State v Donigi (No 2) [2024] PGNC 305; N10984 (9 September 2024)

N10984

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 29 OF 2024

STATE

V

EMMANUEL DONIGI
(No 2)

Waigani: Wawun-Kuvi J
2024: 22^nd August, 4^th & 9^th September

CRIMINAL LAW–SENTENCE –MISAPPRORPIATION- section 383A(1)(a)2(d) of the Criminal Code – Trial –Lawyer’s Trust Account- K40 000 – Sentence of 4 years of imprisonment imposed.

Facts
The offender is a senior lawyer employed with Ama Wali Lawyers and is also employed as a Senior Legal Officer with the Department of Mineral Policy and Geo-Hazards Management. He acted as the lawyer for the parties in a conveyancing transaction that involved land. He prepared the contract of sale which required that the purchaser deposit 10% of the purchase price into Ama Wali Lawyers trust account. The deposit of K40, 000.00 was to be held until settlement where it would then be transferred to the vendor. The transaction could not be finalized because the vendor did not have title. The purchaser requested the return of his money however it was later discovered that the deposit was withdrawn within a week and applied by the offender to his use and the use of others.

This was a serious case of dishonesty involving a lawyer and monies held in a law firm’s trust account.

Relevant factors were that the offender had repaid some part of the deposit, the probation reports which contained community views were favorable and the victim sought restitution.

Held:

1. The offender is sentenced to 4 years imprisonment.
2. Considering that suspension will promote restitution, rehabilitation and reintegration, pursuant to section 19 of the Criminal Code, the whole of the offender’s sentence is suspended, and the offender is placed on a good behaviour bond to keep the peace and be of good behavior for 12 months on K500 surety.
3. In addition, pursuant to section 16 of the Probation Act 1979, the offender is placed on probation for a period of 4 years on conditions including restitution contained in the Probation Order.
   

Cases Cited
Kaya v State [2020] PGSC 145; SC2026
Walus v State [2007] PGSC 4; SC882
Lawrence Simbe v The State [1994] PNGLR 38
Lialu v The State [1990] PNGLR 487
State v Tardrew [1986] PNGLR 91
Belawa v The State [1988-89] PNGLR 496
Goli Golu v The State [1979] PNGLR 653
State v Donigi (No 1) [2024] PGNC 278; N10947
State v Lamo [2022] PGNC 64; N9500
State v Dumo [2018] PGNC 484; N7574
State v Mose [2018] PGNC 317; N7388
State v Tony [2018] PGNC 155; N7268
State v Bruno [2017] PGNC 34; N6652
State v Kintau [2014] PGNC 55; N5761
State v Duk [2009] PGNC 247; N3924
State v Mamando [2008] PGNC 242; N3709
State v Likius [2004] PGNC 245; N2518
State v Frank Kagai [1987] PNGLR 320

Reference
Criminal Code
Lawyers (Trust Account) Regulation 1990
Probation Act 1979

Counsel
J Batil, for the State
D Kayok, for the offender

DECISION ON SENTENCE

9^th September 2024

1. WAWUN-KUVI J: Emmanuel Donigi is a lawyer. He was convicted following a trial under circumstances where he withdrew and caused to be withdrawn K40,000 from Ama Wali Lawyers Trust Account. The accused represented both the vendor and purchaser in a land transaction. He was responsible for the drafting of the contract of sale. An agreement was reached that the purchaser would pay a deposit into Ama Wali Lawyer’s Trust Account pending completion of the transaction. The purchaser subsequently transferred K40, 000, being 10% of the purchase price, into the Trust Account. There were no funds in the account when the money was transferred and within a week of the deposit, the account was depleted.
   
2. It was found that the money was to be held in trust until settlement where it would be then transferred to the vendor, that the accused did not have the consent of the purchaser to deal with the money, that his actions were inconsistent with the contract in which he drafted and the Lawyers (Trust Account) Regulation 1990: see State v Donigi (No 1) [2024] PGNC 278; N10947.
   
3. I must now decide the appropriate penalty.

Purpose of Sentencing

4. Sentences serve various purposes, including but not limited to the offender's punishment. These include informing the offender and the community that society does not condone the conduct. Where applicable, rehabilitation and reintegration. In serious and violent cases, courts also consider the community's protection. When determining the appropriate punishment, I must consider and balance these numerous factors.

Penalty

5. The maximum penalty is 10 years imprisonment. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653. This is not such a case.

Culpability

6. The offender possessed a high degree of dishonesty. The offender is a senior lawyer. He was responsible for drafting of the contract and knew from the terms of the contract the purpose of the deposit. As a lawyer he also knows the requirements of a trust account and holding monies in trust. The money was client money. This is a serious case of breach of trust.

Personal Antecedents

7. Emmanuel Donigi, 41, hails from Lowan Village, Wewak District in East Sepik Province. He is the first son of Anthony Donigi and Dorothy Pandukasi.
   
8. He is married and has three children aged 10 and 18 months. His oldest child attends elementary school, and the twins are at home with their mother. His wife is unemployed.
   
9. The offender and his family reside at Waigani Heights with his parents. The property is also the operating address of Ama Wali Lawyers.
   
10. He completed year 12 at the Port Moresby National High School and went on to attain a bachelor’s degree in commerce at the University of Technology in 2005. He then further attained a bachelor's degree in law in 2011. He was admitted to practicing after completing a year at the Legal Training Institute.
    
11. In 2011, he gained employment with Paul Paraka Lawyers. In March of 2014, he commenced employment with the Department of Mineral Policy and Geo-Hazards Management as a Legal Officer and was later promoted to Senior Legal Officer, a position he continues to hold. The offender also works with Ama Wali Lawyers and assists the firm when required.
12. He is healthy and has no significant health issues.

Mitigating and Aggravating Factors

13. I have considered the submissions and accept the offender is a first-time offender and that he repaid K10, 000.
    
14. In aggravation is that a significant amount of money was taken, that a significant portion of it is outstanding, there is a serious breach of trust, the monies were trust monies and the prevalence of the offence.

Allocutus

15. The offender apologised for his actions and stated that he had no intentions to harm anyone. He promised to restitute the victim and stated that the title to the land has been obtained. He states that once the land is sold, he will make restitution. He states that he has already paid K10, 000.00, that it is his first offence. He prays for the court’s leniency.
16. I do not accept that the offender has expressed remorse. His one-line apology to the victim was overshadowed by his continued statements in relation to the land deal and that the property is available for disposal. His apology is belated, and his statements are self-serving.

Appropriate range

17. As I have said in previous decisions, guidelines provide parity but do not curtail my discretion. That the relevant consideration is the peculiar circumstance of the case: see also Lialu v The State [1990] PGSC 16; [1990] PNGLR 487 and Lawrence Simbe v The State [1994] PNGLR 38.
    
18. The State submits that in applying the guidelines in Kaya v State [2020] PGSC 145; SC2026, the appropriate range would be a sentence between 3 and 5 years. Mr Kayok for the offender submits for a sentence of 2 years imprisonment which falls within the third category in Belawa v The State [1988] PGSC 6; [1988-89] PNGLR 496 which is a range between 2 and 3 years.
    
19. Considering that there is disagreement on the appropriate range, I turn to case law for assistance.

Comparable cases

20. Counsel submits the following comparable cases:
    
21. State v Lamo [2022] PGNC 64; N9500, Wawun-Kuvi AJ (as she then was): The offender pleaded guilty. She worked as a certifying and countersigning officer at the Department of Provincial and Local Level Government. She submitted false claims, approved them, and applied them to her personal expenses and rentals. Over the course of six months, she misappropriated K64,754.99. The court sentenced her to 4 years imprisonment. A favourable pre-sentence report led to a partial suspension of the sentence.
    
22. State v Dumo [2018] PGNC 484; N7574, Berrigan J: The offender was the Department of Education's Operations E-Learning Manager. He pleaded guilty to misappropriating K87,371.00. He had funds intended for a refund to the Department of Education deposited into his account. The court sentenced him to four years imprisonment and suspended part of the sentence on conditions, including restitution.
    
23. State v Mose [2018] PGNC 317; N7388, Miviri AJ (as he then was): The offender was convicted following a trial. She told the victim that she was selling customary land. The victim paid her overtime money totaling K120,000.00. The victim stopped giving money when it became known that another person occupied the land. The offender was also approaching others. She was sentenced to 4 years imprisonment.
    
24. State v Bruno [2017] PGNC 34; N6652, Cannings J: Following a trial the offender was convicted of two counts of misappropriation. He approved a K55,000 payment to a law firm that represented him personally against the Department he was employed by. Additionally, he authorised the payment of a cheque for K36,000 to himself. The court sentenced him to five years imprisonment for count 1 and three years for count 2 which were made cumulative. In applying the totality principle, the court reduced the sentence to three years imprisonment.
    
25. State v Duk [2009] PGNC 247; N3924, Cannings J: The offender pleaded guilty to misappropriation. He was an accountant employed by a bank and dishonesty obtained K32,800.00 in customers' deposits and applied it to his own use. He was sentenced to 4 years imprisonment.
    
26. State v Likius [2004] PGNC 245; N2518, Lenalia J: The offender pleaded guilty to misappropriating K68, 679.06. Lihir Management Company employed him as a payroll clerk. The offender reactivated an ex-employee's file and proceeded to transfer payments into his personal account. The court sentenced him to 5 years in prison. The court suspended the sentence for 3 years and imposed conditions for restitution.
    
27. Additionally, I found these recent comparable cases:
    
28. State v Tony [2018] PGNC 155; N7268, Miviri AJ (as he then was): The offender pleaded guilty to misappropriating K25, 844.50. The offender was the private secretary to the Chief Justice. She used the Deputy Chief Justice’s name to hire vehicles. She was sentenced to 4 years imprisonment.
    
29. State v Kintau [2014] PGNC 55; N5761, Salika DCJ (as he then was): The offenders pleaded guilty to misappropriating K87, 000.00. Alois Kintau was a lawyer and Issac Tom a real estate agent. The victim paid the money as a deposit in a property transaction into the law firm’s account. Of the K87, 000.00, Alois Kintau benefited K43, 250.00. Both offenders were sentenced to 4 years imprisonment. Issac Tom’s sentence was wholly suspended as he had made full restitution prior to sentencing. In the case of Alois Kintau, the suspension of his sentence was made conditional upon full restitution. On the day of the sentence, he had made full restitution.
    
30. State v Mamando [2008] PGNC 242; N3709, David J: The offender pleaded guilty. She worked as a cashier and did not bank K34, 326.75 paid to her employer. Instead, she used the money. The court sentenced her to 4 years imprisonment and suspended three years of the sentence under certain conditions.
    
31. The recent sentencing trend in the comparable cases show that the courts have imposed sentences between a range of 3-5. This is the guideline recommended in Kaya v The State. The higher the trust reposed in the offender, the higher the sentence.
    
32. Having arrived at a range, I now consider what penalty would be appropriate.

Victim’s Views

33. The victim confirms that the offender paid K10, 000.00. He asks the court to order the defendant to make restitution within six months and failing which to impose a custodial sentence.
    
34. He says that the offence has caused him significant emotional and mental distress.

Other relevant factors

35. The offender will of course be disbarred and will find it difficult to practice law again. This is of his own doing because he made the conscious decision to take money from the trust account.
    
36. His actions also bring his profession into disrepute. It affects public confidence as people trust lawyers and expect that they should be law abiding. Lawyers are entrusted with significant amounts of money.
    
37. His actions may affect the firm and its reputation. Possible clients may reconsider seeking legal assistance from a law firm that permits misappropriation of client monies held in trust.
    

Consideration

38. Not only is the offence of misappropriation prevalent but this case involves both a high degree of dishonesty and breach of trust. The offender is a senior lawyer who used client monies held in a trust account. He continued to withdraw from it until nothing was left.
    
39. In considering all the matter addressed in this decision, the offender is sentenced to 4 years imprisonment.
40. There is no deduction of any pre-trial period as he has been on bail since his arrest.
    
41. The next question is whether any part of the sentence should be suspended.
    
42. Suspension is discretionary. Discretion is exercised on proper basis. In saying this I apply my mind to the considerations in State v Tardrew[1986] PNGLR 91 and Walus v State [2007] PGSC 4; SC882.
    
43. The probation reports are favourable to the offender. There are several sources from the offender’s community who attest to his good conduct and contributions. He has taken some steps towards restitution. The victim seeks restitution and imprisonment only if the offender is not able to meet restitution.
    
44. Considering these factors, I find that suspension will promote restitution, rehabilitation and reintegration. It is not an act of leniency but in the interest of the community: The State v Frank Kagai [1987] PNGLR 320.
    
45. Pursuant to section 19 of the Criminal Code, the whole of the offender’s sentence is suspended, and the offender is placed on a good behaviour bond to keep the peace and be of good behavior for 12 months on K500 surety.
    
46. In addition, pursuant to section 16 of the Probation Act 1979, the offender is placed on probation with conditions that include restitution for a period of 4 years.
    

Orders

47. The Orders are as follows:
    
    1. The offender is sentenced to 4 years imprisonment.
    2. The sentence of 4 years imprisonment is wholly suspended, and the offender is placed on a good behaviour bond to keep the peace and be of good behaviour for 12 months on K500 surety.
    3. Pursuant to section 16 of the Probation Act 1979, the offender is placed on probation for a period of 4 years on conditions contained in his Probation Order.
    4. Bail of K500 is converted to payment of the surety.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender