N11655

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 391 OF 2024

THE STATE

V

ESSAU MALKEN

WAIGANI: BERRIGAN J
13, 21 NOVEMBER 2025

CRIMINAL LAW – SENTENCE – S 383A of the Criminal Code – Misappropriation of K31,976.05 - Guilty plea – Three years of imprisonment, suspended on restitution. 

Cases cited
Wellington Belawa v The State [1988-89] PNGLR 496 
State v Uviri (2008) N5468 
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 K31,976.05, contrary to s 383A(1)(a)(2)(d), Criminal Code for which the maximum penalty is 10 years of imprisonment.

2.	The offender is the owner of Oceania Logistics Services a customs clearance firm. On 11 December 2023 an agent, Stewart Rom of Online Dealers, requested a clearance invoice for two 40 foot containers at Lae for his client, Timothy Koris. On 19 December 2023 the offender raised an invoice of K75,069.50 to the owner of Pacific Energy Support Ltd, Timothy Koris, instead of to Online Dealers. On 28 December the offender told the agent that he had lodged the customs clearance. He had done so without any approval from the agent or Pacific Energy. In order to avoid penalties for delayed payment the monies were transferred to the offender’s business account. Upon follow up from both Mr Rom and Mr Koris the offender paid the customs clearance, storage fees and freight costs to K43,093.45 but applied the balance to his own use. 

Submissions and Comparative Cases 

3.	Sentencing in such cases is properly 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 relies on Wellington Belawa and State v Uviri (2008) N5468 which the Supreme Court has declined to endorse as an alternative to Wellington Belawa: see Kaya. 

7.	Defence counsel submits that a sentence of between two and three years would be appropriate. It relied on the following cases:  

a.	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 certainly involved planning, and deliberate action over a period days. To date there has been no restitution. 

12.	The victims, Steward Rom and Timothy Koris, both attended for interview with Probation Services and reported that the impact of the offence on their small businesses has been significant. Despite that they want the offender to repay the lost monies rather than go to prison.

13.	The offender is 37 years of age. He is from Biala Kimbe, West New Britain Province. He is married with a one year old child.

14.	In mitigation this is the offender’s first offence. He is of prior good character. He is educated to Grade 12 and obtained a business diploma from Lae Commercial Training College in ports and shipping management. He was initially employed with a number of large and highly reputable shipping firms. He clearly worked hard and in 2021 he established his own firm.

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 great. 

17.	His business is still afloat but it has suffered considerably as it operates from Lae and the offender has been in Port Moresby as he has gone through committal stage. Of course, he has also been separated from his wife, family and community. 

18.	It appears that to some extent the monies were expended in anticipation of monies coming into the business which are still owed and on a gold deal that went awry but the offender does not contend that he did not appreciate what he was doing was dishonest. 

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, and the victims who want him to continue to work so he can repay them and they can remain in business too.

23.	Probation Services regards him as suitable for probation and he is supported by community leaders and his family who speak highly of him. 

24.	I intend to suspend the sentence having regard to his 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 and make restitution to his two victims. It is also clear that restitution will not be easy. He has been separated from his family in Lae and will have to work hard to restore his business to its former position whilst repaying the monies he stole. He will not easily forget the seriousness of his offending. His earnings are not great but restitution is possible given time and he has a contract which is underway. 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.  

25.	Given that he has spent considerable time here away from his business and the recently awarded contract I do not intend to order community service on this occasion.

26.	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 K31,976.05 is paid into the National Court Trust Account for payment to Timothy Koris within two 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.
Sentences accordingly.

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