SC2026

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA No 13 of 2019, SCRA No. 62 of 2018 and 
SCRA No 14 of 2019 

DAVID KAYA and PHILIP KAMAN

V

THE STATE

Waigani: Batari, Mogish and Berrigan, JJ

2019: 18th December  
2020: 19th October

CRIMINAL LAW – APPEAL AGAINST CONVICTION – S 383A of the Criminal Code – Misappropriation of K5m – Property belonging to the State - Dishonesty – S 23(2) of the Criminal Code – Defence of honest claim of right without intention to defraud – Principles considered – Findings on dishonesty excluded the defence – Appeals against conviction dismissed.

CRIMINAL LAW - APPEAL AGAINST SENTENCE – S 383(A)(1A)(a) and (b) – Appeals against sentence dismissed.

The appellants were convicted following a joint trial of misappropriating K5 million belonging to the State.  The monies were paid by the State as compensation to the landowners of the East Awin area in Western Province for the compulsory acquisition of land following the resettlement of refugees from West Papua in the 1980s.  The appellant, David Kaya, was pursuing compensation payments on behalf of the landowners as Chairman of the landowner company, Paiso Company Limited (Paiso).  The Department of Treasury issued a cheque payable to Paiso in the sum of K5 million.  On the instructions of David Kaya, the cheque was deposited to the trust account of the appellant, Philip Kaman, a lawyer. Between 17 October and 5 November 2014 the monies were applied from the account through cash withdrawals, transfers to a number of company and personal accounts, and for the purchase of two motor vehicles.  The learned trial judge convicted the appellants of misappropriation, and sentenced each of them to 15 years of imprisonment, 5 years of which was to be suspended upon restitution of the monies to the East Awin people.

The appellants appealed against conviction on the basis that his Honour erred in:  (a) finding that the property of K5 million belonged to the State; (b) failing to find that each of the appellants applied the monies in the exercise of an honest claim of right; and (c) finding that each of the appellants acted dishonestly. The appellants also appealed against sentence.

Held:
Conviction

(1)	The monies in the present case were granted for the particular public purpose of compensating landowners in the East Awin area.  Until the monies were distributed in accordance with that purpose they remained the property of the State, or monies in which the State had both a legal and equitable interest for the purpose of s. 383A(3)(d) of the Criminal Code: Wartoto v The State (2019) SC1834 applying Brian Kindi Lawi v The State [1987] PNGLR 183 applied.

(2)	The trial judge’s finding that the appellants acted dishonestly in applying the monies to their own use and the use of others was open on the evidence.  

(3)	S. 23(2) of the Criminal Code provides the defence of honest claim of right without intention to defraud.  The key principles to be applied when determining whether the defence operates were set out in Wartoto v The State (supra):

(a)	a claim of right only has to be honest, it does not have to be reasonable (Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231, Sebulon Wat v Peter Kari [1975] PNGLR 325);
(b)	if the accused presents evidence of an honest claim of right the State bears the onus of disproving it. It is not for the accused to prove that he had an honest claim of right. It is the duty of the State to prove that he did not have an honest claim of right (Magr v R [1969-70] PNGLR 165, Francis Potape v The State (2015) SC1613);
(c)	because it is a type of excusatory defence the State must disprove (exclude) the defence beyond reasonable doubt (John Jaminan v The State (No 2) [1983] PNGLR 318);
(d)	whether an accused has an honest belief is a question of fact to be determined by the evidence in each case. It is not a matter of an accused simply saying on oath that he had an honest belief and having that assertion accepted, as such evidence might be unconvincing as it was, for example, in R v Hobart Magalu [1974] PNGLR 188 and The State v Henry Gorea [1996] PNGLR 141. Alternatively evidence of an honest claim of right might be convincing and unable to be disproven by the State, as it was, for example, in The State v Bruno Tanfa Chilong (2009) N3578 and The State v Emma Ombu Karakabo (2012) N4897;
(e)	once the defence operates, it is a complete defence to any offence relating to property of which fraudulent or dishonest intent is an element.

(4)	In addition, the belief must be one of legal entitlement to the property and not simply moral entitlement: Ikalom & Anor v The State (2019) SC1888 adopting MacLeod v R (2003) 214 CLR 230; and  The State v Felix Luke Simon (2020) N8183 applying R v Pollard [1962] QWN 13, 29; R v Bernhard [1938] 2 KB 264, 270; and Harris v Harrison (1963) Crim LR 497.

(5)	Furthermore, whilst a claim need not be reasonable, one that is unreasonable may be less likely to be believed as being genuinely or honestly held: The State v Felix Luke Simon (supra) adopting Macleod v The Queen (2003) 214 CLR 230. 

(6)	The defence operates to remove criminal responsibility for an act (done or omitted to be done) when that act is done in satisfaction of all three of the following criteria: 

(a)	with respect to property;
(b)	in the exercise of an honest claim of right; and
(c)	without intention to defraud.

(7)	Whilst the learned trial judge did not refer to s 23(2) of the Criminal Code directly, his findings on dishonesty at the time of the application excluded the defence that the application was made in an honest or genuine belief by either of the appellants that they were entitled to apply the monies as they did, or that they acted without an intention to defraud.  There was no error of law. Alternatively, to the extent that there was any error, there was no miscarriage of justice. 

(8)	The appellants have failed to demonstrate that the verdict is unsafe or unsatisfactory, that the conviction entailed a wrong decision on a question of law, or that there was a material irregularity in the trial.

(9)	The appeals against conviction are dismissed.

Sentence

(10)	The penalty of imprisonment for 50 years without remission and without parole for the misappropriation of monies more than K1 million but less than K10 million, and the penalty of life imprisonment for the misappropriation of monies of K10 million or above, provided in s. 383A(1A)(a) and (b) of the Criminal Code, respectively, are subject to s 19 of the Criminal Code and are thus maximum and not mandatory sentences.

(11)	(Batari, Berrigan JJ) Having regard to the amendments to s 383A of the Criminal Code, the recognition by the Courts over time for the need for increased deterrence, and the recent trend of sentences, 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 v The State [1988-1989] PNGLR 496, 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 of 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)	500,000 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. 

(12)	It is appropriate to allow an opportunity for a trend of sentences to develop over time before attempting to set sentencing guidelines for offences attracting the maximum penalty under s. 383A(1A)(a) or (b) of the Criminal Code.  

(13)	There was no error on the part of the sentencing judge in the imposition of 15 years of imprisonment, 5 years of which was to be suspended upon repayment of K5 million, other than an omission to set a timeframe within which such restitution was to be made, and to direct repayment to the State, to whom the monies belonged. 

(14)	The sentence imposed was not manifestly excessive having regard to the maximum penalty, the broad discretion of the sentencing judge and the circumstances of the case.

(15)	In the case of each appellant, the head sentence of 15 years of imprisonment is confirmed, 5 years of which is to be suspended upon restitution of K2.5 million to the State within six months of the date of this decision.  The monies are to be paid to the National Court Trust Fund for provision to the Department of Treasury.

Cases Cited:
Papua New Guinea Cases

John Beng v The State [1977] PNGLR 115
William Norris v The State [1979] PNGLR 605 
Kunangel v The State [1985] PNGLR 144
Public Prosecutor v Tardrew [1986] PNGLR 91
Brian Kindi Lawi v The State [1987] PNGLR 183
Wellington Belawa v The State [1988-1989] PNGLR 496
Rex Lialu v The State [1990] PNGLR 487 
Lawrence Simbe v The State [1994] PNGLR 38
Thomas Waim v The State (1997) SC510
Jimmy Ono v The State (2002) SC698
Macleod v The Queen (2003) 214 CLR 230 
The State v Wilmot (2005) N2857
The State v Niso (No 2) (2005) N2930
The State v John Ritsi Katetao (2005) N2814
Kumbamong v The State (2008) SC1017
The State v Nancy Uviri (2008) N5468
Sanawi v The State (2010) SC1076 
The State v Tiensten (2014) N5563
Lati v The State (2015) SC1413 
Havila Kavo v The State (2015) SC1450
The State v Juvenile MLP (2017) N6959.
Roland Tom & Anor v The State (2019) SC1833
Wartoto v The State (2019) SC1834 
Ikalom v The State (2019) SC1888  
The State v Felix Luke Simon (2020) N8183

Overseas Cases

Watt v Thomas [1947] AC 484
Scott v Metropolitan Police Commissioner [1975] AC 819
R v Slattery (1996) 90 A Crim R 519
R v Slattery (1996) 90 A Crim R 519
Mario Postiglione v The Queen [1997] HCA 26 
Peters v The Queen (1998) 192 CLR 493
Macleod v The Queen (2003) 214 CLR 230 
Queen v Baden-Clay (2016) 258 CLR 308
R v Perrin [2018] 268 A Crim R 395 

Legislation Cited

Sections 19, 23(2), 383A of the Criminal Code (Ch. 262) (the Criminal Code)
Section 23(2) of the Supreme Court Act 
Section 6 of the Criminal Code (Amendment) Act (No. 6), 2013

Counsel

T McPhee and H Roalakona, for the State 
J Abone, for David Kaya
T Bobora, for Philip Kaman

DECISION ON APPEAL

19 October, 2020

1.	BATARI J:  I am of the opinion that the appeal against conviction and sentence should be dismissed for the same reasons given by Berrigan J. I only have the following to add on the issue of sentencing misappropriation cases under the recent legislative changes. 

2.	The new sentencing regime in Section 383A (1A) of the Criminal Code,  enacted under the Criminal Code (Amended) Act 2013 (the 2013 amendment) is intended at punishing misappropriation cases involving  substantial property of a value  of K1 million or more but less than  K10 million and property of a value of K10 million or more.  Subsection (2) is retained for offences involving property of a value of less than K2,000.00 and from K2,000.00 upwards. Section 383A (1) sets out the offence of misappropriation. These provisions, read:

“383A.	Misappropriation of property.

(1)	A person who dishonestly applies to his own use or to the use of another person—
	(a)	property belonging to another; or
	(b)	property belonging to him which is in his 			possession or control (either solely or conjointly 		with another person) subject to a trust, direction 		or condition or on account of any other person,
is guilty of the crime of misappropriation of property.
(1A)  Notwithstanding Subsection (2), an offender guilty of the crime of misappropriation shall be sentenced —
	(a)	to imprisonment for a term of 50 years 			without remission and without parole, if 			the property misapproperiated (sic) is of a value 			of K1 	million or upwards, but does not 			exceed K10 	million; and
	(b)	to life imprisonment if the property 				misappropriated is of a value of K10 				million or upwards.
(2)	An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—
	(a)	where the offender is a director of a 				company and the property dishonestly 			applied is company property; or
	(b)	where the offender is an employee and the 			property dishonestly applied is the property 			of his 	employer; or
	(c)	where the property dishonestly applied was 			subject to a trust, direction or condition; or
	(d)	where the property dishonestly applied is of 		a value of K2,000.00 or upwards.

3.	The import of 50 years imprisonment without remission and without parole and the prescribed maximum penalty of life imprisonment are intended to send a clear message, that misappropriation offences involving millions of Kina are very serious offences which must meet with strong punitive measures.  It is intended by Parliament that the greater protection and preservation of State properties as well as those of the private entities against deliberate, scheming fraud and corrupt practices will be achieved when offenders meet with severe penalties. 

4.	There is also a clear inference that both the general and punitive aspects of the sentencing policy must feature heavily in dealing with fraud and corruption cases involving substantial amounts of money. The legislative intent is clearly that the offender be personally punished to achieve personal deterrence from re-offending.  In this way with some optimism, the corrupt leader, public servant or company director or employee will no longer be a threat and menace to the public purse and company properties. The other outcome of the sentencing policy is that would-be offenders are warned of the serious consequences of being punished for acts of fraud and corruption.

5.	It is obvious then, that the clear legislative intent in the 2013 amendment is for the courts to  deal with misappropriation sentences clearly and decisively so that there can be no doubt as to the sentencing policy: The State v Juvenile MLP (2017) N6959. The courts need to give effect to the policy behind the new laws which is to treat fraud and corruption practices manifesting in misappropriation offences more seriously and severely. In The State v John Ritsi Katetao (2005) N2814 Cannings J commented:

“It accords with common sense to sentence a person according 	to contemporary principles, guidelines and practices rather than harking back to how he might have been dealt with if he had been brought to trial when the offence was committed. The court’s decisions on sentencing must so far as possible keep pace with the times.”

6.	In that case, the Court was sentencing the offender on the charge of sexual penetration of the victim under 12 years.  The offence was committed in April 2002. The new law in s. 229A of the Criminal Code (Sexual penetration of a Child) was passed by the Parliament just a month earlier in March 2002.

7.	For the misappropriation offences, it is now seven (7) years since the 2013 amendment. There have been numerous warnings the sentence will increase. The term of 15 years imposed in this case is within the range and hardly disproportionate to the circumstances of the case where K5 million was syphoned off in the circumstance where the property dishonestly applied was subject to a trust and the appellants were in positions of trust. 

8.	There are two other aspects of the 2013 amendment worth noting.  These observations are pertinent to bear in mind when dealing with offenders under the new sentencing regime. The first is, that the amendment has made the  penalty for misappropriation subject to four (4) variables:

(a)	Where the amount is less than K2,000.00, a term of imprisonment up to five (5) years;
(b)	Where the amount is more than K2,000.00, a term of imprisonment up to ten (10);
(c)	Where the value of property misappropriated is between K1 Million and K10 Million, imprisonment for a term of fifty (50) years without remission and without parole.
(d)	Where the value of the property misappropriate is in excess of K10 Million, imprisonment for life.

9.	In Wellington Belawa v The State [1988-1989] PNGLR 496, the Supreme Court suggested, where the amount misappropriated is between K40,000 and K 150,000, three to five years imprisonment was/is appropriate. Since then, cases involving misappropriation of properties of values in excess of K150,000.00 to K1 million and upward have been committed in alarming frequency and sophistication resulting in legislative changes to increase the prescribed penalties.

10.	Meantime, sentences up to the then maximum of 10 years are being imposed. This is the first case I am aware that has gone over 10 years. The term imposed is clearly in response to the new prescribed sentences for amounts over K1million. It aptly resulted from the numerous warnings that misappropriation cases will increase to keep pace with the prevalence of the offence and the increasing  sophistication in the way  misappropriation cases are being committed.  
  
11.	It would seem to me, then, that a review of the sentencing tariff in Wellington Belawa’s case is due and will take into account these variables in setting up fresh sentencing guidelines for misappropriation cases consistent with the significant legislative changes to the penalty provisions in the 2013 amendment.  At this time, I am in agreement with the realignment of the Wellington Belawa guidelines proposed by Berrigan J. 

12.	The second aspect is the effect of the new sentencing regime. One view of the effect of s.383A (1A) (a) and (b) is, that a person convicted and sentenced for misappropriating more than K1 million but less than K10 million will get a greater punishment then the person who misappropriates property valued in excess of K10 million because the phrase, “without remission and without parole” in Subsection (1A) (a) does not appear in Subsection (1A) (b). On the other hand, it may be intended by the use of the  conjunctive “and” that the phrase, “without remission and without parole” in Subsection (1A) (a) also applies in Subsection (1A) (b).

13.	Another equally compelling view of the effect of s.383A (1A) is that it is a mandatory minimum penalty provision. The opening phrase, “Notwithstanding Subsection (2), an offender guilty of the crime of misappropriation shall be sentenced -” gives the application of the penalty, the mandatory effect. This is more so, because of the omission or exclusion from the penalty provisions, the phrases, “liable to imprisonment” and “subject to Section 19” which preserves the sentencing discretion of the Court under Section 19 of the Criminal Code. Furthermore, the phrase, “to imprisonment for a term of 50 years without remission and without parole,” does not read as a maximum penalty because of the omission or exclusion of the usual term, “for a term not exceeding” from the provision.

14.	Last but not the least of concerns is whether Subsection (2) is intended by Parliament to apply only to cases where the property dishonestly applied is of a value of K2,000.00 and upwards to K999,999.99. If that be the case then, that would create a serious discrepancy and flaw in the application of the law and the sentencing policy because of the huge gap between the maximum penalty of 10 years in Subsection (2) and the term of 50 years in Subsection (1A) (a). Consequently, injustices will result where the amount misappropriated is K1million or more and there are significant mitigating factors.

15.	These are pertinent issues not raised and argued before this Court. The views expressed are mine own. Time and occasion to test or review the effect and application of Section 383A (1A) and (2) of the Criminal Code may be raised in the future in an appropriate case or by legislative reform. For now, it would seem to me that the offender will have the benefit of the doubt.

16.	MOGISH J:  I have read the draft by Justice Berrigan. I agree that the appeal against conviction and sentence must be dismissed for the reasons advanced by Her Honour.

17.	I have also read the draft judgements by Justice Batari and also agree with His Honours observations.

18.	I wish to add a few remarks concerning the additional tariffs of sentence in excess of K150,000.00 as proposed by Justice Berrigan.  With respect, I do not think this Court should review the tariffs as enunciated by the Supreme Court in Wellington Belawa's case. I agree that that prior to the amendment, judges have expressed their views that the tariffs are outdated and need to be increased given the prevalence and gravity of fraud cases.   In the present case, the discretion to increase sentence from K150,000,00 to 1 million kina should be left to the trial judge. This Court should not attempt to set new tariffs of sentence within that range. Overtime and with case precedent and in view of the new amendment we should expect to see a new trend in sentencing.

19.	BERRIGAN J: The appellants each appeal against the decision of the National Court in which they were convicted following a joint trial of one count of misappropriation of K5 million belonging to the Independent State of Papua New Guinea, contrary to Section 383A of the Criminal Code (Ch. 262) (the Criminal Code).  

20.	The appellants also appeal against sentence.  Each were sentenced to 15 years of imprisonment, 5 years of which was to be suspended in the event that K5 million was repaid to the people of East Awin.  The appeals were heard together.

21.	By way of background, the State compulsorily acquired land in the East Awin area of Western Province in 1987 to resettle refugees from West Papua.  In return the State agreed to pay a total of K20.3m in compensation to the landowners.  The compensation was being paid in instalments.

22.	The appellant, David Kaya, is from Iouwara, Goukuna Village, Western Province.  He was the Chairman of the landowner company Paiso Company Limited (Paiso) and had been pursuing compensation payments on behalf of the customary landowners in the East Awin area for some time.

23.	In 2014 David Kaya submitted a claim for compensation in the sum of K5 million to the Treasury Department.  On 19 August 2014 a cheque in the sum of K5 million payable to Paiso was issued as compensation for the landowners of East Awin.  The cheque was not deposited to the company’s account but instead, on the instructions of David Kaya, paid into the trust account of Kaman & Co Lawyers, a law firm operated by the appellant, Philip Kaman.

24.	The State alleged that between 12 October and 31 December 2014 the appellants dishonestly applied the monies to their own use through various withdrawals from the account, including cash withdrawals, transfers to various company and personal accounts, and for the purchase of two motor vehicles.  It further alleged that none of the landowners, the intended beneficiaries of the payment, ever received any of the monies.  

GROUNDS OF APPEAL AGAINST CONVICTION 
25.	The appellants were jointly represented at trial but are now separately represented and have filed separate grounds of appeal.

26.	I make it clear that I have considered all of the grounds relied upon by each of the appellants in this appeal.  It is necessary, however, for the purpose of this decision to summarise the grounds.  

27.	A number of grounds were abandoned at the hearing before us, and as reflected in their written submissions, both appellants proceeded with respect to three main areas of contention.  In summary, it is submitted that the learned trial judge erred in fact and in law in:

(a)	finding that the property of K5 million belonged to the State;
(b)	failing to find that each of the appellants applied the monies in the exercise of an honest claim of right; and
(c)	finding that each of the appellants acted dishonestly. 

28.	It is well established that to succeed on an appeal against conviction an appellant must by virtue of s. 23 of the Supreme Court Act establish that: the verdict is unsafe or unsatisfactory; the conviction entailed a wrong decision on a question of law; or that there was a material irregularity in the trial.  In the event that the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred.  If not, it may dismiss the appeal:  Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.

MISAPPROPRIATION 

29.	The elements of the offence of misappropriation are self-evident from the terms of s. 383A of the Criminal Code.  As made clear in Havila Kavo v The State (2015) SC1450, to establish the offence of misappropriation the State must prove beyond reasonable doubt that the accused:
a)	applied; 
b)	to his own use or to the use of another; 
c)	property; 
d)	belonging to another person; 
e)	dishonestly. 
PROPERTY BELONGING TO THE STATE 

30.	Both appellants complain that the learned trial judge erred in fact and in law in finding that the State had established beyond reasonable doubt that the subject property belonged to the State.

31.	I note here that this issue was not in dispute before the lower court.  It was accepted by each of the appellants, and specifically conceded in submissions on verdict by their counsel.  Both counsel for the appellants failed to mention this in their grounds of appeal or on submission. 

32.	The adversarial nature of a criminal trial is well established and a trial judge must be careful not to interfere in the conduct of a trial or unduly participate in it himself: Roland Tom & Anor v The State (2019) SC1833. Subject to limited exceptions, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue: Roland Tom & Anor v The State (supra) adopting The Queen v Baden-Clay (2016) 258 CLR 308.

33.	Nevertheless, as the learned trial judge rightly stated in his decision, the State has the burden of establishing each and every element of the alleged offence beyond reasonable doubt.  Understandably, his Honour dealt briefly with the issue at trial given the concession made.  Nevertheless, he expressly found that the monies belonged to the State having regard to the decision of Brian Kindi Lawi v The State [1987] PNGLR 183.

34.	It is well established according to that case that when a sum of money is allocated to a person subject to conditions that it be applied in a certain way, it remains the property of the person who allocates the money unless and until it is applied in accordance with those conditions: Wartoto v The State (2019) SC1834 at [15] applying Brian Kindi Lawi v The State (supra).

35.	Both appellants argue that this case is distinguishable from Brian Kindi Lawi v The State (supra) and rely on Havila Kavo v The State (supra). 

36.	In the latter case the Secretary for Finance testified for the defence that there were two types of funding provided by the National Government to provinces affected by the LNG project.  “MOA” funds were subject to guidelines setting out where the funds were to be expended and required project documentation, endorsed by the districts or provinces concerned, to be submitted to the National Government through the National Planning Office and vetted by the Economic Implementation Committee.  “UBSA”  funds were allocated pursuant to the Umbrella Benefit Sharing Agreement under which the National Government made a commitment to assist the provinces affected by the LNG project. Of particular significance, UBSA funds were not subject to the MOA guidelines but were allocated in the form of untied grants to the project-affected provinces.

37.	The Supreme Court went on to hold at [35] to [38] that (emphasis mine):

“We appreciate the learned trial Judge's presumption that the sum of K10 million was subject to trust obligations as it came directly from a State trust account styled as "Petroleum Outstanding MOA Commitment Trust Account". That was a reasonable presumption to make. However, the presumption was rebutted by the evidence of Mr Yer, which we have found was not effectively contradicted, who explained that that Trust Account in fact contained UBSA funds as well as MOA funds and that the sum of K10 million was appropriated by the National Government and allocated to the Gulf Provincial Government as UBSA funds…

When money was drawn against the sum of K10 million it was not subject to the trust obligations pertaining to other money held in the Petroleum Outstanding MOA Commitment Trust Account. It could lawfully be applied to normal provincial government operating expenses, including payment of the appellant's allowances. Once it was applied to such expenses, it ceased to be the property of the State.”

38.	Both appellants in this case argue that once the monies were released by the State to David Kaya, who had authority to act on behalf of the landowners, and were deposited to the bank account of his lawyer, Philip Kaman, the monies ceased to be the property of the State.

39.	I do not agree.  Nor is Havila Kavo authority for that proposition.  As made clear by the Supreme Court, even in the circumstances of that case, the monies remained the property of the State until lawfully applied to provincial government expenses. 

40.	In the present case there can be no doubt that the monies were granted for the particular public purpose of compensating landowners in the East Awin area for the use of their land by refugees.  Indeed this is not disputed by either of the appellants.  The case is very similar to that of Brian Kindi Lawi in which the appellant received a cheque payable in his name for agricultural purposes.  In the words of Kidu CJ:

“There cannot be any doubt that the moneys were grants for particular public purposes, with the implied conditions that they be expended on those public purposes. The moneys were most definitely not the appellant’s private property to expend on his own purposes or anybody else’s as he desired.”

41.	Until the monies in this case were distributed in accordance with the purpose of compensating landowners they remained the property of the State, or monies in which the State had both a legal and equitable interest, as specifically provided for by s. 383A(3)(d) of the Criminal Code:

“persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offenders application of the property, had control of it.”

42.	Whilst not necessary to my determination, my view is further strengthened by the unchallenged evidence of Gary Maso Paia, the Chief Internal Auditor, of the Department of Treasury, that the monies also had to be acquitted.  A total amount of K20.3 million had been claimed in compensation, which was being paid in instalments, and of which at the relevant time a balance of K12 million was remaining for payment.  In this regard the Department of Treasury had specifically sought, and been provided with confirmation in a letter dated 12 February 2015 from Philip Kaman, that the K5 million had been distributed to landowners in accordance with its purpose.  This is a matter I will return to below.

43.	In my view the appellants’ submissions should fail.  The property in the monies belonged to the Independent State of Papua New Guinea.

DISHONESTY

44.	The appellants both submit that the learned trial judge erred in finding that they applied the monies to their own use and to the use of others dishonestly.

45.	It is clear from the written reasons of the learned trial judge that he had regard to evidence that established that the monies were intended to compensate the landowners of the East Awin region and that none of those landowners received any of the monies.  Neither of those matters were in dispute and were amply supported by the evidence.  

46.	The learned trial judge also had regard to evidence that showed that all but K6522 of the K5m was expended from Kuman’s account within just five days of deposit on 17 October 2014, together with evidence that established that K3,045,860 was withdrawn in cash (including K52,860 cash handling fees); K1,530,000 was transferred to various accounts; K279,025 was paid to Ela Motors; K5000 was withdrawn by cheque; and K90,000 was paid to Philip Kaman’s personal account.  A final K5000 was paid to Angela Kaman’s account on 5 November 2014, reducing the balance to just K1,476.  

47.	Against this his Honour considered in detail the defence of each appellant.  

48.	It was David Kaya’s case that he was entitled to use the monies to pay his creditors, including his lawyer, pursuant to a power of attorney provided to him by the landowners. 

49.	In this regard His Honour considered the evidence given by both David Kaya and Horns Kale that David Kaya had paid Horns Kale K1m for hire car services and cash loans but also took into account that there were no invoices or receipts produced in support of these claims, and that the amount borrowed from Horns Kale was unknown.  

50.	Similarly, his Honour considered evidence from Peter Wali that David Kaya paid him K500,000 in return for “financial assistance” but again observed that there were no details or documentation available in support of these claims.

51.	Again, the learned trial judge considered the evidence of Sonny Kare to the effect that he too was paid K450,000 in return for “financial support” for which there was no detail available as to the amount, the interest rate or the purpose of the funding, and no corresponding documentation in support.

52.	In the case of Philip Kaman, the learned trial judge considered his evidence that he was merely acting in compliance with his client’s instructions, and a retainer agreement that entitled him to 7% (plus a further 3%) of all funds.  Against this, however, he also had regard to the appellant’s knowledge of the purpose of the funds, the nature of the payments made from his firm’s account, and the lack of accounting and record keeping on his part.

53.	In addition, against both appellants his Honour took into account a letter dated 12 February 2015 from Kuman & Co Lawyers to the Department of Treasury.  The letter was provided in response to the request by the Department for an acquittal of the K5 million the subject of the charges.  

54.	Philip Kuman submits that the learned trial judge erred in admitting the letter over objection that the letter was not obtained under search warrant.  The issue was not contained in the appellant’s grounds of appeal.  It is also misconceived.  There was no need for authorities to obtain the letter under search warrant.  The letter was voluntarily provided to the police by its recipient, the Department of Treasury.  Moreover, the letter was identified by Gary Maso Paia, Chief Internal Auditor, Department of Treasury, in oral evidence, as being received by him and in response to his request for a breakdown of the payments made to landowners.  Furthermore, Philip Kaman admitted preparing the letter and providing it to the Department of Treasury in response to those requests, in both his record of interview and in oral testimony.  

55.	Philip Kaman’s submission should be dismissed.  The letter of 12 February 2015 was admissible against him.

56.	In summary, the letter states that after expenses of about K2 million, the balance of the monies, about K3 million, had been distributed to 11 named clans in the amounts specified.  It was not disputed by either of the appellants that the monies had not in fact been paid as represented to the Department.  Philip Kaman’s evidence was that he wrote the letter because the Department of Treasury was chasing him to acquit the funds and on the basis of the payments that David Kaya said he was going to make.  Here we note the very clear terms of the letter, provided in response to a request from a State authority, confirming that payment had taken place, together with the fact that the letter was written a number of months after the K5m had been paid out by him from his firm’s account, whilst also seeking additional monies:

“We refer to our letter dated 17 November 2014 (copy enclosed) to the Treasury Ministry and copied to yourself and others which is self-explanatory. 

We note that despite our client’s request to be paid their full outstanding claims (K12,406,872.00) in a lump sum this year (2015), due to budgetary constraints, same would not be feasible.

However, our client is satisfied that a sum of K5 Million had been allocated in this year’s (2015) National Government Budget to offset part of their outstanding claim.

Again we confirm that our client did receive a cheque of K5 million (Cheque No 005639) last year from Treasury Department (2014 Budgeted fund) in which all the 11 affected clans in East Awin area received share of landowner payments after settlement of all outstanding debts and expenses by our client.

In brief after settlement of all outstanding debts and expenses totalling close to K2 million, the balance of some K3,009 million was distributed to the respective (11) beneficiary clans as follows: -

Clan Name					Amount paid
1.	Witme clan					K300,000.00
2.	Modua Gua Clan				K300,000.00
3.	Abiko Clan					K300,000.00
4.	Sogorom Clan				K300,000.00
5.	Homuko Kuse Clan				K309,000.00
6.	Kuga Clan					K300,000.00
7.	Pesa Clan					K300,000.00
8.	Kuse Ude Clan				K300,000.00
9.	Pe Sagai Clan				K300,000.00
10.	Ukya Clan					K150,000.00
11.	Witigi Kubuke Clan			K150,000.00
Total		        K3,009,000.00

We would appreciate if your good office can facilitate immediate settlement of the K5 million allocated to this year’s (2015) budget to our client at the earliest so we can facilitate payments in the respective clans as itemised.”

57.	The appellant David Kaya submits that the letter of 12 February 2015 does not relate to the K5 million he received in October 2014 but to funds which he had not yet received.  That is patently wrong.  The letter clearly purports to acquit the K5 million received in October 2014 with a view to obtaining a further K5 million.  

58.	He also submits “in the alternative” that he did not know anything about why his lawyer wrote the letter.  The learned trial judge found otherwise and that the appellants had devised the letter together.  That was a finding that was open to him on the evidence.  

59.	Whilst it was incumbent on the State to establish a dishonest intention at the time of the application of the funds, that is between 12 October and 31 December 2014, it was clearly open to his Honour to take the letter of 12 February 2015 into account in determining that issue.  It is compelling evidence.  Intention is a question of fact and may be inferred from the circumstances in which the property was applied, and from the conduct of the accused before, at the time of, or after the application.  See also the discussion in Ikalom v The State (2019) SC1888 at [23] regarding the offence of stealing.  

60.	His Honour considered in detail but ultimately rejected the evidence of David Kaya that he had honestly applied the monies pursuant to a power of attorney granted by the landowners, and found beyond reasonable doubt that he applied the monies to benefit himself and others dishonestly. 

61.	The learned trial judge also rejected Philip Kaman’s evidence that he was simply acting upon instructions from his client, and that he was entitled to at least some of the monies pursuant to a retainer agreement, and found beyond reasonable doubt that he too dishonestly applied the funds to his own use and the use of others.  

62.	Having regard to the magnitude of the monies expended, the time frame within which that occurred, the nature and purpose of the payments, the lack of records, the knowledge, experience and roles of each of the appellants, the fact that none of the intended beneficiaries received the monies, and the clearly false statements contained in the letter of 12 February 2015, those findings were clearly open to the learned trial judge on the evidence in each case.

63.	It is well established that the Supreme Court will not readily interfere with the assessment of the evidence and the findings of the trial judge: Jimmy Ono v The State (2002) SC698; Watt v Thomas [1947] AC 484.  I see no reason to do so in this case.  In my view there was no error in his Honour’s finding that each of the appellants applied monies in the sum of K5 million dishonestly.

HONEST CLAIM OF RIGHT WITHOUT INTENTION TO DEFRAUD

64.	Both appellants complain that the learned trial judge erred in failing to find that they had a defence of honest claim of right to the monies.  

65.	Section 23(2) of the Criminal Code provides the defence of honest claim of right without intention to defraud (emphasis added):
“A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.”
66.	In Wartoto v The State (supra) the Court set out the key principles to be applied when determining whether the defence operates:

(a)	A claim of right only has to be honest, it does not have to be reasonable (Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231, Sebulon Wat v Peter Kari [1975] PNGLR 325);
(b)	If the accused presents evidence of an honest claim of right the State bears the onus of disproving it. It is not for the accused to prove that he had an honest claim of right. It is the duty of the State to prove that he did not have an honest claim of right (Magr v R [1969-70] PNGLR 165, Francis Potape v The State (2015) SC1613);
(c)	Because it is a type of excusatory defence the State must disprove (exclude) the defence beyond reasonable doubt (John Jaminan v The State (No 2) [1983] PNGLR 318);
(d)	Whether an accused has an honest belief is a question of fact to be determined by the evidence in each case. It is not a matter of an accused simply saying on oath that he had an honest belief and having that assertion accepted, as such evidence might be unconvincing as it was, for example, in R v Hobart Magalu [1974] PNGLR 188 and The State v Henry Gorea [1996] PNGLR 141. Alternatively evidence of an honest claim of right might be convincing and unable to be disproven by the State, as it was, for example, in The State v Bruno Tanfa Chilong (2009) N3578 and The State v Emma Ombu Karakabo (2012) N4897;
(e)	Once the defence operates, it is a complete defence to any offence relating to property of which fraudulent or dishonest intent is an element.

67.	In The State v Felix Luke Simon (2020) N8183, I made a number of further observations, including in particular that the belief must be one of legal entitlement to the property and not simply a moral entitlement.   See [87] to [89] (emphasis mine): 

“[A] a claim need not be reasonable provided that the accused “is honestly asserting what he believes to be a lawful claim even though it may be unfounded in law or in fact”: Gibbs J in R v Pollard [1962] QWN 13, 29 quoting R v Bernhard [1938] 2 KB 264, 270.  The belief must be one of legal entitlement to the property and not simply a moral entitlement: R v Bernhard (1938) 2 QB 264; Harris v Harrison (1963) Crim LR 497.  

In Ikalom & Anor v The State (2019) SC1888, the Supreme Court recently adopted the following statement by  Gleeson CJ, Gummow and Hayne JJ of the High Court of Australia in MacLeod v R (2003) 214 CLR 230 at [41] as to what is meant by a claim of right:

"It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs."”

68.	Furthermore, whilst a claim need not be reasonable, for obvious reasons, one that is unreasonable may be less likely to be believed as being genuinely or honestly held: The State v Felix Luke Simon (supra) at [90] adopting the comments of Gleeson CJ and Gummow and Hayne JJ of the High Court of Australia in Macleod v The Queen (2003) 214 CLR 230 at [42]. 

69.	Returning to the present case.  It is the case that the learned trial judge did not specifically address the appellants’ defence in either case by reference to s. 23(2) of the Criminal Code.  It is also the case, however, that neither defence counsel, nor the State, addressed the Court in those specific terms.  

70.	On appeal David Kaya argues that the defence was fairly raised on evidence that he acted on instructions from the landowners and according to a power of attorney. Further, that the State failed to prove that he used the funds for any purpose other than that which he was entitled under the power of attorney, in particular to settle debts incurred since 2000. 

71.	At the same time, however, David Kaya argues that the trial judge erred in finding that there was a power of attorney or that he breached his duty to comply with the power of attorney for two reasons; firstly, that the Court accepted on its own accord that there was a power of attorney when the document was only ever marked for identification and not formally tendered, and secondly, that a breach of its terms was not the subject of the criminal trial.

72.	The appellant can’t have it both ways.  Either he relies on the power of attorney or he doesn’t.  It is clear that his case at trial and indeed the claim of right argument raised on this appeal is premised on the power of attorney, in particular that the power of attorney entitled him to use the monies received to pay creditors, including his lawyer, the co-accused. 

73.	As reflected in his written decision, the learned trial judge did find that there was a power of attorney granted by the clan leaders to David Kaya.  Furthermore, he considered David Kaya’s defence that he acted “in good faith and was given the right to expand (sic) the money on service providers, such as lawyers, accountants, consultants and those he obtained cash loans from”.   

74.	As outlined above, his Honour expressly considered the evidence given by David Kaya and the witnesses called as to the purpose of the payments, in particular for “financial assistance”, together with the complete lack of detail and supporting documentation in that regard. 

75.	His Honour expressly identified that David Kaya had raised the power of attorney in his defence but for the reasons outlined above went on to specifically reject that it afforded him any excuse in the face of the State’s evidence that established that the monies had been dishonestly and “blatantly misapplied”. 

76.	In the case of Philip Kaman, he submits that the learned trial judge erred in rejecting his entitlement to 10% (7% plus a further 3%) of the funds pursuant to a retainer agreement with his client, David Kaya.  

77.	Again, the learned trial judge gave detailed consideration to evidence regarding the retainer agreement but specifically rejected it for the reasons outlined above and found that the appellant dishonestly applied the K5 million from his firm’s account, to his own use and the use of others, dishonestly.  

78.	The principles with respect to an honest claim of right without intention to defraud have been set out above.  It is also important to bear in mind that the defence operates to remove criminal responsibility for an act (done or omitted to be done) when that act is done: 

(a)	with respect to property;
(b)	in the exercise of an honest claim of right; and
(c)	without intention to defraud.

79.	It is clear from the plain words of the section that the one same act (or acts) must satisfy all of the criteria: see R v Perrin [2018] 268 A Crim R 395 at [60] (Queensland Court of Criminal Appeal considering the equivalent provision in its Criminal Code, upon which ours is modelled). 

80.	The learned trial judge did accept that there was a power of attorney and a retainer agreement.  The State bore the burden of excluding s 22(3), namely it had to establish beyond reasonable doubt that the application was not made in the exercise of an honest claim of right, or without an intention to defraud. 

81.	An intention to defraud is an intention to deprive a person of property which is his or to which he might be entitled, or to put the property of that other person at risk, or to imperil some lawful right, interest, opportunity or advantage of another person; by using deceit, or fraudulent or dishonest means; knowing that he has no right to deprive that person of that property or to prejudice those rights or interests:  Roland Tom applying Scott v Metropolitan Police Commissioner [1975] AC 819 and Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493.

82.	In the present case there was an act, or a series of acts, namely the application of monies belonging to the State to the appellants’ use.  For the State to succeed on the charge of misappropriation, it had to establish beyond reasonable doubt that the application by the appellants was dishonest.  To exclude the defence, the State had to prove either that the application was not made in the exercise of an honest claim of right or that it was not made in the absence of an intention to defraud.  

83.	The learned trial judge found that each of the accused acted dishonestly at the relevant time.  In doing so he rejected David Kaya’s case that he held a bona fide belief at the time that he was entitled to use the funds pursuant to the power of attorney.  He also rejected Philip Kaman’s case that he was simply acting in accordance with instructions, and pursuant to the retainer agreement, and found that he dishonestly applied the monies to himself and to others.  He held that the State had established beyond reasonable doubt in each case that the application of State monies was dishonestly made in the knowledge that they were intended for the landowners of East Awin.  Thus the learned trial judge’s findings on dishonesty at the time of the application in this case excluded the defence that the application was made in the exercise of an honest or genuine belief by either of the appellants that they were entitled to apply the monies as they did, or that they acted without an intention to defraud.     

84.	Accordingly, whilst his Honour did not refer to s 23(2)  of the Criminal Code explicitly, his decision adequately addressed the defence in each case.  There was no error of law.  To the extent that there was an error, there was no miscarriage of justice. 

85.	I would dismiss the appeals against conviction.

SENTENCE

86.	It is well established that an appellate court will not readily disturb the discretionary power of a sentencing judge. For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence. Such an error may be identifiable: a mistake as to the facts; an error of law; the taking into account of matters which should not be taken into account; or the failure to give appropriate weight to matters to be taken into account. Even where no identifiable error can be shown, a sentence may be set aside where it is obviously (and not merely arguably) out of all reasonable proportion to the circumstances of the case: William Norris v The State [1979] PNGLR 605 at 612 to 613.

87.	Each of the appellants was sentenced to 15 years of imprisonment, 5 years of which was to be suspended upon the repayment of K5 million to the people of East Awin.

88.	In summary, David Kaya complains that the learned trial Judge erred in: failing to take into account his personal circumstances, including his age, marital status, and multiple dependents; that he was the elected chairman of the 11 clans concerned; and that he acted in accordance with the power of attorney and was not motivated by greed and/or or did not benefit himself.  

89.	It is clear that his Honour took into account the appellant’s personal circumstances when determining sentence but it is also clear these factors are far outweighed by the aggravating factors in this case.  Furthermore, the appellant is raising matters that were considered and determined on conviction, namely that some landowners were paid and that he was entitled to 35% of all compensation.  His Honour found that none of the landowners had been paid and that the appellant dishonestly abused the power of attorney, and applied the monies for his own benefit.  Moreover, as highlighted by the learned trial judge the fact that that the appellant was the representative of the landowners was a serious breach of trust, and an aggravating factor, not a mitigating one.  

90.	Philip Kaman complains that the learned trial judge failed to take into account as a mitigating factor that he was acting on instructions from his client.  Further, that his Honour erred in failing to take into account that he should have been indicted with respect to K370,000 and not K5m, alternatively that he was entitled to 10% of the monies and received less than that.  Again, these are matters which were considered when determining conviction, for which we have already found that there was no error.  The learned trial judge correctly found that the appellants acted together to misappropriate K5m.

91.	Both appellants also complain that the learned trial judge erred in applying the same sentence to each of them.  David Kaya submits that the learned trial judge “failed to distinguish the appellant's circumstances from his co-accused, including his level of involvement in the offences, and his relative criminality, but instead sentenced the two offenders indiscriminately to 15 years were (sic) manifestly excessive”.  Philip Kaman also complains that the learned trial judge erred in finding him equally at fault as his co-accused.

92.	The principles governing parity were set out in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (emphasis ours):
"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..."
93.	The personal circumstances of the appellants in this case whilst quite different were very much reflected in the respective roles they played in the offending.  David Kaya was an older man, a landowner, with three wives and multiple dependents.  Whilst only educated to Grade 6, he had worked as a pearl diver in Australia, and on return for Steamships.  At the time of the offending he lived in Port Moresby and was chairman of the landowner company.  He cannot be described as naïve or unsophisticated.  Philip Kaman was a somewhat younger man, highly educated, and a lawyer, based in Port Moresby.

94.	It was David Kaya who as the landowners’ representative grossly abused the trust of the 11 clans for whom he was entrusted to act.  He also personally benefitted from the monies to a much greater extent than Philip Kaman. Nevertheless, it is clear having regard to the respective roles that the offenders played, and the fact that the monies were paid out of the account of Philip Kaman’s firm, that this was very much a shared enterprise.  Moreover, the fact that Philip Kaman is a lawyer is a highly significant and greatly aggravating feature of his offending.  The monies were applied from his firm’s trust account.  He was aware that the funds held in trust were State monies and that they were intended for the landowners of the East Awin area.  He grossly abused his roles and responsibilities as a lawyer.   In my view it is appropriate that both offenders receive the same sentence.  

95.	Whilst not clearly articulated both appellants submit that the sentence was manifestly excessive. 

96.	Philip Kaman complains that his Honour erred in sentencing on the basis of the 2013 amendment to s. 383A of the Criminal Code without first informing counsel and whilst not articulated, that he was therefore prejudiced by not having the opportunity to make submissions on the issue.  

97.	Despite the fact that sentencing was conducted in May 2019 and six years after the amendment, it does appear from the decision on sentence that neither the State nor the defence addressed the new maximum penalty available under s 383A(1A)(a) of the Criminal Code, which was inserted pursuant to s. 6 of Criminal Code (Amendment) Act (No. 6), 2013.  Whilst the appeal book does not contain the transcript of the sentence proceedings, it is clear from the transcripts before and afterwards that both parties were  given the opportunity to prepare and did make submissions on sentence.  Be that as it may, the maximum penalty has been provided for in the legislation.  It is the duty of all parties on the issue of sentence to be aware of the maximum penalty as a fundamental starting point.  The parties were given an opportunity to make submissions on sentence, which they did.  In my view there was no error on the part of the learned trial judge determining sentence by reference to the maximum penalty provided in those circumstances.  Indeed, he was obligated to do so.  

98.	Until the amendment in 2013 the maximum penalty for an offence of misappropriation pursuant to s. 383A(2) of the Criminal Code was 10 years of imprisonment: 
“(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:–
(a) where the offender is a director of a company and the property dishonestly applied is company property;
(b) where the offender is an employee and the property dishonestly applied is the property of his employer;
(c) where the property dishonestly applied was subject to a trust, direction or condition;
(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.”

99.	In response to concerns about the magnitude and prevalence of misappropriation offences, particularly with respect to State monies and/or by those occupying public office, Parliament amended s. 383A of the Criminal Code by inserting subsection 383A(1A), which provides (emphasis mine): 
"(1A) Notwithstanding Subsection (2), an offender guilty of the crime of misappropriation shall be sentenced -

(a) to imprisonment for a term of 50 years without remission and without parole, if the property misapproperiated (sic) is of a value of K1 million or upwards, but does not exceed K10 million; and

(b) to life imprisonment if the property misappropriated is of a value of K10 million or upwards.".

100.	Section 383A(1A)(a) appears on first reading, through the use of the word “shall”, to be in mandatory terms.  

101.	None of the parties on appeal made submissions with respect to the mandatory nature or otherwise of s 383A(1A) of the Criminal Code, which is an important issue given its implications for future matters and given that, to my understanding, this is the first time that the Supreme Court is considering an appeal against a sentence imposed under this sub-section. 

102.	In his decision on sentence, the learned trial judge expressed the view that whilst the maximum penalty available in this case was 50 years of  imprisonment, he still retained the discretion to impose a lesser penalty pursuant to s 19 of the Criminal Code.  I agree with his Honour’s view.  

103.	The introductory words of s. 19 (construction of provisions of Code as to punishments), make clear that s 19 of the Criminal Code applies unless expressly provided otherwise (emphasis added):
(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–
(aa)[8] a person liable to death may be sentenced to imprisonment for life or for any shorter term; and
(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and
(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and
(c) a person sentenced on conviction on indictment to pay a fine may be sentenced–…”
104.	However strong its language, the amendment did not expressly exclude the operation of s. 19 of the Criminal Code.  Accordingly, in my view, the penalty of imprisonment for 50 years without remission and without parole, and similarly, the penalty of life imprisonment provided in s. 383A(1A)(a) and (b) of the Criminal Code, respectively, are subject to s. 19 of the Criminal Code and are thus maximum and not mandatory sentences.  

105.	For many years sentencing for misappropriation has been guided by the principles and suggested ranges outlined in Wellington Belawa v The State [1988-1989] PNGLR 496.  It has now been more than 30 years since that case was decided.  Whilst the principles to be applied when determining sentence remain highly relevant and applicable, it is now generally accepted that the ranges suggested in that case are to some extent outdated because of the frequency and prevalence of misappropriation and related offences.  The State v Niso (No 2) (2005) N2930 and The State v Tiensten (2014) N5563 are most often quoted in support of this proposition but any review of cases in this area will reveal that most judges begin their sentencing remarks with similar observations.  I agree with those views. 

106.	It is well established that the Courts may respond to such concerns by increasing the sentences imposed, subject of course to the legislated maximum, and provided they do not do so by way of a “quantum leap”:  see Thomas Waim v The State (1997) SC510.   

107.	Parliament has now clearly dictated, however, that the penalties imposed for the misappropriation of larger amounts of monies must be significantly increased.  The maximum penalty serves as an indication of the relative seriousness of an offence according to community standards.  An increase in the maximum penalty for an offence is an indication that sentences for that offence should be sharply increased:  R v Slattery (1996) 90 A Crim R 519 at 524 considered. 

108.	The effect of the amendment is to explicitly increase the maximum penalty for misappropriation of monies of K1 million or more but less than K10 million to 50 years of imprisonment without remission or parole, and to increase the maximum penalty for the misappropriation of monies more than K10 million to life imprisonment.  The necessary corollary of this is that sentences for amounts less than K1 million should also increase towards the maximum for those offences of 10 years of imprisonment.     

109.	This case therefore provides an opportunity for the Court to review or realign the guidelines set out in Wellington Belawa, which suggested the following scale of sentences to be adjusted upwards or downwards having regard to the other factors outlined in that case, such that: 

(a)	where the amount misappropriated is between K1 and K1,000, a gaol term should rarely be imposed;
(b)	where the amount misappropriated is between K1,000 and K10,000, a gaol term of up to two years is appropriate;
(c)	where the amount misappropriated is between K10,000 and K40,000, two to three years imprisonment is appropriate; and
(d)	where the amount misappropriated is between K40,000 and K150,000, three to five years imprisonment is appropriate.

110.	I have had regard to many of the sentences that have been imposed over the years, and updated the schedule of sentences provided by the State in The State v Tiensten (supra).  I have considered the increases proposed by Cannings J in The State v Nancy Uviri (2008) N5468 which effectively double the tariffs in each category but, with respect, prefer a somewhat different approach. 

111.	The Supreme Court in Wellington Belawa recognised that the first major factor to be taken into consideration when determining sentence for an offence involving dishonesty is the amount concerned.  This factor concerns the proportionality of the punishment with the amount taken and in general terms, the larger amount, the greater the punishment should be.

112.	It must also be borne in mind that the guidelines are simply that, a suggested scale of sentences, “to be adjusted upwards or downwards” having regard to the other matters outlined in Wellington Belawa, which I emphasise remain highly relevant.  There is no mathematical or scientific formula to be applied in undertaking the difficult task of fixing a particular sentence for any one particular case. Rather the sentencing judge must balance many different and conflicting factors to reach a sentence that is just in all of the circumstances. Per Kapi DCJ in Rex Lialu v The State [1990] PNGLR 487 at 489:
“The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles”.
See also Lawrence Simbe v The State [1994] PNGLR 38; and 
Kumbamong v The State (2008) SC1017.
113.	Any dishonesty offence is a serious one but in my view the ranges recommended in respect of the first three categories of Wellington Belawa remain appropriate.  The challenge with the Wellington Belawa categories has increasingly been in their application to the misappropriation of larger amounts which increasingly come before the Court, particularly as the categories stop at K150,000.  

114.	In the circumstances, having regard to the amendments to s. 383A of the Criminal Code, the recognition by the Courts over time for the need for increased deterrence, and the recent trend of sentences, I would suggest 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.

115.	I note here that other than a minor revision of category (d), the effect of the proposal is to add two further categories to those contained in Wellington Belawa.

116.	Given the size and nature of the maximum penalties available, it is my view that it would be appropriate to allow an opportunity for a trend of sentences to develop over time before attempting to set sentencing guidelines for offences attracting the maximum penalty under ss. 383A(1A)(a) or (b) of the Criminal Code.  

117.	Returning to the present case, it is my view that the head sentence of 15 years of imprisonment imposed by the learned trial judge was not manifestly excessive.  

118.	The offending in this case was very serious.  It involved the abuse of a very large amount of precious State monies intended for the benefit of the landowners and people of the East Awin area.  I  agree with his Honour’s assessment that the offence involved a very significant abuse of trust, and high levels of planning by each of the offenders.  

119.	It is also my view, however, that the offence had an impact on the public.  The misappropriation was from the State of Papua New Guinea and thus ultimately its people. The loss of the monies necessarily meant that not only were the landowners immediately denied their benefits but that the State would ultimately have had to find additional funds to meet the compensation claims and thus divert monies away from its other obligations, from much needed public services like health, education, and law and justice.  

120.	In addition, the offence must have had an impact on public confidence.  Whilst the Department of Treasury sought in some way to ensure the acquittal of funds and acted quickly once the matter was reported, the loss of State monies has been significant.  At a time when government resources are limited and fraud continues to raise concerns within the community, and prompt reform by lawmakers, the exposure of such a blatant abuse of such a large amount of State monies must have had a serious effect on the public confidence in the administration of government monies as a whole.  Nevertheless, I am satisfied that these matters of aggravation are adequately reflected in the head sentence of 15 years.

121.	In summary, having regard to the very large amount of money involved, the maximum penalty of 50 years of imprisonment, the significantly aggravating features of the offending by each of the offenders, the trend of sentencing and the wide discretion at the sentencing judge’s disposal, I am satisfied that the sentence imposed is not out of all reasonable proportion to the crime committed in each case.  
 
122.	In imposing sentence, the learned trial judge suspended 5 years of imprisonment in the event that monies were repaid to the landowners (through the National Court’s Trust Account).  

123.	The promotion of restitution is an important and valid reason for suspending a sentence in certain circumstances: Public Prosecutor v Tardrew [1986] PNGLR 91.  It must, of course, never be seen as allowing a person to “buy” their way out of prison:  see the comments of Sevua J in The State v Wilmot (supra).  This would defeat the interests of justice and undermine confidence in its administration.

124.	For these reasons great care must be exercised when suspending a sentence in a case involving such a large amount of money.  This is important for ensuring a strong and consistent message of deterrence.  Fraud is not a victimless crime.  It has very real, and often long-lasting, consequences for those who lose the benefit of the funds.  Where State monies are involved it impacts the entire community, particularly those most vulnerable.  

125.	In addition there are other means by which the State can seek to recover misappropriated funds in some cases, for example through the Proceeds of Crime Act enacted in 2005.  

126.	Nevertheless, I  find no error on the part of the learned trial judge in partially suspending 5 years of the sentence in this case.  No timeframe within which restitution was to be made was provided and this was an oversight.  If restitution is ordered as a condition of sentence a timeframe should be fixed, to provide certainty not only to the offender and those who might be hoping for restitution but to the State, and ultimately the Court, in monitoring compliance with the orders made. 

127.	Furthermore, I would make it clear that suspension is on the condition that each of the appellants pay K2.5m in restitution, totalling the K5m misappropriated.  

128.	It is also my view that the monies should be repaid to the State which was the owner of the properties under the charge and the immediate victim in this case.

CONCLUSION

129.	For the above reasons I conclude that in all the circumstances of the case each of the appellants have failed to demonstrate that the verdict is unsafe or unsatisfactory, that the conviction entailed a wrong decision on a question of law, or that there was a material irregularity in the trial.  The appeals against conviction should be dismissed.

130.	Furthermore, having regard to all of the matters outlined above, I would confirm the head sentence of 15 years of imprisonment with respect to each of the appellants, and order that 5 years of the sentence is to be suspended in each case upon restitution of K2.5 million to the State within six months of the date of this decision.  The monies are to be paid to the National Court trust fund for provision to the Department of Treasury.

ORDERS OF THE COURT

1.	The appeal against conviction by each of the appellants is dismissed.

2.	The appeal against sentence by each of the appellants is dismissed.

3.	In the case of each appellant, the sentence of 15 years of imprisonment in hard labour is confirmed, 5 years of which is to be suspended, upon restitution of K2.5m to the State within 6 months of the date of this decision.

4.	Any monies restituted are to be paid to the National Court trust fund for provision to the Department of Treasury.

5.	In the event that an appellant fails to make restitution in compliance with Order 3 above, that appellant shall serve 15 years in prison. 
_______________________________________________________________
Public Prosecutor:   	Lawyer for the State		
Parkil Lawyers:    	Lawyer for David Kaya
Chesterfield Lawyers:	Lawyer for Philip Kaman		

SCHEDULE OF SENTENCES: MISAPPROPRIATION

Name	Offence(s)	Particulars	Amount (K)	Sentence	
Tom Amaiu v State [1979] PNGLR 576

Prentice CJ, Andrew J, Raine DCJ
	Stealing (nb max 7 years)	Not guilty plea. Member of Parliament stole cheque payable to another person in the sum of K10,120. 

"The offence constitutes an instance of the educated and well placed preying on the uneducated and less well placed; and it is the duty of the court to impose such penalties in such cases as will be seen as fitting by the community, and which will act as a deterrence to other likeminded persons, particularly at this stage of the country's development when opportunities for exploitation of the kind involved in this case tend to abound, and stealing of money is such a serious and widespread problem.”
	K10,200	5 years' imprisonment.
	
Brian Kindi Lawi v State [1987] PNGLR 183 Kidu CJ, Amet J (as he then was) and Cory J	Misappropriation x 2	Plea of not guilty. The accused was a member of Parliament and received 2 cheques from the National Government in the sums of K6000 and K10,000 for a specific road and agricultural project respectively. Cheques were deposited to his account and subsequently withdrawn by him. There was no evidence as to how he spent the money.

The trial judge’s sentence of 2 years and 5 years, to be served concurrently was reviewed as he took into account irrelevant considerations on sentence, namely matters for which there was no evidence and the exercise by the offender of his right to silence during ROI. 	K6000 and K10,000	18 months and 3 years, respectively, to be served concurrently, of which 18 months was to be suspended on condition the offender enter into recognizance in the sum of K3000 to be of good behavior for 5 years; and repay the Department of Finance K10,000 within 7 days.	
Wellington Bellawa v The State [1988-89] PNGLR 496, Bredmeyer, Woods & Barnett JJ	Misappropriation
False pretence 
	The appellant, the Administrative Secretary of a Province, the most senior public servant in the Province, was convicted following trial of one count of obtaining goods, a fibre glass dinghy worth K1000 and a 15 horsepower outboard motor worth K979, and dishonestly applying the goods to his own use.  The appeal against sentence was dismissed.  

The Court identified the following factors that should be taken into consideration on sentence for offences involving dishonesty:
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.

The Supreme Court also suggested a scale of sentences that may be adjusted upwards or downwards according to the factors identified. The following was suggested:
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.
	K1979	2 years of imprisonment confirmed on appeal.	
State v Yaip Joshua Avini & Anor [1997] PNGLR 212 (SC 523) Kapi DCJ (as he then was), Los J and Salika J (as he then was)
	Misappropriation	A Member of Parliament and a company director convicted following trial of misappropriating K100,000, from the State, for their own use. The money was intended for road projects and directed to the director's company. Aggravating features: breach of trust; large amount; and damage to the victim, namely the people of the electorate who did not receive their road. 

Breach of trust by a Parliamentarian higher than that of departmental head: "...unless drastic steps such as imposition of stiff penalties are taken against such persons, the ordinary people of this country will continue to be manipulated and will continue to suffer at the hand of the very people they appointed or elected to assist them." Applying Tom Amaiu; Wellington Belawa; and Napilye Kuri.
	K100,000	8 years' imprisonment.	
State v Napilye Kuri [1994] PNGLR 371, Woods J
	Misappropriation x 2	Plea of not guilty. Minister for Finance, Western Highlands Province, misappropriated to his own use the sums of K2000 and K2431.62. Funds distributed to constituents who requested help and not for his own use. 	K2431.62
K2000	2 years' wholly suspended on condition fine of K7000 paid within 21 days.	
State v Paroa Kaia (1995) N1401, Sawong J

	Misappropriation	Guilty plea. Account supervisor misappropriated the sum of K94, 478.31 from ANZ Banking Corporation over a 2 year period. 

As accounts supervisor, high degree of trust. Severe sentence required to act as deterrent and restore public confidence in banking institutions.
	K94, 478.31	4 years' imprisonment.	
State v Bygonnes Tuse Nae (1996)
N1474, Sawong J 
	Misappropriation x 19	Guilty plea. 19 counts of misappropriation ranging between K1200 and K4555.37 and totalling K103, 587.71 over 18 months from Eastern Highlands Rural Housing Scheme Incorporated, a scheme which the prisoner had established and ran. Aggravating features: amount taken; high degree of trust; period of offences; money applied for personal benefit; and effect on victims.

Principle: Restitution orders should only be made where there is no doubt of the rights of respective parties. Proper evidence must be called to establish ownership and state of properties before the Court should be invited to make restitution orders and take it into account on sentence.
	K1200
K4555.37
K103, 587.71	Counts 1 to 6, 8 to 10, 12 to 19: 2 years;
Count 7: 2 years; Count 11: 4 years; to be served concurrently.
	
State v Tova (1997) N1522, Batari AJ ( as he then was)
	Misappropriation x 1	Guilty plea. Accused dishonestly applied to his own use, money in the sum of K22, 100.00 the property of Allens Arthur Robinson Lawyers. In the course of his employment, he gained access to the firm's cheque book and uplifted blank cheque forms which he filled out and forged the signatures of Office Manageress and Principal Lawyer. 
Principle: Wellington Belawa v. The State [1988-89] PNGLR, 496 which suggests imprisonment term of 2 to 3 years where the amount misappropriated is between K10, 000.00 and K40, 000.00. 
Belawa's case was decided six years ago and in the meantime, the Courts have sounded warnings that the sentence will go up in line with the increasing number of misappropriation cases since that Supreme Court decision. 
	K22, 100.00	3 years’ imprisonment, suspended on the condition of repayment.	
The State v Doreen Liprin (2001) SC673, Amet CJ , Kapi DCJ (as he then was), Los J	Misappropriation
Forgery
Uttering	The prisoner, a bank teller was found guilty of forging and uttering a bank withdrawal slip and misappropriating K6000 from her employer. The National Court sentenced her to 1 year each for forging and uttering and 3 years’ for misappropriation, to be served concurrently, wholly suspended on condition of restitution within 2 months.
	K6000	On appeal the sentence was varied to the 9 months’ already served, with further orders for restitution over 2 years with community service.

See Amet CJ’s comments re suspension in the case of offences involving smaller amounts.	
The State v Kig (2001) N2177, Sawong J	Misappropriation	The offender pleaded guilty to one count misappropriation of K28, 189.53, property of FRG Clothing Pty Ltd, for which she was the Sales Manager.  She used three different methods to access the monies received from customers and then systematically applied the money to her own use.	K28,189.53	2 ½ years’ imprisonment, wholly suspended on conditions, including restitution. 	
State v Nakikus Konga, unreported, 24 May 2002, CR 32/2001
	Misappropriation	Member of Parliament convicted following trial of misappropriating K50,000 intended for community projects. 

Aggravating features: amount involved high; Member of Parliament; high level of trust.  The Court noted, however, that the funds were used by the prisoner to up-grade two houses, which while owned by him, were used by the Police Department since the time of the renovations rent-free. As such the case should be distinguished from those where money is spent on personal indebtedness or otherwise squandered. In the circumstances the sentence suspended. 
	K50,000	5 years', wholly suspended on condition that the offender:
•	Enter into recognizance to keep the peace and be of good behavior for 3 years
•	Pay a fine of K2000 within 7 days
•	Restitute to the State the sum of K50,000 within 3 months	
State v Sylvanus Siembo & 2 Ors, unreported, 30 May 2002, CR 1220 of 2000
	Misappropriation	The three offenders were convicted following trial of misappropriating K100, 000 from the State, which was intended for the construction of a road by Momboro Business Group (MBG), and was instead directed to the account of a private company, where it was intended the money would earn interest. 

The Court noted that the offenders were first time offenders, had large families, did not benefit personally from the use of the money and that the money, with interest, was repaid to MBG.

However, the offence involved the misapplication of public funds. "This is a mockery of the Public Finance Management Act, especially the Financial Instructions made thereunder. I am of the view that this case is serious, not only because it involves public trust and confidence, but also the blatant disregard of strict Financial Instructions and legal tendering processes...The fact that Sylvanus Siembo is a Parliamentarian, a law maker, and a national leader and the two co-accused are senior public officials make this offence very serious. In my view, this factor alone calls for a heavier punishment as a deterrence to stop such top people", applying Tom Amaiu v S [1979] PNGLR 576 at 581; Belawa at 503; S v Napilye Kuri N1269, 9 September 1994 at 6. Public funds must be put to the purpose intended. Aggravating factors: amount involved; degree of trust substantial; offence committed over 1 month; and impact on public confidence.  Custodial sentence partially suspended on the basis that the money was not used personally.
	K100,000	6 years' imprisonment, of which 3 years to be suspended on condition that prisoner entered into a recognizance in the sum of K5000, surety (not cash) to keep the peace and be of good behavior for 2 years following discharge from prison.	
State v Dennis Vela, June 24th 2004, CR 430 of 2004, Mogish J
	False pretence
Misappropriation	The offender, a police officer, pleaded guilty to both charges concerning K28,000 from his employer, the State. 

Mogish J: "...When it comes to sentencing a policeman who has been convicted of a dishonesty offence, the sentence should not only reflect the amount stolen but a high degree of trust ordinary citizens expect from police officers. Convicted and corrupt police officers have no place in the Constabulary. They are a disgrace to the uniform they wear and should be weeded out as a form of deterrence either through dismissal or imprisonment....Police officers must be expected to be punished severely than ordinary citizens because of the office they hold and the greater responsibility, accountability they have."
	K28, 000	2 years imprisonment for false pretence
4 years’  for misappropriation, to be serve concurrently
	
State v Daniel Mapiria, unreported, 7 September 2004
CR 1118/2000
Mogish J
	Misappropriation	The offender, the Chairman of the National Gaming and Control Board, was convicted following trial of misappropriating K3.188m from the State by counter-signing 41 cheques drawn payable to cash over 10 months and applied to the benefit of another, namely the Registrar of the Board, Mr Aisa, rather than for the purposes of health, welfare, community etc as directed by the National Executive Council. Aisa was acquitted by another trial judge.

Aggravating features: amount involved; quality and degree of trust reposed as chairman of multimillion kina statutory corporation; and the eroding of public confidence in those appointed to high office.  The Court noted that the misappropriation of monies irrespective of the amount may have devastating consequences for the victims.

“Like politicians and senior bureaucrats, senior executives of statutory organisations must be warned that if they manipulate the system to benefit themselves at public expense, they will be severely punished, that imprisonment is almost inevitable. 
Prior good character carries little weight in such sentences, per Belawa, Siembo 
Family hardship, alone, cannot excuse a custodial sentence.
Offence one of worst cases of misappropriation and of such grave magnitude that the maximum sentence should be imposed. “

However the Court suspended the sentence having regard to the following factors, and in particular, the fact that the offender’s medical condition would result in an excessive degree of suffering in prison: level of culpability, ie prisoner did not personally benefit from fraud. Per S v Siembo & Ors, CR 1220/2000; desire to make restitution, even though this was not indicative of remorse; and personal mitigating factors including lack of sophistication, age (54), and particularly his poor medical condition, ie severe complications known to be associated with prisoner's 3 diseases likely to arise if not properly managed. 

The Court expressed the view that applying other cases of breach of trust, in case of plea of guilty: Where amount misappropriated b/w K100,000 and K210,000, imprisonment for b/w 6 to 8 years appropriate.  Where amount exceeds K210,000 8 to 10 years' imprisonment appropriate.
	K3.188m	9 years' wholly suspended on condition, including:
•	Restitution to State of K1m within 18 months
•	5 years community service
•	5 year good behavior bond.
•	6 monthly PS report	
State v Imoi Maino (2004) 
N2773,  David AJ (as he then was)
	Misappropriation	Guilty plea. The offender was a payroll clerk with Department of Education and misappropriated K106, 355.02 by drawing 16 cheques, 15 in favour of various others (teachers) and 1 in favour of herself, benefiting herself in the sum of K23, 773.76.  Aggravating features: amount; breach of trust; committed over 14 months.

The Court partly suspended sentence having considered following matters: unemployed; wife, child and aged mother to care for; unable to make restitution, but termination entitlements and POSF contributions forfeited to Department of Education; no prior convictions, plea and co-operation with police
	K106,355.02	4 years' imprisonment in hard labour, of which 2 years' suspended on condition:
•	Report to PS upon release from prison, as and when required.
•	To be of good behaviour during suspension
•	Not to change residential address without reasonable notice
•	To allow PS to enter home during reasonable hours during suspended sentence
•	Community service 2 days per week during period of suspension
	
The State v Lukeson Olewale (2004) N2758, David AJ (as he then was)	Misappropriation; Uttering	The prisoner conspired with others including a bank manager and uttered and misappropriated a  cheque for K40,000.00 against the account of the Fly River Provincial Government.	K40,000.00	4 years’ imprisonment, wholly suspended on conditions including restitution with assistance from his family.	
The State v Benson Likius (2004) N2518, Lenalia J	Misappropriation 	The prisoner misappropriated K68, 674.06 the property of his employer, Lihir Management Company using a scheme applied over a period of more than 20 months.	K68, 674.06	5 years’ imprisonment, three years of which was suspended on conditions, including restitution.	
State v Scholar Zuvani (2004) N2641, Cannings J	Misappropriation 	The prisoner pleaded guilty to one count of misappropriating K22, 685.43 belonging to the Ponam Local Church and Ecom High School in Manus Province, whilst employed as a bank officer with BSP. The offender transferred the monies to her sister in law’s account and then used her sister in law’s card, without her knowledge, to withdraw monies for her own use. Restitution was almost completed prior to sentence.
	K22, 685.43	4 years’ imprisonment, wholly suspended on conditions	
The State v Christian Korei (2005) N2946, Lay J	Misappropriation 	K82, 202.73 was donated for the purposes of building a school in the prisoner’s community. After receipt of the money, the offender withdrew some of the money and applied it to his own use. Upon discovery of the misappropriation, the offender’s account was frozen by the bank. At the time of freezing his account, there was a balance of K51, 493.46 remaining. The money was later transferred to the community school’s account.
	K30,709.27	4 years’ imprisonment, wholly suspended on conditions including full restitution.	
The State v Ludwina Tokiapron (2005), Salika DCJ (as he then was)	Misappropriation 	The prisoner pleaded guilty to misappropriation of K200,000. The monies were obtained from victims on the pretext that they would be invested in a pyramid scheme in Singapore but were used by the prisoner.	K200,000	6 years’ imprisonment. 	
State v Iori Veraga (2005), N2849, Sakora J
	Conspiracy x 2;  Misappropriation x 4	The offender, a valuer, was convicted of conspiring with others, including senior executives of NPF, to defraud NPF of K60,300 and K175,000 by charging valuation fees that were excessive. The offender then applied K20,300 and K7155 of that money to his own use, and K30,000 and K87,500 to the use of another, namely Jimmy Maladina. 

The Court found that the prisoner played a secondary role to that of co-conspirators. And noted that the prisoner had up to that point been a productive member of the community. However, the crime was a well-planned scheme designed to defraud a public institution specifically established to provide a "safety net" for the future of ordinary workers, and whom do not have a welfare system in PNG. The prisoner showed no remorse for the ordinary workers of the private sector, whose life savings were raided by him and his co-conspirators. 
	K60,300
K175,000

K20,300 and K7155 

K30,000 and K87,500	4 years' on each conspiracy count to be served concurrently; 2 years' on each misappropriation count, to be served concurrently. Misappropriation sentences cumulative on conspiracy sentences, ie 6 years' to serve.	
State v Niso (No 2) (2005) N2930, Gavara-Nanu J
	Conspiracy, 
Forgery, 
Fraudulently Uttering and
Misappropriation	The prisoner was convicted following trial of conspiring with one Soni Harvies and other unknown persons to defraud the Bank of Papua New Guinea of K500, 000.00. He then forged a Westpac Bank (PNG) Ltd cheque account application form in the name of one Raymond Mell. The prisoner knowingly and fraudulently uttered a false document purporting to be a Westpac Bank (PNG) Ltd cheque account application form in the name of Raymond Mell. He then applied to his own use and to the use of others K500, 000. 00.  

Aggravating Factors: substantial amount of money; offender a senior clerk in the central bank; duties involving handling of large investment cheque amounts; holding responsible position; duty to the bank and to the customer investors; breach of trust; effects of the crimes on the bank; no remorse.  Mitigating Factors: first time offender; 22 years of unblemished record with the bank; offender not in the same category as a director or a manager of a company or a leader entrusted with control of funds; opportunity crimes; not premeditated; no plans or schemes involved in the commission of crimes; substantial amount has been accounted for (K193,911.71); accomplice must share the blame.
	K500,000	•	3 years, 6 months’ imprisonment for conspiracy;
•	1 year, 3 months’ imprisonment for forgery;
•	1 year 3 months’ imprisonment for uttering; 
•	7 years 6 months’ imprisonment for misappropriation;

Sentences for first, second and third counts to be served concurrently with the sentence for the fourth count. 

Effective term of imprisonment 7 years 6 months’ imprisonment minus 8 months spent in custody which is 8 months. Balance of effective sentence at 6 years 10 months’ imprisonment. 
	
The State v Alice Wilmot (2005) N2857, Sevua J	Misappropriation 	The prisoner pleaded guilty to one count of misappropriating K19, 960 systematically over a period of 17 months whilst a bank teller from her employer, ANZ. The prisoner failed to express remorse.	K19,960	3 years’ imprisonment, 18 months of which was suspended upon full restitution. A further 6 months was suspended upon entering into her own recognizance with the balance of 12 months to serve.
	
State v Ari Inatiah, unreported 10 August 2006, Cr: 1333 of 2003, Mogish J
	False pretence; Misappropriation
	The offender was convicted following trial.  He collaborated with another policeman and filed an accident report which was false and fraudulent. Using the report he instituted three false claims with MVIL who issued cheques to him totalling K5000.00. He cashed them and applied the money to his own use.  Aggravating features: Breach of trust/Position as OIC Highway patrol. Offence committed over a period of 10 months.

Restitution was offered by the accused however his Honour established that "the mere fact that an offender is willing to make full restitution is no guarantee to a wholly suspended non-custodial sentence. Such a perception misconceives the underlying principle where there is a breach of trust involving senior executive. In those cases deterrence should be the prime consideration. This consideration must take precedence over the considerations of rehabilitation of the offender. Breach of trust by employees involves a situation where, in the public interest, sentences must be imposed with the object of stern general deterrence."
	K5000	4 years’ for false pretence; 5 years’ for misappropriation to be served concurrently, of which 6 months of imprisonment suspended upon condition offender repay K5000.00 within 6 months.
	
The State v Haurahaela (2006) PGNC 100, Kandakasi J (as he then was)	Misappropriation 	Guilty plea. The offender was employed by the National Department of Finance & Treasury as an Acting Examiner based at Kikori, Gulf Province. One of his duties included collecting public monies into the State Treasury through the Kikori District Office. These funds also included police, court bail and court fees. Instead of completing the relevant collector’s statements for these monies and paying them to the trust account in Kerema, the offender kept them and applied K1,200 to his own use.
	K1,200	18 months’ imprisonment, wholly suspended with conditions.	
The State v Ambunop (2006) N3864, Kandakasi J (as he then was)	Misappropriation 	The offender pleaded guilty to a charge of misappropriation of K12,000. The offender was employed by the Fly River Provincial Government Traffic Registry Office at Kiunga. His roles and responsibilities were to collect, receipt and account for the motor traffic charges under the Motor Traffic Act. During the time of the alleged offence, the offender failed to deposit those funds into the relevant Fly River Provincial Government office account and dishonestly applied the funds to his own use.
  	K12, 000	4 years’ imprisonment less 4 days spent in custody leaving a balance of 3 years 11 months and 3 weeks and 3 days to serve. The balance was wholly suspended on conditions including restitution.	
The State v Ipai (2006) N3169, Kandakasi J (as he then was)	Misappropriation 	The offender was the President of the Baimuru LLG. Whilst on leave, he picked up a cheque for K2000 from the Gulf Provincial Administration in the name of his Vice President, Solomon Lae. After receiving the cheque the offender went to Port Moresby and presented the cheque at Teri Trading, cashed it and purchased store goods worth K300. He presented himself as Solomon Lae when purchasing the goods.
 	K2000	3 years’ imprisonment, wholly suspended with conditions including restitution. 	
The State v Sevese (2006) N3453, Kandakasi J (as he then was)	Misappropriation 	The offender pleaded guilty to misappropriation of K8000 belonging to Karaeta Elementary School. The offender was the Chairman of the Elementary School. The Governor at that time Chris Haiveta, presented a cheque of K15,000 to the Elementary School which the offender received on behalf of the school in his capacity as School Chairman. The money was deposited into the school’s bank account, to which the offender was a signatory.  Over a period of time he withdrew the whole of the K15,000 for his own use.
	K8000	2 years’ imprisonment. 	
The State v Lasin (2007) N5052, Cannings J	Misappropriation 	The offender pleaded guilty to misappropriating K10,888. He was the manager of the LLG and put in charge of an electoral awareness program. He was given custody of two cheques worth K10,888, intended for allowances for 28 individual officers taking part in the program.  He cashed the cheque and applied the money to his own use.
	K10,888	4 years’ imprisonment, of which 2 ½ years were suspended.	
State v Jimmy Kendi (No. 2), (2007) N3131, Lenalia J
	False Pretence
Misappropriation
	The offender was convicted following trial of fraudulently obtaining and applying to his own use K4, 298,037.33 belonging to the State, with the assistance of corrupt officers in the Departments of Finance & Treasury and Defence.  He falsely claimed that the Defence Force had unlawfully used machinery and equipment belonging to his company whilst in Bougainville during the Crisis.  His company never owned any machinery or equipment at the relevant time. 

Factors taken into account: large amount of money (Biggest amount involved in any fraudulent cases in the history of PNG since Independence); money belonged to the State (could have been used for services to the public); no restitution; no remorse; guilty plea; first time offender; and no co-operation with the police and prosecution authorities. 
	K4,298,037.33	9 years for misappropriation; 4 years for false pretence (to be served cumulatively thus a total of 13 years imprisonment)
	
The State v Philip Wiamai (2007) N5492, Cannings J	Misappropriation 	The prisoner pleaded guilty to one count of misappropriating K16,848.70 from his cousin brother.
	K16,848.70	4 years’ wholly suspended on conditions, including restitution	
The State v Iralu (2008) N3710, David J	Misappropriation	The prisoner pleaded guilty to misappropriating K9,000, the property of her former employer, Niugini Oil Company. The prisoner was the Office Manager. The prisoner altered the cash sales invoices in respect of 36 transactions to amounts less than what were actually stated. She would then go to the bank, do the deposits, and keep the difference of each of those transactions and used the moneys for her own benefit.
	K9,000	3 years’ imprisonment.  Balance of 2 years , 8 months’ remaining after time served, wholly suspended with conditions including restitution. 	
The State v Teka (2008) N3509, Makail AJ (as he then was)	Misappropriation	The prisoner pleaded guilty to misappropriating K37,000 provided to her for the purchase of a vehicle once one was in stock. The prisoner deposited the monies to her account and withdrew them over time until her account was depleted.
	K37,000	5 years’ imprisonment, wholly suspended on conditions, including restitution	
The State v Nancy Uviri (2008) N5468
Cannings J	Misappropriation	The prisoner pleaded guilty to misappropriating K300,000 from her employer over an 18 month period through a scheme of bogus invoices.

Court recommended effectively doubling the tariffs suggested in Wellington Belawa.
	K300,000	7 years of imprisonment.	
State v Kaki (2008) N3458, Paliau AJ	Misappropriation	The prisoner pleaded guilty to one count of dishonestly applying to his own use, K24, 388.08, belonging to Lihir Gold Limited. The prisoner was a Senior Payroll Officer and raised a Lihir Gold Limited BSP Cheque payable to cash and used the proceeds.  	K24, 388.08	6 years’ imprisonment. 6 months and 8 days were deducted for time spent in custody, leaving a balance of 5 years, 6 months and 23 days to serve.

The balance was wholly suspended with conditions including restitution.	
The State v Karo (2008) N3521, Paliau AJ.	Misappropriation	The prisoner, a cashier, pleaded guilty to one count of dishonestly applying to her own use and the use of others, monies in the sum of K99, 600.53, the property of Badili Hardware Limited, his employer.
 	K99, 600.53	6 years’ imprisonment, wholly suspended with conditions including restitution. 	
The State v Mamando (2008) N3709, David J.	Misappropriation	The offender pleaded guilty to the misappropriation of K34, 326.75, the property of her employer, Coca Cola Amatil. The prisoner was a cashier at Coca Cola Amatil’s Mt Hagen Depot. One of her duties involved the banking of daily takings. Over a period of two days the prisoner collected monies from customers but failed to bank the whole amount to her employer’s account.
 	K34,326.75	4 years’ imprisonment, less six days spent in pre-trial custody, leaving a balance of three years’, eleven months and twenty-two days to serve. 

Three years of her sentence was wholly with conditions.	
The State v Yannam (2008) N3958, Cannings J.	Misappropriation	The offender pleaded guilty to one count of misappropriating K800. He had received the money in good faith from a family he had befriended on the pretext that he would buy them a TV set and other items. He took the money and never provided the goods.
	K800	One year imprisonment less 4 months and 2 weeks already spent in custody, leaving a balance of 7 months and 2 weeks term of imprisonment to be served. 	
State v Chillen (2008) N3549, Davani J	Misappropriation 	The prisoner pleaded guilty to the misappropriation of K65,000. He applied to the National Gaming and Control Board (NGCB) for funding on behalf of his church group to build a church.  The prisoner collected the cheque and opened a new bank account in his name with 3 others, deposited the cheque and made several withdrawals thereafter to his own use.
	K65,000	4 years’ imprisonment.	
State v Gani (2008) N4177, Manuhu J.	Misappropriation 	The offender pleaded guilty to one count of dishonestly applying to his own use the sum of K35,000, property of the State. He was the President of the Wuvulu/Aua LLG in 1999 when the alleged offence occurred. He arranged for the sale of the MV Thomson, a boat belonging to the LLG for K35, 000. After receiving the money from the sale of the boat, he deposited the money into his private account. Over a period of time, Mr Gani applied the money to his own use.
	K35,000	5 five years’ imprisonment. 	
State v Moko Essi Kom (2009)
CR. No. 114 2008, David. J
	Misappropriation	Guilty Plea – The prisoner was approached by others to use the name Simon Wapo so that he and others would embezzle funds from the Department of Finance & Treasury. Claims were made and payments made to the prisoner totalling K3, 780, 000.00, which funds were used by the prisoner and others for their own use. 

Factors taken into account: large amount of money taken (2nd worst case behind Jimmy Kendi (No.2)); pre-meditated scam taking place over 14 months; money was used for the benefit of the prisoner and the others; State's money; no restitution; prevalence; first time offender; cooperated with police investigations; furnished information that had led to the arrest of others involved; no prior convictions; and remorse.
	K3, 780, 000.00,	8 years’ imprisonment	
The State v Daniel Duk (2009) N3924, Cannings J	Misappropriation	The offender pleaded guilty to misappropriating K32, 800 to his own use from customer accounts whilst employed as an accountant with Wau Micro Bank.	K32, 800	4 years of imprisonment.	
The State v Morgan (2010) N4076, Kawi J.	Misappropriation 	The offender pleaded guilty to one count of misappropriation of K15,625.14, property of his former employer, Inter Oil Ltd. The offender was a Credit Administrator.  He received payments from customers for the use of Inter Oil products. The prisoner made out receipts but never gave the cash to the cashier for banking. There were a total of 19 payments totaling K15, 625.14. It was only after an audit was conducted and the discrepancy was discovered and the offender admitted. 	K15,625.14	The prisoner was given a non-custodial sentence, on strict conditions	
State v Kutan (2011) N4526, Kawi J	Misappropriation 	The offender pleaded guilty to misappropriating a sum of K25,000.00 belonging to Courts (PNG) Limited whilst he was the Branch Manager for Courts (PNG) Limited in Madang	K25,000.00	2 years imprisonment, wholly suspended on conditions including restitution. 	
State v Emba (2011) N5012, Kawi J	Misappropriation 	The accused initially pleaded not guilty, but changed it to a plea of guilty. She was employed as a cashier with Air Niugini, based in Kimbe and was responsible for collecting cash monies from the sale of airline tickets. The monies were received from ticket sales.  To avoid detection the prisoner got the ticket coupons and destroyed them, and then applied the monies to her own use.
	K286,491.71	6 years to be spent in light labour at the Lakiemata Jail. The sentence was wholly suspended on conditions including restitution. 	
The State v Mathew Kana, CR No 843 of 2012, 11 June 2014, unreported, Sakora J	Misappropriation
Conspiracy to defraud	The prisoner pleaded to one count of misappropriation and one count of conspiracy to defraud Twivey Lawyers of K164,570.30.	K164,570.30	5 years’ imprisonment.	
State v Tarsan (2011) N4312, Cannings J	Misappropriation 	The prisoner pleaded guilty to one count of misappropriation. In 2010 he was the headmaster of Brahaim Primary school and over a four month period dishonestly applied K2, 475 of school funds to his own use.	K2,475	18 months’ imprisonment, wholly suspended with conditions including restitution. 	
State v Magum (2011) N4524, Kawi J	Misappropriation	The prisoner pleaded guilty to the misappropriation of K2,950. She was a Police Constable attached to the prosecution section of the RPNGC based at Bialla Police Station, WNB Province. As a Police Prosecutor, she given the responsibility of looking after bail monies from various applicants. The bail monies were locked in a safe and kept in the Police Station Commanders Office. Only the prisoner had access to the safe. She obtained K2,950 and paid certain police reservists. 
	K2,950	2 years’ imprisonment, wholly suspended with conditions including a fine.	
State v Yegiora (2012) N4641, Kangwia AJ (as he then was)	Conspiracy
Misappropriation 	The offender was convicted of two counts of conspiracy to defraud the State of K300,000 and one count of misappropriation of K300,000. The offender was the Provincial Treasurer for Simbu Province at the time of the alleged offences.  Two persons, Robert Bartho and Peter Kuman, brought two cheques with a total value of K300, 000 to the prisoner in his Kundiawa office. The cheques drawn from the National Planning Department were for road improvements in Gumine and Kundiawa/Gembogl Districts and payable to the District Administrators of the two Districts.  The prisoner directed deposits to be made of the cheques and for payments to be made from the Provincial operating account. A cash payment of K100, 000 was made to Mr. Robert Bartho and K200, 000 was paid to Peter Kuman. The payments were made in the prisoner's office. At the time of payment Robert Bartho and Peter Kuman were neither the respective District Administrators nor were they public servants in the Gumine and Kundiawa/Gembogl District Administrations. Acquittals were made through the Department of Works but some officers in the Provincial Treasury declined or could not examine or certify them after false information were discovered in the acquittal documents. 	K300,000	1 year imprisonment for the offence of conspiracy to defraud.
2 years’ imprisonment for the offence of misappropriation.
The sentences were to be served concurrently, but wholly suspended with conditions including probation. 	
The State v Sari (2012) N5167, Toliken AJ (as he then was)	Misappropriation 	The prisoner pleaded guilty to misappropriating K650 in cash.	K650	1 years’ imprisonment in light labour. 5 months was deducted for the period spent in pre-trial custody and the balance of 7 months was wholly suspended on condition that he entered into a recognizance of K200 to be of good behavior	
The State v Amonea (2012) N4688, Makail J.	Misappropriation 	The offender was found guilty of misappropriation of K25, 000. The offender went to Bank South Pacific with a false court order and a letter written by him in relation to a Court matter CPC No 101 between himself and Wanpia Uralia & IPA. The Court order required the bank to change the signatory of the account belonging to Hides Gas Development Services Ltd from Wanpis Uralia to that of the offender. The documents were presented to a Nancy Abraham and she accepted after confirming with the Legal Division that they had received the documents. After confirming that the signatories had been changed, the offender on two separate occasions withdrew K16,000 and K9,000 respectively, money belonging to Hides Development Services Ltd. The matter was discovered when the legitimate Director wanted to make a withdrawal and could not because she discovered that there signatories were changed. 
	K25,000;
K12,000.	3 years wholly suspended upon conditions including restitution.	
State v Etami (2012) N4769, David J	Misappropriation 	The prisoner pleaded guilty to one count of misappropriation of  K165,086.18, the property of his employer, Oilmin Field Services.  Whilst employed as a Taxation Officer and Accounts Payable Assistant he incorporated three bogus companies with similar names to those of his employer’s three main creditors, drew up false requisitions, altered the payee and deposited the cheques to the accounts of those companies, from which he withdrew the monies for his own use and the use of others.
   	K165,086.18,	4 years’ imprisonment, less the four days spent in remand before being bailed out. The balance to be served was wholly suspended with conditions, including restitution. 	
State v Satuheni (2013) N5554, Geita AJ (as he then was) 
	Misappropriation 	The offender pleaded guilty to one count of misappropriation of K3, 356.40, money belonging to Ganba Westbrook Technical High School. The offender was employed as the School’s Manager. In January 2013, the school had received its annual subsidy of K39, 394.98. Soon after the money was deposited, the offender used his office and withdrew K19, 394.98 to pay for services and goods provided to the school. The board demanded an explanation and after acquittals it was discovered that the offender misappropriated K3, 356.40 from the sum withdrawn.
	K3, 356.40	3 years’ imprisonment, wholly suspended with conditions including restitution. 	
State v Aitowa (2013) N5637, Murray J
	Misappropriation 	The offender pleaded guilty to misappropriation of K990 belonging to Lanokapi Lutheran Primary School. The offender whilst employed at the school as a secretary had access to the BSP cheque book and wrote out three different cash payments totaling up to K990. Each of the cheques were signed with forged signatures. The offender was assisted by an employee of the bank where she cashed the cheque and applied the money to her own use.
 	K990	The offender was sentenced to the rising of the Court.	
State v Philip (2013) N5386, Cannings J 
	Misappropriation 	The offender pleaded guilty to the misappropriation of K15, 900, the property of his employer, Post PNG Ltd.  At the relevant time he was a customer services officer at Madang Post Office. He collaborated with another employee to engage in four fraudulent transactions involving the abuse of the Mobile Salim Moni Kwik (SMK) cash transfer system over a period of 15 days. He obtained cash in the amount of K4000, K4000, K3, 900 and K4000 and applied it to his own use.
	K15,900,	2 years’ imprisonment. 	
The State v Stanley Haru  (2014) N5660
Salika DCJ ( as he then was)	Misappropriation	The offender, the President of the Tigers Rugby Club was convicted following trial of misappropriating the sports club’s property worth K2.6m by selling it to a third party misappropriated K2.6 million and pleaded not guilty. He was in a position of trust and stole from the club that had made him famous as a player.
	K2.6 million	8 years’ imprisonment, four years of the sentence was suspended leaving a balance of four years to serve.
	
The State v Paul Tiensten (2014) N5563 Salika DCJ (as he then was)	Misappropriation 	The prisoner was convicted following trial of misappropriating K10m as the Minister for National Planning and Monitoring, by dishonestly directing his officers to bypass the PFMA Act and make payment to an airline company, Travel Air.

Considerations:  amount taken; very serious breach of trust by a Minister; offence perpetrated over a period of time; money was paid to benefit Travel Air, a privately owned airline company which was not yet in operation and the money did not benefit the prisoner personally; the impact on the public and on public confidence was high; serious effect on the offender himself, namely humiliation, distress and shame on previously clean record.
	K10 million	8 years’ imprisonment of which 4 years was suspended on condition of full restitution.	
The State v Tanner & Anor (2014) N5808, Salika DCJ (as he then was) 	Misappropriation 	The prisoners were convicting following trial of one count of misappropriation of K292, 663.50, the property of Post PNG Limited.   Between, the 1st of January 2012 and the 31st August 2012, the prisoners conspired with each other and fraudulently obtained from Post PNG an amount of K292, 663.50. This they obtained using the mobile SMK (Salim Moni Kwik) system. Clayton Tanner manipulated the system by entering false cash entries on Telepin (the mobile money system) purporting to be monies sent from another province, which were then cashed out in Port Moresby. In this case he used Alex Solon to cash out the monies.
	K292, 663.50,	Tanner was sentenced 4 years’ imprisonment, 2 years suspended upon payment of his share of restitution. 
Solon was sentenced to 3 years’ imprisonment. 2 years of the sentence suspended upon payment of his share of restitution of K146, 331.75.

The State v Feria (2014) N5600, Cannings J	Misappropriation 	The prisoner pleaded guilty to the misappropriation of K10,716, the property of her employer, Ela Motors. The offence was committed in a single transaction.  It was part of her duties to make a bank deposit of K74,688.40 of her employer's money, comprising cheques to the value of K51,500.00 and K23,188.40 cash. She deposited all the cheques but only K12,472.40 cash, leaving a shortfall of K10,716.00. She dishonestly applied the shortfall to her own use.
	K10,716	2 years’ imprisonment. 21 months were suspended subject to conditions. A balance of 3 months was left to be served in custody. 	
The State v Kintau & Anor (2014) N5761, Salika DCJ (as he then was)	Misappropriation 	The prisoners pleaded guilty to one count of misappropriation of K87,500 monies belonging to Danny Kiap. The complainant wanted to purchase a property. The property was sold by the co-accused Isacc Tom on behalf of the tenants. His offer of K800,000 was accepted by the vendors and he was instructed to pay 10% deposit into the trust account of PNG Legal Links as appointed stakeholders of the vendor. He had then made a second payment of K7,500. In total he paid K87,500. From then onwards, there was a prolonged delay. Mr Kintau, a lawyer by profession had been avoiding his calls. PNG Legal Links wrote back to the complainant and advised him that his money would be refunded. He even made several visits to Mr Tom’s office but he was not there. After futile attempts, he laid a complaint with the Police.
	K87,500	Alois Kintau was sentenced to 4 years’ imprisonment on, to be wholly suspended on restitution of 50%. 
Isacc Tom was sentenced to 4 years’ imprisonment, to be suspended on restitution of 50%.

State v Vagi (2014) N5697, Salika DCJ (as he then was) 
	Misappropriation	The prisoner pleaded guilty to one count of misappropriation of K65,924.90, the property of her employer, PNG Gardener. She was employed as an accounts clerk and banked monies received from flower sales to her own account.	K65,924.90	3 years’ imprisonment.	
The State v Balim (2015) N6028, Cannings J	Misappropriation 	The prisoner was a teacher at Jomba Primary School in Madang and pleaded guilty to misappropriating K11, 680, money belonging to the school. On four occasions over a six week period in 2013 he gained access to the school’s cheque book. He forged the signature of the head teacher and cashed the cheques at the bank.
	K11,680	The prisoner was sentenced to 3 years’ imprisonment. 	
The State v Guda (2015) N5955, Salika DCJ (as he then was) 	Misappropriation 	The State v Guda (2015) N5955, Salika DCJ (as he then was). The prisoner pleaded guilty to one count of dishonestly applying to his own use and the use of others K436,000, the property of Moga Incorporated Land Group. The prisoner and another person Tony Dunstan on different occasions withdrew K436, 000 from Moga ILG account held at BSP. The prisoners were assisted by Karen Rema,  a bank in-house lawyer. At the time of the offence, the prisoner was not  authorized to withdraw monies, dispose or deal with the Moga ILG. 6 years’ imprisonment.
 	K436,000	6 years’ imprisonment. 	
The State v Peter Tokunai (2015) N6039, Salika DCJ (as he then was)	Misappropriation	The prisoner was convicted following trial of one count of misappropriating K1.5 million from the State, over a period of 6 months, received for the purpose of rebuilding the Malaguna Catholic Church.
	K1.5 million	7 years’ imprisonment	
State v Kalup (2015) N6038, Salika DCJ (as he then was) 	Misappropriation x 3
Obtaining goods by false pretence	The prisoner owned a number of companies namely Zenalis Waterfalls Ltd (Zenalis), North East Trans Ltd and Zebedee Sea Freight Ltd. All these companies were based in Madang. The prisoner with the innocent and genuine endorsement of the then Open Member for the Madang Seat in the National Parliament, Hon. Goli Buka Malai, submitted 3 project proposals for the Madang District to the Department of National Planning and Monitoring (DNPM). At the same time the prisoner was engaged by the then Member of Parliament for the Kiriwina Goodenough Open Seat Hon. Jack Cameron to make a proposal for a rural communication project in Kasou Sau Community in Kiriwina, Milne Bay Province.  4 projects were approved by the DNPM and all 4 cheques were processed and issued in favour of Zenalis Waterfalls. These cheques were deposited into Zenalis Bank accounts held at the Westpac Bank in Madang. From there the monies were paid out to various individuals and companies not related to the projects.  As a result of the moneys being applied for other uses other than for the purposes for which the monies were approved for the projects never got off the ground or were never followed through and completed.
	K500,000 &  
K2,500,000.

	8 years’ imprisonment.	
The State v David Poholi (2016) N6214, Salika DCJ (as he then was)	Conspiracy to defraud
Misappropriation 	The prisoner pleaded guilty to one count of conspiracy to defraud and one count of misappropriation of K688, 000.00 from BSP, his employer, whilst a Human Resource Benefits and Remuneration Officer, over a period of 18 months and involving 134 transactions.
	K688, 000	3 and 5 years’ respectively on each count, to be served concurrently	
The State v Janet Oba (2016), Salika DCJ (as he then was)	Misappropriation 	The prisoner, an Inspector of Police, uttered a forged court order directing BSP to release the sum of K1.2m to her company which she then misappropriated	K1.2 million	5 years’ imprisonment	
State v Pohien (2016)
N6564, Liosi AJ (as he then was)	Misappropriation 	State v Pohien (2016) N6564, Liosi AJ (as he then was). The accused was convicted of one count of misappropriation of hardware materials valued at K462, 864.00 the property of his employer Sika Limited. The prisoner whilst employed in the company’s hardware section as the supervisor, misappropriated hardware materials worth K462, 864.00, over a period of 6 months. 
	K462, 864	5 years’ imprisonment	
The State v Nori (2016) N6447, Salika DCJ (as he then was) 	Misappropriation 	Guilty plea to one count of dishonestly applying to his own use a motor vehicle a Toyota Land Cruiser, the property of the State on 5 April  2016. The prisoner was employed by the Minister for Commerce and Industry Hon Gabriel Kapris as his First Secretary from 2007 to August 2011. He had resigned to contest the 2012 General Elections. Before he did that, he wrote without the knowledge of the Minister to the Managing Director of Small Business Development Corporation attaching a quote from Ela Motors requesting to purchase a motor vehicle. The purchase was approved and the vehicle was delivered to the prisoner. He used it in Port Moresby before shipping it to Mt Hagen after resigning, and applied the use of the motor vehicle to his own use.  The vehicle was subsequently returned to the State 10 months later.
	K145,446	2 years imprisonment, wholly suspended on the conditions that he pay to the State a fine of K10, 000	
State v Krapp No.2 (2016) 
N6496, Geita J
	Misappropriation	The prisoner was found guilty of misappropriating K11,000 after trial between 17th and 22nd November 2011 at Vanimo, Sandaun Province. The monies were applied for and released by Sandaun Provincial Aids Council to be used for the four Local Level Government areas Nuku Central, Yangkok, Palai, Maimai Wanwan as part of their World Aids Day celebrations leading up to  World Aids Day on 1st December 2011.
	K11,000	6 years imprisonment, 3 years of which were ordered to be served without remission. The balance of 3 years were to be deducted upon full restitution of K11,000 to the State and the Sandaun Provincial Aids Council. 	
State v Morosake (2016) N6462, Auka AJ (as he then was)	Misappropriation 	The offender pleaded guilty to misappropriation of K4,600 in bail monies, belonging to 44 bail applicants. He was a police officer based at the Popondetta Police Station, attached to the prosecution section and was given the responsibility of looking after bail monies. The accused took K4,600 from the bail monies and applied the monies to his own use.
	K4,600	2 years’ imprisonment, wholly suspended with conditions. 	
State v Waie (2016) N7759, Koeget AJ (as he then was)	Misappropriation 	The accused pleaded guilty to one count of misappropriating K7000 belonging to the Gulf Provincial Government, whilst employed by the Gulf Administration as an Expenditure Accountant.  
	K7, 000,	2 years’ imprisonment, wholly suspended with conditions including restitution. 	
The State v Paul Guli & Ors (2017) N6866, Salika DCJ( as he then was)	Misappropriation	Three prisoners were each found guilty of one count of misappropriating K473, 575.00 the property of the State following a trial. Two prisoners, the District Accountant and District Administrator of what was then Western Highlands Province (now Jiwaka), made fraudulent payments into the account of the third prisoner, a local businessman.
	K473, 575.00	5 years’, 5 years’ and 2 years’ respectively	
The State v Christopher Hulape No 2 (2017) N7173, Koeget AJ (as he then was)	False pretence 
Misappropriation 	The prisoner was convicted following trial of one count of false pretence and one count of misappropriation of K1.6m of State monies provided for a village fishing project.	K1.6 million	5 years on each count to be served concurrently.	
The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported 8 December 2017
Kandakasi J (as he then was)	Misappropriation 	The prisoner was found guilty, following trial of one count of misappropriating K18, 931.25 belonging to Bank South Pacific.	K18,931.25	3 years’ imprisonment wholly suspended on conditions including restitution.	
The State v Gibing Yawing (2017) N6836, Salika DCJ (as he then was)	Misappropriation	The prisoner, an accountant pleaded guilty to one count of misappropriating  K14,955 from his employer, Simbu Farming and Marketing Ltd.	K14,955	2 years’ imprisonment	
State v Bruno (2017) N6596, Cannings J	Misappropriation x 2 	The offender was convicted after trial of two counts of misappropriation committed in the last few days that he held office as the acting head of a governmental body. Under count 1, he authorised the use of K55,000.00 of State money to pay a law firm he engaged to commence court proceedings challenging his removal from office and the appointment of his successor. Under count 2, he directed that a government cheque for K36,000.00 be cashed, he obtained the cash and failed to acquit the cash.
 	K55,000 and K36,000.	He was sentenced to 5 and 3 years, to be served cumulatively, ie 8 years of imprisonment. However, by applying the totality principle, due to special circumstances peculiar to the offender, such as his age, his poor prospects of re-employment, his medical condition, his long record of public service, his impressive pre-sentence report, the total sentence was reduced to three years imprisonment.	
State v Popon (2017)
N6679, Ipang J
	Misappropriation	The prisoner pleaded guilty to one count of misappropriation. He was the Board Chairman of Kelapul Elementary School, Upper Mendi at the relevant time. Between 01st January, 2011 and 31st May, 2016, the prisoner forged signatures of the other signatories to the School bank account and withdrew money at different times and for various amounts over the period of time. The total amount withdrawn and used for his benefit to May, 2016 was twenty-nine thousand nine hundred and fifty kina (K29, 950.00). This money was school subsidies from the Government over the years.
	K29, 950.00	2 years’ imprisonment, wholly suspended and placed on probation on conditions including restitution.	
State v Dira (2017) N6830, Koeget AJ (as he then was)	Misappropriation	The prisoner pleaded guilty to dishonestly applying to his own use and the use of others, cash in the sum of K6000, belonging to the State.  Between 30th April and 7th May, 2012 the prisoner raised a cheque in the sum of K6, 000.00 drawn from Ijivitari District Services Improvement Programme (DSIP) Trust account and endorsed it. The prisoner was employed in the Ijivitari District Treasury office as the Examiner. She took the cheque and cashed it at Price Rite Super Market Limited in Popondetta. She obtained the cash and gave it to other persons.
	K6000	1 year of imprisonment, wholly suspended on conditions including restitution. 	
State v Sarry Moere, CR (FC) 153 of 2017, 6 November 2017, unreported, Salika DCJ (as he then was)	Misappropriation 	The offender pleaded guilty to one count of misappropriating K295, 099.35 whilst employed by the Ombudsman Commission as its payroll officer by manipulating the payroll system and transferring the money to his own account. 	K295, 099.35	6 years’ imprisonment.	
The State v Hevelawa & Ors (No.2) (2017) N6875, Salika DCJ (as he then was).	Abuse of office
Conspiracy to defraud
Misappropriation	The offenders Jacob Hevelawa and Timothy Numara were found guilty of two counts of abuse of office, one count of conspiracy to defraud and three counts of misappropriation.  Mirriam Hevelawa was found  guilty of one count of conspiracy to defraud and three counts of misappropriation. 

Jacob Hevelawa was the Director General of the Office of the Library and Archives from March 2011 to March 2014 and Timothy Numara was the Manager, Corporate Services  of the Office for the Library and Archives. Mirriam Hewelava was the wife of Jacob Hevelawa and Sole Director of PAJA Sisters Trading. She was awarded a contract for grass cutting, landscaping and removal of rubbish. The costs were inflated and they misappropriated K63,120.50; K20,000 and K35,725.80. 
	K63,120.50;K20,000 and K35,725.80.	All three offenders were sentenced to five years’ imprisonment for the charge of conspiracy to defraud.
All three offenders were sentenced to five years’ imprisonment for the charge of misappropriation.
Jacob Hevelawa and Timothy Numara were sentenced to two years’ imprisonment for the charge of abuse of office.

The sentences were to be served concurrently, ie an effective sentence of five years’ imprisonment is to be served.  Three years of the sentence was suspended on the condition on restitution. 
A balance of two years’ imprisonment to be served.	
The State v Wartoto, unreported, Manuhu J, 2017	Misappropriation 	The offender was convicted following trial.  He was the sole shareholder and director of a company awarded a government contract for the price of K7,989,892.00 to renovate a high school. The company was paid 85% of the contract price (K6,791,408.20) up-front, and the balance of 15% (K1,198,483.80) near apparent completion of the project. The appellant was convicted of misappropriating the monies paid up front within five months. (See SC1834 for appeal against conviction.)
	K6,791,408.20	10 years’ imprisonment.	
State v Watangia (2018) N7175, Susame AJ	Misappropriation 	The prisoner was found guilty and convicted of misappropriating K9 000.00 in cash from his employer Oceanic Communications PNG Limited.  
	K9 000.00	3 years’ imprisonment, wholly suspended on conditions including restitution. 	
The State v Felix  Kautete  (2018) N7544
Berrigan J	Misappropriation 	The prisoner received K24,000 from his sister in law and her husband on the basis that he would purchase a vehicle on their behalf but instead applied the monies to his own use. He repaid K9,000 prior to sentence.
	K24,000	3 years’ imprisonment wholly suspended on conditions, including the balance of restitution.	
The State v Tracy Tiran (2018) N7336, Miviri AJ (as he then was)	Misappropriation	The prisoner was convicted following trial of misappropriating monies for the purpose of establishing a coconut project through the office of the Minister for National Planning and Monitoring, which was never established.
	K500,000.00	6 years of imprisonment	
The State v Warai Kisua (2018) N7513 Koeget, J	Misappropriation 	The offender pleaded guilty to one count of misappropriating K30,000. The offender was the branch manager of PNG Microfinance Limited in Daru. Over a period of time he directed two tellers to advance him varying amounts totaling to K30,000. 
	K30,000	18 months imprisonment which was wholly suspended with conditions including restitution. 	
The State v Solomon Junt Warur (2018) N7545,  
Berrigan  J	Misappropriation	The prisoner pleaded guilty to one count of misappropriating K811,969.53 belonging to the State. Over a period of more than 3 and half years the prisoner, a Communications Officer in the Information and Communication Technology (ICT) Section of Correctional Services (CS), issued 66 false orders and invoices on behalf of CS, payable to his own company, Merc-Tech, for which no goods or  services were ever supplied.

Considerations: very large amount; significant breach of trust, whilst not an elected official nor one of CS’ senior executive leaders, he was nevertheless a long serving and trusted officer of a law and justice agency in the public service; the offence was committed over an extended period of time, ie more than three and a half years; it involved a high degree of planning and ongoing and calculated efforts through no less than 66 false orders and invoices, for multiple products and services, purportedly for the benefit of CS’ operations across the country, demonstrating persistent and high levels of dishonesty; monies were used for the benefit of the prisoner and others; the misappropriation was from the State of Papua New Guinea and thus ultimately its people; the effect on the principal victim, CS, had been significant; it also had a serious effect upon the public confidence not only in CS but more broadly in the administration of government services as a whole.  In his favour: it was his first offence and prior good character; he cooperated with investigators from a very early stage and pleaded guilty. State submitted a sentence of 6 years appropriate.  
	K811,969.53	7 years of imprisonment.	
State V  Tony  (2018) N7268, Miviri AJ (as he then was)	Misappropriation	The prisoner was employed by the National Judicial Staff Services (NJSS) as Private Secretary to the office of the Chief Justice. Without approval, she used the Deputy Chief Justice’s name on two separate occasions to hire vehicles for a total of 30 days at a total combined cost of K 25, 844.50
	K 25, 844. 50	4 years’ imprisonment 	
State v Borowi (2018) N7535, Numapo AJ
	Conspiracy to defraud x 1
Forgery x 2
Uttering x 2
Misappropriation x 1	The offender pleaded guilty to all charges.  Between 29th of November and 13th of December 2016, the Prisoner conspired with others and defrauded Westpac Bank Limited by agreeing to forge the signature of another person, Yana Aminie on a number of withdrawal slips and withdrew a total of K5, 000.00 belonging to the bank. 
	K5, 000	3 years’ imprisonment	
State v Kom (2018) N7362, Miviri AJ (as he then was)	Misappropriation	The prisoner pleaded guilty to misappropriating K41,859. He was employed by ANZ Bank as a Small Medium Relation Officer and put a stop on the account of a deceased person. He instructed his colleagues to lift the stop and linked the deceased’s account with his phone and then applied the monies through the mobile banking system to his own use.
 	K 41, 859	4 years’ imprisonment 	
The State v Unobo (No 3) (2018) N7253, Miviri AJ ( as he then was) 	Misappropriation 	The prisoner was the liaison officer between the Central Provincial Administration and the Office of the Governor, Alphonse Moroi, in the purchase of 9 police vehicles for police in the Central Province. He was found guilty of dishonestly applying to his own use a Toyota Landcruiser.
	K123, 338.78	3 years’ wholly suspended on conditions including restitution. 	
The State v Dumo (2018) N7574, Berrigan J 
	Misappropriation	The Manager of Operations at the Education Department 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. 
	K87,731.00	4 years of imprisonment, 2 years of which was suspended upon conditions, including restitution. 	
The State v Chapau & Anor (2019) N7783
Berrigan J	Misappropriation 	The offenders, husband and wife, pleaded guilty to one count of misappropriating K22, 252.55, belonging to the Independent State of Papua New Guinea.  Rhoda Kerea was Acting Team Leader “Edits” in the Human Resource Payroll Section while Christopher Chapau was attached as an IT Technician.  On four occasions between 1 December 2013 and 31 March 2014, a total of K22,252.55 was paid by Rhoda Kerea, in common purpose with Christopher Chapau, into his BSP bank account, number 1002046710, purportedly for overtime worked, when in fact both were aware no such monies were due.  Early cooperation.
	K22, 252.55	3 years’ imprisonment each, wholly suspended on conditions including community service and restitution.
	
State v Mercy Lohia (2018)
N7614, Berrigan J	Forgery
Uttering
Misappropriation 	The offender pleaded guilty to one count of forgery, one count of uttering, and one count of misappropriation in the sum of K19, 151.75.  The prisoner was an accounts officer with the Papua New Guinea Red Cross Society. On various occasions between 1 December 2017 and 31 March 2018 she forged 25 Bank of South Pacific (BSP) cheques belonging to the Red Cross Society and uttered those cheques to obtain K19,151.75 from its account which she dishonestly applied to her own use and the use of others.
	K19, 151.75.  	3 years imprisonment, wholly suspended on conditions including community service and restitution. 	
State v Koani Lohia (2019)
N8042, Berrigan J	Misappropriation 	The offender pleaded guilty to one count of misappropriating K1,008,314.07, the property of Australia and New Zealand Banking Group (PNG) Limited (ANZ). The offender was employed by ANZ in Port Moresby as an Asset Finance Officer. Over a period of 22 months between 27 May 2013 and 30 March 2015 the offender used his access to and knowledge of the bank’s system to credit monies to his personal bank account, and on some occasions to the accounts of his associates. 

Amongst the considerations it was significant that he cooperated from a very early stage with both his employer and with police and yet there was a significant delay in bringing the matter to the National Court.
	K1, 008,314.07	8 years’ imprisonment 

(NB.  Bulk of monies misappropriated prior to 2013 amendment thus 10 year maximum applied.)	
State v Kandambao (2019)
N8025,Berrigan J
	Misappropriation	The offender pleaded guilty to one count of misappropriating monies which were provided to his firm, 
Sauoxtron Education Consultancy PNG, a business which made arrangements for students from Papua New Guinea to study at universities in China under scholarship.
Instead of doing so he applied the monies to his own use. 
	K12, 955	2 years, wholly suspended on conditions including community service and restitution.	
State v Gabriel & Anor (2019)
N8024, Berrigan J
	Misappropriation	Both offenders pleaded guilty to working together to gain access to one of their colleague’s bank account and withdrawing funds for their own use.  At the time they were employed at the Paradise Private Hospital as a receptionist and cleaner respectively. The complainant was also a cleaner at the hospital.  
	K4, 200	1 ½ years and 1 year, respectively, having regard to their respective roles and the level of personal benefit, wholly suspended on conditions including community service and restitution.  	
The State v Posakei (2019) N8000, Susame AJ	Misappropriation	The prisoner pleaded guilty to misappropriation of K143 812.46, property of the East New Britain Provincial Administration.  The prisoner was employed by the East New Britain Provincial Administration as a Human Resource advisor. He devised an illegal scheme whereby the salaries of 7 suspended officers were paid into the prisoner’s personal accounts. 
	K143 812.46	6 years’ imprisonment wholly suspended with conditions.	
The State v Noka (2019) N7849, Toliken J	Misappropriation 	The prisoner pleaded guilty to one count of misappropriating K9, 555.50 in cash between 28th October 2016 and 22nd November 2016, money belonging to the Parents & Citizens (P&C) of Koyabule Primary School.
	K9,555.50	3 years’ imprisonment with light labour, wholly suspended on conditions including restitution.	
The State v Ruth Tomande (2019) N8153, Berrigan J	Misappropriation	The State v Ruth Tomande (2019) N8153, Berrigan J. The offender pleaded guilty during trial to misappropriating K300,933.71 from her employer, BSP, of which K40,000 was recovered by the bank.  At the relevant time the accused was employed as a Home Loan Officer with BSP.  Between 30 April 2017 and 1 January 2018 the accused falsified 14 loan applications which had previously been declined by the bank and altered them to manipulate the system into approving the loans.  The monies were then transferred by the offender to other accounts belonging to her relatives and other bank customers. The monies were also credited back to the loan accounts to fund repayments and avoid detection. She was sentenced to 5 ½ years of imprisonment.
	K300,933.71	5 ½ years’ imprisonment.