The State v Helen Markus

• Jurisdiction: Papua New Guinea
• Judge: Davani, J
• Judgment Date: 20 February 2015
• Citation: (2015) N5944
• Court: National Court
• Year: 2015
• Judgement Number: N5944

Full : CR 641 OF 2011; The State v Helen Markus (2015) N5944

National Court: Davani, J

Judgment Delivered: 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 defacto 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 defacto 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 defacto 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...