N11570

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 1259 OF 2024

THE STATE

V

TOBBY EMAITO

WAIGANI: MIVIRI J
8, 21 OCTOBER 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Plea-Policeman Accompanied by Other Policemen – Assaulted Complainant with Baseball Bat – Bleeding Laceration to Back of Head – Injuries to the Face Broken Fibula – Stole Assorted Trade Store Goods Liquor & Personal Properties K 4, 500 – First Time Offender – Prevalent Offence – Abuse of Authority by Policeman – Stern Deterrent Punitive Sentence.

Facts
Accused was a serving policeman who went with other policemen to the trade store of the complainant. They threatened and assaulted him breaking his head with a baseball bat and his leg. They stole assorted liquor and trade store goods property of the complainant.

Held
Plea of guilty
First time offender
Serving Policeman.
Abuse of Authority
PSR not favourable
Concurrent Sentence
Strong deterrent & punitive sentence

Cases cited
Avia Aihi v The State (No 3) [1982] PNGLR 92 
In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388
Aubuku v The State [1987] PNGLR 267
Kama v The State [2004] PGSC 32; SC740 
State v Irowen [2002] PGNC 99; N2239 
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85 
Bomal v Independent State of Papua New Guinea [2020] PGSC 115; SC2025 
Sumai v Independent State of Papua New Guinea [2020] PGSC 35; SC1948 
Yalibakut v State [2006] PGSC 27; SC890 
State v Hagei [2005] PGNC 60; N2913 
State v Akoa Harley (2025) N11548
Tardrew, Public Prosecutor v [1986] PNGLR 91 
Public Prosecutor v Hale [1998] PGSC 26; SC564 
Gimble v The State [1988-89] PNGLR 271 
State v Kraningi [2005] PGNC 18; N2934 

Counsel
L Jack & S, Wak, for the State	
F. Bomal, for the defendant

SENTENCE

1.	MIVIRI J:    Tobby Emaito now appears to receive his sentence after pleading guilty that whilst employed as a policeman he assaulted the complainant with a baseball bat on his head and leg and stole from him assorted beer and liquor with goods to the value of K 4, 700.00.

2.	Between the 20th and the 21st January 2023 at Tokarara, Port Moresby National Capital District, the accused unlawfully assaulted one Kurin Pakau with a baseball bat when he and other policemen drove into Tokarara Housing Commission flats intoxicated. They claimed a drunkard whom they alleged had bought beer from the Complainant’s trade store. They brought him to the complainant, who at that time was walking from his house to the trade store. He saw the accused and co accused one, Francis Momi were questioning the storekeeper for operating the liquor store after authorized trading hours. The complainant upon arrival consulted Nelson Kevin the storekeeper about the claims that he sold liquor outside operating legal hours. He responded in the negative as it was raining and there were no customers. In response the accused came from the rear and swung several punches to the face of the complainant. He was joined by his co accused who punched the complainant in front of his trade store.

3.	By then neighbours had gathered there and fearing retaliation accused and accomplice called for reinforcements. Which arrived about 30 minutes later comprising six (6) police vehicles marked as well as unmarked. Thereupon co accused one Sagitaris Kereyal pulled the complainant out of his vehicle to the ground. And as the complainant laid there Accused Tobby Emaito hit him with a baseball bat to the head, and he was unconscious. The accused then hit him with that baseball bat on his right leg fracturing that leg.

4.	His action drew the charge of Unlawfully doing Grievous bodily harm pursuant to section 319 of the Criminal Code prescribing, “A person who unlawfully does grievous bodily harm to another person is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.”

5.	He could effectively be sentenced to 7 years imprisonment for the offence. That will draw if his case here is the worst offence: Avia Aihi v The State (No 3) [1982] PNGLR 92. It is not the worst case but a very serious offence. Particularly and fundamentally because he is a policeman who has committed the offence in uniform. That uniform did not deter him from committing the offence. And he did not respect that uniform because he was intoxicated whilst in it. By itself that is a disciplinary offence within the Police Act 1998, Disciplinary offences, section 20 (1) (al) is unfit to perform his duty by reason of being under the influence of alcohol or a drug;”. When he stepped into the premises of the complainant in that status, he was unfit to perform his duty. He should have refrained from what he set out to do on that day. This was the same for the other policemen who accompanied him on this day. They had no lawful basis to be where they were on this day. What they did together was breach the law. Intoxication and consumption of alcohol have seen a lot of offences known to the law that has come before this court. By itself is no guarantee that the prisoner would behave orderly in compliance of the law. 

6.	If the suspect was indeed drunk from consumption of alcohol purchased from the trade store of the complainant, there was no proof of that fact prompting his reaction on this day. And his actions in committing the criminal offence are not justified in law. Because the uniform that he wore had respect woven into it as part of the development of this Country for over 100 years. Fifty years (50) on Papua New Guinea cannot afford what Policemen like the prisoner are doing to the good name and reputation of the Royal Papua New Guinea Constabulary. A policeman in uniform stands between order and lawfulness. To condone the actions of the prisoner will be anarchy and disorderliness. Because all policemen must show the law to the world. It means when a complaint is made of alcohol being purchased in breach of law, the person alleged must be invited to the police Station to properly deal with the matter in law. Allegations must be followed through in law. To assault the complainant here is therefore no light matter when sentence is considered. Yes, he is a first-time offender. But his conduct is very serious when viewed in the light of In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014). A policeman holds the power in law either to charge and prosecute or withdraw the charges. He is therefore required to adhere to the process and procedure in law. His functions under section 197 of the Constitution to preserve peace and good order in the Country. And, to maintain and as necessary to enforce the law in an impartial manner and objective manner make the conduct of the prisoner very serious in the consideration of an appropriate and proportionate sentence due him. This is clearly spelt out in Aubuku v The State [1987] PNGLR 267. The trust that a policeman breaches with the commission of an offence is very serious. And the sentence will reflect that fact upon the prisoner here. It would not be erroneous to reflect that in the sentence due. 

7.	He has pleaded guilty and is a first-time offender. Some leniency will be exercised. But this must be balanced out with the aggravating features. Photographs taken of the injuries show serious head injuries. The face and the mouth show very serious injuries. Puffed eye with lips and tongue that look very bad. As if that is not enough it is topped off with a broken fibula in his left leg. These are injuries directly attributed to the use of the baseball bat by the prisoner. Medical report dated the 20th January 2023 confirms this very serious injuries under hand of Doctor M Konigala of the Provincial Hospital Gerehu. These are very serious aggravating features of the case against the prisoner.

8.	Originally from Jonteve village, Henganofi district, Eastern Highlands Province he is the last born in a family of three brothers and a sister. A married man with a three-year-old son. He was a policeman for six years having served previously with the Department of Works and Highways in Kimbe for two years. A graduate of the Goroka Technical College where he took up Auto electrical for two years 2010 to 2011. He apologised to the victim for what he did. 

9.	But that apology becomes insignificant because he is involved with his co accused in stealing assorted stock of alcohol beverages and personal properties to the value of K 4, 700.00. Effectively winding up his sentence to seven years imprisonment maximum. That is the combined effect of section 372 (1) & (10) of the Code. These are circumstances of aggravation pleaded in the indictment drawing that maximum penalty. And coupled with the grievous bodily harm cumulatively, he would draw 14 years maximum penalty. That would be effectively a term for aggravated armed robbery. Because that is what the offence is outright armed with guns which were used to terrorize the complainant and all other persons immediately there. Violence used to the extreme of serious life-threatening injuries to the complainant. Then stealing following. It is therefore armed robbery by policemen. During which the victim is injured. That is how serious the matter is. It is not a light matter given Kama v The State [2004] PGSC 32; SC740 (1 April 2004) is light to this fact, murder in the course of aggravated highway robbery. Given that why should a citizen who has struggled adhering to law and the rule of law be treated in this way in defiance by policemen.

10.	State instruments and equipment necessary to bring order and lawfulness used in this way. Police guns and motor vehicles communication and radio used to back up a criminal offence rampant prevalent now amongst the Police Force now traverse the country. I do not take this matter as a light matter given. But in law both offences are of the one transaction. Because they are committed at the same time at the same place against the same complainant. Hence sentence will be concurrent and not cumulative following Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85. It was a single transaction leading and therefore made sense to be served concurrently. Effectively that is a maximum of seven (7) years imprisonment. But this is not the worst offence and therefore will be drawing a determinate number of years. He was remorseful in allocutus and a first-time offender.

11.	And this is not the first time an action of serving police officer has come under scrutiny in this manner: Bomal v Independent State of Papua New Guinea [2020] PGSC 115; SC2025. He appealed against his conviction and sentence imposed in where he assaulted the victim with the butt of his automatic rifle causing serious life-threatening injuries to the head. He was given seven years imprisonment that was confirmed on the appeal. This is a similar attack with a group of drunken policemen including the prisoner who participated with hitting the complainant with a baseball bat to the head and the leg. He suffered very serious life-threatening injuries borne out by the medical report set out above. The element of grievous bodily harm is closely knit with murder.

12.	The bottom line is that the sentence must fit the gravity of the crime committed: Sumai v Independent State of Papua New Guinea [2020] PGSC 35; SC1948. The initial sentences that were dished of 40 years, 32 years, 28 years, and 20 years was varied by the supreme Court to 37, 29, 25 and 17 years respectively for wilful murder committed by the appellants upon the deceased. He had burnt down their house, and they reacted in that manner. It was de facto provocation not considered by the sentencing Court at first instance. There is no evidence of any de facto provocation to prompt what the prisoner did. It is a guilty plea: Yalibakut v State [2006] PGSC 27; SC890. The latter will foretell some leniency for the prisoner here. But that is all it will not out scale the gravity and the aggravating details and circumstances of the offence.

13.	I have the benefit of the presentence report filed as of the 15th October 2025 which does not have any extenuating circumstances as painted out in State v Hagei [2005] PGNC 60; N2913. There is nothing that can sway that a sentence other than what the law prescribes dictated by the facts and circumstances here call. I am versed that he is a first-time offender aged 35 years married with a son still drawing milk from the public purse as a policeman despite incarcerated. But that will subside as Papua New Guinea has no place for ill-disciplined policeman. I echo what I said in State v Akoa Harley (2025) N11548. “This is now extinguished because of a night of by alcohol induced infusion that led. He has demolished by ill-discipline, bringing women into single barracks drunk and consuming alcohol. Such does not have a place in the Papua New Guinea Defence Force 50 years on since independence, nor any disciplined Forces in the Country. It is the decline of moral by unethical ill-disciplined behaviour as here that has drawn bad for the Defence Force and any other disciplined force for the same. He wore the uniform of a military police personal, yet his behaviour was seriously impaired and disabled for the uniform. He committed murder in that barracks. His actions must draw stern deterrent and punitive sentence. His kind have no place in the good record of the Papua New Guinea Defence Force, or any other disciplined force for the same.”

14.	I am not fortified by the material in the presentence report to go down the path of Tardrew, Public Prosecutor v [1986] PNGLR 91. There is simply no other material to sway alternatives to imprisonment. But where there is use of weapons with serious life-threatening injuries as in State v Irowen [2002] PGNC 99; N2239 (23 May 2002) this court imposed the maximum penalty of 7 years cumulative where both wives were cut with a bush knife almost killing them. Both survived coming out with serious residual injuries. That is the extreme here it would equate next to it. It would not fall as counsel have cited a range of two and half to three years imprisonment with part suspension. This is a law officer sworn who was in that career six years in the making. He had no excuse. Like the employee of this Court State v Janet Mara (2025) N11541 “She was employed as a cleaner of the National and Supreme Courts of Papua New Guinea for nine years. Her antecedent report states that she was the cleaner to the Chief Justice Chamber for nine years. She was literally at the doorsteps in the hall of Justice law and order. She was very well versed of the consequences of her action in this regard. More so is the fact that he too was a driver of the Courts. Both had their livelihood and sustaining in life demarcated by this foundation. Staff, employees of law enforcement agencies of Government, here the Supreme and National Court must show the light to the world, not put it out as here. In so doing it is a very significant fact that will come out in the sentence passed. What seriously aggravates her sentence is that she was cleaner to the Chambers of the Chief Justice.”

15.	This is a police officer seen in uniform with others committing two very serious offences with determination and vigour. They all could have been simply charged with aggravated armed robbery pursuant to section 386 of the Criminal Code. It was aggravated armed robbery committed in the dwelling house and simply would have drawn like treatment in Public Prosecutor v Hale [1998] PGSC 26; SC564. It is fortunate that the prisoner is charged as he is because it would be different if he was facing section 386 of the Code. And the law is clear in considering sentence: Gimble v The State [1988-89] PNGLR 271. I recommend that all other policeman who were co accused here must be charged. The Constabulary has no place for policeman who are criminals in disguise. I do not equate the facts in State v Kraningi [2005] PGNC 18; N2934 with the present. But it will be on all fours in its treatment and adoption in the way sentence is passed upon the prisoner, as in State v Akoa Harley (supra). 

16.	Accordingly, I determine that the just and proportionate sentence given all is 6 years imprisonment IHL and I so impose that upon the prisoner for the crime of grievous bodily harm committed upon Kurin Pakau contrary to section 319 of the Code. 

17.	Further in count 2 of stealing pursuant to section 372 (1) (10) I sentence the prisoner to 4 years IHL. 

18.	That sentence will be served concurrently with that of Grievous bodily harm. Effectively he is sentenced to 6 years imprisonment in hard labour. Time in custody will be deducted forthwith. He will serve the balance in jail. I further recommend as a result of this conviction that he be immediately dismissed from the Royal Papua New Guinea Constabulary forthwith.

Ordered Accordingly
__________________________________________________________________
 Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor