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State v John (No 2) [1995] PGLawRp 720; [1996] PNGLR 298 (22 June 1995)

PNG Law Reports 1996

[1996] PNGLR 298 - State v Margaret John (No 2)

[1996] PNGLR 298

N1341

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

STATE

V

MARGARET JOHN (NO 2)

Kundiawa

Injia J

19 June 1995

22 June 1995

CRIMINAL LAW - Murder - Plea - Prisoner wife killed defacto wife of common husband - Appropriate sentence - 6 years imprisonment. (less 8 months 26 days in pre-trial custody) - Criminal Code Ch. 262, s 300(1)(a); 1991, ss 3.

CRIMINAL LAW - Sentence - Murder - Appropriateness of a compensation order where sentence for murder considered appropriate by the Court is in excess of 12 months imprisonment - Criminal Law (Compensation) Act 1991, ss 3,(1)(a), (e); 6(b) - Compensation not awarded.

Facts

The accused was charged with murder of the wife of common husband. The victim�s relatives demanded compensation pursuant to Criminal Law (Compensation) Act 1991. The Court required a means assessment report in order to decide on the issue of compensation.

Held

N1>1.������ Means assessment report is necessary to determine an appropriate compensation under the Criminal Law (Compensation) Act (the Act).

N1>2.������ Compensation under the Act can only be made against the offender and not his relatives and is not appropriate in this case. Husband and relatives of the prisoner are only to pay some compensation to maintain harmony.

N1>3.������ Plea of guilty of murder is noted but assault on the accused by deceased and other extenuating circumstances is also taken into consideration.

N1>4.������ Found guilty and imprisioned for 6 years for murder.

Cases Cited

Papua New Guinea cases cited

Lialu v State [1990] PNGLR 487.

State v John (No 1) [1995] PNGLR 446.

Counsel

P Kumo, for the State.

G Gendua, for accused.

22 June 1995

INJIA J: On 20th April 1995 I adjourned this matter for a means assessment report pursuant to s 4 of the Criminal Law (Compensation) Act 1991 (the Act). I am now provided with that report. The report is a very detailed and comprehensive report which covers most of the aspects relevant to the question of a compensation order.

On 20 April, I requested for a means assessment report to be done on the prisoner�s husband. At page 6 of my judgment, I said:

�Where a wife is the offender, the husband is obliged to pay compensation for his wife�s wrong-doing, whether or not the husband is at fault in causing or contributing to his wife�s wrong-doing. Where the husband is at fault, there is every reason for him to pay compensation. In the instant case, the prisoner knows this and wants him to pay compensation. The question is will he pay it? If so, how much will he pay? How much compensation will be demanded by the relatives of the victim? Will he have the means to pay it himself? Will other relatives or clan members be required to contribute? If he does not pay the compensation demanded of him, what are the likely consequences in the village? These and other questions need to be addressed properly. In deciding whether a compensation order against the offender is appropriate under the Criminal Law (Compensation) Act 1991, a means assessment report prepared by the Probation Office is required. There is no provision for a Means Assessment Report to be done on the spouse or other relatives of the spouse. But I would hold that in the interest of justice, a Means Assessment Report should be done on the prisoner�s husband in this case because he is partly the cause of the prisoner�s wrong-doing. Once that report is before me, I will next decide whether the husband is legally obliged to pay the customary compensation and what, if any, consequences will flow from his failure to pay the compensation ordered against him by the court.�

(See State v John (No 1) [1995] PNGLR 446.

The report says the victim�s relatives demanded K25,000.00 plus 30 live pigs. Of this, the victim�s relatives required the husband and his clansman to pay K5,000.00 plus 10 live pigs, K10,000.00 plus 10 live pigs from prisoner�s mother�s clan and K10,000.00 plus 10 live pigs from the prisoner�s father�s clan. The prisoner�s husband and his relatives have acknowledged their liability to pay compensation but not exactly the amount requested. No response has been received from the prisoner�s mother�s clan and her father�s clan. The Probation Officer strongly recommends that for the prisoner�s husband part in causing the fight between his two wives resulting in the prisoner killing the deceased, the compensation order should be made against him. He also recommends to the Court not to make an order against the prisoner�s father�s clan and her mother�s clan.

In considering whether a compensation order should be made in this case, the recommendations made in the means assessment report is one of the relevant considerations specified in s 3(1)(e) of the Act. However, as I said in my judgment on 20 April 1995, as a matter of law, the compensation order can only be made against the offender who in this case is the prisoner; not against her spouse or relative. Furthermore, the offence to which the prisoner pleaded guilty to is murder, which is a very serious offence: s 3(1)(a). The circumstances of the offence in this case are serious and such that the appropriate sentence which I am thinking of imposing is well over 12 months in which case it will exceed the maximum default penalty of 6 months prescribed under the Act: s 6(b), Schedule. For these reasons, I do not think a compensation order is appropriate in this case. Nevertheless, despite the sentence I impose on the prisoner for her wrong-doing, I would still encourage the prisoner�s husband and his relatives to pay some compensation for the death of his defacto wife in order to maintain harmony in the community. For the prisoner�s husbands part in inflicting some forms of serious assault on the prisoner, I would suggest to the prisoner to take the matter up with police if she wants to. As I said on 20 April 1995, I will still take the assaults committed on her by her husband as a mitigating factor.

In favour of the prisoner, I take into account the following mitigating factors: That she is a young educated woman of previous good character and the mother of a child born in prison; she has no prior convictions, she co-operated with police in admitting the offence, that she pleaded guilty; that she expressed genuine remorse; that she was subjected to some serious forms of violence by her husband which I set out in my judgment on 20 April 1995 and that there was some degree of provocation in a non-legal sense offered by the victim in intruding into her what was otherwise a stable family life.

The prisoner pleaded guilty to murder under s 300(1)(a) of the Code. However, the fact really resemble some manslaughter killings which this Court has dealt with in the past here at Kundiawa and elsewhere. The prisoner applied a single knife stab wound to the victim�s stomach. The victim died the next day at Kundiawa General Hospital. I will bear this in mind when I sentence her. In that regard, I would refer to the case of Lialu v The State [1990] PNGLR 487 in which the Supreme Court sets out the guidelines for manslaughter cases.

Taking some of those guidelines into account in this case, there was a clear intention to harm the victim in that the prisoner inflicted the wound deliberately using a lethal weapon and with sufficient force to penetrate the stomach and reach the pancreas. She took the life of the victim in a brutal way in broad daylight. The prisoner said she had not seen this woman before and thought she was an enemy who intruded into her family when she saw the victim at her matrimonial home. But that should have made her more cautious to find out who this woman really was, and to take her to Court to settle their differences. It is quiet clear on the evidence that she and her elder sister knew who the victim was and whilst her sister fought with the victim, the prisoner came to the aid of her sister and stabbed the victim. As it turned out, she was a defacto wife of the prisoner�s husband. She was entitled to her say in Court, not eliminated before she had the chance to defend herself. As I have said before in relation to other similar cases like this, wives should not use knives to attack their fellow co-wives to settle their differences over their common husband. This kind of killing is becoming far too common in our country and despite the imposition of stern punishment by this Court, women are still not deterred by these sentences. This clearly shows that there is a need to increase the sentences which this Court has been imposing. In the past, the sentence for murder in a domestic killing ranges from 3-12 years. The maximum sentence is life imprisonment. In the present case had it not been for the mitigating factors and extenuating circumstances I have referred to, I would have imposed a heavier punishment. I consider that an appropriate sentence is one of 6 years imprisonment. From this I deduct the period of 8 months 26 days which she has already spent in custody. She will serve the remaining period of 5 years and 4 days from today.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.