LAWS OF WESTERN SAMOA

[1978-1996 Reprint]

OFFENDERS PROBATION ACT 1971

ANALYSIS

Title

PART I

PRELIMINARY

1. Short title
2. Interpretation
3. Administration

PART II

GENERAL POWERS OF COURT AND PROBATION OFFICERS

4. Probation officers
5. Powers and duties of probation officers
6. Report of probation officer to be given to offender
7. Power of Court to impose probation
8. Conditions of release
9. Power of Court to impose additional conditions
10. Variation of conditions and discharge from probation
11. Breach of conditions of probation
12. Sentences for original offences
13. Effect of subsequent sentence on probation
14. Discharge on expiry of probation
15. Power of Court to disqualify offenders from driving motor vehicles
16. Regulations

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THE OFFENDERS PROBATION ACT 1971

1971, No. 5

AN ACT to make provision for the probation of offenders and for probation officers.

(15 July 1971)

PART I

PRELIMINARY

1. Short title - This Act may be cited as the Offenders Probation Act 1971.

2. Interpretation - (1) In this Act, unless the context otherwise requires:

"Court" means any Court exercising any jurisdiction in any prosecution for an offence, other than a Magistrate's Court presided over by a Fa'amasino Fesoasoani who has not been granted extended jurisdiction under section 18 of the Magistrates' Courts Act 1969;

"Enactment" includes each Article of the Constitution, and any Act, Ordinance, Order, notice, warrant, rules and regulations in force in Western Samoa, whether made in Western Samoa or in New Zealand, and any part thereof;

"Fa'amasino Fesoasoani" means one who has been granted extended jurisdiction under section 18 of the Magistrates' Courts Act 1969;

"Minister" means the Minister of Justice;

"Offence" means any act or omission for which under any enactment any person can be punished other than solely by means of a civil proceeding;

"Prison" has the same meaning as in the Prisons Act 1967;

"Probationer" means any person for the time being under the supervision of a probation officer under or by virtue of this Act;

"Probation officer" means a probation officer appointed under Part II of this Act;

"Secretary" means the Secretary for Justice.

(2) Any reference in this Act to a previous conviction shall be construed as a reference to a conviction before or after the commencement of this Act, and within or out of Western Samoa.

(3) This Act shall apply to offences committed before or after the commencement of this Act.

3. Administration - This Act shall be administered by the Secretary under the control of the Minister.

PART II

GENERAL POWERS OF COURT AND PROBATION OFFICERS

4. Probation officers - (1) There may from time to time be appointed by the Public Service Commission a chief probation officer and such other probation officers as are required for the purposes of this Act.

(2) Notwithstanding anything in subsection (1) of this section, the Minister on the recommendation of the Secretary may from time to time appoint any person, or the holder for the time being of any office or appointment, as a probation officer in a part-time capacity for the purposes of this Act. No person appointed under this subsection shall by virtue of that appointment become an officer or employee of the Public Service and nothing in the law governing the Public Service shall apply with respect to that appointment. Any probation officer appointed under this subsection may be paid out of money appropriated by the Legislative Assembly for the purpose such remuneration by way of fees, and such allowances, as may be determined by the Minister with the concurrence of the Minister of Finance.

(3) Any appointment under this section may be held in conjunction with any office or appointment that is not deemed inconsistent therewith.

(4) Any person appointed under this section shall be responsible to the Secretary.

5. Powers and duties of probation officers - (1) A probation officer may, and shall when so required by any Court, report to the Court on the character and personal history of any person convicted of any offence punishable by imprisonment, with a view to assisting the Court in determining the most suitable method of dealing with his case; and may in any such report advise the Court whether the offender would be likely to respond satisfactorily to probation and whether any conditions of probation should be imposed.

(2) It shall be the duty of every probation officer:

(a) To supervise all persons placed under his supervision, with a view to assisting their social rehabilitation and preventing the commission of further offences;

(b) To perform such other duties as may be prescribed by or under this Act or any other enactment.

(3) Any probation officer may appear in any proceedings in any Court on behalf of any other probation officer.

(4) In the exercise of his powers and duties, every probation officer shall have the powers, protection, and privileges of a constable, and shall, in the manner set out in subsection (1) of section 14 of the Police Service Act 1977, take and subscribe the oath set out therein, or to the like effect, with substitution of a reference to "the Justice Department" for the reference to "the Police Service"

6. Report of probation officer to be given to offender - (1) Where under provision of this Act or of any other enactment, a written report is made to the Court by a probation officer, a copy of the report shall be given to the solicitor or council appearing for the offender, or, if the offender is not represented by a solicitor or counsel, to the offender.

(2) The offender or his solicitor or council may tender evidence on any matter referred to in any report, whether written or oral, that is made to the Court by a probation officer.

(3) Failure to keep a copy of any report in accordance with this section shall not affect the validity of the proceeding in any Court or of any order made or sentence passed by the Court.

7. Power of the Court to impose probation - (1) Where any person is convicted of any offence punishable by imprisonment the Court may in its discretion, instead of sentencing him to imprisonment, release him on probation for a period specified by the Court, being a period of not less than one year nor more than 3 years:

Provided that nothing in this Act shall affect the power conferred on any Court by any enactment other than this Act to release any offender on probation for any period referred to in that enactment and on any condition therein referred to.

(2) Where the Court releases any person on probation under this section, it may also sentence that person to pay a fine authorised by law or make an order under section 15 of this Act disqualifying him from holding or obtaining a driver's licence, or may impose such a fine and make such an order.

(3) Where any Court sentences any person to imprisonment for less than one year it may in its discretion order, as part of the sentence, that on his release from imprisonment he shall be on probation for any period, not exceeding one year, specified by the Court, and may impose any condition of probation under section 9 of this Act.

(4) For the purpose of any appeal or application for leave to appeal, a release on probation under the section shall be deemed to be a sentence or, where a fine is also imposed, to be part of the sentence.

(5) Where any person is released on probation under subsection (1) of this section, the Registrar of the Court shall notify the Secretary and the chief probation officer.

(6) Every probationer shall be under the supervision of the chief probation officer, or of such other probation officer as the Secretary may form time to time direct.

(7) When any person is released on probation, the chief probation officer shall issue to him a probationary licence setting out the condition subject to which he has been released.

8. Conditions of release - Where any person is released on probation, the following conditions shall apply:

(a) Within 24 hours after his release on probation, he shall report in person to a probation officer;

(b) He shall report to the probation officer under whose supervision he is for the time begin (hereinafter called "the probation officer"), as and when he is required to do so by the probation officer;

(c) He shall give to the probation officer reasonable notice of his intention to move from his address; and if he moves to any other address, he shall, within 48 hours after his arrival at that other address, notify the chief probation officer of his arrival, his new address, and the nature and place of his employment;

(d) He shall not reside at an address that is not approved by the probation officer;

(e) He shall not continue in any employment, or continue to engage in any occupation, that is not approved by the probation officer;

(f) He shall not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, warned him not to associate;

(g) He shall be of good behaviour and commit no offence against the law.

9. Power of Court to impose additional conditions - (1) The Court releasing any person on probation may in its discretion impose all or any of the following additional conditions, namely:

(a) That he shall, within such period and by such instalments as may from time to time be directed by the probation officer, pay the whole or such portion as the Court may direct of the costs of the prosecution in relation to the offence for which he is released on probation and any other offence of which he may be convicted or for which he may be brought up for sentence at the same time;

(b) That he shall, within such period find by such instalments as may from time to time be directed by the probation officer, pay, by way of damages for injury or compensation for loss suffered by any person through or by means of any such offence as aforesaid, such sum as the Court may direct or as may be fixed by the probation officer under the direction of the Court, not exceeding in any case such a sum specified by the Court;

(c) That, if the law then provides for the making of prohibition orders, he shall apply for such an order and keep it renewed during his term of probation;

(d) That he shall abstain from the use of intoxicating liquor, and of narcotics within the meaning given to that term by the Narcotics Act 1967, unless pursuant to a prescription of a licensee under that Act;

(e) That he shall not, either alone or jointly with any other person, own or have in his possession any specified article, or articles of any specified class;

(f) That he shall not associate with any specified person or with persons of any specified class;

(g) That he shall undergo any specified course of education or training;

(h) Such conditions relating to his place of residence, employment, or earnings, as the Court thinks fit;

(i) Such other conditions as the Court thinks necessary for ensuring his good conduct or for preventing the commission by him of any offence.

(2) Where under this section a direction for the payment of damages or compensation is given and at the expiry of the term of probation any sum remains owing to any person under the direction, that person may at any time within 12 months thereafter obtain from the Registrar of the Court where the direction was given a certificate of the direction and of the sum so owing. When any such certificate is filed in a Court of competent jurisdiction it may be enforced as if it were a judgment of that Court.

(3) No civil remedy for any act or omission shall be suspended by the imposition of a condition for the payment of any damages or compensation.

10. Variation of conditions and discharge from probation - (1) Subject to the provisions of subsection (5) of this section, any probationer under this Part of this Act may:

(a) At any time, apply to a Court for the remission, suspension or variation of any condition imposed by the Court, whether on his release or under this section;

(b) At any time after the expiration of half the term of his probation, apply to a Court for his discharge from probation.

(2) Subject as aforesaid, any probation officer may at any time apply to a Court:

(a) For the remission, suspension or variation of any condition imposed by the Court on any such probationer, whether on his release or under this section;

(b) For the discharge of any such probationer from probation;

(c) For the imposition of any additional condition in respect of any such probationer;

(d) For an extension of the term of probation of any such probationer, where that term is less than 3 years.

(3) On any application under this section, the Court, in its discretion, having regard to any change of circumstances since the offender was released on probation, may make an order remitting, suspending or varying any condition, or imposing any additional condition, or extending the term of probation, or doing all or any 2 or more of those things, or discharging the probationer:

PROVIDED THAT the Court shall not extend the term of probation beyond the end of 3 years from the date on which that term began.

(4) Where the Court makes an order for the discharge of any probationer, the term of his probation shall expire on such date as may be specified in that behalf in the order or discharge.

(5) Every application under this section shall be made:

(a) Where it relates to a person released on probation by the Supreme Court (other than on appeal from a Magistrate's Court) or the Court of Appeal, to the Supreme Court or a Judge thereof;

(b) Where it relates to a person released on probation by a Magistrate's Court presided over by a Magistrate, or by the Supreme Court on appeal from such a Magistrate's Court, to such a Magistrate's Court;

(c) Where it relates to a person released on probation by a Magistrate's Court presided over by a Fa'amasino Fesoasoani, or by the Supreme Court on appeal from such a Magistrate's Court, to such a Magistrate's Court.

(6) A copy of every application under this section shall, either before or immediately after the application is lodged in the office of the Court, be served on the probation officer or, as the case may require, the probationer.

(7) Where any application is made under this section for the remission, suspension or variation of any condition imposed on a probationer under paragraphs (c) to (i) of subsection (1) of section 9 of this Act, the probation officer may in his discretion suspend the condition until the application has been heard and disposed of.

(8) Any application under this section may in the discretion of the Court, be heard either in open Court or in Chambers, but, if heard in open Court, Clause (1) of Article 9 of the Constitution shall apply with any necessary modifications.

(9) Notice of any order made under this section shall be given by the Registrar of the Court to the Secretary and to the probation officer.

11. Breach of conditions of probation - (1) Every probationer commits an offence, and is liable on conviction before a Magistrate or a Fa'amasino Fesoasoani to imprisonment for a term not exceeding 3 months or to a fine not exceeding $100, who contravenes or fails to comply with any condition of his probation.

(2) Where any probationer is convicted under this section, any Magistrate or any Fa'amasino Fesoasoani may, in addition to or instead of sentencing the offender under subsection (1) of this section, do all or any of the following things, namely:

(a) Extend the term of probation by any specified period expiring not later than 3 years after the date on which that term began;

(b) Vary any condition of the probation imposed by any Court under this Part of this Act;

(c) Impose any additional condition.

(3) Notice of any order made this section shall be given by the Registrar of the Court to the Secretary and to the probation officer.

(4) Where any probation officer or any constable believes on reasonable grounds that any probationer has committed a breach of a condition of his probation, he may arrest the probationer without warrant.

12. Sentences for original offences - (1) Whenever any probationer (including a probationer who, in addition to being released on probation, was also sentenced to pay a fine or ordered under section 15 of this Act to be disqualified from holding or obtaining a driver's licence) is convicted of an offence under section 11 of this Act or is convicted of any other offence committed during the period of probation, any probation officer may apply to the Court to sentence him for the offence for which he was released on probation.

(2) Notice of every application made by a probation officer under this section shall be served on the probationer:

Provided that whenever an offender is charged under section 11 of this Act, any probation officer may if he thinks fit give notice to the probationer that if he is convicted of the charge under that section the Court will then be asked to sentence him for the original offence; and in any such case it shall not be necessary for any subsequent notice to be served on the probationer.

(3) Any application under this section shall be made:

(a) To the Supreme Court or a Judge thereof if the offender was released on probation by the Supreme Court (other than on appeal from a Magistrate's Court) or by the Court of Appeal; or

(b) To a Magistrate's Court presided over by a Magistrate if the offender was released on probation by such a Magistrate's Court or by the Supreme Court on appeal from such a Magistrate's Court; or

(c) To a Magistrate's Court presided over by a Fa'amasino Fesoasoani if the offender was released on probation by such a Magistrate's Court or by the Supreme Court on appeal from such a Magistrate's Court.

(4) If the application is dealt with by a Judge or Magistrate or Fa'amasino Fesoasoani other than the Judge or Magistrate or Fa'amasino Fesoasoani who released the offender on probation, the Judge or Magistrate or Fa'amasino Fesoasoani shall, before sentencing the offender, make such inquiries as to the circumstances of the case as he considers reasonable, and may if he thinks fit hear such evidence as is relevant thereto.

(5) The Judge or Magistrate or Fa'amasino Fesoasoani by whom an application is heard under this section may if he thinks fit deal with the offender for the offence for which he was released on probation in any way, other than by again releasing him on probation and, in any case where he was also sentenced to pay a fine, other than by sentencing him to pay a further fine and, in any case where he was ordered under section 15 of this Act to be disqualified from holding or obtaining a driver's licence, other than by again ordering him to be so disqualified, in which the Judge or Magistrate or Fa'amasino Fesoasoani could have dealt with the offender if he had just convicted him of that offence. If the offender is not sentenced or otherwise dealt with for that offence, he shall continue to be on probation.

13. Effect of subsequent sentence on probation - (1) Where any person released on probation under this Part of this Act is sentenced in respect of any offence to imprisonment for life or for a term of one year or more, the probation shall be deemed to be terminated.

(2) Where any person released on probation under this Part of this Act is sentenced in respect of any offence to imprisonment for less than one year, the term of his probation shall continue to run while he is detained under the sentence, and on his release from imprisonment he shall continue to be on probation for the then unexpired residue of that term, unless he is sooner discharged from probation under this Part of this Act.

14. Discharge on expiry of probation - Every probationer shall at the expiry of the term of his probation be deemed to be discharged, in respect of the offence for which he was released on probation, as if he had been sentenced and had served the term of his sentence.

15. Power of Court to disqualify offenders from driving motor vehicles - (1) Where any person is convicted of any offence punishable by imprisonment and:

(a) At the time of the commission of the offence the offender was the driver or person in charge of a motor vehicle; or

(b) In the opinion of the Court the commission of the offence was facilitated by the use of a motor vehicle by the offender, whether or not he was the driver or person in charge; or

(c) A motor vehicle was used by the offender, whether or not he was the driver or person in charge, for the purpose of facilitating his flight or avoiding his detection or arrest after the commission of the offence; or

(d) The offence was committed in, on, or from a motor vehicle; or

(e) The offence was committed in respect of a motor vehicle, the Court, in addition to or instead of passing any other sentence, may in its discretion order the offender to be disqualified from holding or obtaining a driver's licence, within the meaning of the Road Traffic Ordinance 1960, for such period as the Court thinks fit, but not exceeding 3 years.

(2) Where by an order made under this section any person is disqualified from holding or obtaining a driver's licence, the provisions of sections 33 to 35 of the Road Traffic Ordinance 1960 (which relate to the disqualification of drivers) shall apply, so far as they are applicable, and subject to all necessary modifications as if the order had been made under Part II of that Ordinance.

(3) Nothing in this section shall limit or affect any power of the Court under any other enactment to make an order disqualifying any person from holding or obtaining a driver's licence.

16. Regulations - The Head of State may, from time to time, acting on the advice of Cabinet, make, alter or revoke such regulations as may in his opinion be necessary or expedient for giving full effect to the provisions of this Act and for the due administration thereof.

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The Offenders Probation Act 1971 is administered in the Department of Justice