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• 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