State v Markus [2015] PGNC 86; N5944 (20 February 2015)

N5944

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 641 OF 2011

THE STATE

-V-

HELEN MARKUS

Offender

Kokopo: Davani, J.

2014: 22nd April,

2015: 20th February,

CRIMINAL LAW – Sentence – manslaughter-guilty plea

CRIMINAL LAW – Sentence – battered wife – 9 year sentence imposed – sentence suspended – Offender to serve 2 years

Facts:

Helen Markus (the 'Offender') pleaded guilty to one count of manslaughter, charge laid under Section 302 of the Criminal Code.

On the 30th January, 2013, at Ratavul village, Kokopo, in the evening, both the deceased and the Offender had a fight, after an argument and after the Deceased had locked the Offender in their bedroom. The Deceased slapped the Offender on her mouth, then lifted her up and threw her on the bed. She saw him approach her with a bush knife and a piece of wood. There were no lights in the room. The Deceased then grabbed the Offender and a struggle ensued. It was during that struggle that the Offender stabbed the Deceased with a small knife she was holding. The Deceased died as a result of that stab wound.

Held:

1. Battered women, who offend, fuelled by the constant assaults and abuses, are not looking for an excuse to be treated differently from other accused.
   
2. The sentiments expressed by the Supreme Court in Thress Kumbamong v. the State (2008) SC 1017, must be acknowledged as the case that recognizes that women and children in this country who have long suffered at the hands of their spouses or partners, from violence ranging from threats to beatings to sexual assaults, must be placed in a category where they are to be treated in a more humane way by the Courts, rather than be lumped together with the general class of homicide cases.
   

3. Sentence of 9 years, to serve 2 years only, the balance of the sentence to be suspended.

Counsel:

L. Rangan, for the State
P. Kaluwin, for the Offender

SENTENCE

20th February, 2015

1. DAVANI .J: On 10th April, 2014, Helen Markus (the 'Offender'), pleaded guilty to 1 count of manslaughter, charge laid pursuant to s.302 of the Criminal Code. This section reads:
   

"302. MANSLAUGHTER.

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life."

2. The Court was unable to deliver its decision earlier for various administrative reasons, and does so now.
   

Brief Facts

3. The Offender is from Ratavul village, Rabaul, East New Britain Province. On 30th January, 2013, a fight ensued between the Offender and Ronnie Tagain Kopis, the deceased ('the Deceased').
   
4. The facts the Offender pleaded guilty to are that the Deceased had locked the Offender indoors that fateful day. Whilst waiting for him to open the door, she became quite angry. An argument ensued and the both of them began to fight. The Deceased slapped the Offender on her mouth, then lifted her up and threw her on the bed. She saw him approach her with a bush knife and a piece of wood. There were no lights in the room. The Deceased then grabbed the Offender and a struggle ensued. It was during that struggle that the Offender stabbed the Deceased with a small knife she was holding. The Deceased died as a result of that stab wound.
   
5. The Deceased is the Offender's first partner from whom she had a son. At the date of the offence, she had borne 4 children with a man from another relationship, which relationship was terminated after the Offender and the Deceased recommenced their relationship. At the date of the Deceased's death, the Offender and the Deceased had been living together.
   

Aggravating Factors

6. The aggravating factors are pretty much, non - existent.
   

Mitigating Factors

7. This is the Offenders first offence. Her guilty plea saved the court a lot of time. She also expressed her remorse stating that she did not mean to stab the Deceased. She could not remember that she did, stating that she realised the Deceased was dead when trying to "wake" him up and the fact that he did not move, that this was when the realization set in that the Deceased was dead.
   
8. Of course, I accept that the circumstances surrounding the Deceased's death including when the Deceased charged at the offender, can be looked at by the court as provocation in the non - legal sense and used or applied as mitigating factors.
   

Analysis of All Factors

9. I made known to both counsel after the administering of the allocatus, that this was a "battered wife syndrome" case and that both counsel must come before me with submissions on how I as the court, should deal with and address sentence, especially where the Offender will be leaving behind 5 young children, if she were to serve a term of years.
   
10. I also heard from Offender's counsel that the Deceased is not the Offender's partner but is the father of her first child. However, although the Offender had commenced another relationship from which she had 5 children, the evidence is that both her and the Deceased had resumed their relationship.
    
11. Defence counsel urges me to consider the fact that the welfare of the children is paramount and that the Court's incarceration of the Offender will seriously affect the upbringing of the children, their welfare and their best interests. Defence Counsel cited to me Bean v Bean [1980] PNGLR 307.
    
12. Indeed, submissions of the kind made by Defence counsel are the first of its kind, at least in a Criminal trial. How can this Court deal with such a submission, seeing that if the Offender is to serve a term of years, that she will obviously leave behind 5 young children, in the care of others. I will deal with this issue later below.
    
13. In the State v Margaret John ( No.1) (1995) PNGLR 419 N1326, his Honour Injia J, (as he then was), expressed himself eloquently when he highlighted the reality in PNG today where men in polygamous relationships are not able to keep their spouses happy, which then results in one spouse assaulting or killing the other spouse or even the husband. His Honour said this:
    

"In considering 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 prisoner 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 e. g. Under the Adultery and Enticement Act 1988. This Court must not be so pre-occupied with the interests of the prisoner that it imposes a sentence which is tantamount to licensing the prisoner to take the law into her own hands to solve her marital problem."

14. The call for leniency by the Offender must be balanced against a deterrent sentence for the Offender. Unlawful killings in a domestic setting have increased over the years. Back in 2000 when passing down a 12 year sentence in the State v. Drikore Yuana Peter (2000) N197 on a woman who had killed her co-wife, Kirriwom .J considered previous sentences by the Court in the State v. Maris Err [1998] PNGLR 26 (8 years Injia .J (as he then was); the State v. Margaret John (No. 2) [1996] PNGLR 298 (6 years) and the State v. Maria Pelta Pung (Yamai) [1995] PNGLR 173 (8 years, Akuram .AJ) and said:
    

"...both their honours took a very stern view of the upsurge of this crime and said that strong deterrent sentences were necessary to deter wives or co-wives involved in domestic disputes with their husbands, or with themselves or as between co-wives themselves."

15. Killings in domestic settings have yet to be arrested despite the increase in sentences. As Makail .J said in the State v. Lossy Karapus (2009) N3640:
    

"... I have dealt with a number of this kind of cases and I am beginning to wonder whether or not the National Court has done enough to curb killings in a domestic setting like in your case. This is because it appears that no matter how many cases of this nature are brought before the Court and a strong deterrent sentence is imposed on offenders, there are still a large number of such cases coming before the Court".

16. In that case, the offender killed her husband's girlfriend by stabbing her repeatedly with a kitchen knife because of her husband's unfaithfulness. She pleaded guilty. The Court found that there was de facto provocation and applied that as a mitigating factor in sentencing. Because there was some element of preplanning, and a level of viciousness in the attack, as evidenced by the multiple wounds inflicted on the deceased, the Court sentenced the prisoner to 10 years.
    
17. The issue then is whether, considering the circumstances under which the killing occurred, and if the killing occurred in a domestic setting, whether I should be looking to the tariffs set in Manu Kovi v. the State (2004) SC 789 which is the leading case where the Supreme Court set the tariffs for homicide and unlawful killings or Simon Kama v. the State (2004) SC740 where the Supreme Court reviewed and adjusted the sentencing tariffs for murder.
    
18. These tariffs were revisited by Supreme Court bench comprising, Salika DCJ, Kandakasi and Yagi, .JJ in Thress Kumbamong v. the State (2008) SC 1017.
    
19. In that case, the appellant, a mother of 6 children, pleaded guilty to a charge of unlawfully killing another woman on 20th October, 2006 in Mt. Hagen. The deceased was either a girlfriend or the appellant's husband's second wife. The Appellant's husband spent a lot more time with the deceased than with the appellant and their six children.
    
20. On the day of the killing, the appellant went looking for her husband and found him at the deceased's house. Upon seeing her husband, the appellant asked him to accompany her to their house and to take the deceased with him where they would all live together. Rather than consider this request, the deceased then insulted the appellant then attacked her with a knife. The appellant and the deceased then grappled with each other which resulted in the appellant, wresting the knife from the deceased which she used to stab the deceased on her head and back many times. The deceased collapsed and died instantly.
    
21. The National Court imposed a sentence of nine years less time spent in custody.
    
22. In the appeal, the appellant asked for a reduction of that sentence to 5 or 6 years because of the prevailing circumstances that led to the deceased's death. The Supreme Court discussed extensively the social and psychological issues associated with such killings and concluded that the defence of provocation should be extended to cover offenders who kill or commit offences against their spouses or lovers et al.
    
23. The Supreme Court expressed the fear that the Courts of this country, as they have been doing, are sentencing offenders who are involved in domestic related disputes as in marital or lover disputes, as other "normal" manslaughter cases. The Supreme Court also stressed that where an accused wife is before the Courts and that the circumstances of the offence with which she is charged with, show a long turbulent history, in that she has constantly been abused by the deceased, that she must not believe that she has been abandoned by the legal system.
    
24. The Supreme Court upheld her appeal and held that the period of 2 years 1 month already spent in custody is sufficient custodial sentence.
    
25. The balance of 11 years 1 month was suspended on condition that she keeps the peace and be of good behaviour.
    
26. Indeed, this case falls into such a category. The Pre-sentence Report ('PSR') which I ordered and which is before me, confirms that the Offender did suffer a violent and turbulent relationship with the Deceased in that they were constantly arguing and fighting. In this instance, the Deceased had locked her in the house and after the Deceased unlocked the door, both the Deceased and the Offender had the inevitable argument in the bedroom. The undisputed evidence is that during the argument the Deceased slapped the Offender then threw her on the bed. She then saw him approach her with a bush knife and a block of wood. The Offender picked up a small knife and held it.
    
27. They argued in the dark after which the Deceased left the Offender and went to the bedroom door. He then swore at her using the most degradable language at which the Offender threw a block of wood at him. This prompted the Deceased to charge at her and grab the Offender. It was during the ensuing struggle that the Offender somehow, stabbed the Deceased.
    
28. The Medical report from the Nonga General Hospital dated 6th February, 2013, signed by the Registrar of Internal Medicine, Dr Hilton Abraham, describes the Deceased's injuries as;
    

"Significant findings

(A) Chest (left) (1) (Lt) chest incisional wound

(2) Left ventricular rupture

(3) Pericardial effusion 1.5 litre of blood

(B) head/face – (Rt) check wound

Cause of death

The late Ronnie Tigar Kopis died as a direct result of (Lt) ventricular rupture"

29. Indeed, the cause of death was the single stab wound.
    
30. It is clear that as expressed in the PSR, amidst the fear of being assaulted again, the Offender picked up the knife. She has always expressed that she does not know how she was able to wedge the knife in the Deceased's chest and that she does not recall that occurring. Be that as it may, she has admitted the charge and she asks the Court for its leniency. She also asks that the Court take note of her very turbulent relationship with the Deceased.
    
31. I have also had recourse to 2 cases from Fiji to assist me in determining a fair sentence. I did so because Fiji, a Melanesian country and a member of the Commonwealth, like Papua New Guinea, has its fair share of cases involving battered and abused wives and children. Fiji has dealt with this issue, in many ways, one of which is the creation and setting up of the Fiji Women's Crisis Centre which has been instrumental in the creation of awareness in relation to gender based violence. One such way is through its monthly newsletter "Pacific Women against Violence" which is distributed far and wide in the Pacific, Papua New Guinea included.
    
32. The first case is from Fiji's High Court Criminal Appellate Jurisdiction. In the State v. Prahba Wati [2002] FJHC 316; [2001] 1 FLR 336 dated 9th October, 2001, a case where the accused was charged with murder and convicted for manslaughter of her husband. The accused began living with the husband when she was 16 years old and became a victim of domestic violence after giving birth to their first child. The accused was subject to sexual, mental and physical abuse for most of her married life. Justice Prakash accepted that the accused suffered from "battered woman's syndrome" and proceeded to consider the range of sentencing options for manslaughter by taking into account the circumstances in which the event occurred. The Court took into account mitigating factors such as age, previous criminal record, that the accused was cooperative with police, her medical condition and also the fact that the accused had been in remand for a period of about 2½ years.
    
33. The Court held that the accused suffered from "battered Women's Syndrome" was as a result of domestic violence, and the mental state, emotional and physical well being of the battered spouse were accepted as mitigating circumstances when considering the totality of sentence.
    
34. The accused was sentenced to two years imprisonment which was suspended for two years.
    
35. In the State v. Priya Darshani [2006] FJHC 118, 007T. 2005 (1 February, 2006) in the Criminal Jurisdiction of the High Court of Fiji, after a trial on a charge of murder, the accused was found guilty of the lesser offence of manslaughter by reason of provocation. The maximum term for the offence of manslaughter is life and where the Courts in Fiji have held that each case will attract the appropriate sentence within the range depending on its own facts (see Kim Nam Bae v. the State (unreported) Court of Appeal, Fiji Cr. App. No. AAU0015.19985 dated 26th February, 1999).
    
36. The accused had no means of independent financial support which could have allowed her to leave her partner. Counselling was limited and her family could not cope with solving the problem on their own.
    
37. The accused was aged 39 years. She left the father of her three school aged children and went to live with the deceased. For 4 years thereafter, she suffered a life of abuse. She endured grinding poverty because the deceased drank every day and could not and would not provide the bare necessities to the accused and her children. He would not send the daughters to school, and instead sexually abused them at night with little attempt to conceal his activity, even from the 11 year old boy, their brother. It appears he was only prepared to take on the accused, whom he treated as a sexual slave, but not their children. She was humiliated in front of her children.
    
38. She had to witness her children being abused, treated in a hostile manner, and frequently assaulted with whatever came to hand. She lived in a state of constant shame, anxiety and fear. She was taunted with allegations of infidelity, and she and the children were abused with foul swear words. She was not allowed to go out to work. Always alert as to whether another assault was about to occur, yet she was unable to work out and to decide how to get away from that life of misery. According to the trial judge, such a state of affairs was typical according to Dr Antico, a psychiatrist, of cases of intimate partner violence syndrome, of which that case appeared to be a classic example.
    
39. Justice Gates, the presiding Judge, said:
    

"For this type of offence a suspended sentence has been considered appropriate both in Fiji and overseas; Prabha Wait (supra); Litia Leba (supra); Janet Susan Gardner (1993) 14 Cr. App. R. (S) 364. I had considered ordering probation, but assess, for the present, that Social Welfare is under resourced. This is likely to change, but for now the Department may be overstretched. I bear in mind also that by Article 9 of the Convention on the Rights of the Child that children are not to be kept apart from their parents unless it is just and necessary. I do not find it so in case, that you should be parted from them.

Accordingly, I sentence you to a term of 2 years imprisonment suspended for 2 years. I recommend most strongly that you continue with your counselling and with out-patient treatment and assistance from St. Giles Hospital. I will now explain the meaning of a suspended sentence."

40. Indeed, these Fijian cases by no means are precedent that bind this court, but are persuasive.
    

The sentiments expressed by the Supreme Court in Thress Kumbamong v. the State (supra) must be acknowledged as the case that recognizes that women and children in this country who have long suffered at the hands of their spouses or partners, from violence ranging from threats to beatings to sexual assaults, must be placed in a category where they are to be treated in a more humane way by the Courts, rather than be lumped together with the general class of homicide cases.

41. These victims of domestic violence and sexual abuse, once integrated into the Court system, must then become the beneficiaries of psychological and psychiatric treatment and counselling. However, these services are non-existent in Papua New Guinea. So Courts, usually armed only with a Pre-sentence report, prepared by a social worker, who is not a psychologist, psychiatrist or a behavioural expert, is expected to hand down a fair sentence, and whose recommendations, the Courts, more often than not, follow.
    
42. In my view, a presentence report is not a report that will assist the court in ascertaining why a battered wife, or a sexually abused child or the child molester and wife beater, continues to behave the way he does, and why the battered and abused wife or child or teenager, will not leave the place of abode at which these assaults and tyranny, are occurring.
    
43. It is time the State began focusing on the treatment of victims and offenders and provided these services either through the respective Department i.e, Ministry and Department of Religion, Youth and Community Development, or through the Courts as Court annexed counselling, psychological and psychiatric services.
    
44. Battered women, who offend, fuelled by the constant assaults and abuses, are not looking for an excuse to be treated differently from other accused. Their cases should not, as I said, be 'lumped' together with other accused but must be viewed by the Courts as a category where they are the most vulnerable, the most helpless and are often, although in need of help, do not know where to go and are at best "cornered" until they take matters into their own hands.
    
45. Finally, as for the Offenders children, usually, the children of incarcerated women and children are left behind for family members or friends to care for. There are no services in Papua New Guinea, either through Government or Non-Government organisations, to care for these children. I am not aware if studies have been conducted on how these children have fared during the years either one parent or the parents were incarcerated and in jail. However, that should not be a mitigating factor or a reason why the Court should reduce sentence. In fact, the responsibility is upon the State to ensure that these children are cared for. They could be viewed as incorrigible and or destitute children under the Child Welfare Act and declared Wards of the State. However, with the purported repeal of the Child Welfare Act and the passing of the much debated Lukautim Pikinini Act, I do not know if such mechanisms are in place in that Act. And if there are provisions in that Act, whether the Department of Religion, Youth and Community Development has the resources, the manpower and the expertise to deal with such children.
    
46. No doubt, the best interests of the child is affected by the incarceration of a parent or parents but as the circumstances of any criminal case are varied, from the simple to the most serious, this Court or any Court for that matter, must not apply that principle across the board, rather, treat each case according to its own peculiar set of circumstances. The principle held in Bean v. Bean (supra) applies to child custody cases and not to criminal cases. A Jurisprudence must be developed peculiar to Papua New Guinea and solely for Criminal cases, and this is not the time. In my view, it will require wholesale change in mind set and attitudes in Government and all spheres of PNG Society, including education, as was done in the Philippines in 2011 when the Optional Protocol on the Convention on the Elimination of all forms of Discrimination Against Women ('CEDAW') was used to appeal a rape case. In the first rape case ever to be decided under CEDAW, a United Nations Committee ruled that the Philippines Government violated the rights of Karen Vertido, a female rape survivor, when a local Court dismissed her rape allegations due to "gender-based rights – stereotypes". The Women's Legal Bureau of the Philippines, appealed to CEDAW and in collaboration with several other grantee partners in the Philippines and across the Asia Pacific region, secured this historic verdict for the survivor.
    
47. As a result, the Philippines Government is required to implement the recommendation made by CEDAW including ensuring immediate measures in rape cases and impartial and fair legal procedures.
    
48. CEDAW also urged the Philippines Government to review the definition of rape and to train its Judges, Lawyers, Law Enforcement Officers and medical personnel in a gender sensitive manner and to understand the crimes of rape and other sexual offences.
    

49. Indeed, Papua New Guinea is no exception. To protect its very vulnerable citizens, a wholesale effort must be made by Government and State agencies, to create a system that will cater for these children. Their best interest can be best served and protected that way.

50. As to what is an approximate sentence for the Offender, I will, relying on the views expressed by my brother Judges in relation to battered wives and killings in a domestic setting, more particularly the case Thress Kumbamong (supra), impose a sentence and will, in the exercise of my discretion, suspend it on conditions.

51. Considering all the above, the latest tariffs on manslaughter cases and the nature of this killing which is not as violent as the other cases, this Court will sentence the Offender to 9 years. She will serve the term of 2 years and the balance will be suspended on the condition that she be on good behaviour.

52. The Prisoner has been in custody on remand for a period of a year. That will be applied towards reduction of sentence. She will serve the balance of the term of 1 year.

Judgement accordingly,
_______________________________________________________________
Public Solicitor's Office: Lawyer for the Offender
Public Prosecutor's Office: Lawyer for the State