John (No 1), The State v [1995] PGNC 120; [1995] PNGLR 446 (20 April 1995)

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CRIMINAL LAW - Sentence - Murder - Relevant factors - Defendant mother of three-week-old baby born in prison - Whether welfare of child a relevant consideration in exercise of sentencing discretion.

CRIMINAL LAW - Sentence - Compensation order - Whether a compensation order under the Criminal Law (Compensation) Act 1991 may be made against the prisoner�s husband.

CUSTOMARY LAW - Compensation - Obligation of husband to pay compensation for wife�s wrong-doing - Whether husband was at fault - Sources of compensation.

The defendant pleaded guilty to the murder of a woman whom she found inside her home. The defendant thought the woman was an enemy who was involved in her troubled relationship with her husband. She was three months pregnant at the time of the offence, and gave birth whilst in custody waiting trial. It was argued on her behalf that the welfare of a child born in prison is a relevant consideration in exercising the sentencing discretion in relation to the mother, and that under local custom, compensation to the victim�s relatives should be paid by her husband.

N1>1.�� Generally speaking, the welfare of a child born in prison is not a relevant consideration affecting the exercise of sentencing discretion of the mother.

N1>2.�� A compensation order under the Criminal Law (Compensation) Act 1991 (No 26 of 1991) cannot be made against the offender�s spouse, relatives, tribal group, or village.

N1>3.�� Nevertheless, where the defendant, who is the second wife of the husband, killed a woman who was the third de facto wife of the husband, it is in the interest of justice that a means assessment report under the Criminal Law (Compensation) Act 1991 should be prepared in respect of the defendant�s husband. This report should cover his liability under local custom to pay compensation to the deceased�s relatives on behalf of the defendant, and his ability to pay such compensation demanded by the victim�s relatives or ordered by the Court.

INJIA J: The defendant pleaded guilty to murdering one Jennifer Arthur John, a national female. The defendant stabbed the victim once on the stomach with a kitchen knife when she found the victim inside the premises of her matrimonial home. The defendant thought the victim was an enemy woman who had something to do with the troubled relationship with her husband. The victim was taken to the Kundiawa Hospital the same day, and died the next day. The cause of death was acute pancreatitis due to injury to the stomach and pancreas.

The offence was committed on 27 September 1995. The defendant was arrested on the same day and detained at Barawaghi CIS. It appears that she was about three months pregnant at the time of the offence. I am told that she gave birth to her child about three weeks ago, whilst she was in custody waiting for trial.

It was submitted by Mr Solasaia, on behalf of the defendant, that the Court should consider the welfare of the child and impose a sentence which will not adversely affect the future welfare of the child. He implied a short jail term would be appropriate. This submission prompted me to request a report from the Provincial Gaol Commander as to his institution�s ability to provide for the future welfare needs of the child and the prisoner in terms of suitable accommodation, food, and medical attention. I have received a letter from him, which states that there will not be any real problem in accommodating the child.

At the outset, I hold the view that, generally speaking, mothers should not use their small children to avoid punishment. This applies to children born both outside and inside prison. When the child is aged between one and three years, there will not be any problem, because the child will be too small to tell the difference between living in prison and living in the village. The child will be incapable of existing on his own and independent of the mother, because he will still be breast-feeding, and also he will be incapable of interacting socially with persons other than the mother. When the child stops breast-feeding and grows up, that is when the future education and welfare of the child will become relevant. If the defendant is given a sentence in excess of one to three years, then she should arrange with the CIS to take the child to her village and give the child to her relatives or to her husband to look after. In the instant case, there is no evidence before me that they will not take good care of the child for her. In that regard, I repeat what Kidu CJ said in the Supreme Court judgment Public Prosecutor v Ame [1983] PNGLR 424 at 427:

�Courts must be careful that children are not used by offenders to escape punishment they well deserve. In Papua New Guinea the family system is still strong, as evidenced by the well-known wantok system. This country has not reached the stage of the nuclear family system where a man and his wife and children live apart in isolation from other members of the immediate or extended family. The extended family system still obtains strongly in Papua New Guinea. It would take strong evidence for me to believe that if the respondent were to be gaoled for his crime his children would be left out in the streets.�

The defendant had a history of differences with her husband. She says she never saw her husband�s first wife and third de facto wife, who is the deceased. The defendant married her husband in 1992. In 1990, she dropped out of Grade 10 at Muaina High School due to school fee problems and returned to her village, which is Koge, and lived there for some 1 1/2 years before she got married. Between 1992 and the date of the offence, she says she was subjected to violence by her husband. She sustained a fractured right arm. An X-ray film and medical report was tendered, by consent, to confirm this injury. At one time, her left arm was also broken by him. She also sustained a lot of wounds, the scars of which are visible now. Just last year, she had a miscarriage because she was hit whilst she was pregnant. About three days before the killing, her husband beat her up and drove away in his bus. So, fearing that he might return drunk and beat her up again, she left the house and went to stay with her mother. That was on a Saturday. On Tuesday, she returned to the house with her elder sister. Upon arrival at the house, her elder sister went to the house first, whilst the prisoner waited near the house. The elder sister saw the victim, and a fight took place between them. Upon seeing this, and thinking the other woman was an enemy, the defendant got a knife from the house and stabbed her once. The victim died a day later at the Kundiawa Hospital.

On allocatus, the defendant said that she did not expect to find the victim on her premises. The victim�s presence provoked her, and thinking she was an enemy, she stabbed her. She did not know that the victim was a de facto wife of her husband. She had not seen her before.

This is a case of a battered wife. Her husband has committed some serious forms of assault upon her. However, the defendant does not want to report him to the police yet, because he may not pay compensation for the victim�s death. Instead, she wants this Court to consider the assaults committed upon her as a mitigating factor. Domestic violence between married spouses is prevalent in this country, especially in the Highlands, where polygamous marriage is widely practised. The husband beating up the first or second wife, or neglecting her and her children to marry another woman, is a common occurrence. The first or second wife feels neglected, emotionally upset and disturbed, and she attacks or kills the second or third wife to eliminate her. The first wife or second then willingly surrenders herself to the authorities and ends up in prison. In most cases, she pleads guilty to the charge and renders herself liable to punishment. It is true that the husband is the primary cause of this unhappy ending for the two wives. The husband is not wrong in electing to marry more than one wife, because that is the custom of his people, and there is no law forbidding polygamous traditional marriages in this country. He is wrong, however, when, after electing to marry his second wife, he neglects his first wife for the sake of a younger lover. When the first or second wife insists on her marital rights, the husband gets violent and beats her up. He should never do this. If he is man enough to marry more than one wife, then he must be equally man enough to accommodate all the wives and their children in terms of their material and social needs. Failure to do this is not only morally wrong but also legally wrong. Yet, the practise seems to be that the husband is rarely reported to police and charged with appropriate criminal offences. He virtually goes free.

The issue now before me is whether the beatings inflicted by the husband on the defendant can properly be taken into account as a mitigating factor in favour of the defendant. There is no doubt that they should. It is the wrongful act which provokes the defendant�s conduct in a non-legal sense and, therefore, reduces the degree of culpability: see Lialu v The State [1990] PNGLR 487. As to the question of weight to be given to this factor, it depends on the particular circumstances of each case, which include the duration of the violence against the defendant and the seriousness of the assault inflicted on her by her husband. In this instant case, I am satisfied on the evidence before me that the defendant was subjected to some serious forms of violence over a period of some 1 to 1 1/2 years.

The conduct of the victim is also a relevant factor. I am told that she was the third, de facto wife of the defendant�s husband. Her affair with the husband went on for some three months, and during this time she was not seen by the defendant. No bride price was paid yet. As such, the victim also played a part in causing and increasing the defendant�s grief and anxiety. De facto marriages are not proper marriages. The advantage of a proper customary polygamous marriage is that the first wife or wives learn to accept and accommodate the second wife, because the marriage is entered into and celebrated publicly. A de facto marriage is looked upon by the first wife or wives and the community as a whole with suspicion. The first wife or wives will see her as an intruder into their family, and on many occasions they will take the law into their own hands to prevent her from seeing their husband. Some women may also take similar action against their husband, but this is not often the case. A woman who engages in some form of de facto relationship with a married man will not be looked upon with favour by the Court. It is only fair for the Court to say that she brings upon herself whatever undesirable consequences befall her.

In considering the sentence of a battered wife, the Court must be careful in balancing the interests of the prisoner and the interests of the community at large. The defendant is entitled to mitigation of sentence based on the wrongful conduct of her husband and the de facto wife towards her.

At the same time, the Court must consider that the husband�s wrongful conduct is a punishable act on its own under the criminal law or even the civil law. Likewise, the wrongful conduct of the de facto wife is also punishable: eg under the Adultery and Enticement Act 1988 (No 5 of 1988). This Court must not be so pre-occupied with the interests of the defendant that it imposes a sentence which is tantamount to licensing her to take the law into her own hands to solve her marital problems. The call for leniency by the defendant must be balanced with the call by the community for tough punitive and deterrent sentences of her.

In the case of a battered wife, there are normally three characters involved - the husband, the first wife or wives, and the second wife. It is fair to say that whilst the victim and the defendant in this case have suffered the consequences of whatever wrong they committed, the husband remains free. What, if anything, should this Court do with him? There is no provision in the Criminal Code which empowers the Court to make orders against him. There is the obvious step of referring him to the police so that they can deal with him. But then I am faced with a plea by the defendant to leave him alone to enable him to pay compensation. The only way I can accommodate her plea is under the Criminal Law (Compensation) Act 1991 (No 26 of 1991). But that Act only applies to making of compensation orders against the offender concerned; that is, the person whose punishment is being considered by the Court. There is no provision under that Act to make compensation orders against the offender�s spouse, relatives, tribal or village group.

The custom of compensation in homicide cases, or any other serious criminal offence, is common throughout the country and, in particular, throughout the entire Highlands region. It is paid by the offender and his relatives to the victim or the victim�s relatives in various forms and varying amounts. The more serious the offence, the larger the compensation paid. Also, the larger the compensation to be paid, the more the people involved. In serious cases like murder, amounts of compensation are quite large and, naturally, the whole clan, village, or relatives of the offender are involved in contributing to the payments.

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 defendant 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 hold that, in the interest of justice, a means assessment report should be done on the defendant�s husband in this case, because he is partly the cause of her 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.

The end result is that I will adjourn this matter for further deliberations on sentence to the next sittings of this Court at Kundiawa, commencing 5 June 1995. I request the Probation Officer at Kundiawa to prepare and submit to me a means assessment report before that date. I will extend the remand warrant to that date.

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National Court of Papua New Guinea

John (No 1), The State v [1995] PGNC 120; [1995] PNGLR 446 (20 April 1995)

PNG Law Reports 1995