Warsal v Public Prosecutor
JUDGMENT OF THE COURT
Introduction
1. On 21 July 2025 the respondents Lulu Sakias and Amos Warsal were re arraigned and pleaded guilty to 8 counts of misappropriation contrary to s 125 b) of the Penal Code. Initially they had pleaded not guilty to all the charges. Following their guilty pleas the respondents were each sentenced to a term of 12 months imprisonment without suspension: Public Prosecutor v Sakias [2026] VUSC 66.
2. This appeal is against that sentence. Lulu Sakias appeals his sentence primarily on the grounds that it was manifestly excessive, and the primary judge failed to consider mitigating factors in his favour. Amos Warsal on the other hand appeals his sentence primarily on the grounds that the primary judge fell into error by not suspending his sentence by not taking into account information submitted in his favour and his early guilty plea.
3. Mr Warsal appeared for both appellants at the appeal hearing. He adopted and relied on the submissions filed by Mr Morrison who was unable to appear at the hearing. For both appellants, Mr Warsal contended the primary judge erred in not exercising the discretion in favour of suspension.
Background Facts
4. In June 2020 the appellants and one other George Anderson Toa who has not appealed established the Vanuatu Immigration Solution (VIS) as part of the Citizenship Development Support Program (DSP). VIS was to act as an agent and it was registered with the Vanuatu Financial Services Commission (VFSC).
5. The Citizenship Commission (the Commission) pursuant to Section 13E of the Citizenship Act [Cap 112] established the DSP on 7th January 2019. And the Commission designated the VIS to be an agent of the DSP on 15th July 2020 and redesignated it as such on 2nd February 2021.
6. The directors and owners of VIS were the appellants Sakias Lulu, George Anderson Toa and Amos Warsal.
7. Under the DSP arrangement, VIS was to receive moneys from foreign nationals who wished to acquire Vanuatu citizenship in the first instance and to ensure that those monies were paid into an appropriate revenue account maintained at a local commercial bank, in this case the National Bank of Vanuatu (NBV), and then to advise the Commission in order that a citizenship certificate would be issued.
8. The Development Support Account opened for this purpose at the NBV is a USD Account owned and controlled by the Ministry of Finance and the Department of Finance.
9. VIS also has a designated USD Account with NBV. The appellants own and control this account.
10. The then chairman of the Citizenship Commission, Mr Ronald Warsal had conveyed and relayed information about the DSP to a Mr Koko Wang, who contacted an overseas client by the name of Cloe Yin Qiongyan, who in turn contacted Xia Shen.
11. In October 2020 Xia Shen paid 115,000 USD into VIS Account No. 0185654001 through Cloe, as his sub-agent. On 15th December 2020 Xia Shen transferred 19,955 USD and 54,955.10 USD to the VIS Account. And on 5th January 2021 Xia Shen again transferred the sum of 40,074.96 USD to the VIS Account. In total the sum of 114,984 USD was transferred into the VIS Account at the NBV.
12. The NBV disclosed its records (Bank statements) showing that those transfers were made.
13. The statements also indicated that the moneys were moved from the VIS Account into the defendant’s personal accounts at NBV on the following dates:
a. 21/02/2020 - 1.000.00 USD debited from VIS Account and credited to Geroge Toa’s bank account.
b. 21/12/2020 - 1.000.00 USD debited from VIS Account and credited to Lulu’s bank account.
c. 22/12/2020 - 1.000.00 USD debited from VIS Account and credited to Warsal ’s bank account.
d. 28/12/2020 - 1.000.00 USD debited from VIS Account and credited to George Toa’s personal bank account.
e. 28/12/2020 - 1.000.00 USD debited from VIS account and credited to Warsal ’s bank account.
f. 28/12/2020 - 3.000.00 USD debited from VIS account and credited to Warsal ’s bank account.
g. 20/04/2021, 4.000.00 USD debited from VIS account and credited to Warsal ’s bank account.
h. 20/04/2021 - 2.000.00 USD debited from VIS account and credited to George Toa’s bank account.
14. The total amount misappropriated by Mr Toa and the two appellants was approximately 14,000 USD. Of that sum, the appellants each misappropriated the following amounts:
a. Amos Warsal – 8000 USD (VT 995.600)
b. Lulu Sakias- 2000 USD (VT 248,900)
Sentence
15. The maximum sentence for the offence of misappropriation is 12 years imprisonment.
16. The primary judge took into account both aggravating and mitigating factors of the offending. The aggravating factors taken into account are:
• Some degree of planning involved
• Financial loss suffered by the victim and the state
• Serious breach of trust
• The offending was repeated
• Reputational damage to the scheme and the Republic of Vanuatu
• The monies were abused and wasted on personal gain
17. There were no mitigating factors.
18. For each appellant (Lulu Sakias - counts 2 and 5 and Amos Warsal – counts 3, 8 and 7) the primary judge adopted a concurrent sentence starting point of 18 months imprisonment. 4 months was then deducted for the late guilty pleas and a further 2 months was deducted for personal and other mitigating factors. Each appellant was then sentenced to an end sentence of 12 months imprisonment which the primary judge said will not be suspended and were effective within 14 days.
Approach to appeal
19. In Naio v Public Prosecutor [1998] VUCA 1, this Court adopted the principles applying to sentence appeals that were set out in the decision of the High Court of Australia in Skinner v R (1913) 16 CLR 336 at 340 and stated that those principles should be applied in Vanuatu. In Skinner, the High Court said an appellate court considering a sentence appeal should not determine that a sentence was manifestly excessive or manifestly inadequate unless that was obvious, such as where the sentencing Judge had acted on a wrong principle, or had clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence. That restraint applies with greater force when the appeal before the Court is a prosecution appeal.
20. More specifically, in relation to appeals related to the decision to suspend or refuse to suspend a sentence, this Court gave the following guidance in Pipite v Public Prosecutor [2018] VUCA 53 at [82]:-
“The decision whether to suspend any prison sentence is an exercise of discretion by the sentencing Judge. And so, an appellant must show the Judge exercised the discretion improperly, for example he took into account irrelevant matters or failed to take into account relevant matters. It is not a question of whether this court agrees or disagrees with the Judge’s decision.”
21. In Public Prosecutor v Garae [2025] VUCA 37, this Court considered how the suspension discretion should be exercised, and relevant to this appeal said (at 28):
“28. Drawing these threads together, we consider:
(a) Ideally a sentencing Judge should, when exercising the suspension discretion, make it clear that he or she has taken into all aggravating and mitigating factors that are relevant to the discretion. We see this as requiring a balancing of factors against, and factors for, suspension as indicated in Malau. That said, the question is whether the Judge has considered the factors appropriately, not whether he or she has used the term “balancing” in his or her sentencing notes.
(b) In this case, we are not convinced the primary Judge failed to do the exercise described at subpara a. above. But, on the approach we take to the case, it is not necessary for us to reach a concluded view on that. However, we do emphasise that any doubt about this could have been resolved in this case if the sentencing notes had clearly stated that the Judge had done the exercise.
(c) We accept that there is authority supporting a refusal to suspend in a case of this nature and we do not think a decision to refuse suspension in this case would have been vulnerable on appeal. But we remind ourselves that, on an appeal such as this one, it is not a question of whether or not we agree with the Judge; the question is whether an appealable error has been made”.
….
Discussion
Whether the primary judge failed to exercise his discretion in not suspending the sentences?
22. A sentence of imprisonment may be suspended pursuant to s 57 of the Penal Code which provides:
57. PROVISION FOR SUSPENSION OF SENTENCES OF IMPRISONMENT
(1) The execution of any sentence imposed for an offence against any Act, Regulation, Rule or Order may, by decision of the court having jurisdiction in the matter, be suspended subject to the following conditions:
(a) if the court which has convicted a person of an offence considers that:
(i) in view of the circumstances; and
(ii) in particular the nature of the crime; and
(iii) the character of the offender,
it is not appropriate to make him or her suffer an immediate imprisonment, it may in its discretion order the suspension of the execution of imprisonment sentence it has imposed upon him or her, on the condition that the person sentenced commits no further offence against any Act, Regulation, Rule or Order within a period fixed by the court, which must not exceed 3 years; and….”
(emphasis added)
23. A Court may suspend a sentence upon consideration of the circumstances of the offending, the nature of the crime and the character of the offender. The gist of Counsel’s submissions is that the primary judge failed to consider, and balance these factors when sentencing the appellants to a term of imprisonment without suspension.
24. Misappropriation in itself is a very serious offence as the maximum penalty is 12 years imprisonment. The primary judge noted that in total around USD14,000.00 was diverted by the appellants into their personal accounts for personal use between the periods 21 February 2020 to 20 April 2021. These funds were part of the Government revenue as it was remitted as payment for a Vanuatu passport. The primary judge noted that the appellants attempted to justify their criminal conduct by submitting that Xia Shen had failed to pay their commission as agreed and therefore they were somehow entitled to transfer part of the payments received to their personal accounts.
25. While the primary judge did not specifically refer to “balancing” the relevant aggravating and mitigating factors when exercising the discretion not to suspend the sentence, it did not mean he failed to take them into account. The question is whether the primary judge has appropriately considered all the relevant factors, not whether there is express reference to “balancing” the factors.
26. A number of aggravating factors were identified and taken into account. At paragraphs 23, 24 and 25 the primary judge said:
23. “In assessing the appropriate punishment and sentences for the defendants I have taken all these features in addition to the seriousness of the offendings. And I have also considered the cases of PP v Mala [1996] VUSC 22 as endorsed by the Court of Appeal in Apia v PP [2015] VUCA 30. I have made comparisons with the cases of PP v Bani [2019] VUSC 46, PP v Moli [2019] VUSC 153 and PP v Yanick [2012] VUSC 252.
24. These cases differ in their facts and circumstances but it is clear to me this case is more serious than the cases of Bani and Moli. I consider that the cases of Mala and Yanick are relevant and applicable to this case.
25. In my view the appropriate sentences of these three defendants are to be short custodial sentences in accordance with the principles enunciated in the Mala case. These sentences must serve as a deterrence to others, to protect monies held on trust from abuse, to mark the seriousness of the offending and to punish the offenders appropriately.”
27. The primary judge also recognized there were relevant personal mitigating factors, as he reduced the appellants’ sentences to reflect personal mitigation.
28. We can see no error in the primary judge’s refusal to exercise the discretion in favour of suspension. As can be seen from the sentence, the primary judge did consider the factors relevant to s 57, as detailed above. This was serious offending, as the primary judge said. An important consideration was that the appellant’s breached the victim’s trust in misappropriating the passport funds for their own use and benefit. And as recorded in the summary of facts, the victim did not receive the passport he paid for. Public Prosecutor v Mala [1995] VUSC 22, adopted by this Court in Apia v Public Prosecutor [2015] VUCA 30, is the guideline for offending of this nature. In Mala, the Court said that for offending of this nature, ordinarily a term of imprisonment is inevitable. Given the seriousness of the offending, the primary judge emphasized the need for deterrence and punishment. He was correct to do so.
29. This is one further matter. Consistency and parity in sentencing are important. We observe that the co-offender, Mr Toa, did not appeal the sentence and elected to commence his sentence. In imposing the sentence, the co-defendants were treated as equally culpable. There was no appeal based on inconsistency of the sentences as between Mr Warsal and Mr Sakias, and we see no basis to interfere with that.
30. For the reasons set out above, the appeal is to be dismissed.
Disposition of the appeal
31. For the reasons given above, the appeal is dismissed.
32. There are the following orders:
a. The sentence of 12 months imprisonment without suspension for each appellant is confirmed.
b. The order of 16 April 2026 staying the effect of the appellants’ sentences is now set aside with immediate effect.
c. The appellants’ sentences are to commence immediately.
d. A warrant of commitment for each appellant will be issued.
DATED at Port Vila this 15th May 2026.
BY THE COURT
Hon. Chief Justice Vincent Lunabek