WESTERN SAMOA

TRANSFER OF OFFENDERS

ANALYSIS

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 Western 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 Western Samoa of sentences upon them and for the return of foreign offenders to other countries.

(31 January 1991)

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.

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

(a) A citizen of Western Samoa; or

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

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

who is ordinarily resident in Western 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 enforcements of sentences.

"Transferred" means transferred from a scheduled country to Western 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 Western Samoa and that country has agreed to such transfer, the Minister shall cause the said authority to be advised whether the Government of Western 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 Western Samoa to the transfer of an offender from a scheduled country, and to the enforcement of a sentence imposed upon him 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 Western 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 treatment in the sentencing country and any recommendation for his further treatment;

(vii) Any other information which the Minister may specify as being required in all cases to enable him to consider the possibility of transfer and to enable him 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 him shall be enforced, in accordance with the provisions of this Act.

5. Effect of transfer - (1) When an offender is transferred to Western 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 Western Samoa.

(2) On the transfer of an offender to Western 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 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 Western 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 Western Samoa pursuant to this Act shall not be subject to any appeal or to any form of review in Western 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 Western Samoa as the Minister may direct.

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

(2) An offender to whom subsection (1) for this section 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 him 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 Western 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 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 had been sentenced to a term of imprisonment of the same length by a Court in Western Samoa.

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

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 had been convicted and sentenced to a term of imprisonment of the same length by a Court in Western Samoa.

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

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

(4) A transferred offender who is, at the date of his transfer, on parole in the scheduled country in which he was convicted and sentenced shall be deemed for all purposes to have been convicted and sentenced in Western 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 Western Samoa.

(5) A breach in Western 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 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 Western 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 Western 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 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 Western Samoa to Western Samoa.

12. Offenders in lawful custody during transfer - An offender shall, while he is being transferred, be deemed to be in the lawful custody of the person duly authorized to conduct him and to be subject to the same restraint and in the event of misbehaviour, to the same punishment as if he were in prison in Western Samoa and as if the person conducting him 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 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 Western Samoa - A foreign offender may request transfer to a scheduled country by applying to the Minister and if his 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) of this section 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.

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The Transfer of Offenders Act 1995 is administered in the Department of Justice