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Transfer of Offenders Act 1995

CONSOLIDATED ACTS OF SAMOA 2008

TRANSFER OF OFFENDERS ACT 1995

Arrangement of Provisions

TITLE
1. Short title
2. Interpretation
3. Request for transfer and signification of Agreement
4. Transferred offenders
5. Effect of transfer
6. Prisoner to be detained in prison
7. Juvenile offenders
8. Remission
9. Parole
10. Pardon
11. Persons of unsound mind
12. Offenders in lawful custody during transfer
13. Transfer of offenders from Samoa
14. Regulations

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THE TRANSFER OF OFFENDERS ACT 1995

1995 No. 2

AN ACT for the carrying into effect of arrangements made for the transfer of offenders convicted in other countries of criminal offences and for the enforcement in Samoa of sentences upon them and for the return of foreign offenders to other countries.

(31 January 1995)
(Commencement date 31 January 1995)

1. Short title - (1) This Act may be cited as the Transfer of Offenders Act 1995.

(2) This Act shall come into force on the day it is assented to by the Head of State.

2. Interpretation - In this Act, unless the context otherwise requires:

"Cabinet" means the Cabinet of Ministers constituted under Article 32 of the Constitution.

"Convicted" includes a finding of guilt.

"Foreign offender" means an offender who is a citizen of a scheduled country or a person who has, or who claims to have, close ties with a scheduled country.

"Imprisonment" includes detention.

"Minister" means the Minister of Justice and Courts Administration.

"Offender" means a person, irrespective of age, who is:

(a) A citizen of Samoa; or

(b) A person having the status of a permanent resident of Samoa; or

(c) A person who, in the opinion of the Minister, has close ties with Samoa,-

who is ordinarily resident in Samoa and who has been convicted in a scheduled country of an offence by a Court of Competent Jurisdiction and upon whom sentence has been imposed in a prescribed country in consequence thereof.

"Prescribed" means prescribed by regulations made under section 14.

"Sentence" includes imprisonment, and supervision while at liberty on parole or on probation.

"Scheduled country" means a country named in the Schedule to this Act with which arrangements have been made for the transfer of offenders or for the enforcement of sentences.

"Transferred" means transferred from a scheduled country to Samoa.

3. Request for transfer and signification of agreement - (1) Where the Minister is informed by the responsible authority of a scheduled country that an offender has applied for transfer to Samoa and that country has agreed to such transfer, the Minister shall cause the said authority to be advised whether the Government of Samoa agrees or does not agree to such transfer; and if both Governments agree to such transfer the Minister shall subject to this Act, initial such procedure to effect the transfer as shall be agreed upon between the responsible authority of the scheduled country and the Minister.

(2) The agreement of the Government of Samoa to the transfer of an offender from a scheduled country, and to the enforcement of a sentence imposed upon the offender in a scheduled country, shall not be given unless:

(a) The following information and documents have been sent from the responsible authority of the sentencing country to the Minister;

(i) The name, date and place of birth of the offender;

(ii) The address, if known, of the offender in Samoa;

(iii) A certified copy of the judgment and a copy or account of the law on which it is based;

(iv) A statement of the facts on which the conviction and sentence were based;

(v) The nature, duration and date of commencement of the sentence;

(vi) Where appropriate, any medical or social reports on the offender, including information about his or her treatment in the sentencing country and any recommendation for his or her further treatment;

(vii) Any other information which the Minister may specify as being required in all cases to enable the Minister to consider the possibility of transfer and to enable Minister to inform the offender and the scheduled country of the full consequences of transfer for the offender; and

(b) Cabinet has concurred with a recommendation of the Minister that the prisoner be transferred.

4. Transferred offenders - A transferred offender shall be dealt with, and the sentence imposed upon the offender shall be enforced, in accordance with the provisions of this Act.

5. Effect of transfer - (1) When an offender is transferred to Samoa the conviction and sentence recorded by the Court in the scheduled country shall, subject to subsection (3), be deemed for all purposes to be a conviction recorded and a sentence imposed by a Court of competent jurisdiction in Samoa.

(2) On the transfer of an offender to Samoa, any document transmitted by the responsible authority of the scheduled country from which the offender is transferred, being a document in which the conviction of, and the sentence imposed up upon the offender is set out, shall, if that document purports to be signed by a judicial officer or authority, or by the person in charge of any penal institution in that country, be accepted as evidence of the facts stated therein unless the contrary is proved, without proof of the signature or the official character of the person by whom it purports to be signed; and thereafter any such document shall be treated as a like document signed in respect of a person convicted and sentenced in Samoa and shall, subject to the provisions of this Act, have effect according to the tenor thereof.

(3) The conviction of, and the sentence imposed upon an offender transferred to Samoa pursuant to this Act shall not be subject to any appeal or to any form of review in Samoa.

6. Prisoner to be detained in prison - A transferred offender who has been sentenced to a term of imprisonment shall be detained in prison or in such other institution in Samoa as the Minister may direct.

7. Juvenile offenders - (1) A transferred offender sentenced to a term of imprisonment who would, if he or she had been convicted in Samoa have been treated by reason of his or her age as a juvenile and sentenced accordingly, shall be dealt with as his or her age dictates, in accordance with subsection (2).

(2) An offender to whom subsection (1) applies shall be produced before the Supreme Court or other Court or tribunal having jurisdiction to try the offence which the offender has been convicted and that Court or tribunal shall sentence the offender on the basis of the conviction by the Court in the scheduled country and with regard to the nature of the offence, and to any observations made by the convicting Court in passing sentence, as if the offender has been convicted of that offence by the Court or tribunal having jurisdiction in the matter in Samoa.

8. Remission - (1) A transferred offender sentenced to a term of imprisonment shall:

(a) Be credited with any remission of that term to which he had become entitled at the date of his or her transfer in accordance with the law in that behalf in force in the scheduled country; and

(b) Be eligible to earn remission as if he or she had been sentenced to a term of imprisonment of the same length by a Court in Samoa.

(2) Any remission of imprisonment referred to in subsection (1)(a) shall be liable according to law to forfeiture for a disciplinary offence as if it were remission earned by virtue of subsection (1)(b).

9. Parole - (1) The Prisons Parole Board Act 1977 and the Parole Board established thereby shall respectively apply to, and have jurisdiction over, a transferred offender as if he or she had been convicted and sentenced to a term of imprisonment of the same length by a Court in Samoa.

(2) A transferred offender serving a term of imprisonment who is not at the date of his or her transfer on parole shall become eligible for parole on the date on which he or she would have become eligible for parole if he or she had been convicted and sentenced in Samoa.

(3) If a transferred offender has before his or her transfer been released on parole in the scheduled country in which he or she was convicted and sentenced and that parole was subsequently revoked, then the time spent on parole shall count towards the completion of his or her sentence in Samoa.

(4) A transferred offender who is, at the date of his or her transfer, on parole in the scheduled country in which he or she was convicted and sentenced shall be deemed for all purposes to have been convicted and sentenced in Samoa and to have been released on parole by the Parole Board, notwithstanding that a person actually so convicted and sentenced might not otherwise be eligible for parole in Samoa.

(5) A breach in Samoa of any condition on which parole was granted in a scheduled country shall render the offender liable to the same consequences as if he or she had been released on parole by the Parole Board on condition, and he had broken that condition.

10. Pardon - Where the prerogative of mercy has been exercised in a scheduled country in respect of a transferred offender on whom the sentence is being enforced in Samoa that offender shall no longer be detained in prison or otherwise, or be subject to parole or to supervision on probation by reason only of the sentence imposed for the offence for which pardon has been granted.

11. Persons of unsound mind - If a person who is ordinarily resident in Samoa has been charged with an offence and has been detained with or without conviction by order of a Court in a scheduled country because he or she has been found to be incapable by reason of mental illness to stand trial or to be for the same reason incapable in law of being convicted of that offence, that person may be transferred at the request of the Government of that country, notified by the responsible authority of that country, and with the agreement of the Government of Samoa to Samoa.

12. Offenders in lawful custody during transfer - An offender shall, while he or she is being transferred, be deemed to be in the lawful custody of the person duly authorized to conduct him or her and to be subject to the same restraint and in the event of misbehaviour, to the same punishment as if he or she were in prison in Samoa and as if the person conducting him or her were a prison officer; and if the offender escapes or attempts to escape from such custody the offender and any person aiding or attempting to aid him or her in such escape shall be liable on conviction to the same penalty as if such escape or attempt to escape were an escape or an attempt to escape from such a prison.

13. Transfer of offenders from Samoa - A foreign offender may request transfer to a scheduled country by applying to the Minister and if his or her transfer is agreed to by the Minister acting with the concurrence of Cabinet and by the Government of the scheduled country, the offender may be conveyed to that country and delivered to the authority designated by the Government of that country.

14. Regulations - (1) The Head of State acting upon the advice of Cabinet may make regulations for the carrying into effect of this Act.

(2) Notwithstanding subsection (1) the Head of State may by Order add to the Schedule, the name of any country with whom arrangements have been made for the transfer of offenders, and may delete from the Schedule, the name of any country with whom any such arrangements have been revoked or cancelled.

REVISION NOTES 2008

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –

(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.

(b) All references to the male gender have been made gender neutral.

(c) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.

(d) Amendments have been made to up-date references to offices, officers and statutes.

(e) Other minor editing has been done in accordance with the lawful powers of the Attorney General.

There were no amendments made to this law since the publication of the Western Samoa Statutes Reprint 1978-1996.

Revised and consolidated by Graham Bruce Powell
Under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

REVISION NOTES 2008 No. 2

The commencement date (which as stated in section 1 is the date of assent) is inserted under the assent date - under the Attorney General’s powers in the Revision and Publication of Laws Act 2008.

There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

The Transfer of Offenders Act 1995 is administered
in the Ministry of Justice and Courts Administration.