against sentence by the offender in that case.

45 Mr Saw, you have led a long and blameless and productive life. You have no prior convictions and you may be considered previously to have been of good character. Okutgen v R[42] I heard evidence from your friend James Douglas Marr who has known you for in excess of 50 years. He described you as a quiet and reserved man and someone whom he regarded as rather vulnerable during your schooling years. He described you as fairly lonely.

46 It is clear from your unblemished record and the character evidence called on your behalf that your conduct was totally out of character. You have been a law abiding citizen and not one who would take advantage of others. All of your friends are conscious that you have been very much alone for most of your life and that you have had a tendency to be withdrawn and to conceal your emotions. You were recognised as a man of integrity, one who valued success, both in material terms and in terms of achievement.

47 Mr Saw, I have at some length referred to mitigating factors and the impact of what you recognise, as your counsel informed me, must be a substantial term of imprisonment that I must impose. That sentence must reflect the gravity of the offence that you have committed.

48 Mr Saw, you went to Mr Barker's apartment contemplating that some force would be used. Your intention was to rob a defenceless and elderly relative who trusted you and admitted you to his apartment. What then followed was a brutal and sustained attack which went far beyond disabling Mr Barker. You cruelly took from your cousin the remaining years of his life. You remained in the apartment for a very long period gathering together the items that you intended to steal. Within a few days after this offence you were to describe that conduct as delusional but you were not suffering from a mental impairment that precluded you from distinguishing between right and wrong or understanding the nature and quality of your act.

49 The Courts have a duty through the imposition of an appropriate sentence to uphold the sanctity of human life and to deter persons who, by resorting to violence, destroy such life. There must never be any doubts about the commitment of the community and the Courts through which it speaks to reflect the importance of human life through the imposition of substantial penalties where an offender unlawfully kills another. The fact that your insight and judgment may have been reduced as a consequence of your depressive illness does not excuse your conduct.

50 In determining your sentence I have had regard to all of the matters put before me on your behalf and the sentencing considerations referred to in the Sentencing Act 1991. Pursuant to s.18(4) of the Act I declare the period of 372 days as already having been served under the sentence I impose and I so certify and direct that this declaration and its detail be entered in the Court record.

51 Balancing principles including punishment, specific and general deterrence and rehabilitation I have concluded that the appropriate sentence is that you be imprisoned for a period of 14½ years. I fix a minimum period of 10½ years imprisonment before you become eligible for parole.

[5] Supra Footnote 1 at 453, paragraph 24.

[7] Fox, Richard and Frieberg, Arie (1999), Sentencing: state and federal law in Victoria (2nd ed.), South Melbourne, Oxford University Press at paragraph 3.726.

[11] (1992) 64 A Crim R 244 at 254-255 per Kirby P.

[14] [2000] VSCA 59; (2000) 112 A Crim R 307 and [2000] VSCA 59 at paragraph 17 per Charles JA.

[15] [2003] VSCA 172 at paragraph 28.

[17] [1998] 3 VR 208 at 214-216.

[20] Supra Footnote 7 at paragraphs 3.815 and 12.210-212.

[24] Supra [2000] VSC 376 per Cummins J at paragraph 16.

[35] Supra Footnote 28 per Malcolm CJ at 572.

[37] Supra Footnote 23 at paragraph 18.

[38] Supra Footnote 23 at paragraph 23.

[40] [2002] VSC 382 at paragraph 24.

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Cases Cited (8)