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Peni v Manning [2025] PGNC 276; N11350 (5 June 2025)

N11350

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 52 OF 2025 [IECMS]

BETWEEN:
PARFREY PENI
Applicant

AND:
DAVID MANNING, in is capacity as the COMMISSIONER OF POLICE
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: DINGAKE J
5 JUNE 2025

JUDICIAL REVIEW – application for leave for judicial review – review of decision made by police commission in dismissing applicant from the Royal Papua New Guinea Constabulary following his conviction for assault - pre-requisites to satisfy court before grant of leave – consideration of – applicant has no arguable case – leave refused

Counsel
Mr. Elizah Misikali for the applicant
Mr. Michael Sole for the respondents

1. DINGAKE J: INTRODUCTION: The Plaintiff Parfrey Peni brings a challenge to a decision of the Commissioner of Police who dismissed him from the Royal Papua New Guinea Constabulary following his conviction for assault. The question before the Court is not whether the Commissioner acted properly or fairly – that is for another day. The question today is simpler, though not without bite: should Mr Parfrey Peni be given permission to argue his case at all?
   
2. This is an application for leave – the gateway to judicial review. Leave is not granted as of right. But it is not a fortress either. If a man can show that there is an arguable case, not fanciful or absurd, the gates should open.
   

The Facts

3. The facts are not in dispute. The Plaintiff was convicted in the District Court of assault. He was sentenced to “six months non-custodial imprisonment” and fined Five Hundred Kina (K500) with the default position that failure to pay would result in actual imprisonment for six months. He was never taken into custody. He remained at liberty.
   

The terms of the Court Order were:

1. The defendant is sentenced to six years (6) months non-custodial imprisonment.
2. The Defendant is placed on a Good Behaviour Bond for a duration of six (6) months of non-custodial imprisonment.

100. The Defendant shall not repeat the same offense towards the complainant or any other person within six (6) months non-custodial sentence period.

4. The Defendant shall pay K500.00 compensation for injuries sustained.
5. K300.00 bail shall be converted to part payment of the compensation, and the K200.00 bail shall be paid within two weeks from the date of this order.
6. In default of payment and/or breach of this order, the defendant shall be imprisoned for six (6) months at Bomana Correctional Service in light labour.

Dated at Boroko the 05^th day of January, 2024

By the Officer in Charge of the Records - Boroko District Court

4. Following this, the Police Commissioner acted under Section 33(2) of the Police Act, which provides:
   

“A member who is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed shall be dismissed forthwith from the Force.”

5. The Commissioner dismissed him on the ground that a term of imprisonment had been “imposed”. The Plaintiff disputes this interpretation, arguing that since the sentence was non-custodial, it does not qualify as a “term of imprisonment” under the section.
   
6. The Solicitor General, with admirable candour, concedes that all formal criteria for leave have been satisfied – except one. Counsel for the Second Respondent argues that the Plaintiff’s case based on Section 33(2) of the Police Act is not arguable. But this is the very hinge of the door, and we must look closely at it.
   

The Legal Question

7. So, the matter turns on this: does a sentence of “non-custodial imprisonment” constitute a “term of imprisonment” under Section 33(2) of the Police Act.
   
8. First, the statute speaks in stern terms: “term of imprisonment is imposed”. But what is imposed? Is it what is handed down by the Court, regardless of whether it is served behind bars? Or must there be confinement? The Act does not define it.
   
9. Second, there is the mischief that Section 33(2) of the Police Act above seeks to prevent. This mischief, in my opinion, is to ensure that Police Officers who commit crime or otherwise engage in misconduct should not serve in the Police Force.
   
10. In this matter, I am required to consider whether the Plaintiff was sentenced to a prison term. On the evidence and based on the order reproduced earlier, he was sentenced to a “term of imprisonment”.
    
11. Given my conclusion that the Applicant was convicted of an offence, of which “a term of imprisonment was imposed”, I do not think the Applicant has established the arguability test.
    
12. The granting or refusal of leave is a matter of discretion by the Court having regard to the totality of the circumstances of the case. Here is a case of a police officer who has been convicted of a criminal offence. He seeks leave to challenge the decision to dismiss him following a conviction. Given his position as a police officer, his duty to uphold the law and that he was convicted of a criminal offence, it seems to me that to grant him leave to review the decision of the Commissioner to dismiss him is not in public interest, nor in the interest of justice. In this case, even if the Applicant had met the arguability test, for the reasons state above, I would still refuse him leave to review the decision of the First Respondent in exercise of my discretion.
    
13. Orders
    
    1. Leave to apply for judicial review is refused.
       

________________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the respondents: Solicitor General