HIGH COURT OF AMERICAN SAMOA

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

IETI NAUFA'AMU, Defendant.

District Court of American Samoa

DCR 421-13

July 18, 2013

[1] Under A.S.C.A. § 47.0402, the mandatory fine for a domestic or family violence crime conviction of $150.00 is paid to the court. 
 
[2] The Court may use up to one-third of the fines under A.S.C.A. § 47.0402 to off-set its costs of collection and deposit as well as to cover filing fee waivers costs and preparation costs of forms required under Title 47 A.S.C.A. The balance of the fines, after such authorized Court costs are subtracted, are deposited quarterly in the A.S.G. General Fund and earmarked for victim services, training, a batterer's counseling program, and other uses. 
 
[3] A.S.C.A. § 47.0102 applies to all of the chapters in Title 47 even though it restricts the applications of the definitions to "[a]s used in this chapter." This appears to have been an oversight or misprint, because the definitions are used throughout the remaining chapters of this Title. 
 
[4] The list of the "crimes within the crime" presented in Section 47.0401(a) sets forth broad categories of criminal behavior and does not reference or identify the corresponding Title 46 crimes; however, the Court presumes the Legislature when listing these "crimes" intended Title 46 crimes to be the "crimes" within the crime of domestic and family violence. 
 
[5] When Title 46—Criminal Justice—was enacted in 1979, it not only codified the bulk of the Territory's criminal offense and infraction statutes in that Title, but also established how criminal offense and infraction statutes established under different titles of A.S.C.A. were to be classified and charged, as well as how much cases were to be adjudicated and the punishment for violations imposed. 
 
[6] Because the Legislature did not amend or provided exemption from the controlling Title 46 criminal law sections when enacting Title 47 in 2004, the Court must assume the crime of domestic or family violence established therein was intended to be subject to the Title 46 provisions. 
 
[7] Pursuant to A.S.C.A. § 46.1901, every person found guilty of an offense, whether set forth in Title 46 or elsewhere in the A.S.C.A., shall be sentenced under the provisions of Title 46, except that for offenses established outside of Title 46, the term of imprisonment or fine that may be imposed is that set forth in that separate statute. 
 
[8] An offense defined in a statute outside of Title 46 is an infraction if no punishment other than a fine is imposed. 
 
[9] When sentencing a person found guilty of committing an infraction, the Court has the sentencing options of imposing a fine, suspending the imposition or execution of a sentence to pay a fine and place the person on probation, with a separate option of requiring the person to perform ordinary labor. 
 
[10] Crime defined in Title 47 is an infraction that although dependent upon committing another crime as an element is separately punishable only by a mandatory minimum fine. 
 
[11] The Court denied Defendant's motion to defer in part the mandatory imposition of the $150.00 fine for his Title 47 crime because the Legislature specifically set forth how infraction fine proceeds are to be applied or deposited in A.S.C.A. § 47.0402. 
 
Before: WARD, District Court Judge 
 
Counsel: For Plaintiff, Lorna C. Meredith, Assistant Attorney General, Masaya Uchino, Assistant Attorney General 
 For Defendant, Karen Shelly, Assistant Public Defender 
 
ORDER DENYING MOTION TO REDUCE FINE
 
This matter came on regularly for hearing on July 18, 2013 upon motion by the Defendant. Raised therein was Defendant's request to have the Court off-set the mandatory fine requirement under A.S.C.A. § 47.0402 by giving credit for some or all of the counseling fees Defendant will be required to pay. 

Background 
 
Defendant was charged with Assault in the Third Degree (A.S.C.A. § 46.3522(a)(1)) and Endangering the Welfare of a Child (A.S.C.A. § 46.3810(a)(1)), on May 30, 2013. Both are Class A misdemeanors. On July 2, 2013, the Government and Defendant announced a plea agreement under which Defendant would enter a plea of guilty to an amended lesser charge of Assault in the third degree, a Class C misdemeanor, charged as a Domestic [**2**] Violence crime under Title 47 of the A.S.C.A. The Court accepted the plea and on the issue of crediting the counseling fees against the mandatory fine of $150.00 imposed in Domestic Violence crimes, requested briefing. Both the Government and Defendant acknowledge that the only batterers counseling program available within the Territory is provided by Catholic Social Services for which a $95.00 fee is required for participants. 
 
[1-2] Under A.S.C.A. § 47.0402 the mandatory fine for a domestic or family violence crime conviction of $150.00 is paid to the court. The Court may use up to one-third of such fines to off-set its costs of collection and deposit as well as to cover filing fee waivers costs and preparation costs of forms required under Title 47 of the A.S.C.A. The balance of the fines, after such authorized Court costs are subtracted, are deposited quarterly in the A.S.G. General Fund and earmarked for victim services, training, a batterer's counseling program, and other uses. The Court has collected such fines in the past and deposited them as required by law, but the Department of Human and Social Services has not as yet developed a non-fee batterer's counseling program. 
 
In the past this Court has deferred, in whole or part, fines imposed upon conviction for those persons ordered to attend other fee-based Catholic Social Services programs such as Family Counseling or Alcohol Counseling, as part of their [**3**] conditions of probation; most of those instances were for convictions of misdemeanor offenses under Title 46 Criminal Justice, A.S.C.A. In this matter the authority of the Court to defer all or part of the fine imposed upon the Defendant in return for paying fees and attending counseling is less clear. 
 
Discussion Statutory Construction 
 
[3] Title 47 consists of 8 Chapters providing civil remedies, criminal sanctions, and government policies and programs addressing domestic or family violence. Apparently because this separate Title of the American Samoa Code Annotated was intended to address all aspects of such violence, the definitions of ‗domestic or family violence' and ‗family or household members' contained in Chapter 1 of this Title were cast in terms broad enough to apply to all of the following chapters dealing with separate aspects, remedies, punishment, and programs to prevent such violence. Although A.S.C.A. § 47.0102 Definitions, restricts the applications of the definitions to "[a]s used in this chapter", this appears to have been an oversight or misprint, because the definitions are used throughout the remaining chapters of this Title. Chapter 04 Criminal Violations, of Title 47 defines a "crime involving [**4**] domestic of family violence" at Section 47.0401. Section 47.0402 addresses the mandatory minimum fine of $150.00 (discussed above) imposed upon all persons convicted of such a crime. 

The essential elements of a Title 47 crime may therefore be reduced to: 
 
Any family or household member not acting in self-defense who attempts to cause or cause physical harm to a family or household member, or places such in fear of physical harm, or causes such person by force, threats thereof, or duress, to engage in sexual activity and commits or one or more of the crimes listed in Section 47.0401(a), against a family or household member, is guilty of a crime of domestic or family violence, punishable by a mandatory minimum fine of $150.00. 
 
[4] The list of the "crimes within the crime" presented in Section 47.0401(a) sets forth broad categories of criminal behavior. Neither the classes within, nor the elements of, these "crimes" are provided. Although the Legislature previously enacted The Criminal Justice Act of 1979, Title 46 Criminal Justice, A.S.C.A. which defined, classified, prohibited, and provided punishment for, specific criminal behavior, the list of "crimes" within Title 47, Section [**5**] 47.0401(a) A.S.C.A. does not reference or identify the corresponding Title 46 crimes. For purposes of considering this motion, the Court presumes the Legislature when listing these "crimes" intended Title 46 crimes to be the "crimes" within the crime of domestic and family violence. 
 
[5-9] When Title 46—Criminal Justice, A.S.C.A. was enacted in 1979, it not only codified the bulk of the Territory's criminal offense and infraction statutes in that Title, but also established how criminal offense and infraction statutes established under different Titles of A.S.C.A. were to be classified and charged, as well as how much cases were to be adjudicated and the punishment for violations imposed. Because the Legislature did not amend or provided exemption from these controlling, Title 46 criminal law sections when enacting Title 47 in 2004, the Court must assume the crime of domestic or family violence established therein was intended to be subject to those Title 46 provisions. Pursuant to A.S.C.A. § 46.1901 General Sentencing Provisions, every person found guilty of an offense, whether set forth in Title 46 or elsewhere in the A.S.C.A., shall be sentenced under the provisions of Title 46, [**6**] except that for offenses established outside of Title 46, the term of imprisonment or fine that may be imposed is that set forth in that separate statute. Under A.S.C.A. § 46.3103, an offense defined in a statute outside of Title 46 is an infraction if no punishment other than a fine is imposed therein. The Court, when sentencing a person found guilty of committing an infraction has the sentencing options of imposing a fine, suspending the imposition or execution of a sentence to pay a fine and place the person on probation, with a separate option of requiring the person to perform ordinary labor. A.S.C.A. § 46.1903. 
 
Application 
 
[10] Under the applicable statutes it appears the crime defined in Title 47 is an infraction that although dependent upon committing another crime as an element thereof, is separately punishable only by a mandatory minimum fine. In this case, the defendant was originally charged with two misdemeanor offenses under Title 46: Assault in the third degree, a Class A misdemeanor under A.S.C.A. § 46.3522(a)(1); and Endangering the welfare of a child, a Class A misdemeanor under A.S.C.A. § 46.3810(a)(1). At the pre-trial hearing the government, pursuant to a plea agreement with the defendant, moved to amend the charges against defendant to a domestic violence crime of Assault in the third degree as a Class C misdemeanor and dismiss [**7**] the remaining Title 46 misdemeanors. The Court then went through the entire plea agreement litany with the Defendant. At the allocution stage of that process, the Defendant acknowledged that he had knowingly slapped his niece to discipline her. 
 
At this stage of the proceedings the Court was satisfied the essential elements of the Title 47 crime had been established and Defendant's plea of guilty was knowingly, voluntarily, and intelligently made, and so declared.4 Being presented, by way of plea agreement and motion with what appeared to be this Court's first purely Title 47 conviction, the Court continued the sentencing of the Defendant allowing counsel to brief their opinions as to whether the mandatory minimum fine for that offense could lawfully be diminished if the Defendant, as a condition of probation was ordered to attend and pay for a batterer's counseling program. 
 
Positions of the Parties 
 
[11] Defendant argues that the Court may and should decrease the fine because the government has not established a non-fee counseling program as funded by the mandatory fines. The Government's position is more nuanced, stating, essentially, that the Court could diminish the fine to the extent that the [**8**] net fine proceeds earmarked for deposit and distribution to agencies of government were not affected. Although each of these positions acknowledge that a defendant being assessed a fine designed in part to fund an unavailable government service requires fairness considerations in sentencing, the statute enacted by the Legislature specifically sets forth how the fine proceeds are to be applied or deposited. Up to one-third of such fines collected may be used by the Court to off-set administrative costs, non-fee filings, and costs of mandated forms. The balance must be deposited in the A.S.G. General Fund earmarked for the victims of crime advocacy program. A.S.C.A. § 47.0402. The clear meaning of this statute is that the Court may use up to one-third of these funds, but only for the cost offsetting purposes specified therein. All remaining funds are then deposited in the General Fund. The proposed, "use" of these funds via a suspended portion of the fine for attending fee-based batterer's counseling would amount to an unauthorized court cost being imposed and the illegal reduction of the deposit of the earmarked funds in the General Fund. 
 
Conclusion 
 
A person convicted of a Title 47, crime of domestic or family violence is required to pay the mandatory minimum fine of $150.00 to the court. After subtracting up to one-third of this fine for costs permitted under the statute the balance must be [**9**] deposited in the A.S.G. General Fund. The Court is precluded from otherwise indirectly using or reducing these fines. For reasons set forth above, Defendant's motion to defer in part the mandatory imposition of the $150.00 fine for this Title 47 crime is therefore denied. 
 
So Ordered. 
 
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