N11654

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 373 OF 2024

THE STATE

V

BLASIUS VUVUL

WAIGANI: BERRIGAN J
13, 21 NOVEMBER 2025

CRIMINAL LAW–SENTENCE – s.383A of the Criminal Code – Misappropriation of K26,000 belonging to the State - Guilty plea – Three years of imprisonment, suspended on restitution. 

Cases cited
Wellington Belawa v The State [1988-89] PNGLR 496 
State v Amonea (2012) N4688
The State v Likius (2004) N2518
The State v Benson Likius (2004) N2518
State v Dumo (2018) N7574
State v Lamo (2022) N9500
State v Morea (2022) N9605
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320

Counsel
S Kuku for the State
D Kayok for the accused

DECISION ON SENTENCE
1.	BERRIGAN J: The offender pleaded guilty to misappropriating K26,000, contrary to s 383A(1)(a)(2)(d), Criminal Code for which the maximum penalty is 10 years of imprisonment.

2.	On 21 November 2023 PNG Forest Authority deposited a cheque for K50,116.10 to the offender’s business account, Siale Travel Tours, for the purchase of 23 tickets for PNGFA officials to attend training in Kimbe, West New Britain. He purchased only 13 tickets, worth K24,116.10. The balance was applied to his own use.

Submissions and Comparative Cases 

3.	Sentencing in such cases is guided by the principles outlined in Wellington Belawa v The State [1988-1989] PNGLR 496 in which the Supreme Court identified the following factors which might be taken into account, including:
 
a.	the amount taken; 
b.	the quality and degree of trust reposed in the offender; 
c.	the period over which the offence was perpetrated; 
d.	the impact of the offence on the public and public confidence; 
e.	the use to which the money was put; 
f.	the effect upon the victim; 
g.	whether any restitution has been made; 
h.	remorse; 
i.	the nature of the plea; 
j.	any prior record; 
k.	the effect on the offender; and 
l.	any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.

4.	The Supreme Court also suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:

a.	K1 and K1000, a gaol term should rarely be imposed;
b.	K1000 and K10,000 a gaol term of up to two years is appropriate;
c.	K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
d.	K40,000 and K150,000, three to five years’ imprisonment is appropriate.

5.	That guide is unchanged for present purposes: see David Kaya and Philip Kaman v The State (2020) SC2026.

6.	The State sought a sentence of three years. It referred to only one case, that of State v Amonea (2012) N4688, Makail J. The offender was found guilty following trial of misappropriating K25,000. The offender induced the bank to change the signatory of the bank account belonging to Hides Gas Development Services Ltd from Wanpis Uralia to himself by presenting a forged court order. The offender subsequently withdrew monies on two separate occasions before the offending was discovered by the legitimate director.

7.	Defence counsel submits that a sentence of between two and three years would be appropriate having regard to the following cases:  

a.	The State v Likius (2004) N2518, Lenalia J: The State v Benson Likius (2004) N2518, Lenalia, J: The prisoner, a payroll clerk with Lihir Management Company, pleaded guilty to one count of misappropriating a sum of K68, 679.06 using a scheme applied over a period of 20 months. There were assets from which substantial restitution could be made immediately. A sentence of five years was imposed, two years of which was suspended upon conditions including restitution;

b.	State v Dumo (2018) N7574: The offender pleaded guilty to one count of misappropriating K87,731.00, the property of the State.  The offender received the funds as a refund but failed to pass them on to the Department.  He was sentenced to 4 years of imprisonment, 2 years of which was suspended on conditions, including restitution;

c.	State v Lamo (2022) N9500, Wawun-Kuvi AJ: the offender was the certifying officer and a counter signing officer within the Finance and Administration Branch of the Department of Provincial and Local Level Government Affairs. She pleaded guilty to misappropriating K64,754.99 which she directed to the account of another person. She was sentenced to four years of imprisonment, two of which was suspended on conditions including good behaviour;
d.	State v Morea (2022) N9605, Berrigan J: the 62 year old offender pleaded guilty to misappropriating K46,800 between 13 and 24 December 2019 whilst employed in the Department of Finance as a Public Money Collector. Upon being confronted the offender immediately cooperated with officers from the Department of Finance. She admitted that she had given the money to the group who had promised her that they would refund the monies plus interest before the end of December 2019. Of course, it was a ruse and she never saw nor heard from the group again. She was close to retirement and lost her job of 52 years and all the entitlements associated with it. She was sentenced to three years imprisonment, suspended on condition of restitution within 12 months. 

8.	It is important to note that there are many other cases concerning similar amounts, in which unlike the ones above, the sentence was not suspended. 

Consideration

9.	Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. Applying the principles outlined in Wellington Belawa, the following matters have been taken into account in determining an appropriate sentence.

10.	The amount in this case places the offence in the third category of Wellington Belawa, attracting a range of between two and three years of imprisonment as a starting point. This is not a case warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653.

11.	This was not a particularly sophisticated offence nor did it involve any breach of trust in the special sense but it did involve some planning to the extent that the offender used the monies to renew his travel licence. To date there has been no restitution. 

12.	Forest Services no longer wishes to pursue the offender but it should be remembered that the victim in this case is the State and its people. The monies misappropriated were precious State funds. 

13.	The offender is 55 years of age. He is from Tokabur village, Kokopo District, East New Britain Province. He has nine children four from his former first wife and five from his second wife, who passed away. He has remarried and is the only breadwinner in the relationship. 

14.	In mitigation this is the offender’s first offence. He is of prior good character. He is educated to Grade 10 and obtained a certificate from Port Moresby Technical College.  He has worked hard in different positions from 1989 until he established his own travel agency in 2011, which he was operating at the time of the offence.  He is supported by Johnson Tau, his community leader, who speaks highly of him and confirms that he is the chairman of the Vunaibu Cooperative Society in Kokopo, which is a community based cocoa project, and critical to its operation.  

15.	He cooperated with police and made full admissions in the record of interview. He pleaded guilty at the first opportunity before this Court. I take his guilty plea into account as indicative of his remorse, which he expressed on allocutus, and on the basis that it has saved this court and the state and its witnesses considerable cost and inconvenience. 

16.	The impact of the offence on the offender has been severe. 

17.	Whilst it is no excuse the monies were not expended on extravagances but to renew his licence. The former Member Lauta Atoi acknowledges that there was a debt owing to Siale Travel of K68,344.94 as at 30 September 2023 and an undertaking to ensure that those monies are repaid in instalments commencing in November 2025. Similarly, another person, Joe Varpin acknowledges that he owes Siale Travel K6300 and undertakes to repay it on these sentence proceedings. 

18.	In addition, the impact on the offender has been severe. To his credit he did not raise the debts owed to him at the time on allocatus nor in submission until questioned by the Court at which time it also became clear that he has lost the business that he worked so hard to build since 2011. 

19.	To date no time has been spent in custody. 

20.	I have had regard to the offender’s personal circumstances, and the matters in mitigation, his early cooperation and guilty plea, his lack of previous conviction and prior good character. These factors must be considered against the quantum involved, the fact there was some planning and the impact on the victim. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.

21.	Having considered all of the above matters, including comparative cases, I sentence the offender to three years of imprisonment without hard labour.  To date no time has been spent in custody. 

22.	The offender pleads for the sentence to be suspended. He is supported by his family, community leaders, those who want him to continue to lead the cocoa project and those who have undertaken to meet any order of restitution.

23.	I intend to suspend the sentence having regard to the strong prospects for rehabilitation demonstrated by his early plea and the fact that he has taken full responsibility for the wrongdoing. In my view this is the best way of promoting the rehabilitation of the offender. It will allow him to continue to the community by useful employment. He has already secured work as a consultant with another agency which will supervise his work. Supervision will allow him to contribute to the community project in respect of which I am satisfied he has done much work.  It is also clear that restitution will not be easy. He has lost his business and life’s work and I am quite sure he will not easily forget the seriousness of his offending. His earnings are not great but restitution is possible given time and I also note the undertakings given by others to repay their longstanding debts. It will also promote restitution to the State. This is not an act in leniency but a form of punishment to be served outside the prison system in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.  

24.	Given that he has secured further work and the active role he plays in the community project I do not intend to order community service on this occasion.

25.	Accordingly, I make the following orders.

Orders

(1)	The offender is sentenced to three years of imprisonment without hard labour.

(2)	The sentence is wholly suspended on condition that:

a.	Restitution in the sum of K26,000 is paid into the National Court Trust Account for payment to Consolidated Revenue within three years of today’s date;
b.	The offender enter into his own recognisance to keep the peace and be of good behaviour for the period of his sentence.

(3)	Any bail monies are to be immediately refunded.

Sentence accordingly.

_______________________________________________________________
Lawyer for the State:	Public Prosecutor
Lawyer for the accused:	Public Solicitor