N11745

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO. 13, 68 AND 202 OF 2024

THE STATE

V

BILLY PUIO, WILLIAM PUIO AND THOMAS KANDAKI

WAIGANI: BERRIGAN J
5 FEBRUARY, 13 MARCH 2026

CRIMINAL LAW – SENTENCE – MISAPPROPRIATION – K75,000 and K35,000 – Sentence of 5 years imposed on each of two offenders.

CRIMINAL LAW – SENTENCE – MISAPPROPRIATION – K35,000 – Sentence of 3 years imposed, wholly suspended on condition of restitution.

Cases cited

Wellington Belawa v The State [1988-1989] PNGLR 496
David Kaya and Philip Kaman v The State (2020) SC2026
State v Chilen (2008) N3549
The State v Benson Likius (2004) N2518
State v Mathew (2024) N10965
State v Nigi (No 2) (2024) N11103
The State v Daniel Duk (2009) N3924
State v Amonea (2012) N4688
State v Tony (2018) N7268
State v Vuvul (2025) N11654
State v Malken (2025) N11655
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
Sanawi v The State (2010) SC1076 
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Mase v The State [1991] PNGLR 88
Tremellan v The Queen [1973] PNGLR 116
Public Prosecutor v Kerua [1985] PNGLR 85
State v Joseph Wai (2020) N8452
State v Janet Molong Posakei (2019) N8000
State v Etami (2012) N4769
State v Reinert Waira (2020) N9518
State v Bradley Tuvi (2021) N10756
The State v Tardrew [1986] PNGLR 91

Counsel

C Langtry for the State 
J Kolowe for the offenders 
DECISION ON SENTENCE
1.	BERRIGAN J: The offenders were jointly charged with one count of misappropriating K75000 from Helen Mikmik’s company, AI Links Limited, and one count of misappropriating K35000 from Helen Mikmik herself, between 1 April and 31 May 2021 contrary to s 383A(1)(a)(2)(d) of the Criminal Code for which the maximum is 10 years of imprisonment.
 
2.	Billy Puio pleaded guilty towards the end of the State case to both counts after Helen had given evidence and most documents had been admitted. William Puio, his father, also sought to plead guilty at that time but his plea was rejected by me. He was ultimately found guilty of misappropriating K25000 under Count 2 and acquitted of Count 1. Thomas Kandaki was found guilty of both counts following trial. 

3.	In brief, on Count 1 Billy and Thomas misappropriated K75000 paid into Billy’s company’s account from Helen’s company account as a deposit towards the purchase of a property to which both Billy and Thomas knew Billy did not hold title.  On Count 2 Billy and Thomas misappropriated K35,000 belonging to Helen, including: K25,000 obtained as consultancy fees for Billy’s father William when William was not a consultant and there was no intention that he would act as one; and a further K10,000 intended for the payment of stamp duty which was not paid. 

4.	On 20 April 2021 Thomas Kandaki, a free-lance real estate agent, called Helen Mikmik and told her that there was a property for sale at Korobosea that was worth about K3m but was being sold for a very good price. The following day he introduced her to Billy Puio as the owner of the property. Helen viewed the property and Thomas and Billy subsequently showed Helen a valuation report and a fake owner’s copy of the title. 

5.	Billy offered to sell the property for K600,000 but ultimately agreed to sell it to Helen for K400,000. It was agreed that Thomas would prepare the contract of sale documents. In the meantime a deposit of K75000 was paid by Helen’s company, A1 Links Limited, into Billy’s company account in the name of WMK Estate Development Construction on 22 April 2021. Helen did not hear from the offenders for a number of weeks. When she contacted them they told her that the process was taking some time at the Department of Lands. 

6.	On 13 May 2021 Billy and Thomas introduced Helen to William, Billy’s father, stating that he was a consultant with the Department of Lands and would expedite the process. William asked Helen to pay K25,000 in fees into his bank account, which she did. William was not a consultant and had no intention of assisting Helen. He simply pretended that he would fast track the process at the request of Billy and Thomas.

7.	On 17 Mary 2021 Thomas provided a draft contract of sale to Helen which she signed. On the same day he told her that Billy and William were still working with the Lands Department but that he would help her go and pay stamp duty at the IRC because everything had to be ready at the same time. He had already calculated that the stamp duty required was K10,000. She dropped him outside the IRC with the cash. He told her that he had some friends inside who would process it quickly and subsequently provided her with a document purporting to state that the duty had been paid when that had not been done. Two days later Helen saw that Thomas had posted photographs suggesting that he had gone home to the village. After that he and Billy effectively disappeared and could not be reached. 

SUBMISSIONS AND COMPARITIVE CASES  

8.	In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence of misappropriation, 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.

9.	Having regard to the scale outlined in that case, and following amendments to s 383A, the Supreme Court in David Kaya and Philip Kaman v The State (2020) SC2026 suggested that the following scale of sentences may usefully be accepted as a base, to be adjusted upwards or downwards according to the factors outlined in Wellington Belawa, such that where the amount misappropriated is between:

a)	K1 and K1000 a gaol term should rarely be imposed;
b)	K1,000 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;
d)	K40,000 and K100,000, three to five years of imprisonment is appropriate;
e)	K100,000 and K500,000, five to seven years’ imprisonment is appropriate; and
f)	K500,000 and K999,999.99, seven to 10 years of imprisonment is appropriate, bearing in mind that the maximum under s 383A(2) should be reserved for the worst types of offending involving amounts less than K1 million.

10.	The State sought a sentence of three to five years of imprisonment on Counts 1 and 2 for each of Billy Puio and Thomas Kandaki, to be served cumulatively. It sougth a sentence of two to three years in the case of William Puio. It does not oppose suspension in any case subject to restitution. 

11.	The State referred to numerous cases in support of its submissions for which I am grateful. They demonstrate a pattern of sentencing consistent with the above tariffs, including sentences of between 3 and 5 years for amounts between K25,000 and K35,000 and 4 to 5 years for amounts between K55,000 and K100,000 depending on the breach of trust involved, the source of the funds and the nature of the plea.

12.	Cases referred to by the State concerning amounts between K65000 and K100,000:

a)	State v Chilen (2008) N3549, Davani J: the offender pleaded guilty to misappropriating K65,000 which he had obtained from the National Gaming and Control Board for the purpose of building a church. He was sentenced to 4 years of imprisonment;
b)	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;
c)	State v Mathew (2024) N10965, Wawun-Kuvi J: the offender pleaded guilty to, whilst Assistant General Secretary of the PNG Maritime Transport Union, misappropriating K78,960 to his own account by raising two cheques. He was sentenced to 4 years;
d)	State v Nigi (No 2) (2024) N11103 Salika CJ: the offender was convicted following trial of misappropriating K99,973 intended for her brother Nigel from their father’s estate. She was sentenced to 5 years, 3 of which was suspended on restitution. 

13.	Cases concerning amounts up to K35,000:

a)	The State v Daniel Duk (2009) N3924, Cannings J, in which the offender pleaded guilty to misappropriating K32,800 to his own use from customer accounts whilst an employee of Wau Micro Bank.  He was sentenced to 4 years of imprisonment in hard labour;
b)	State v Amonea (2012) N4688, Makail J: the offender was found guilty following trial of misappropriating K25,000 and sentenced to three years of imprisonment on condition of restitution. He 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;
c)	State v Tony (2018) N7268, Miviri AJ: the offender, the private secretary to the Chief Justice, hired vehicles in the name of the Deputy Chief Justice to the value of K25,844. She pleaded guilty and was sentenced to 4 years of imprisonment;
d)	State v Vuvul (2025) N11654, Berrigan J: the offender applied almost K26,000 of the monies deposited by PNG Forest Authority to renew his travel licence whilst waiting for a number of persons to meet their debts to his business. He was sentenced to three years of imprisonment, wholly suspended on conditions, including restitution;
e)	State v Malken (2025) N11655, Berrigan J: the offender pleaded guilty to misappropriating K31,976.05 of the K75000 provided to him as a customs agent. Three years, wholly suspended on conditions, including restitution.

14.	Defence counsel sought sentences of between three and four years, on each count, to be served concurrently, wholly suspended for each of Billy and Thomas. And a sentence of one to two years, wholly suspended in William’s case.

CONSIDERATION 

15.	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. This is not a case warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied. Applying the principles outlined in Wellington Belawa, the following matters have been taken into account in determining an appropriate sentence.

Billy Puio and Thomas Kandaki

16.	Considering the amounts involved, Count 1 falls within category four of Kaya attracting a starting range of between three and five years of imprisonment. Count 2 falls within category three attracting between two to three years as a starting point.

17.	In aggravation the offences involved significant planning and ongoing dishonesty. They were planned and executed by Billy and Thomas acting together, over a period of about a month, between 22 April and 17 May 2021.  

18.	The monies were applied for the offenders’ own use. There is no suggestion they did it for anything other than personal gain.

19.	It appears that Billy was the instigator. The fake title was in his name and it was into his company’s account that the initial K75,000 was deposited. As is often the case when two or more persons act together, the evidence as to the extent of their personal benefit was unclear. On the face of it Billy benefited the most albeit that K50,000 was withdrawn in cash the following day. It was also Billy who (with Thomas) asked his own father to pretend to be a consultant.

20.	It is also significant, however, that the offending involved a breach of trust in Thomas’ case. Thomas was Helen’s agent. Helen trusted him because he had acted for her just a year earlier to purchase property. It was he who introduced Helen to Billy. 

21.	The impact on the victim has been significant. She and her business lost a large amount of money. I have little sympathy, however, for the K25,000 that she paid to William as a consultant to “fast track” the process at the Lands Department. She had purchased property before and must have known that there was a proper way of doing things which did not involve the use of such consultants. 

22.	Dishonesty offences are prevalent and this case calls for specific and general deterrence.

23.	Billy Puio is from Ambu village, Kompiam District in Enga province. He is 38 years old and married with three young children, all of whom attend school in Port Moresby, where he has lived for the past ten years. He is educated to college level and highly articulate although he declined to tell Probation Services what qualifications he actually holds. At the time of the offence he was self-employed working mainly in the real estate industry buying and selling properties. His wife was employed until recently. Since his remand his wife has borne the financial and emotional burden of raising the children and meeting community obligations, with some assistance from his father.

24.	Thomas Kandaki is from Maltaka village in Tambul sub-district of Western Highlands Province but has lived in Port Moresby for more than a decade. He is 45 years old. He is married with five children aged between 6 months and 14 years of age. He is the sole breadwinner for his family. In addition to freelance consulting work he also operates a taxi. 

25.	In mitigation the offenders have no prior convictions. Both are of prior good character. 

26.	A community leader from Goroka, James Mehuwo, was shocked by Billy’s offending. Billy was an active member of the community and the tribe, responsible for leading sport and youth programs. 

27.	A member of the community in the Western Highlands reported that Thomas was a well-respected and kind-hearted member of their clan, who was admired for his generosity. 

28.	I have taken into account that Billy pleaded guilty albeit towards the end of the State’s case. It is still significant and I intend to take it into account both as a reflection of his genuine remorse, which he expressed on allocatus, and the time saved in concluding his trial. He has taken responsibility for his offending, apologised to Helen, and to his father and Thomas for involving them in it.  

29.	Thomas exercised his right to trial. I make it clear that there is no aggravation in that. It simply means that he is not entitled to any discount he might have received if he had pleaded guilty. He expressed remorse on allocatus but it is qualified. He does not appear to take responsibility for the monies other than the K10000 he received for the payment of stamp duty, which he wishes to restitute.

30.	As for the impact of the offences on the offenders, I am sure that it will be difficult for them to continue to work in the real estate industry and any term in custody will impact them and their family but it is well established such considerations are not normally matters warranting mitigation.

31.	In all the circumstances I sentence Billy Puio and Thomas Kandaki each to 4 years of imprisonment on Count 1 and 3 years of imprisonment on Count 2. 

32.	In imposing these sentences I have considered the principles governing parity: Sanawi v The State (2010) SC1076 affirmed David Kaya and Philip Kuman v The State (2020) SC2026: 

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46;   (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..
Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."

33.	There is a balancing exercise to be made in this case. There are no great differences between the offenders’ personal circumstances. As outlined above, the offending was a shared enterprise. It was Billy’s fake title and Thomas’s breach of trust and without either the offences could not have been committed. Billy appears to have benefited the most but he also pleaded guilty albeit late. In the circumstances it is my view that the sentences are appropriate in each case.

34.	I also remind myself of the approach to be taken when deciding whether sentences should be made concurrent or cumulative, and the principles of totality: Mase v The State [1991] PNGLR 88 at 92:

“It is clearly laid down by this Court in the cases referred to that there are three stages to go through in coming to a total sentence. The first step is to consider the appropriate sentence for each offence charged and then consideration be given as to whether they should be concurrent sentences or cumulative sentences. Where the decision is made to make two or more sentences cumulative, the sentencer is then required to look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. This principle must be observed because a straightforward addition of sentences usually leads to a total sentence that is excessive in the whole of the circumstances.”

35.	There is no “all-embracing” rule as to when sentences for two or more convictions should be made concurrent.  Generally, sentences should be made concurrent where a series of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts: Tremellan v The Queen [1973] PNGLR 116. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative: Public Prosecutor v Kerua [1985] PNGLR 85.  

36.	I do not agree with the State submission that the sentences should be made wholly cumulative. 

37.	On one hand the offences were of similar character, were conducted during the same period and formed part of one transaction, in so far as they were part of a fraudulent property deal. Whilst the victims were legally separate, hence the separate changes, the victims were in practical terms essentially the same, namely Helen and her company. On the other hand, whilst Count 2 was conducted as part of the broader scheme it nevertheless involved a novel approach contrived both to placate Helen and also obtain additional monies – for consultancy fees and stamp duty - before both Billy and Thomas disappeared and she realised the sale was a scam. 

38.	In all the circumstances, one year of the sentence on Count 2 will be served consecutively on Count 1. This will reflect the matters outlined above and is consistent with the principle of totality. Significantly, this will also bring the sentence in line with the range of sentences proposed in Wellington Belawa and Kaya, and comparative cases concerning monies totalling about K100,000. For instance see State v Joseph Wai (2020) N8452; State v Janet Molong Posakei (2019) N8000; State v Etami (2012) N4769; State v Reinert Waira (2020) N9518, State v Bradley Tuvi (2021) N10756, amongst others.

39.	I exercise my discretion to deduct the time spent in custody by Billy since 27 October 2023. To date no time has been spent in custody by Thomas Kandaki.

40.	Probation Services support suspension but I do not intend to order it in either case.  Neither offender will suffer exceptionally in prison. I have reflected their prospects for rehabilitation in the sentence determined. Billy Puio has already spent a considerable part of his sentence in prison. He has no means to make restitution and I do not intend to order suspension so that his father can do so on his behalf. Thomas Kandaki is unable to restitute more than K10,000 and I am not prepared to suspend the entire sentence on that basis: The State v Tardrew [1986] PNGLR 91 applied.
 
William Puio

41.	William Puio’s case is quite different from that of Billy and Thomas for several reasons. He was acquitted of Count 1 and found not to have been part of the broader property scam. 

42.	He was found guilty of misappropriating K25,000 which places his offending in the third category of Kaya as a starting point. 

43.	In aggravation there was technically a breach of trust in the sense that at the time William dishonestly applied the monies to his own use he had already agreed to be Helen’s consultant when he had no intention of doing so but there was no pre-existing relationship of trust and the breach was really essential to the offending itself. 

44.	William was not part of the broader plan. The offence was not spur of the moment but there was no real planning involved on his part. He acted because his son and Thomas asked him to. Nevertheless, he personally benefited to about K9000 which monies he applied to his own use before applying the balance of the monies to Billy and Thomas. 

45.	William Puio is from Waipu village, Kompiam district, Enga Province. He is 62 years old and married with several wives, 17 children and many grandchildren. Four of his children live with him. 

46.	In mitigation this is his first offence. He is of prior good character. He was formerly employed by the Lands Department and a member of the Madang Provincial Rehabilitation Committee. Given his standing in the community he has twice contested the Port Moresby North East Electorate. 

47.	I am satisfied that he is truly remorseful. He indicated his willingness to plead guilty and whilst that plea was rejected and he was ultimately convicted of misappropriating K25,000 the benefit to him was about K9000, which was similar to the K5000 he indicated a willingness to plead guilty to. 

48.	In addition, he has taken real steps to make restitution. He has already sold his property and engaged reputable solicitors to finalise the sale so that he can make restitution to Helen for all of the monies misappropriated. He should not have sold his property. He should not be the one to bear the cost of his son and Thomas’ conduct when he was not aware of the broader plan.   

49.	In all the circumstances I sentence William to three years of imprisonment. To date no time has been spent in custody.

50.	 The sentence will be wholly suspended on condition that he make restitution of K10,000 to Helen within 6 months. This is more than he personally received but not by much and certainly not less than he misappropriated. 

51.	Accordingly, I make the following orders.

Orders

(1)	On Count 1, Billy Puio and Thomas Kandaki are each sentenced to 4 years of imprisonment without hard labour.
(2)	On Count 2, Billy Puio and Thomas Kandaki are sentenced to 3 years of imprisonment without hard labour.
(3)	One year of the sentence on Count 2 will be served cumulatively on Count 1 in each case.
(4)	Time spent in custody by Billy Puio since 27 October 2023, two years, five months, 16 days will be deducted from time to be served.
(5)	On Count 2 William Puio is sentenced to three years of imprisonment.
(6)	William Puio’s sentence is wholly suspended on condition that:
a.	Restitution in the sum of K10,000 is paid into the National Court Trust Account for payment to Helen Mikmik within 12 months 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.
(7)	Any bail monies deposited by the offenders or their guarantors shall be immediately refunded.

Sentences accordingly.

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