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State v Lapakio [2025] PGNC 500; N11633 (10 December 2025)

N11633

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 399 OF 2022

STATE

V

NATHAN LAPAKIO

WAIGANI: WAWUN-KUVI J
12 NOVEMBER, 10 DECEMBER 2025

CRIMINAL LAW-SENTENCE-Cybercrime Code Act, s 21(2), Cyber Defamation-Defamatory material posted through WhatsApp Messenger on Group WhatsApp Forum-Single post-removed soon after and apology uploaded- 3 years’ imprisonment

The victim is Sir John Thomas Pundari, who is the member of Kompiam Ambum in Enga Province. The offender is the provincial treasurer for Enga Provincial Government. During the 2022 National General Elections, the offender uploaded defamatory material onto a private WhatsApp group.

Held:
1. The offender is sentenced to 3 years imprisonment.
2. The sentence is wholly suspended, and the offender is placed on probation for 2 years.
3. Since the offence is criminal defamation which an act against the State, the offender is fined K5000, a fine similar to State v Wari [2025] PGNC 210; N11337.

Cases cited
The State v Kagai [1987] PNGLR 320
Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730
State v Winston [2003] PNGLR 5
Public Prosecutor v Hale [1998] SC564
Public Prosecutor v Tardrew [1986] PNGLR 91
Goli Golu v The State [1979] PNGLR 653
State v Bosco [2025] PGNC 208; N11336
State v Wari [2025] PGNC 210; N11337

Counsel
A Kaipu & B Lit, for the State
G Bond, for the offender

SENTENCE

1. WAWUN-KUVI J: Sir John Thomas Pundari (Sir John) was the Minister for Finance and the sitting member for Kompiam-Ambum Electorate in Enga Province. Nathan Lapakio, the offender, is the Provincial Treasurer for Enga Province.
   
2. The offender was found guilty following a trial. The facts were that on 18 March 2022, the offender intentionally posted defamatory material in the form of an image, akin to a campaign poster, on the Brothers’ Club WhatsApp Messenger application group.
   
3. The image was a picture of Sir John surrounded by the words “vote for senior statesman John Thomas Pundari, 25 years MP for Kompiam-Ambum. My district, my rules, no roads. I will buy you cars, fight more, reduce the population, low living standards- at least you can survive, 2022 national elections”.
   
4. He was convicted of cyber defamation under 21(2) of the Cybercrime Code Act.
   

Penalty

5. The maximum penalty for cyber defamation under s 21(2)(a) in the case of a natural person, is a fine not exceeding K25,000.00 or a term of imprisonment not exceeding 15 years, or both.
   
6. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.

Personal Antecedents

7. The offender is 53 years old and hails from Laiagam, Kompian Ambum in Enga Province. He was adopted by his older sister and her husband. He resided at Kumbas Village, Wapenamanda, since he was a child.
   
8. He graduated with a Diploma of Business from Port Moresby Business College. He was a graduate trainee with the Department of Education in 1994 and joined the Department of Finance in 1998. He has been employed with the Department of Finance to present.
   
9. He is employed as the Provincial Finance Manager for Enga Province.
   
10. He is a member of the Enga Law and Order Committee and Assistant Treasurer of the PNG Foursquare Board. He is also a member of the Provincial Management Team, the Provincial Procurement Committee, the Provincial Planning and Budget Priority Committee, and the Provincial Election Advisory Committee.
    
11. He is a member of and heavily involved in the Foursquare Church of PNG.
    
12. He has a property in Port Moresby where his two sons reside and attend Port Moresby Business College. He resides in Kumbas Village with his wife. His permanent house was subject of arson during a trial fight.
    
13. His wife is a housewife and has some form of informal sector business.
    
14. He has been diagnosed with an illness that requires medical treatment in the Philippines. While there is no medical report to confirm the illness, I can accept that he has an illness that requires overseas treatment. I have accepted this position primarily because the State, having been provided with the Pre-sentence report, has not made any submissions or taken objection to the offender’s position that he suffers from a serious illness. I take it acquiescence.
    
15. He has no prior convictions.

Submissions

16. The State’s position is that the offender be sentenced to a term of imprisonment between 7 and 10 years. It relied on the cases of State v Bosco [2025] PGNC 208; N11336 and State v Wari [2025] PGNC 210; N11337.
17. In State v Bosco, the offender published widely and persistently on Facebook defamatory material against the DHERST Secretary and Deputy Secretary. The posts claimed corruption and misappropriation of funds. The offender did not care whether the posts were true and acted maliciously. He was convicted of three counts following a trial. He was sentenced to 7 years for the first count, to the rising of the court on the second count, and 5 years for the 3rd count. The sentences were made concurrent and were partially suspended.
    
18. In State v Wari, the offender published defamatory material on Facebook against Wari Vele, an election candidate. The material claimed that Wari Vele stole millions of kina when he was the Governor for NCD. She was convicted following a trial and was sentenced to three years' imprisonment and a fine. Her sentence was wholly suspended.
    
19. The State’s suggested range is not supported by the comparable cases. The Cybercrime Code Act, being relatively new, has no sentencing guidelines. The range from the two comparable cases submitted by counsel suggests a sentence between 3 and 7-years imprisonment for cases involving the publication of defamatory material against senior public officials.
    
20. Counsel for the offender submits a fine of K5000, and that if any sentence is to be imposed, it should be wholly suspended. Counsel supports his position by contending that the two cases submitted by the State are distinguishable. He submits that in State v Bosco, the offender posted on a public forum, namely Facebook, where a wider audience was reached, and that he persisted in his posts. Similarly, in State v Wari, a wider audience was reached because the post was made on Facebook. In the present case, it was on a private group on the WhatsApp application.
    

Culpability

21. While it was accepted that the offender did not create the image, it was found that he intentionally published. Given his experience and qualifications, he knew that the imputations were defamatory in nature. The level of his culpability is however reduced because the publication was not made in an open public forum but was limited to a private group; after uploading, he shortly after took it down; and immediately uploaded an apology and that there were no further posts. His level of culpability is less than that of State v Bosco and State v Wari.

Victim Impact Statement

22. Sir John states that he, his family, and his friends were injured by the actions of the offender. He was angry, devastated, frustrated, and emotionally affected. The offender served under him when he was the Minister for Finance. He was insulted that the apology was not made to him directly but was uploaded onto the same forum. He states that the post defamed him and that it contributed to people attacking his people, causing them to be displaced. There was widespread destruction, looting, and burning of properties, displacing 300 people in his electorate in the 2022 National General Elections. His supporters were affected by the post. He felt humiliated, suffered stress, and lost sleep over the post.
    
23. The post affected his standing in the Church.
    
24. He asks for a custodial sentence to reflect the gravity of the offence and to serve as a punitive reminder to other like-minded public officials.
    
25. While accepting that the posts caused him emotional distress, the State presented no evidence that the post was circulated outside of the private forum, or the extent of its reach. The offender was convicted on the facts that the material was posted on the private forum only. There is no evidence to support the claim that the post had caused fighting, looting, destruction of property, and displacement of people.

Allocutus

26. The offender apologised and gave up a written statement in allocutus. He explained that he was not responsible for the graphics but only uploaded the material. He maintains that he was trying to forward it but did not intend to upload it to defame Sir John. He has stated that the apology letter was only prompted by the then Secretary for Finance and not out of his own volition. His demeanor towards the victim when the victim gave evidence, the reasons for the apology letter, that he did not seek to speak or approach Sir John in person or send an apology directly to him since they are from the same province and electorate, that there was no attempt for customary reconciliation and that much of his allocutus was spent on talking about his own circumstances demonstrate is indicative to my mind of an absence of genuine remorse.

Harm

27. I do accept that Sir John suffered humiliation, shame and stress over the defamatory material, especially when it was made during the election period.
    
28. As to the other matters stated in the victim impact statement, as indicated, there is no evidence from the State to substantiate the extent of the post and its wider consequence. It was a group comprising of 32 members as indicated by the offender in his written statement to the court.

Factors in Mitigation

29. Factors in mitigation are that the offender is a first-time offender and made admissions to the police that he made the published material albeit that it was accidental. It was not made on a public forum but a private WhatsApp Group with limited members. There was no evidence to suggest that it was taken outside of the private forum and circulated to a wide audience.

Factors in Aggravation

30. The post was made intentionally without regard to truth of its contents. The post was made against the sitting member of Parliament and a candidate for the elections. It was made during the elections. The contents were highly defamatory with imputations that Sir John had failed his constituents in service delivery, that he was corrupt and had the effect of inviting or causing people to ridicule and mock Sir John.
    

Consideration

31. While freedom of speech is enshrined in the Constitution, citizens have a responsibility that their speech does not allow for the publication of untrue defamatory and scandalous statements against others. In this age of technology, people now use social media to express themselves without consideration of its consequences.
    
32. Here, the offender, used technology to publish defamatory material during the election period against the sitting member.
    
33. In State v Bosco, “In determining an appropriate sentence under s 21(2), (3) or (4), Cybercrime Code Act the following considerations may be relevant:
    

(a) the nature and gravity of the defamation;

(b) the mode and extent of publication;
(c) the conduct and intention of the offender, including:

1. whether publication was intentional or reckless;
2. whether the offender knew that the publication was false;
3. the offender’s motive, including the nature and extent of injury intended, whether the offender was actuated by malice, or for the purpose of extorting a benefit;
4. the planning involved;
5. whether the publication was made openly or using an alias;
6. whether there was a breach of trust;

(d) the extent to which the offender persisted with the defamation, including any retraction or apology; and

(e) the impact on the victim, including the extent of harm established.

34. Here the offender used his own name and phone number. It can be clearly inferred that the motive behind the post was to tarnish the reputation and have others ridicule the victim. It was uploaded onto a forum during the elections. While I accept that the post was not uploaded onto a public forum and that the offender did not create the graphics, he nonetheless uploaded it onto a forum which had several members and did it intentionally. To his benefit, I accept that he took down the post and uploaded an apology. Although as said, the apology was made towards self-preservation rather than he being genuinely remorseful.
    
35. As I said, I accept that the victim was affected by the post, and it caused him a lot of stress. I also accept his statement that senior public officials must be mindful of their actions and their consequences.
    
36. I have considered the cases of State v Bosco and State v Wari and find that they are distinguishable in the sense that they attracted a wider audience and were persistent in the case of State v Bosoco. However, this case is more similar to State v Wari in that it involves publication of material against an election candidate during elections. A sentence of 3 years imprisonment is appropriate, and I so impose it.
    
37. The offender has not spent any time in custody.
    
38. The next question is whether the sentence should be suspended. I have considered the authorities in The State v Kagai [1987] PNGLR 320, Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730, State v Winston [2003] PNGLR 5, Public Prosecutor v Hale [1998] SC 564 and Public Prosecutor v Tardrew [1986] PNGLR 91.
    
39. The Probation Officer recommends probation having completed his report. The materials in the report support reintegration and rehabilitation. The offender was a law-abiding citizen up until he committed the offence. It is a non-violent offence and there is very little in the report before that shows that he is a danger to society. Additionally, the combination of his age and pre-existing medical condition suggests that imprisonment will cause him hardship.
    
40. Based on the foregoing I find that a wholly suspended sentence is appropriate. Pursuant to s 19 of the Criminal Code and s 16 of the Probation Act the sentence of 3 years imprisonment is wholly suspended and the offender is placed on probation for a period of two years.
    
41. For clarity s3 of the Cybercrime Code Act provides for the applicability of the procedures and practices under the Criminal Code. S 3(1)(c) specifically states that the procedures for sentencing under ss 18 and 19 of the Criminal Code are applicable to sentencing under the Cybercrime Code Act.
    
42. The final question is whether I should impose a fine. Criminal defamation as opposed to civil defamation is about the State interest in enquiring that people do not abuse technology to defame others. It is not civil defamation where it concerns an individual’s interest. A fine in the circumstances appears to serve the purpose of general deterrence to other likeminded individuals. The offender is therefore fined K5000 similar to State v Wari.
    
43. Finally on the matter of the missing exhibits. The items confiscated under the search warrants were not tendered in Court during the trial. The State Prosecutor merely tendered photographs and made no enquiries as to the location of the exhibits. On direction by the Court, it has now become apparent that the exhibits have gone missing. The offender was acquitted of one of two counts on the indictment. Most of the electronic exhibits subject of the first count should have been returned to the offender. It is recommended by this Court that Police Internal Investigation Directorate conduct investigations for misappropriation against Special Constable Kenneth Kolou, Detective Constable Peter Gaso and now terminated former Detective Liason Salle.
    
44. I will order that the State Prosecutor, Mr Kaipu forward a copy of the Court decision containing the recommendations to the Director of Internal Affairs and file an affidavit to that effect.

Orders

45. The Orders of the Court are:
    1. The offender is sentenced to 3 years imprisonment.
    2. Pursuant to s 16 of the Probation Act and section 19 of the Criminal Code, the sentence is wholly suspended, and the offender is placed on probation for a period of 2 years.
    3. In addition, the offender shall pay a fine of K5000 to the State within a month from the date of this Order.
    4. Mr Bond for the offender shall file an affidavit confirming the payment of the fine and cause copies to be served on the Acting Public Prosecutor and the Probation Office.
    5. State Prosecutor Mr Andrew Kaipu shall forward a copy of the decision of the Court containing the Court recommendations to the Director of Internal Affairs and file an affidavit to that effect.
    6. Bail of K500 is refunded.
    7. The CR(FC) file and any bail file are closed.

________________________________________________________________
Lawyer for the State: The Acting Public Prosecutor
Lawyers for the offender: Gibson Bond Lawyers