The State v Paul Paraka [2023] – Decision on Sentence

Mentions of people and company names in this document

The information these results are derived from was last updated in June 2022

Name References in this document Mentions in other documents

It is not suggested or implied that simply because a person, company or other entity is mentioned in the documents in the database that they have broken the law or otherwise acted improperly. Read our full disclaimer

  • About

    Sentencing on five counts of the misappropriation of K162 million of State monies between 2007 and 2011. Maximum penalty of 10 years of imprisonment imposed in each case o be served cumulatively in part. Effective sentence of 20 years of imprisonment without hard labour imposed.

Document content

  • PAPUA NEW GUINEA
    [IN THE NATIONAL COURT OF JUSTICE]

    CR (FC) No. 118 OF 2019

    THE STATE

    V

    PAUL PARAKA

    Waigani: Berrigan J

    22 September and 4 October 2023

    CRIMINAL LAW— SENTENCE — S 383A(1)(a)(2)(d) of the Criminal Code —
    Five counts of the misappropriation of State monies between 2007 and
    2011 in
    the sums of K30,300,000, K30,054,312.68, K14,480,672.28, K39,808,610
    and
    K47,608,300, respectively, by senior lawyer — Most serious instances
    of the
    offence — Maximum penalty of 10 years of imprisonment imposed in
    each case
    — To be served cumulatively in part — No suspension warranted —
    Effective
    sentence of 20 years of imprisonment without hard labour imposed.

    Cases Cited:
    Wellington Belawa v The State 11988-1989] PNGLR 496
    The State v Niso (No 2) (2005) N2930
    The State v Tiensten (2014) N5563
    The State v Daniel Mapiria
    The State v Kendi (No. 2) (2007) N3131
    State v Moko Essi Kam (2009) N6199
    The State v Haru (2014) N5660
    The State v Tiensten (2014) N5563
    The State v Peni (No. 2) (2014) N5932
    The State v Tokunia (2015) N6039
    The State v Janet Oba (2016), unreported
    The State v Solomon Junt Warur (2018) N7545
    The State v Lohia (2019) N8042
    The State v Ralewa (No. 2) (2022) N9803
    State v Eremas Wartoto, unreported, 2017
    Kaya & Kamen v The State (2020) SC 2026

    1

    Lawrence Simbe v The State [1994] PNGLR 38
    State v Simanjon (2020) N8637
    State v Naime (2005) N2873
    State v Konny (2012) N4691
    Regina v Peter Ivoro , 2LPNGLR 374

  • Page 2 of 28

  • Ume v The State (2006) SC836
    The State v James Paru (No 3) (2021) N9248
    The State v Benedict Simanjon (2020) N863 7
    State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252
    The State v James Paru (No 3) (2021) N9248
    The State v Paul Paraka (Decision on Admission of Bank Records)
    (2022) N9568
    Paul Paraka v Kaluwin (2019) N7975
    The State v Paul Paraka (Decision on Presentation of Indictment)
    (2020) N8229
    The State v Paul Paraka (Decision on Verdict) N10273
    Goli Golu v The State [1979] PNGLR 653
    Mase v The State 119911 PNGLR 88
    Tremellan v The Queen f 19731 PNGLR 116
    Public Prosecutor v Kerua [1985] PNGLR 85
    The State v Paul Paraka (2021) N8807
    The State v Paul Paraka (2021) N893 8
    Thomas Waim v The State (1997) SC519
    The State v Tardrew [1986] PNGLR 91.
    State v Wilmot (2005) N2857
    State v Niso (No 2) (2005) N2930
    State v Kom (2009) N6199

    Legislation and other materials cited:
    Sections 11, 19, 383A(1)(a)(2)(d) of the Criminal Code

    Counsel
    Ms H. Roalakona for the State
    Mr P. Paraka for himself

    DECISION ON SENTENCE

    4 October 2023

    1. BERRIGAN J: The offender, Paul Paraka, was convicted following
    trial of five counts of misappropriating property belonging to the
    State between
    2007 and 2011 in the amounts of K30,300,000, K30,054,312.68,
    K14,480,672.28,,K39,808,610 and K47,608,300, respectively, contrary
    to s.
    383A(1)(a)(2)( (d) of the Criminal Code: The State v Paul Paraka
    (Decision on
    verdict) (2023) N10273.
    2

    2. The offender was the principal of the law firm, Paul Paraka
    Lawyers (PPL).
    In October 2006 he obtained orders in National Court proceedings, OS
    829 of
    2006, staying the directive of the Chief Secretary to stop all
    payments to PPL,
    and ordering the State to pay K6.5m to PPL. Those orders were stayed
    by the

  • Page 3 of 28

  • Supreme Court on 22 November 2006 pending appeal by the State. On 29
    December 2006 the offender obtained orders in National Court
    proceedings, OS
    876 of 2006, staying the decisions of the Minister for Justice and
    the Attorney-
    General to terminate the briefing out of State matters to PPL, and
    to cease all
    payments to PPL, and the decisions of the National Executive Council
    and the
    Attorney-General to establish a departmental investigation into all
    brief-outs to
    private lawyers, including PPL, pending judicial review. On 2 March
    2007 in the
    same proceedings the offender obtained an order for the payment of
    K6.44m to
    PPL. Those orders and the entire proceedings in OS 876 of 2006 were
    stayed by
    the Supreme Court on 12 March 2007 pending appeal by the State. The
    appeals
    remained on foot until July 2014.

    3. In the meantime, commencing on 24 April 2007, every year for five
    years
    between 2007 and 2011 the offender procured a person or persons
    within the
    Department of Finance to dishonestly apply monies to his own use and
    the use of
    others in the sum of K30,300,000, K30,054,312.68, K14,480,672.28,
    K39,808,610 and K47,608,300, respectively. The monies were applied
    by way
    of a total of 65 cheques drawn in favour of a property investment
    company wholly
    owned and operated by the offender but not bearing his name or to
    the accounts
    of seven other law firms at various times, none of which had any
    entitlement to
    the monies, in a calculated and elaborate scheme designed to
    distance the monies
    from the offender and avoid detection. In the case of monies paid to
    the law
    firms, they retained at least K30,000 to K50,000 but sometimes as
    much as
    K400,000 before almost immediately paying on the proceeds of the
    cheques to
    PPL or PKP Nominees, the offender’s law firm and wholly owned
    company,
    respectively.

    4. The monies constituted the principal form of deposits to the
    accounts of
    PPL and PKP Nominees during the period. Expenditure of the monies
    began
    soon after deposit in every case and the monies were dissipated.

  • Page 4 of 28

  • 5. It now remains to sentence him.
    Sentencing Principles and Comparative Cases

    3

    6. In Wellington Belawa v The State [1988-1989] PNGLR 4% the Supreme
    Court identified a number of factors that should be taken into
    account on sentence
    for an offence of misappropriation, including:

    a) the amount taken;
    b) the quality and degree of trust reposed in the offender;
    c) the period over which the offence was perpetrated;
    d) the impact of the offence on the public and public confidence;
    e) the use to which the money was put;
    f) the effect upon the victim;
    g) whether any restitution has been made;
    h) remorse;
    i) the nature of the plea;
    j) any prior record;
    k) the effect on the offender; and
    1) 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.

    7. The Supreme Court further suggested that the following scale
    of sentences may provide a useful base, to be adjusted upwards or
    downwards
    according to the factors identified above, such that where the
    amount
    misappropriated is between:

    a) K1 and K1000, a gaol term should rarely be imposed;
    b) K 1000 and K10,000 a gaol term of up to two years is
    appropriate;
    c) K 10,000 and K40,000, two to three years’ imprisonment is
    appropriate;
    and
    d) K40,000 and K150,000, three to five years’ imprisonment is
    appropriate.

    8. It is generally accepted that whilst the principles to be applied
    when
    determining sentence remain relevant and applicable, the tariffs
    suggested in
    Wellington Belawa are now outdated because of the seriousness and
    prevalence
    of offences: see The State v Niso (No 2) (2005) N2930; The State v
    Tiensten (2014) N5563; and many others.

  • Page 5 of 28

  • 9. In 2013 Parliament recognised this by significantly increasing
    the
    maximum penalties applicable to 50 years of imprisonment for amounts
    greater
    than Kim and life imprisonment for amounts greater than KlOm. The
    offences
    in this case occurred prior to the 2013 amendments to penalty.
    Accordingly, the
    maximum penalty in each case is 10 years of imprisonment: s 11(2),
    Criminal
    Code applied.
    4

    State Submissions

    10. The State submitted that each of the offences is unprecedented
    in size in
    the history of Papua New Guinea and warrants the maximum penalty.

    11. In support of its submissions the State referred to the
    following cases
    noting that in each case involving the misappropriation of more than
    Klm a
    sentence of seven years imprisonment or more was imposed. For
    completeness,
    I have noted where sentence was suspended in whole or in part:

    a) The State v Daniel Mapiria, unreported judgement, 7 September
    2004,
    CR 1118/2000, Mogish J — the offender was the Chairman of the
    National Gaming Board and dishonestly signed 41 cheques payable
    as
    cash for the total sum of K3.188 million over a period of about
    10
    months. He was found guilty after trial and sentenced to 9
    years’ wholly
    suspended on conditions including the repayment of K lm;
    b) The State v Kendi (No. 2) (2007) N3131, Lenalia J — the
    prisoner
    dishonestly obtained K4,298,037.33 from the State, with
    assistance of
    corrupt officers, from the Department of Finance & Treasury and
    the
    Department of Defence, in payment of a claim that the Defence
    Force
    present on Bougainville during the crisis had unlawfully used
    machinery and equipment belonging to his company between 1993
    and
    1997. Evidence proved that the prisoner’s company never owned
    any
    machinery or equipment during the claim period. He was sentenced
    to
    13 years of imprisonment, being 9 years’ imprisonment for

  • Page 6 of 28

  • misappropriation and 4 years for false pretence, to be served
    cumulatively;
    c) The State v Moko Essi Kom (2009) N6199, David J — the offender
    pleaded guilty to misappropriating K3.78 million belonging to
    the State,
    over a period of 14 months, in concert with public officials and
    a banker
    by making a false claims to the Department of Finance and
    Treasury.
    The claims were paid by way of bank cheque which were paid to
    the
    credit of a bank account to which he had access in a false name.
    He
    was sentenced to 8 years’ imprisonment;
    d) The State v Haru (2014) N5660, Salika DCJ — the offender
    dishonestly
    sold land known as the Kone Tigers Oval for the sum of K2.6
    million
    and applied the monies to his own use. He was convicted
    following
    trial sentenced to 8 years’ imprisonment, 4 of which was to be
    suspended upon restitution;
    e) The State v Tiensten (2014) N5563, Salika DCJ — the offender,
    a
    Member of Parliament and the Minister of National Planning and

    5

    Monitoring, was found guilty following trial of one count of
    dishonestly
    applying to the use of another, namely Travel Air, K10 million
    belonging to the State. He was sentenced to 9 years’ imprisonment,
    4
    years of which was suspended upon restitution of K 1 Om to be made
    within 4 years;
    f) The State v Peni (No. 2) (2014) N5932, Kawi AJ – the offender was
    found guilty following trial of dishonestly applying K2.4 million
    in
    public funds obtained for the purpose of a water project to his own
    use.
    He was sentenced to 8 years’ imprisonment wholly suspended on
    condition of restitution within 5 years;
    g) The State v Tokunia (2015) N6039, Salika DCJ — the offender was
    found guilty following trial of dishonestly applying K1.5 million
    obtained from the Department of National Planning and Monitoring
    for
    the rehabilitation of a plantation to his own use. He sentenced to
    7
    years’ imprisonment;
    h) The State v Janet Oba (2016), unreported, Salika DCJ — The
    prisoner,
    an Inspector of Police, uttered a forged court order directing BSP
    to

  • Page 7 of 28

  • release the sum of K1.2 m to her company which she then
    misappropriated. She was sentenced to 5 years’ imprisonment
    following trial;
    i) The State v Solomon Junt Warur (2018) N7545, Berrigan J — the
    prisoner cooperated with authorities from a very early stage and
    pleaded
    guilty at the earliest opportunity 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, Mere-Tech, for which no goods and
    services were supplied. He was sentenced to 7 years’ imprisonment;
    j) The State v Lohia (2019) N8042, Berrigan J — the prisoner was
    employed by the ANZ Bank as an Asset Finance Officer. Over a period
    of 22 months between 27 May 2013 and 30 March 2015 the offender
    used his unique bank teller identification number on 194 occasions
    to
    falsely credit amounts to the bank’s system, recording them either
    as
    refunds, reimbursements or lease payments in its “DFR Account —
    Asset Finance”, or as “unposted items in suspense”. On a few
    occasions
    the credits were posted to customer accounts held with the bank.
    The
    offender then transferred equivalent amounts to his own personal
    bank
    account or that of his associates, from which he accessed the
    monies,
    either directly, together with his associates, or via his
    associates’ bank
    cards. In total the offender misappropriated K1,008,314.17, the
    bulk of
    which occurred prior to the amendments. He cooperated with

    6

    authorities from a very early stage and pleaded guilty at the
    first
    opportunity. He was sentenced to 8 years’ imprisonment; and
    k) The State v Ralewa (No. 2) (2022) N9803, Wawun-Kuvi AJ — the
    prisoner whilst an employee of Asian Pacific Brokers Limited,
    dishonestly applied the sum of K931, 800 to his own use through
    the
    means of the BSP Internet Banking Facility. The monies were
    from
    clients which were deposited into the trust account of the
    company from
    which he transferred out from the trust account and into his
    personal
    company account. He was sentenced to 7 years’ imprisonment.

  • Page 8 of 28

  • 12. I also note the case of State v Eremas Wartoto, unreported,
    2017, Manuhu
    J, in which the offender was the sole shareholder and director of a
    company
    awarded a government contract for almost lam to renovate a high
    school. He
    was convicted of misappropriating monies paid up front under the
    contract,
    K6,791,408.20, within five months and sentenced to 10 years of
    imprisonment.

    13. The State also refers to Maya & Kamen v The State (2020) SC
    2026, Batari,
    Mogish and Berrigan JJ in which the appellants, a landowner
    representative and
    his lawyer were convicted following trial of misappropriating K5
    million
    belonging to the people of East Awin in Western Province. Their
    appeal against
    the sentence was dismissed and the sentence of 15 years of
    imprisonment in each
    case, 5 years of which is to be suspended upon restitution of K2.5
    million, was
    affirmed. It must be noted, however, that the offending in that case
    occurred after
    the 2013 amendments.

    14. The State submits in further aggravation that the fraud was
    perpetrated over
    a period of five years. It was not spur of the moment but a highly
    complex scheme
    demonstrating careful planning as seen from the number of years over
    which the
    offence was committed, involving the use of other law firms to
    receive the
    payments, under the pretext of court orders in OS 876 of 2006, in
    which the
    offender was a party, and the transfer of monies to the accused’s
    law firm and
    company accounts. The offender did not hold a position of trust but
    was a senior
    practising lawyer and his conduct was unbecoming of a person who had
    taken an
    oath to uphold the laws of the country. The monies were public
    monies intended
    for the public benefit and were instead applied to the offender’s
    own use including
    his family members. The effect on the victim has been the loss of
    K162m which
    could have been used for public hospitals, schools and roads. The
    offending

  • Page 9 of 28

  • affected the integrity of the various government agencies involved
    in the
    payments. It created a negative impression against public lawyers.
    The
    government expended resources in the investigation of the payments
    and the

    7

    establishment of Task Force Sweep. The offender has failed to
    demonstrate any
    remorse.

    15. The State tendered an affidavit of the former Solicitor-
    General, Neville
    Devete and referred to material contained in the Pre-Sentence and
    Means
    Assessment Reports from Chief Inspector Gitua. Both call for a
    severe penalty to
    be imposed having regard to the public interest.

    16. Whilst emphasising the national interest, Mr Devete also states
    that he and
    his family had to resettle with his family due to intimidation and
    threats issued to
    his family as a result of the investigation into the offender’s
    conduct. I have seen
    documentation during the trial which confirms that Mr Devete is
    currently living
    in Australia with his family under a protection visa. I am also
    unaware that Mr
    Devete is currently unable to return to the country. Whilst I accept
    that his
    situation has affected his career and impacted his financial and
    emotional well-
    being, as stated in his affidavit, the threats were issued by
    unidentified persons,
    responsibility for the threats is not a matter before this Court and
    those matters
    are not relevant to the determination of sentence.

    17. The State further submits that whilst the offender’s reputation
    as a lawyer
    and the operation of his law firm has been tainted this is the
    unfortunate
    consequence of his own action. Whilst he may argue that his law firm
    has done
    much good, it does not mitigate the fact that K1 62m of public funds
    was
    squandered by very deceitful means. There has been no restitution to
    date.

    18. In mitigation the offender is a first-time offender. He is an

  • Page 10 of 28

  • educated and
    highly sophisticated senior lawyer. He has a medical condition.

    19. The State submits that in view of the aggravating factors, the
    prevalence of
    the offence and the need for both specific and general deterrence,
    the only
    appropriate sentence is the maximum head sentence of 10 years of
    imprisonment
    in each case.

    20. Having regard to the totality principle, however, it submits
    that the
    sentences should be served concurrently, such that it seeks an
    effective sentence
    of 10 years of imprisonment.

    Defence Submissions

    8

    21. The offender maintains as he has through various motions, on
    allocutus
    and again on submissions that the verdict is wrong and that sentence
    cannot be
    passed.

    22. Alternatively, he submits that I reserve my decision on sentence
    and allow
    the Supreme Court appeal to be heard and determined first, following
    which I
    may pass sentence in the event his appeal is dismissed.

    23. In the further alternative, he relies on Mapiria, supra to have
    the sentence
    wholly suspended. He is the victim in this case. He has suffered
    heart problems
    and could have lost his life as a result of this case. He went
    through a medical
    procedure to have stents inserted last year and now requires further
    stents. His
    doctor says that he is at risk of heart attack at any time.

    24. Or finally, in the event that I impose a custodial sentence he
    asks that I
    allow him one month to surrender himself to police during which he
    will make
    an application to the Supreme Court for bail so that he can run his
    appeal.

    Consideration

  • Page 11 of 28

  • 25. I reject the offender’s submissions that sentence should not be
    passed. He
    is entitled to maintain that the verdict is wrong but for the
    reasons previously
    given the appropriate place for those contentions is before the
    Supreme Court.

    26. I do not intend to postpone sentence nor reserve it pending the
    appeal
    against conviction. It is in the interest of justice and the
    effective administration
    of it that the matter is concluded before the National Court. The
    offender is at
    liberty to make an application for bail before an appropriate
    authority in
    accordance with the law.

    27. S. 19 of the Criminal Code provides the Court with broad
    discretion on
    sentence. Whilst guidelines and comparative cases are relevant
    considerations,
    every sentence must be determined according to its own
    circumstances: Lawrence
    Simbe v The State [1994] PNGLR 38. Applying the principles outlined
    in Wellington Belawa, the following matters have been taken into
    account in
    determining an appropriate sentence.

    28. I note the State’s reference to Kaya’s case. That case concerned
    the
    penalties following amendment which are significantly greater than
    those

    9

    applicable in this case. I make it very clear that I am sentencing
    according to the
    maximum penalty of 10 years of imprisonment in this case.

    29. In general terms the greater the monies involved the more
    serious the
    offending. The quantum of each one of the offences is without
    precedent and on
    any objective view constitutes offending of the worst kind
    warranting the
    maximum penalty on this basis alone.

    30. This applies also to Count 1 even allowing for the possibility
    that some
    monies were owed to the offender’s law firm for the years prior to
    2007. The
    evidence excluded any rational possibility that the offender acted
    in an honest

  • Page 12 of 28

  • claim of right without intention to defraud with respect to any of
    the monies, and
    further excluded any rational possibility that even as much as K13m
    was owed to
    the accused by the State for legal fees outstanding prior to 2007,
    or that the
    accused believed that such monies were owing to him: The State v
    State v Paul
    Paraka (Decision on Verdict) N10273 at [390] to [392].

    31. The aggravating features in this case, however, are multiple and
    glaring.

    32. This was not a case involving a breach of trust. The offender
    was not
    employed in the public service nor did he hold public office.
    Nevertheless, the
    fact that he was a lawyer, and a very senior lawyer at that, is a
    highly significant
    and greatly aggravating feature of the offending.

    33. The monies were State monies intended for the payment of
    judgment debts
    against the State. The offender was aware of that and grossly abused
    his
    knowledge and experience not only as a lawyer but a lawyer who acted
    for the
    State to commit the offences. Furthermore, as a lawyer it was his
    duty to uphold
    and serve the law in accordance with his oath and his obligations
    under the
    Lawyers Act and the Professional Conduct Rules. He abused that duty.
    Moreover, as a result of his education and experience, he would have
    appreciated
    better than most the gravity of his offending.

    34. The Courts have repeatedly held that dishonesty offences by
    serving police
    officers must receive more severe punishments: see the authorities
    discussed in
    State v Simanjon (2020) N8637 at [56] to [58], including State v
    Naime (2005)
    N2873 and State v Konny (2012) N4691, amongst others.

    10

    35. It is my view that the Court must also strongly condemn
    dishonesty
    offences by lawyers. They bring the law and those who serve it into
    disrepute and
    undermine the very confidence in our system of justice that is so
    essential to

  • Page 13 of 28

  • maintaining the rule of law. In general terms, the more senior the
    lawyer, the
    more severe the punishment must be. By his own account, the offender
    was one
    of the most senior lawyers in the country at the time of the
    offences.

    36. In addition, this was an elaborate scheme conducted via multiple
    transactions and the use of the offender’s own property investment
    company and
    multiple law firms through which the payments were funnelled for
    each year of
    the five consecutive years that the offending took place,
    demonstrating careful
    planning and a calculated design to avoid detection and distance the
    offender
    from the monies. It is also relevant that some payments were made on
    the pretext
    of the court order obtained by the offender in the National Court in
    OS 876 of
    2006 even as late as 2010 even though the Supreme Court had stayed
    those orders
    in March 2007, as the offender well knew.

    37. Furthermore, the monies were applied for the offender’s own use
    and
    benefit. He was the architect of the scheme and its ultimate
    beneficiary. Whilst
    a comparatively small portion of the monies were retained in the
    accounts of the
    law firms through which they were channelled, the vast bulk of the
    monies were
    delivered to the bank account of the offender’s law firm and wholly
    owned
    company. It is a measure of the magnitude of the offending in this
    case that the
    amounts retained in the law firms accounts represent in total
    several millions of
    Kina but the bank records show not only that the bulk of the
    proceeds were
    transferred to bank accounts controlled by the offender but that
    overwhelmingly
    the monies constituted the principal form of deposits to the
    accounts of PPL and
    PKP Nominees in both size and number. It does appear that some
    payments were
    made to members of the offender’s family. In any event, expenditure
    of the
    monies began soon after deposit in every case and the funds were
    dissipated.

    38. None of the monies have been recovered and none will be
    restituted. I
    make it clear that whilst restitution would normally constitute a

  • Page 14 of 28

  • factor in
    mitigation the contrary is not a factor in aggravation.

    39. As above, the value of the monies in this case are on any
    objective view
    exceptional. But much more was at stake here than money. There can
    be no doubt
    that the impact on the victim has been enormous, albeit difficult to
    measure. The
    monies belonged to the Independent State of Papua New Guinea and
    therefore its
    people. In the immediate sense the monies were intended to meet the
    cost of
    11

    judgement debts against the State but the loss of every Kina
    represents the loss of
    scarce public resources that could not be delivered in goods and
    services to the
    people of Papua New Guinea. They are the real victims albeit that
    they are not
    here to share their stories.

    40. How does one measure, beyond the Kina figure, the true cost to
    the
    individual and the country of the classroom that was never built,
    the school books
    that were never read, the teacher that never taught, or what of the
    aid post or the
    hospital that lacked equipment or medicine or staff for its
    patients, or the cost of
    the impassable or dangerous road for the ordinary traveller, not to
    mention the
    community patrols never conducted or the crimes never investigated
    by police
    who lacked manpower, fuel or vehicles. The loss of State monies is
    not some
    abstract concept. It has real and enduring social and economic
    impacts even if it
    is difficult to quantify them.

    41. The offence not only impacted the public but also public
    confidence. I
    accept the statement of the former Solicitor-General that the
    offences reflected
    poorly on his Office and the State lawyers it employed. Moreover,
    the offences
    were conducted in concert with a person or persons inside the
    Department of
    Finance, the peak department responsible for administering
    government monies.
    At a time when government resources are limited and the prevalence
    of

  • Page 15 of 28

  • corruption is of increasing concern to the community, the exposure
    of such a gross
    abuse of such large amounts of State monies over such an extended
    period of time
    must have had a serious effect on public confidence in the system of
    government
    administration as a whole.

    42. It must also be recognised that offences of such scale against
    public funds
    have the potential to tarnish Papua New Guinea’s standing at the
    international
    level and deter foreign investors with potentially far-reaching
    consequences for
    the development of the country.

    43. It is also a regrettable fact that offences of this type are
    prevalent. Whilst
    an exceptional case, it does demonstrate that the methods used to
    conduct such
    crimes are becoming increasingly sophisticated and the losses
    increasingly large.

    44. There are no extenuating circumstances associated with the
    commission of
    the offences themselves which would diminish the culpability of the
    offender:
    see Regina v Peter Ivor° [1971-721 PNGLR 374; Ume v The State (2006)
    SC836.

    12

    45. There are few matters in mitigation. It is the offender’s first
    offence. The
    offender is also of prior good character.

    46. The offender is 54 years of age. He is from Kumu Village in Mul
    Baiyer
    District, Western Highlands Province, He is the eldest of five
    children. His
    parents died some time ago. He has three wives and 14 children, all
    of whom it is
    reported in the pre-sentence report are adults and live with him at
    his home in
    Port Moresby, together with a grandchild.

    47. The offender is well educated. He completed high school in Mt
    Hagen and
    Port Moresby. He obtained a Bachelor of Laws with Honours from the
    University
    of Papua New Guinea, a Masters of Laws from the University of
    California and

  • Page 16 of 28

  • commenced a PhD with Oxford University in 1992 from which he later
    withdrew.

    48. The offender was a tutor at the University of Papua New Guinea
    before
    establishing his own law firm which operated for more than twenty
    years until
    his arrest in 2013.

    49. The offender was the principal of PPL. According to the pre-
    sentence
    report the firm was one of the largest in the country, employing
    more than 1500
    lawyers and administrative staff, operating nationwide, at a cost of
    more than half
    a million Kina every month. The offender mentored and financially
    supported
    many lawyers so that they could start their own law firms, including
    lawyers like
    Adam Ninkama, Paul Otis, Martin Kombri, Nicholas Tame and others,
    who now
    employ Papua New Guineans and pay taxes to the government. He also
    sponsored several administrative staff and others to study law. He
    initiated and
    funded community projects in the law and justice sector.

    50. The offender is also a leader of his tribe, his Local Level
    Government, and
    the Mul-Baiyer electorate. He leads conflict negotiations and
    mediations and has
    used his own money to bring peace and support the payment of
    compensation.
    He brokered peace in one of the biggest land mediations following
    fierce tribal
    warfare that destroyed many lives and properties in the Lumusa sub-
    district.

    51. The impact of the offence on the offender has been and will
    continue to be
    grave. He was the principal of PPL, one of the biggest in the
    country, operating
    nationwide, together with other companies like PKP Nominees.
    According to, the
    pre-sentence report all of this has been lost. The offender
    continues to operate as
    a one-man firm but no longer employs other lawyers. At thee
    beginning .of this
    13

    year and last he attempted to revive the law firm by offering
    assistance to
    remandees at Bomana but due to the logistical and other costs
    involved he has

  • Page 17 of 28

  • temporarily stalled his plans. He intends to take it up again if he
    is given a non-
    custodial sentence. He has lost all real and financial assets other
    than each of his
    properties in Port Moresby and in the village. It is also the
    unfortunate
    consequence of his offending that those of his children who were
    studying
    overseas have had to return to the country. He relies on his
    children for financial
    support.

    52. Samuel Ketan, the principal of Ketan Lawyers, is from a
    neighbouring
    village and says that he used to hear of how the offender used his
    own money to
    make peace within and between tribes, including giving K100,000 and
    30 pigs to
    bring peace to two warring tribes. He has witnessed him give
    assistance to
    struggling village people, grade 12 students, and free legal aid to
    those less
    fortunate, as well as sponsor at least one student to study law. The
    offender is
    human and has made a mistake. “Let’s all move on” and let this be a
    stepping-
    stone for the future. If the Court wants to get a real glimpse of
    the offender’s
    philanthropic activities allow Probation Services to travel the
    length and breadth
    of the country to speak to all the people the offender has touched
    in one way or
    another. Sending him to prison will not help. He asks the Court to
    place him on
    suspended sentence and use his skills for restitution.

    53. A former public servant, who wished to remain anonymous, said
    that when
    he was the head of an agency some decades ago the offender through
    his law firm
    did a lot of good work for the State by defending it for a reduced
    price. He asked
    the Court to have mercy on the offender.

    54. Another former public servant, who also wished to remain
    anonymous,
    said that during his tenure as the head of an organisation he
    engaged the
    offender’s law firm to defend the State, saving it a lot of money as
    the State had
    only inexperienced lawyers. As a human we all make mistakes and the
    offender
    did his now and hopefully will not do so in the future. He asked the
    Court to have

  • Page 18 of 28

  • mercy on him.

    55. The offender is supported by his wife and family. His wife of 32
    years says
    that he is a loving and kind husband who is the foundation of the
    family, upon
    whom everyone depends, with some children still attending primary,
    secondary
    and tertiary education. She reiterated that the offender has shown
    leadership to
    his tribe, district and province, bringing peace and services to the
    community. As
    a lawyer he has trained many lawyers who have become employers
    themselves.
    14

    The case has had a detrimental effect on the offender’s health and
    she is worried
    that any further stress could trigger his heart condition.

    56. The offender maintains that there is no evidence in the case
    against him
    and that the verdict is wrong. It is not clear if he maintains his
    innocence. Of
    course, he is entitled to maintain his innocence and that I have
    erred but the effect
    of that is that he expresses no remorse and is not therefore
    entitled to any
    mitigation in that regard.

    57. There is some mitigation in the offender’s age and medical
    condition. The
    offender is not, however, of particularly advanced age. Furthermore,
    it is to some
    extent his age and certainly his experience that enabled him to
    commit the
    offences. I appreciate that the proceedings have been stressful but
    I do not
    consider that he has been placed under any strain significantly
    greater than other
    accused persons. Whilst the offender has had ample opportunity to
    make
    alternative arrangements he has until very recently insisted on
    representing
    himself at every stage of the criminal proceedings. Allowance has
    been made in
    this regard throughout the trial and at the sentencing stage, and
    the fact that his
    medical condition may have been exacerbated by his decision to
    represent himself
    has been a matter within his control.

    58. As for his health, according to the latest report from the

  • Page 19 of 28

  • offender’s his
    doctor, from Dr Wesong Boko, Intervention Cardiologist, Deputy Chief
    Physician, Port Moresby General Hospital, dated 7 September 2023 the
    offender
    suffers from Coronary Artery Disease. The report confirms that the
    offender was
    treated last year with the insertion of a stent or stents. An
    angiogram conducted
    on 7 September 2023 revealed that the offender has developed a
    severe 95%
    blockage in the existing stent and a similar severe 80 – 90%
    blockage of the left
    circumference artery. There is also a borderline lesion in the
    proximal descending
    artery, at 40-50%, and some evidence of minor lesion, 20-30%, of the
    right
    coronary artery. The offender suffers from double vessel disease. In
    the
    circumstances the offender is a high risk patient who is at risk of
    severe heart
    attack and is advised to immediately cease all stress, change his
    life style to more
    traditional living in the village and undergo percutaneous coronary
    intervention
    with the insertion of a further three stents. It is intended to
    conduct the procedure
    in several weeks time following which it appears he is expected to
    resume duties.
    I also take note that the report states that the offender has kidney
    disease albeit
    no further details are provided.

    59. Whilst I appreciate that his condition has been exacerbated by
    the stress
    associated with this case, fundamentally the cardiovascular disease
    the offender
    15

    suffers from is one associated in part with lifestyle and
    behaviours associated with
    diet and exercise. It is the type of condition that professionals,
    lawyers, business
    people and others who live primarily sedentary lifestyles sometimes
    suffer from.
    It is the type of disease sometimes suffered by those who have the
    education,
    experience and opportunity to commit the types of offences committed
    here. In
    the circumstances the offender’s medical condition must be balanced
    against the
    totality of the circumstances in the case and the nature and gravity
    of the
    offending.

  • Page 20 of 28

  • 60. The offences occurred between 2007 and 2011 but a lapse of time
    between
    the commission of an offence and the imposition of sentence is not a
    mitigating
    factor of itself: The State v James Paru (No 3) (2021) N9248
    adopting In R v
    Law; Ex parte A-G [1996] 2 Qd R 63. Whether delay is a relevant
    consideration
    will depend on the circumstances. Where there has been a failure on
    the part of
    authorities or the judicial process to bring an offender to justice
    within a
    reasonable time that may constitute a factor in mitigation,
    particularly where an
    offender has cooperated with authorities from an early stage.
    Consideration
    should also be given to the conduct of the offender him or herself
    and their role
    in the delay. Delay may also be relevant where the offender has made
    demonstrable progress towards his or her rehabilitation during the
    period of
    delay. As in any case delay must be balanced against all the other
    factors for
    consideration, including the nature and seriousness of the offence:
    The State v
    Benedict Simanjon (2020) N8637 at [40]; State v Tony Kande, Henry
    Naio and
    Wilson Muka (2021) N9252 at [58]; The State v James Paru (No 3)
    (2021) N9248.

    61. There has been no unreasonable delay in this case. The offender
    brought
    various challenges at each stage of the proceedings from the time
    search warrants
    were first obtained, at the committal stage, and prior to
    presentation of the
    indictment: see The State v Paul Paraka (Decision on Admission of
    Bank
    Records) (2022) N9568 at [29]; Paul Paraka v Kaluwin (2019) N7975;
    The State
    v Paul Paraka (Decision on Presentation of Indictment) (2020) N8229;
    and The
    State v Paul Paraka (Decision on Verdict) N10273 at [6] and the
    various
    decisions referred to therein. The proceedings before the National
    Court were
    vigorously challenges on multiple fronts and whilst some delay was
    occasioned
    by the pandemic and the offender’s health, several applications by
    him for
    lengthier adjournments were refused both during the trial and these
    sentence
    proceedings, most recently on the day of submissions.

  • Page 21 of 28

  • 62. In summary, in determining the sentence to be imposed on each of
    the
    offences contained in the indictment I have taken into account the
    offender’s age,
    personal circumstances and medical conditions. I have also taken
    into account

    16

    his lack of previous conviction, his prior good character, his
    contribution to the
    delivery of legal services for more than twenty years through one
    of the largest
    law firms in the country, his mentorship and support to numerous
    lawyers,
    together with his contribution as a leader, to the community and
    through
    charitable works. These are factors in his favour but they carry
    limited weight
    given the nature of the offending and are far outweighed by the
    aggravating
    factors in this case, in particular the quantum of the monies
    involved, the role
    played by the offender in procuring the offences, the elaborate
    nature of the
    scheme, the application of funds to his own use and the extent to
    which he
    benefitted from the crimes, his knowledge and experience as a
    lawyer, and the
    impact on the public and public confidence. Such offences are
    prevalent and the
    offending in this case calls for specific and general deterrence.

    63. In short, this was a case of enormous magnitude, despicable
    greed and
    incalculable loss to the people of Papua New Guinea. Each of the
    offences clearly
    constitutes misappropriation of the worst kind and I have no
    hesitation imposing
    the maximum penalty for each of the offences established in Counts 1
    to 5 of the
    indictment: Goli Golu v The State [1979] PNGLR 653 applied.

    64. The question remains whether and to what extent the sentences
    should be
    served cumulatively or concurrently.

    65. I remind myself of the approach to be taken when deciding
    whether
    sentences should be made concurrent or cumulative and the principle
    of totality, Mase v The State [1991] PNGLR 88 at 92:
    “It is clearly laid down by this Court in the cases referred to

  • Page 22 of 28

  • that there are three
    stages to go through in coming to a total sentence. The first step
    is to consider
    the appropriate sentence for each offence charged and then
    consideration be
    given as to whether they should be concurrent sentences or
    cumulative sentences.
    Where the decision is made to make two or more sentences cumulative,
    the
    sentencer is then required to look at the total sentence and see if
    it is just and
    appropriate. If it is not, he must vary one or more of the sentences
    to get a just
    total. This principle must be observed because a straightforward
    addition of
    sentences usually leads to a total sentence that is excessive in the
    whole of the
    circumstances.”
    66. There is no “all-embracing” rule as to when sentences for two or
    more
    convictions should be made concurrent: Tremellan v The Queen f 1973]
    PNGLR
    116. Generally, sentences should be made concurrent where a
    congeries of
    offences is committed in the prosecution of a single purpose or the
    offences arise
    out of the same or closely related facts: Tremellan v The Queen
    [1973] PNGLR
    17

    116. Where the offences are different in character, or in relation
    to different
    victims, the sentences should normally be cumulative: Public
    Prosecutor v
    Kerua j 1985] PNGLR 85.

    67. The State initially proceeded with an indictment containing a
    single count
    of misappropriation for K162m. The indictment was amended, however,
    following one of the offender’s applications: The State v Paul
    Paraka (2021)
    N8807 at [255] to [274] and The State v Paul Paraka (2021) N8938 at
    [20] to
    [22] and [34] to [43]. Applications have consequences and the fact
    is that the
    offender has been convicted of five counts of misappropriation each
    of which are
    extremely serious.

    68. The principle of totality requires a judge who is sentencing an
    offender for
    a number of offences to ensure that the total or aggregate sentence
    of the

  • Page 23 of 28

  • appropriate sentences for each offence is just and appropriate for
    the totality of
    the criminality involved.

    69. It is the case that the offences were committed in the
    prosecution of a single
    purpose and arise out of closely related facts. The victim is the
    same and the
    offences are of the same character. But this is no ordinary case.

    70. As above, the magnitude of each of the offences is without
    precedent. In
    addition, whilst the methodology was the same, the number of
    transactions
    involved and the firms through which the monies were channelled
    varied to some
    extent each year, escalating to K39.8m and K47.6m in 2010 and 2011,
    respectively.

    71. In 2007 for instance monies were applied by way of thirteen
    cheques
    payable at various times to Sam Bonner Lawyers, Harvey Nii Lawyers,
    Sino &
    Company Lawyer, Yapao Lawyers, Korowi Lawyers and PKP Nominees. In
    2008 monies were applied by a further 15 cheques paid to the
    accounts of Sino &
    Company Lawyers, Jack Kilipi Lawyers for the first time, Korowi
    Lawyers, and
    PKP Nominees. In 2009 a further six cheques were paid via the
    accounts of Sino
    & Co Lawyers, Jack Kilipi Lawyers and PKP Nominees. In 2010 twelve
    cheques
    applied via Sino & Company Lawyers, Harvey Nii Lawyers, Jack Kilipi
    Lawyers,
    Korowi Lawyers, Kipoi Lawyers for the first time, and PKP Nominees.
    Finally,
    in 2011 a further 19 cheques were applied via Sino & Company
    Lawyers, Jack
    Kilipi Lawyers and PKP Nominees.

    18

    72. When this is taken with the period over which each of the
    offences was
    conducted it is my view that cumulation is warranted, particularly
    when regard is
    had to comparative cases. Such cases show that for amounts above K
    lm
    sentences of between 7 and 9 years are usually imposed. What then
    is an
    appropriate sentence for a man who misappropriates K162m over a

  • Page 24 of 28

  • period of five
    years?

    73. On the face of it the sentences might properly be made
    cumulative, totalling
    50 years of imprisonment.

    74. Having regard to the principles of totality, however, in
    particular the
    offender’s age and medical conditions, together with the State’s
    submission as to
    penalty, and the fact that the indictment was amended at my
    direction albeit
    following an application by the offender, I intend to impose an
    effective sentence
    of 20 years of imprisonment without hard labour.

    75. No time has been spent in custody to date.

    76. For the reasons outlined above, I do not consider the effective
    sentence to
    be a “quantum leap”: Thomas Waim v The State (1997) SC519 applied.

    77. The offender and his supporters plead for his sentence to be
    suspended.
    Probation Services supports partial suspension.

    78. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out
    three
    broad, but not exhaustive, categories in which it may be appropriate
    to suspend a
    sentence, namely: where it will promote the general deterrence or
    rehabilitation
    of the offender; where it will promote the repayment or restitution
    of stolen
    money or goods; or where imprisonment would cause an excessive
    degree of
    suffering to the particular offender, for example because of bad
    physical or mental
    health.

    79. The offender refuses to acknowledge guilt and expresses no
    remorse.
    Accordingly, I am not satisfied that suspension would promote either
    his
    deterrence or rehabilitation.

    19

    80. Suspension will not promote restitution. In addition, great
    care must be

  • Page 25 of 28

  • exercised when suspending a sentence in a case like this. The
    wealthy must not
    avoid prison where others would not: State v Wilmot, supra.
    Furthermore, there
    are other means by which the State might recover misappropriated
    funds, for
    instance through the Proceeds of Crime Act, 2005.

    81. Finally, I am not satisfied that the offender will suffer
    excessively in prison.

    82. Whilst I appreciate that the sentence imposed will cause great
    hardship to
    the offender’s family, it is well established that except in very
    extreme
    circumstances, it is not ordinarily a relevant consideration on
    sentence.

    83. Reliance is placed on Mapiria, supra. It is important to
    recognise the
    particular circumstances of that case which led to suspension. The
    Court found
    that the offender was likely to suffer severe complications
    associated with three
    diseases which would become immediately life-threatening in prison
    and which
    would result in an excessive degree of suffering together with other
    factors
    including his reduced culpability including that he lacked
    sophistication, did not
    personally benefit, and had indicated a willingness to make
    restitution of K lm in
    suspending the sentence: the decision was not available but see the
    summary in
    the schedule to Kaya.

    84. It is also important to note, however, that the sentence was
    appealed by the
    Public Prosecutor, that the offender died before the appeal could be
    heard, and
    that the case has been distinguished on many occasions: see for
    instance in The
    State v Wilmot (2005) N2857 per Sevua J; The State v Niso (No 2)
    (2005) N2930
    per Gavara-Nanu J, and State v Kom (2009) N6199 per David J, amongst
    others.

    85. It is also relevant that Correctional Services is obligated to
    ensure that the
    offender continue to receive the medical treatment required. Whilst
    treatment in
    custody might not be ideal, there is no reason to believe that
    incarceration would
    deprive the offender of ongoing treatment from his current doctor at

  • Page 26 of 28

  • Port Moresby
    General Hospital, including the stent procedures planned, from a
    visiting overseas
    physician.

    86. In the circumstances the offender’s medical condition must be
    balanced
    against the totality of the circumstances in this case and the
    nature and gravity of
    the offending. The offender’s medical condition has already been
    taken into
    account in determining the head sentence.

    20

    87. Finally, suspension would not be in the interests of the
    community. The
    work of the offender as a leader and his contribution to the
    community and to
    legal services and the promotion of young lawyers and those less
    fortunate, whilst
    commendable, must be balanced against the seriousness of the
    offences in this
    case.

    88. Fraud is not a victimless crime. It has very real and often
    enduring
    consequences for those who lose the benefit of the funds. Where
    State monies
    are involved it impacts the entire community, particularly those
    most vulnerable.

    89. Only service of the sentence in custody will ensure that the
    offender is
    adequately punished for his conduct, that the Court appropriately
    denounces such
    offences, and that the offender and others are deterred from
    committing similar
    offences in the future.

    90. I make the following orders.

    Orders

    (1) On the offence of misappropriation in Count 1 of the
    indictment the
    offender is sentenced to 10 ten years of imprisonment without
    hard labour.
    (2)On the offence of misappropriation in Count 2 of the indictment
    the
    offender is sentenced to 10 ten years of imprisonment without
    hard labour.
    (3) On the offence of misappropriation in Count 3 of the

  • Page 27 of 28

  • indictment the
    offender is sentenced to 10 ten years of imprisonment without
    hard labour.
    (4) On the offence of misappropriation in Count 4 of the
    indictment the
    offender is sentenced to 10 ten years of imprisonment without
    hard labour.
    (5)On the offence of misappropriation in Count 5 of the indictment
    the
    offender is sentenced to 10 ten years of imprisonment without
    hard labour.
    (6) Having regard to the principles of totality the offender shall
    serve an
    effective sentence of 20 years of imprisonment without hard
    labour.
    (7)The offender’s bail monies and any sureties lodged by the
    offender’s
    guarantors shall be refunded.

    Sentenced accordingly.

    21

    Public Prosecutor: Lawyer for the State
    The Offender: In person

  • Page 28 of 28

  • 22