KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Ned, 13 FSM Intrm. 351 (Kos. S. Ct. Tr. 2005).

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STATE OF KOSRAE,

Plaintiff,

vs.

MIRAH D. NED,

Defendant.

JUVENILE CASE NO. 1-05

ORDER

Yosiwo P. George

Chief Justice

Hearing: July 12, 2005

Decided: July 18, 2005

APPEARANCES:

For the Plaintiff:   Paliknoa Welly, trial counselor

                                 State Prosecutor

                                 Office of the Kosrae Attorney General

                                 P.O. Box 870

                                 Lelu, Kosrae   FM   96944

For the Defendant:   Harry A. Seymour, Esq.

                                       Office of the Public Defender

                                       P.O. Box 245

                                       Lelu, Kosrae   FM   96944

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HEADNOTES

Criminal Law and Procedure ) Juvenile

     The Kosrae Pre-Trial Diversion Program is available only to first time juvenile offenders charged with certain non-violent crimes. When one of the charges against the subject juvenile, assault and battery, is a violent crime as it involved physical force and injury to the victim, the program is not applicable. Kosrae v. Ned, 13 FSM Intrm. 351, 352 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Juvenile

     A Kosrae Pre-Trial Diversion Agreement must contain payment of restitution and/or performance of community service, and in a case where restitution is not warranted, the component of community service must be included. Kosrae v. Ned, 13 FSM Intrm. 351, 352 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Juvenile; Treaties

     The imposition of community service on a juvenile offender would not violate the provisions or

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spirit of the United Nations Convention on the Rights of the Child since community service, could be considered as guidance, supervision, counseling, education and vocational training, which are all preferred alternatives to institutional care (detention), which is also explicitly permitted under the Convention. Kosrae v. Ned, 13 FSM Intrm. 351, 354 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Juvenile

     The waiver of a pre-trial diversion agreementís limited applicability, is permitted, despite that one offense charged is a violent offense, assault and battery, when the benefits to the juvenile to be gained through her participation in the Pre-Trial Diversion Program, and dismissal of the petition upon its completion, merits the pre-trial diversion agreementís application. Kosrae v. Ned, 13 FSM Intrm. 351, 354-55 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     On July 12, 2005, a hearing was held on this matter. Paliknoa Welly, State Prosecutor, appeared for the Plaintiff. Defendant was represented by Harry Seymour, Public Defender. The Defendantís guardians were also present at the hearing. The parties presented a proposed Pre-Trial Diversion Agreement for the Courtís consideration and approval.

     After hearing from the parties, consideration of applicable law and rules, I deferred ruling on the proposed Pre-Trial Diversion Agreement ("PTDA"). This Order sets forth my ruling.

     The Defendant has been charged with assault and battery, and offensive behavior in a public place. The alleged assault and battery took place when Defendant scratched the face of the victim. The Pre-Trial Diversion Program, as provided in the KRJP, Rule 10.A. states that it is "available only to first time juvenile offenders charged with certain non-violent crimes." One of the charges against the subject juvenile, assault and battery, is a violent crime as it involved physical force and injury to the victim. Therefore, pursuant to Rule 10.A. the PTDA is not applicable to this Defendant for this proceeding.

     Furthermore, the PTDA is incomplete as it does not contain all the components required by Rule 10.A. Specifically, Rule 10.A. requires the PTDA to contain "payment of restitution and/or performance of community service." The PTDA proposed in this matter does not contain such a component. All the terms and conditions currently proposed by the PTDA are those which would be expected of and required of a law-abiding citizen of 15 years of age.

     Parties are reminded that KRJP, Rule 10.A. providing for the PTDA was adopted only after consultation and approval by both the Office of Attorney General and the Office of the Public Defender. The language of Rule 10.A. has remained the same since its adoption in 2000.

     Accordingly, both parties are expected to comply with the specific requirements of Rule 10.A. and ensure that all required components of the PTDA are included. In this case, since restitution is not warranted, the component of community service shall be included in the PTDA.

     Defendant raised the issue of whether a requirement of community service would violate the United Nations Convention on the Rights of the Child. The Court has reviewed the lengthy Convention on the Rights of the Child to address the Defendantís concerns. Two relevant articles of the

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Convention appear to be applicable in the instant matter. These two articles, 37 and 40, are copied verbatim below:

Article 37

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 last 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 childís best interest not to do so and shall have the right to maintain contact with his 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 a prompt decision on any such action.

Article 40

1.  States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the childís sense of dignity and worth, which reinforces the childís respect for the human rights and fundamental freedoms of others and which takes into account the childís age and the desirability of promoting the childís reintegration and the childís 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;

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(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 examined 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 the 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;

(vi)  To have the free assistance of an interpreter if the child cannot understand or speak the language used;

(vii)  To have his or her privacy fully respected at all stages of the proceedings.

3.  States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a)  The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

(b)  Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

4.  A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

Following detailed review of Article 37 and 40, and the remaining articles of the Convention, this Court concludes that the imposition of community service would not violate the provisions or spirit of the Convention on the Rights of the Child. Indeed, community service, which could be considered as guidance, supervision, counseling, education and vocational training, are all preferred alternatives to institutional care (detention), which is also explicitly permitted under the Convention. This Court is persuaded that community service will benefit the Defendant and would be in her best interests, appropriate to her well-being and proportionate to the circumstances and the offenses of assault and battery, and offensive conduct in public.

Therefore, in consideration of the partiesí arguments, the application of KRJP, Rule 10.A., the United Nations Convention on the Rights of the Child, the offenses charged against the Defendant, the best interests of the juvenile and the interests of the justice, I rule as follows.

The waiver of the limited applicability of the PTDA, pursuant to Rule 10.A. is permitted for this matter, despite that one offense charged is assault and battery, a violent offense. The benefits to the

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juvenile to be gained through her participation in the PTDA, and dismissal of the petition upon completion of the PTDA merits application of the PTDA.

If the parties wish to seek Court approval of the PTDA, the parties shall amend the PTDA to include the component of community service. As suggested at the hearing, the parties shall consider a community service component to be performed at the Defendantís community center in her Tafunsak otta No. 3. The community service may be supervised by Norenston Joe, the youth group director, for a period of 4 Saturdays, 6 hours per day for a total community service time of 24 hours.

The amended PTDA shall be filed with the Court no later than July 29, 2005 for the Courtís approval. If the PTDA is not filed by July 29, the Clerk shall set this matter for hearing for the week of August 8, 2005.

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