Court/Judicial body: Court of Appeal of Samoa
Date: 24 September 2010 CRC
Provisions: Article 37: Torture and deprivation of liberty Article 40: Administration of juvenile justice
Domestic provisions: Crimes Ordinance 1961, s. 23: Parties to offences Criminal Procedure Act 1972, s. 164N(3): Determination of appeals in ordinary cases Young Offenders Act 2007, s. 22: Bail and custody
Background: Five young people, aged 14 to 18, attacked two others with sticks and rocks. One victim survived with serious injuries; the other was beaten to death. All five defendants were convicted of manslaughter. Four were each sentenced to four years and six months’ imprisonment, while the fifth, less culpable one was placed on two year probation. Of the four defendants sentenced to imprisonment, three appealed their sentences.
Issue and resolution: Juvenile justice; sentencing. With respect to two of the appellants (aged 17 and 18), the court dismissed their appeals. With respect to the third, the youngest of the group (aged 14), the court reduced his sentence to three years.
Court reasoning: The lower court considered the circumstances as “one of the most serious cases of an unprovoked and violent killing to be dealt with by this court”. In light of the ruthless nature of the killing, sentences of imprisonment were entirely appropriate. However, sentences imposed on joint offenders with equal culpability and similar circumstances should take into account the principle of parity and consistency. Here, taking into account the disparity in age between the youngest appellant (14) and the oldest (18), a somewhat lesser sentence was justified for the youngest one.
Excerpt citing CRC and other relevant human rights 29. It is convenient to deal with these appeals together. Pita’s appeal claims error in that: (a) “the sentence imposed was manifestly excessive given the circumstances of the case; (b) the sentence does not reflect the nature of the involvement of the Appellant in the circumstances of this matter and is a miscarriage of justice; (c) the sentence is not in line with Samoa’s international obligation under the Convention on the Rights of the Child ratified by Samoa on the 11th day of November 1994.” . . . 37. The Convention on the Rights of a Child, Article 40, by the State of Samoa relied upon by the appellants relevantly provides: “1. States Parties recognize the right of every child alleged as, accused of, as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. 2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: (a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed; (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: (i) To be presumed innocent until proven guilty according to law; (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence; (iii) To have the matter determined without delay by a competent, independent, and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; (iv) Not to be compelled to give testimony or to confess guilt; to examine or have adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality; (v) If considered to have infringed to penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law.” 38. It does not prohibit detention for crimes committed. Article 37 provides: “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of law resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with her or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to prompt decision of any such action.” 39. The sentence imposed, although harmful to the future interests of each appellant, does not deny due process or constitute torture, cruel or inhuman treatment or punishment. It does not subject each appellant to imprisonment ‘without possibility of release’ and given the gravity of the crime and the form and circumstances of its communion can be seen as ‘a measure of last resort for the shortest appropriate period of time.’
CRIN comments: CRIN believes this decision is consistent with the CRC. The Court correctly cited Article 37(b), which provides that a child can be imprisoned only as a measure of last resort and for the shortest appropriate period of time. According to the Committee on the Rights of the Child, this is to ensure that the child’s right to development (under Article 6) is fully respected and ensured. States must also ensure that the best interests of the child shall be a primary consideration in all decisions taken within the context of the administration of juvenile justice ( Article 3). Furthermore, as a general principle, States should adopt measures for dealing with children in conflict with the law without resorting to judicial proceedings, whenever appropriate and desirable, as an integral part of their juvenile justice system ( Article 40(3)(b)).
Citation: Ulugia v Police  WSCA 15 (24 September 2010)
Link to full judgement: http://www.paclii.org/ws/cases/WSCA/2010/15.html