The State v Margaret John (No 1)

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 20 April 1995
• Citation: [1995] PNGLR 446
• Court: National Court
• Year: 1995
• Judgement Number: N1326

National Court: Injia J

Judgment Delivered: 20 April 1995

N1326

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

MARGARET JOHN (NO 1)

Kundiawa

Injia J

20 April 1995

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.

Facts

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.

Held

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.

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.

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.

Cases Cited

Papua New Guinea cases cited

Lialu v The State [1990] PNGLR 487.

Public Prosecutor v Ame [1983] PNGLR 424.

Counsel

F Kuvi, for the State.

C Solasaia, for the defendant.

20 April 1995

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 hild 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...