State v Kifoi [2025] PGNC 285; N11431 (19 August 2025)

N11431

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 461 OF 2023

THE STATE

V

JEFFERY KIFOI

WAIGANI: BERRIGAN J
7, 19 AUGUST 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – SENTENCE – Section 390A, Criminal Code - Unlawfully demanding payment of K50,000 with intent to extort - By a police officer on threat of criminal charge – “Extortion” – Five years of imprisonment.

Cases cited
Sections 19, 390A(a)(b)(iii) of the Criminal Code
The State v Titus Kep & Ors (2004) N2616
The State v David Mabo (2009) N3884
State v Apkas (2019) N7990
State v Tom (2023) N10252
The State v Nathan Mailen and Junior Leo Mailen (2007) N5036
The State v LP (2025) N11356
Goli Golu v The State [1979] PNGLR 653
Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510
Lawrence Simbe v The State [1994] PNGLR 38
Garry Louha v The State (2023) SC2552
State v Konny (2012) N4691; State v Kara (2018) N7360
The State v Benedict Simanjon (2020) N8637
The State v Tony Kande & Ors (2021) N9252
The State v Nathan Manikumbu & Ors (2023) N10116
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Tardrew [1986] PNGLR 91

Counsel
S Kuku for the State
J Sebby for the offender

DECISION ON SENTENCE

1. BERRIGAN J: The offender, a police constable, was found guilty following trial of one count of unlawfully demanding payment of K50,000 with intent to extort, contrary to Section 390A(a)(b)(iii) of the Criminal Code (Ch. 262) (the Criminal Code). The offence, often referred to as extortion, attracts a maximum of 7 years of imprisonment. It took place over a period of about two weeks during which the offender repeatedly threatened to charge the complainant with a criminal offence if he failed to comply with the demand.
   
2. On 24 December 2019 the offender approached Tars Sauka, District Administrator, Kikori LLG, at Laguna Hotel in Port Moresby. He told Sauka that he was a CID officer, Steven Nibu, and that Sauka was under arrest. He took Mr Sauka to an unmarked five-door Landcrusier, in which two other men, identified by the offender as reserve police officers, were armed with high powered weapons and ammunition. The offender took his phone, told him he knew where he lived and demanded to know what schools his children went to. The offender drove to his house at Tokarara from which he retrieved an envelope and told Mr Sauka that he had a serious case at CID Boroko. Mr Sauka demanded a warrant of arrest and was told they had one in the office. After some time Mr Sauka was taken back to Laguna where the offender demanded K60,000 from him or he would go to gaol. Mr Sauka told him he did not have K60,000 but gave him K900. The offender called him later asking if he had the K60,000 yet. Mr Sauka told him he did not have the money but could get K3000 in a day or so. The offender told him that K3000 was not enough. His case was serious. He must provide K60,000 or go to gaol. The offender met with Mr Sauka at Laguna on 28 December. He removed a pistol and showed it to Mr Sauka before receiving K3000. On 1 January the offender received a further K3000 from Mr Sauka at Laguna and told him again to look for the money. On 6 January Mr Sauka reported the matter to the Internal Affairs Directorate of the RPNGC. The offender called Mr Sauka and was heard by Chief Inspector Charles Winuan demanding K60,000 – “K30,000 for the big boys at Boroko Police Station and K30,000 for himself and the Armed Robbery Squad”. At CI Winuan’s direction, Mr Sauka called the offender to Laguna Hotel where he received a bottle of wine and an envelope containing K19,600 in cash from Mr Sauka before he was apprehended by police as he went to leave the hotel.
   
3. On allocutus the offender apologised to Tars Sauka and his family, to the Court and the State, to his community, family, and workmates for what he had done and begged for forgiveness. He would like to repay Mr Sauka the K9000 Mr Sauka gave him and a further K5000 on top of that within three months. When he took the money he did not think something would happen but that has already happened and he is sorry. He has been a police officer for 20 years and has served his community. He has been involved in the apprehension of many high profile offenders, some of whom lost their lives, others are in custody, and some have already been released, as well as many others as part of his daily duties. Every day he is threatened. He pleaded for a non-custodial sentence. His parents are dead and there is no-one to stand at his back. His wife and children are at risk. His children are still young and he wants to support them. He is a sick man. His life is at risk in custody. He was seriously assaulted whilst on remand for his alleged role in the killing of William Kapris, of which he was cleared. This is his first time to be convicted and he will not come before the Court again.
   

Submissions and Comparative Cases

4. The sentences sought by the parties differ greatly. The State submits that the case is of the worst kind having regard to the factors in aggravation and the fact there was a trial. It seeks a sentence of 6 to 7 years. Defence counsel submits that a sentence of 3 years is appropriate and should be wholly suspended. I will return to the submissions below.
   
5. There are few reported sentences for this offence:
   
   • (a) State v Titus Kep & Ors (2004) N2616, Sevua J, in which five accused pleaded guilty to demanding compensation of more than half a million Kina from New Britain Palm Oil Limited, contrary to s. 390A(a)(b)(i)(ii) of the Criminal Code. This followed a motor vehicle accident between a PMV driver and a truck owned by New Britain Palm Oil Limited in which three people died and several were injured. In response the offenders issued threats against employees of the company and prevented them from going to work with the use of threats and force. They also threatened and intimidated company officials and confiscated the keys to three motor vehicles, a tractor and four oil tankers and drove them to a plantation where they kept them. They then demanded that the monies be paid or they would continue to hold the vehicles. The ringleader was sentenced to 5 years’ imprisonment in hard labour, with the others to serve 4 years each;
   • (b) The State v David Mabo (2009) N3884, Kandakasi J, in which the prisoner and two others had a confrontation with a Morobean family in Kimbe which resulted in the offender receiving a cut to his ear. The offender and others armed themselves with bush and grass knives, sticks and stones and demanded K1180 with threats of violence, which monies were paid. The offender pleaded guilty, and the Court recognised that there was some non-legal provocation and that the amount of money was not substantial. Against this there were threats of violence, in company, against a person outside his home province. The offender had a prior conviction for possession of a dangerous weapon. On guilty plea he was sentenced to 4 years, less time in custody, with one year of the balance to be suspended upon restitution and a public apology;
   • (c) State v Apkas (2019) N7990, Berrigan J in which the offender, a Field Engineer with Telekom PNG (Telekom), was convicted following trial of demanding a total of K60,000, which was deposited into the offender’s personal account on three separate occasions in November 2017, under threat that payment for seven outstanding projects would not be made nor any future contracts awarded to MASIP Engineering and Consultant Limited. He was sentenced to three years’ imprisonment, one year of which is suspended on conditions, including community service;
   • (d) State v Tom (2023) N10252, Miviri J in which the offender was injured in a vehicle accident that involved a hospital vehicle. Upon seeing the vehicle and accompanies by others he threatened its occupants with bush knives and stones forcing them out before taking possession and demanding payment of K50000 for its return. He was sentenced to three years, one year suspended, the balance to be served;
   • (e) The State v Nathan Mailen and Junior Leo Mailen (2007) N5036, in which two brothers were convicted in relation to two separate incidents. In the first, Nathan Mailen pleaded guilty to entering the yard of a neighbouring family, whilst drunk, shouting and swearing. He demanded K200 compensation over an incident involving the complainant’s son and his sister. He threatened violence against the complainant, his wife and daughter. A fight broke out and the offender punched the man and his daughter, without causing serious injury. Having regard to the threats of violence, the actual violence, and the risk of serious injury, Cannings J sentenced the offender to three years taking into account his plea of guilt, remorse, lack of prior record and the presence of de facto provocation (regarding the incident with his sister); and
   • (f) The State v LP (2025) N11356, Berrigan J: the offender, a 25 year old female, pleaded guilty to extorting K60,300 from a married man to whom she fell pregnant. She initially received K2500 when he demanded that she obtain an abortion. Over a number of months she demanded and received a further K57,800 from Mr Poriambep whilst pretending to be another person and on the basis that she, the offender, had died in hospital whilst receiving surgery. The monies were demanded for funeral arrangements, customary obligations and related matters. All were demanded under threat of disclosure of the affair to the complainant’s wife, who ultimately discovered the threats on her husband’s phone and reported the matter to police. The offender was sentenced to two years of imprisonment, from which one year, one month, three days spent in custody was deducted, with the balance suspended. There were extenuating circumstances. The complainant had a sexual relationship with the complainant over an extended period of time when she was only a fifteen or sixteen year old child and in breach of trust given his relationship with her family, following which she dropped out of school and has remain unemployed ever since. It was against that history, its psychological impact, and the distress of pregnancy and abandonment that the offender committed the offence.
     

Consideration

6. I remind myself that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Consideration must be given to protection of the community, punishment, rehabilitation and deterrence: Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510. Guidelines and comparative cases are important considerations but every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
   
7. Given the State’s submission it is necessary to make clear that the fact that the offender exercised his right to trial is not a matter of aggravation. He is simply not entitled to any discount that might have been available to him had he pleaded guilty: The State v Solomon Junt Warur (2018) N7545.
   
8. The offending in this case is not of the worst kind but it is very serious.
   
9. In aggravation the offence involved planning and was committed over a period of about two weeks before police intervened. The demand was repeated and the threat persistent. The amount of monies demanded under the charge, K50,000, was substantial, as was the K3900 I found the offender received, which he spent for his own purposes. What makes this offence particularly serious, however, is that it was committed by a serving police officer for personal gain on the threat of charging the complainant with a serious criminal offence or offences.
   
10. Whilst not a senior police officer, the offender was a longstanding member of the RPNGC. He used his position and experience, his access to police assets – a vehicle and weapons - to commit the offence. Whilst the State did not establish the identity of the officers with the offender when he took Mr Sauka into his custody on 24 December 2019 there can be no doubt that the offender used their presence, and the fact that they were armed, to give weight to his threat that he would have Mr Sauka criminally charged and to intimidate Mr Sauka with thinly veiled threats of violence against him and his family.
    
11. It is well established that, in general terms, police officers must expect more severe punishment when they fail to uphold the law they swore to protect: State v Naime (2005) N2873 and the cases applying, especially where the offending is connected in some way with their role as a police officer: see Garry Louha v The State (2023) SC2552; State v Konny (2012) N4691; State v Kara (2018) N7360; The State v Benedict Simanjon (2020) N8637 at [64]; The State v Tony Kande & Ors (2021) N9252 at [62]; The State v Nathan Manikumbu & Ors (2023) N10116 at [36], amongst others.
    
12. That is particularly so in a case of extortion, which strikes at the heart of policing. “Public confidence in the criminal justice system depends in very large part on the hard work and integrity of the police force. They are at the front line of law and order”: Kande at [67]. It is a serious attack on the system of justice, and on public confidence in it, that the very person charged with the responsibility of enforcing the law abuses that authority for personal gain.
    
13. Such conduct brings into disrepute all those officers who serve with honour and distinction, threatens the morale and discipline of the Police Force, and undermines the very confidence in the Constabulary which is so essential to maintaining the rule of law: The State v Simanjon (2020) N8637 at [56].
    
14. In addition, extortion is by its nature difficult to detect and particularly so if committed by a police officer. Whilst Mr Sauka did not immediately report the matter to police he did ultimately do so and the Constabulary is to be commended for its swift response led by CI Winuan.
    
15. It follows that in addition to personal deterrence the case calls for strong general deterrence.
    
16. As for the offender, Mr Kifoi is from Watabung LLG, Daulo District, Eastern Highlands Province. He is 36 years old and spent most of his life in NCD with his now deceased parents. He has a wife and five young children aged three to eighteen years of age. He is educated to Grade 12 and joined the Police Force almost twenty years ago.
    
17. In mitigation this is his first offence. He has expressed remorse for taking monies from Tars Sauka and is committed to making restitution to him of K9600 and a further compensation payment of K5000 under the Criminal Law (Compensation) Act, within three months. I accept that he is genuinely remorseful about the monies receive and the distress caused to Mr Sauka in that regard, and his intention to repay the monies but it is apparent from his statement on allocutus that he maintains his innocence of the offence of extortion. He is entitled to do so but it qualifies the extent of his remorse.
    
18. The offender is of prior good character and according to the pre-sentence report is a well-respected member of the Tokarara community and its street youth. Peter Simbago, Village Court Magistrate, confirms that the offender plays an important role maintaining law and order in the community.
    
19. I also recognise that the offender has played a critical role in the service of the State in the RPNGC. He was appointed to the Major Organised Crime Investigation Team and specifically tasked to the uninformed “A Team” responsible for apprehending some of Papua New Guinea’s most dangerous and notorious criminals, in some of the most challenging conditions and without the training, equipment and other support available to similar units in other countries. Detective Superintendent Volo confirms that he served the unit well for many years and has been involved in the successful apprehension and prosecution of those involved in the BSP robberies by Kapris and his team, the Corps Security robbery of K1.6m, the G4S armoured car robbery of K6.3m, the Tropic Air airport robbery of K1.2 million and the apprehension of William Kapris in 2008 and Tommy Baker in 2018.
    
20. The effect of the offence on the offender will be grave. He has already been stood down and will inevitably be dismissed pursuant to s 33 of the Police Act. He will struggle to find future employment given the nature of his conviction and his education, age and experience. The conviction will bring shame to him and his family.
    
21. I appreciate that the offender is the sole breadwinner for his wife and young family and that the loss of his employment and any incarceration will severely affect them. I also appreciate that he holds genuine concerns about their security whilst he in custody. It is well established, however, that except in very extreme circumstances, the impact on family is not ordinarily a relevant consideration on sentence: Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424. As an experienced police officer the offender was better placed than most to know that his conduct risked incarceration.
    
22. There are no extenuating circumstances.
    
23. I reject the submission that the offence was committed during a genuine investigation into Mr Sauka. I rejected the offender’s evidence about that at trial. But that is really beside the point. I reject the submission that that would be a mitigating factor in any event. It is difficult to know which is worse; threatening an innocent person with criminal charges for financial gain or promising to let a suspected criminal go free for that purpose.
    
24. Nor do I accept that Mr Sauka contributed to the seriousness or duration of the offence by complying with the demand on several occasions. Mr Sauka should have reported the matter to police immediately but I accept that he was genuinely afraid for the safety and welfare of his family and was not sure where or how to report a police officer to police. The fact that Mr Sauka succumbed to the threat is not a factor in mitigation.
    
25. I accept that there was no actual violence, as in Tom, Mailen and Kep but there were implied threats of violence and again, the gravity of this offence lies in the nature of the threat by a police officer for gain.
    
26. It has been some five years since the commission of the offence. I note the principles applying. That delay must be balanced against 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 at [37].
    
27. Having regard to all of the circumstances I sentence the offender to five years of imprisonment without hard labour. To date there has been no time spent in custody.
    
28. The offender, his family and his local community leader call for the sentence to be suspended, a submission which is supported by Probation Services.
    
29. 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.
    
30. Restitution is not appropriate here. I appreciate that Mr Sauka suffered a financial loss but the real victim is the State, in particular the Constabulary, and the public whose confidence in it has been diminished. I do not intend to order restitution. The monies are best kept for the offender’s family.
    
31. I am not satisfied that the offender will suffer excessively in prison. I appreciate that the offender has been responsible for the apprehension of dangerous criminals, some of whom have died and others who are incarcerated, and that there are those at Bomana who may wish him harm. I accept, on the memorandum from Senior Inspector Cletus Yaki to the Commander in April 2016, that the offender, whilst on remand for his role in the alleged killing of William Kapris, was violently attacked by a fellow remandee.
    
32. Those are serious concerns but Mr Kifoi is not the first police officer to be imprisoned and it is the responsibility of Correctional Services to ensure his security and welfare in accordance with its obligations under the Correctional Services Act.
    
33. Similarly, whilst the offender suffers from hypertension and requires medication and regular review, his condition is one that can be treated whilst in custody. He is entitled to received reasonable and necessary health care pursuant to s 141(1) of the Correctional Services Act 1995.
    
34. In conclusion, a custodial term is not only appropriate but necessary in this case to deter other police officers from committing similar offences and to maintain public confidence in the justice system.
    
35. I make the following orders:
    
    • (a) The offender is sentenced to five years of imprisonment without hard labour;
    • (b) Any deposited bail monies shall be refunded.
      

Sentence accordingly.

--________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyers for the offender: Emmanuel Lawyers