Kaya v State [2020] PGSC 145; SC2026 (19 October 2020)

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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.

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] HCA 24; (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

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

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

(1) A person who dishonestly applies to his own use or to the use of another person—

(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,

(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.

“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.”

“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.”

“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.”

“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.”

“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: -

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.”

“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.”

“[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] HCA 24; (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."”

"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..."

“(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.”

"(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.".

(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–...”

“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.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Parkil Lawyers: Lawyer for David Kaya
Chesterfield Lawyers: Lawyer for Philip Kaman

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: the amount taken; the quality and degree of trust reposed in the offender; the period over which the offence was perpetrated; the impact of the offence on the public and public confidence; the use to which the money was put; the effect upon the victim; whether any restitution has been made; remorse; the nature of the plea; any prior record; the effect on the offender; and 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: K1 and K1000, a gaol term should rarely be imposed; K1000 and K10,000 a gaol term of up to two years is appropriate; K10,000 and K40,000, two to three years’ imprisonment is appropriate; and 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 17^th and 22^nd 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 1^st 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 01^st January, 2011 and 31^st 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 30^th April and 7^th 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 29^th of November and 13^th 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 28^th October 2016 and 22^nd 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.

Supreme Court of Papua New Guinea

Kaya v State [2020] PGSC 145; SC2026 (19 October 2020)