Independent State of Papua New Guinea v Yandu [2025] PGNC 473; N11621 (24 October 2025)

N11621

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR No 203 OF 2023
CR No 204 OF 2023
CR No 205 OF 2023

BETWEEN

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND
JASON YANDU

MAPRIK: MESA AJ
14, 20, 24 OCTOBER 2025

CRIMINAL PRACTICE – Guilty Plea – S. 92 (1) and (2) Criminal Code Act (Code) – S. 383A (1) (a) Code - abuse of office and misappropriation – serious breach of trust and substantive misapplication of State property – prevalence of white-collar crime by public servants – National Court and Supreme Court decisions on sentences of dishonesty cases considered - restitution appropriate form of punishment – suspended sentence with conditions of restitution imposed

The prisoner was a Head Teacher of a primary school that received funding from the Maprik District Development Authority to build a multi-story classroom. The prisoner, without the authorization of the school Board, used his office to misapply the funding in a scheme he engineered with another suspect. The scheme involved using the building funds to purchase hardware material to be sold for a profit. The scheme resulted in the funding being lost, hardware material not being recovered and the multi-story classroom not being built.

Held:

1. A Head Teacher’s abuse of his office and misapplication of government funds represents a serious contravention of the law and is a serious beach of trust.
   
2. White collar crime by public servants continues to be prevalent, a result of which is the amendment to Section 383A of the Code: David Kaya and Philip Kaman v The State (2020) SC2026 applied.
   
3. Public servants who are found guilty of dishonesty and misapplication of government resources have a debt to the State which must be repaid.
   
4. Restitution is an appropriate punishment in appropriate circumstances.
   
5. All factors considered, a suspended sentence with conditions is appropriate under the first Category of The State v Bruce Tardrew [1986] PNGLR 91.
   
6. The prisoner’s suspended sentence is to be served in the community to pay his debt to the State and serve as deterrent to other would-be offenders in the public service.
   

Cases cited
The State v Alphonse Aiwol (2012) N4681
The State v Hevelawa (No 2) (2017) N6875
Public Prosecutor v Arthur Jawodimbari and Monty Derari (2006) SC891
Wellington Belawa v The State [1988-89] PNGLR 496
David Kaya and Philip Kaman v The State (2020) SC2026
State v Reuben Balim (2015) N6028
State v Mabli Satuheni (2013) N5554
State v Imoi Maino (2004) N2773
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Thress Kumbamong v State (2008) SC1017
Public Prosecutor v Kerua [1985] PNGLR 85
Mase v The State [1991] PNGLR 88
The Public Prosecutor v Bruce Tardrew [1986] PNGLR

Counsel:
Ms. D Ambuk for the State
Mr. T Kerari for the prisoner

DECISION ON SENTENCE

1. MESA AJ: On 14 October 2025, the State presented an indictment containing two charges against the prisoner: Abuse of Office, pursuant to Section 92 (1) and (2) of the Code, and Misappropriation, pursuant to Section 383A (1) (a) and (b) of the Code.
   
2. The State alleged that the prisoner had been the Head Teacher of the Mui Community School (School), Maprik District, East Sepik, in 2021. In that year, the Maprik District Development Authority assisted the school with funding of K50, 000.00 for the purpose of building a double-storey classroom for its students.
   
3. The money was deposited into the account of a locally based hardware business, Sheng Wang Hardware Limited (the business), from which the school could obtain building material to the value of the K 50, 000.00 to build the classroom.
   
4. It is alleged that between 1 January 2021 and 1 July 2021, the prisoner had with the School Board’s approval visited the business with the Board Chairman and taken material valued at K15, 543.33 for the classroom project.
   
5. Between 1 July 2021 and 8 July 2021, the prisoner used his authority as the Head Teacher and went to the business without the approval of the Board of the School and took building material and supplies to the sum of K34, 456.67. He passed the material to a friend of his named Smith Noutin for their purpose of selling the material at the Frieda Mine area.
   
6. Noutin took the material and left for the Fried Mine. To date, neither the money from the alleged sales of the building material nor the building material itself has come back to the school.
   
7. On that basis, the State alleges that the prisoner abused his authority as Head Teacher of the School when he obtained the building material and his actions in passing on the material to his own use and use of Noutin amounted to dishonest application of the building material to his own use and use of Noutin.
   
8. The State also invoked Section 7 (1) (a) (b) and (c) of the Code, and says that he enabled, procured and participated in the misappropriation of the said building material, property belonging to Mu Primary School.
   
9. The prisoner pleaded guilty to both charges.
   

The Law

10. The prisoner pleaded guilty to two offences of dishonesty: the abuse of his office as the Head Teacher of Mui Community School and then misappropriating building material intended for school classrooms for the children of Mui Community School.
    

‘92. ABUSE OF OFFICE.

(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.

(2) If an act prohibited by Subsection (1) is done, or directed to be done, as the case may be, for purposes of gain, the offender is liable to imprisonment for a term not exceeding three years.’

Abuse of office

11. A person found guilty of this offence is liable to a maximum term of three years’ imprisonment pursuant to Section 92 (2) of the Code. This reflects the severity of the offence as it entails a serous breach of trust by a person who is in a position of responsibility, within the public service, over the application and use of public funds.
    
12. In the matter of The State v Alphonse Aiwol (2012) N4681, the prisoner, Alphonse Aiwol, pleaded guilty to one count of abuse of office contrary to Section 92(1) of the Code, in circumstances of aggravation pursuant to Section 92 (2) of the Code. He was the Manager of the Goods and Services (GST) Division of the Internal Revenue Commission (IRC) at the relevant time of the offence.
    
13. He had abused his office by asking a husband and wife businessowners to pay him a fee of K1,500.00 'on the side', to enable a certificate of compliance to be issued to them. They paid him K900.00 cash in three instalments over a period of several months. When the certificate of compliance was issued to them, the husband and wife reported the matter to his superiors.
    
14. The Court sentenced him to two years of imprisonment but suspended the sentence on conditions including compensation.
    
15. In the matter of The State v Hevelawa (No 2) (2017) N6875 the prisoner Jacob Hevelawa was the Director General for the Office of Library and Archives; he conspired with the other two prisoners Timothy Numara, who was the Manager Corporate Services for the Office of Library and Archives (OLA), and Miriam Hevelawa, who was Jacob Hevelawa’ wife.
    
16. Out of their conspiracy, the Court found that Jacob Hevelawa abused his office by knowingly causing three payments to be made to the business owned by his wife for supposed work done for the OLA. Amounts of K63,120.50, K20,000.00 and K35,725.80 respectively, the property of the Independent State of Papua New Guinea, was misappropriated and put to their own use as a result.
    
17. For the charge of abuse of office, the prisoners Jacob Hevelawa and Timothy Numara were sentenced to 2 years imprisonment. For the charge of misappropriation, all three prisoners were sentenced to 5 years’ imprisonment. The sentences were served concurrently; three years would be suspended if full restitution was made to OLA within 12 months, leaving the balance of 2 years to serve.
    
18. Public Prosecutor v Arthur Jawodimbari and Monty Derari (2006) SC891 (Salika, Kirriwom, Lay JJ); this had been a trial on charges of conspiracy to defraud the State pursuant to Section 407 (1) of the Code, abuse of office pursuant to Section 92 (1) (a) of the Code and misappropriation of K 20, 000.00 the property of the State pursuant to Section 383A (1) (a) of the Code.
    
19. At the material time, both prisoners had been employed by the Department of Oro and were officers of the Oro Provincial Government; Arthur Jawodimbari had been the Provincial Secretary for the Department of Oro and Monty Derari had been the Assistant Secretary, Division of Finance and Administration.
    
20. Both prisoners had knowledge that the Westpac Bank (Westpac) was closing up its operations in the Oro Province and subsequently seven houses owned by Westpac would be sold for a package sum of K 110, 000.00. Both prisoners had expressed an interest in purchasing what was then the Manager and Accountant’s houses respectively.
    
21. It transpired then that in the course of purchasing the houses, both prisoners used their positions in the Department of Oro to have the Department purchase the houses. In turn they would repay the Department for the purchase prices. During an audit following this transaction, it was discovered that the purchase had not been budgeted for, and that the prisoners had not kept to their repayments. It was also determined that the prisoner Arthur Jawodimbari as the Secretary for the Department of Oro and the Chief Accountable Officer was instrumental in allowing the transactions to occur.
    
22. Both prisoners were found guilty of the offences of abuse of office and misappropriation after a trial. The National Court proceeded to sentence the prisoners in this manner: Although they were found guilty of the above offences, the Court said that no convictions would be registered against their names; that they were not convicted of any of the crimes. Instead, they were discharged from any penalty on condition that they pay the K2, 000.00 as interest and stamp duty that was expended by the Department of Oro in the purchase of the houses; this would constitute compensation by each prisoner to the Department of Oro for any loss it incurred from the transaction.
    
23. The Public Prosecutor appealed this decision and sought increases in the sentences.
    
24. The Supreme Court, in its deliberation, held that the National Court erred in not convicting the prisoners after having found them guilty of the respective offences. There was no jurisdiction under the Code to allow a Judge to do this. The Supreme Court also held that given the offences were indictable and serious in nature, the resultant sentence was too low.
    
25. Consequently, the Supreme Court quashed the sentence and, in observing Wellington Belawa v The State [1988-89] PNGLR 496 (Belawa) amongst others, substituted a sentence of 2 years, which it wholly suspended as K 20, 000.00 had been restituted to the Department of Oro as well as the respective payments of K 2, 000.00 by each prisoner originally.
    

Misappropriation

26. It is not unusual that an abuse of office results in misappropriation, as in the case of Hevelawa, Jawodimbari and this matter before me. For a long time, the National Court has been guided by the sentencing principles in Belawa for misappropriation matters. Belawa’s scale of sentencing ranges was reviewed by the Supreme Court in David Kaya and Philip Kaman v The State (2020) SC2026 (Batari, Mogish, Berrigan JJ) (Kaya), especially considering as Section 383A of the Code was amended in 2013.
    
27. In Kaya, the two appellants appealed their conviction and sentence of 15 years imprisonment. The facts in the National Court were that both prisoners misappropriated K5 million, money belonging to the people of the East Awin area of Western Province. The money was paid by the State to the landowner company, Paiso Company Limited (Paiso); the prisoner David Kaya was following up on the payment of the money on behalf of the Chairman of Paiso. When the Department of Treasury cheque was issued, Kaya directed that it be paid into the prisoner Philp Kaman’s trust account. From there, the money was misappropriated by both prisoners to their own use and use of others. They were convicted of the offence of misappropriation after a trial.
    
28. The Supreme Court dismissed their appeal on sentence and conviction and considered that the sentence reflected the purpose and force of the 2013 amendments to Section 383A of the Code. The Supreme Court (Batari, Berrigan JJ) then had a refreshed look at the categories of sentences in Belawa as a result:
    
    12. ‘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:
        
    1. K1 and K1000 a gaol term should rarely be imposed;
       
    2. K1,000 and K10,000, a gaol term of up to two years is appropriate;
       
    100. K10,000 and K40,000, two to three years’ imprisonment is appropriate;
         
    4. K40,000 and K100,000, three to five years of imprisonment is appropriate;
       
    5. K100,000 and K500,000, five to seven years’ imprisonment is appropriate; and
       
    6. 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.’
       
29. The Court in Kaya, amongst others, reemphasised that misappropriation of public funds was a serious breach of trust and that sentences must reflect the need to deter others and uphold public confidence in the justice system. The Court stated that leniency in such cases could undermine efforts to combat corruption.
    
30. I set out the amended Section 383A of the Code here:
    

‘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 misappropriated 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.206

(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) For the purposes of this section –

• (a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and
  
• (b) a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and
  
• (c) a person’s application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and
  
• (d) 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 offender’s application of the property, had control of it.’
  

31. In this instance, the prisoner has pleaded guilty to a count of misappropriation pursuant to Section 383A (1) (a) and (b) of the Code. The penalty provision therefore in his circumstance would be pursuant to subsection (2) (b) and (d) of the Code, rendering him liable for a maximum term of ten years’ imprisonment.

32. I have been referred by Counsel for the Defence to the following cases of misappropriation in his submissions:
    
33. The State v Reuben Balim (2015) N6028

The prisoner was a primary school teacher of the Jomba Primary School, Madang. He pleaded guilty to a count of misappropriating school funds in the amount of K 11, 680. 00. The Court sentenced him to three years and suspended the sentence on condition that he restituted the school, with a moderate amount of compensation to be paid for stress to the victim.

34. The State v Mabli Satuheni (2013) N5554

The prisoner pleaded guilty to a count of misappropriation of K 3, 356.40, monies belonging to Ganba Westbrook Technical High School, Maprik. Prior to the amalgamation of Hayfield Vocational Centre and the Ganba Westbrook School the prisoner was employed as the Manager and a signatory to the school account.

35. On 31 January 2013 the school received its annual subsidy of K39, 394.98 which was paid into the school account. Soon after the deposit the prisoner used his office and withdrew K19, 394.98 to pay for services and goods rendered to the school. When the new school board learnt of the huge withdrawals, they demanded explanations and acquittals from the prisoner. It was determined that K3, 356.40 was misappropriated by the prisoner from the said K 19, 394.98.
    
36. A sentence of 3 years was imposed, and then wholly suspended on condition that the amount be repaid within a specified time.
    
37. The State v Imoi Maino (2004) N2773

The prisoner was attached to the payroll section of the Department of Education between 1st May 2000 and 3rd July 2001 as a payroll clerk. In that time, he arranged for fifteen (15) cheques to be drawn fraudulently in favour of four (4) teachers namely, John Ak (2), James Mogia Baundi (1), Justin Goma (6) and Usan Erip (5) and one made payable to himself

38. The prisoner conspired with three other people and devised a scheme whereby they created a Manual Pay Schedule. The Payroll Section then raised all the fraudulent cheques which were typed at the Department typing pool, particulars of which were provided in the Manual Pay Schedule. Upon receiving the cheques, the prisoner would then destroy the Manual Pay Schedule and have the cheques stamped with the Department Secretary’s pre-made stamp; he would then deliver the cheques to his co-conspirators personally apart from the one made payable to himself.
    
39. The prisoner pleaded guilty to misappropriating K106, 355.02 belonging to the Department of Education. He was sentenced to 4 years; he was ordered to serve 2 years, then released to pay restitution with the remaining two years.
    

Submissions by Counsel

40. Counsel for the Defence relied on the cases cited and made submissions that a starting point for sentence would be three years. He also urged the Court to consider the prisoner’s pleading guilty to both charges, and that this was his first instance of being in Court on charges. Mr. Kerari also referred to the pre-sentence report where the probation services recommended that the prisoner was suitable to be placed on good behaviour under their supervision, and that the means assessment report supported that the prisoner was able make restitution to the Mui Community School. The Defence asked for a wholly suspended sentence with orders for restitution and good behaviour.
    
41. In response, the State pointed out in the pre-sentence report that the Mui Community School still had no classroom, which is negatively affecting the school’s capacity to cater for school children as their numbers increase. This was the purpose of the District Authority support in the first place. Ms. Ambuk submitted that while the prisoner had moved on to another school, he left Mui in a stranded circumstance. She acknowledged Kaya, and submitted that for the amount misapplied here, the matter fell within the third band in that case, with a starting point of three years to be adjusted upward or downward at the discretion of the Court. In this instance, the State submitted that there were serious aggravating factors present that operated against the prisoner, especially as the money and property had still not been recovered.
    

Consideration

42. It is trite that the maximum sentence be reserved for the worst type of offence: Goli Golu v The State [1979] PNGLR 653.
    
43. Section 19 of the Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38 and Thress Kumbamong v State (2008) SC1017.
    
44. In my consideration of the comparative cases cited above, the circumstances of abuse of office and misappropriation here are in the area of Hevelawa and Jawodimbari, and Balim (for misappropriation). In those cases, the prisoners were sentenced to two years (abuse of office) and five years (misappropriation) and three years (misappropriation) respectively.
    
45. I consider this to be a serious case of abuse of office. At the material time, the prisoner was the head teacher at the complainant school, and he was in a considerable position of trust. That position of trust included the welfare of the children that attended the school, not only the administrative aspect of operating a school.
    
46. For the same reason, I consider this to be a serious case of misappropriation for the breach of trust element and the amount that was misapplied. Schools in rural areas of our country are in sore need of classrooms, administrative buildings, and housing for teachers. These essential forms of infrastructure play a vital role in providing children with a comfortable environment that supports their learning. It is a most significant matter when these buildings are successfully constructed and completed, and is no wonder then that there are happy celebrations by the community to open them for use.
    
47. Here, the intended classroom has still not been built, and the school (and community) is waiting because of the prisoner’s actions.
    
48. While I have said this is a serious matter, I do not think it is the worst type of offence of either abuse of office or misappropriation. That said, it is my view that the prisoner has a debt to the Mui Community School and by extension, to the District of Maprik and the East Sepik Province. His actions are a reality of the prevalence of these types of offences committed by public servants. As the Supreme Court (Kirriwom J) observed in Jawodimbari, white collar crime by public servants is still as rampant today as it was then.
    

Findings

49. For the forgoing, I find that the aggravating features here include:
    
    1. A serious breach of trust by a Head Teacher.
       
    2. The misapplication of substantive property valued in the amount of K 34, 456.67 that has not been recovered.
       
    3. Some amount of planning involved between the prisoner and the person he involved, Smith Noutin.
       
    4. Deprivation of a classroom for the Mui Community School and its community.
       
    5. No restitution has been made at all.
       
50. In mitigation, I accept that:
    
    1. These are the prisoner’s first offences.
       
    2. He has pleaded guilty to both offences.
       
    3. Prior to these offences he had had a good record.
       
    4. He apologized publicly for his offences.
       
51. I find that there are no extenuating factors.
    
52. On the matter’s own circumstances, and in consideration of the comparative cases I have cited, I find that for the offence of abuse of office, a sentence of one year imprisonment is appropriate. Similarly, for the offence of misappropriation, I find that a sentence of three years imprisonment is appropriate.
    

Should the sentences be concurrent or cumulative?

53. In Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 the Supreme Court held that in deciding whether sentences should be made concurrent or cumulative the following principles apply:
    
    • (i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.
      
    • (ii) Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.
      
    • (iii) When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.
      
54. In this matter before me, as the offences occurred from a single transaction, the sentence is to be concurrent at three years, consistent with Category (i) above.
    

Should the sentence be suspended?

55. In the matter of The Public Prosecutor v Bruce Tardrew [1986] PNGLR 91 (Tardrew) the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence:
    
    • (i) Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.
      
    • (ii) Where the suspension will promote the repayment or restitution of stolen money or goods.
      
    • (iii) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or mental health.
      
56. Here, I have considered the means assessment report and submissions by the Defence Counsel, both of which provide basis that the prisoner has the means to restitute the Mui Community School. The prisoner is presently employed as a teacher and earns an income which will enable him to make restitution.
    
57. Rather than put the State to the expense of keeping him at a corrective facility, I am of the view that it would be appropriate in the circumstances that the prisoner be made to restitute the District of Maprik and the Mui Community School the money he misapplied.
    
58. Therefore, a suspended sentence is warranted to achieve this form of punishment, consistent with Category (ii) of Tardrew. He will pay his debt to the community in this manner, which in my mind, will also operate to rehabilitate him and serve as an example to other working public servants the consequences of being dishonest in their duties.
    

Sentence

59. In the result, I order the following:
    
    1. For the offence of Abuse of Office, the prisoner is sentenced to 1 year in imprisonment.
       
    2. For the offence of Misappropriation, the prisoner is sentenced to 3 years in imprisonment.
       
    3. The sentences of 1 year and 3 years are to be served concurrently at 3 years.
       
    4. The concurrent sentence of 3 years is wholly suspended on the following conditions –
       
       • (i) The prisoner must restitute the Mui Community School within the three-year suspended term.
         
       • (ii) The Prisoner is to be supervised by the probation service for the three-year suspended term, with reports provided to the Court, the Public Prosecutor and the Public Solicitor of his progress every 6 months within the three-year suspended term.
         
       • (iii) The prisoner and probation officer shall report to the National Court in Maprik at its first sitting in 2026 on the progress of restitution.
         
       • (iv) The prisoner is placed on good behaviour for the three-year suspension term.
         
       • (v) Failure to comply with the conditions will result in the prisoner serving the three-year sentence in a Correctional Services corrective facility.
         

Lawyers for the State: Acting Public Prosecutor
Lawyer for the prisoner: Public Solicitor