Pago Pago, AMERICAN SAMOA — An over-stayer who entered American Samoa in 2015 to work as a crewmember on a fishing boat appeared in High Court yesterday for sentencing, after he was convicted of stealing items from a store in Faleniu, where he used to work last year.

During sentencing yesterday morning, Acting Associate Justice Elvis P. Patea ordered the over-stayer to return to his home country after serving a period of detention, while his sponsor is ordered to fulfill his duty under local Immigration Laws by paying $3,000 which is the fine the court has ordered the over-stayer to pay.

The fine must be paid within 30 days.

Rusiate Tabete, 27, from Fiji was initially charged with 3 counts of stealing, and 3 counts of 2nd degree burglary — all class C felonies,

Under a plea agreement with the government, Tabete agreed to plead guilty to 3 counts of 2nd degree burglary; in return, the remaining charges were dismissed.

With his guilty plea, Tabete admits that on Nov. 11, 2017, as well as Dec. 2 and 7, 2017 he unlawfully entered a store in Tafuna and stole merchandise and cash.

Tabete’s sentencing was continued from last month, after the court noted that there was missing information in the pre-sentencing report, with regards to his immigration status.

The court then issued a subpoena for the Chief Immigration Officer (CIO) to appear in court to provide the original files containing all the information the court needs to know about this defendant, specifically his date of departure and his sponsor’s real name.

TESTIMONY UNDER OATH

Chief Probation Officer (CPO) Malcolm Polu and CIO Peseta Dennis Fuimaono both provided testimony.

According to Polu, the report he received from Puni Paelo, who is the supervisor for the Immigration Investigating Division, had a couple of discrepancies.

Polu said information from the Immigration Office does not note a departure date for Tabete, or the identity of his sponsor. He said the IO only provided Manuia Fisheries as the sponsor and when asked who Manuia Fisheries is, the IO’s response was, they don’t know.

Polu said that in Tabete’s case, he believes the court was not well informed on issues pertaining to the defendant’s immigration status because the IO was not willing to help.

He said he submitted a request with the court’s order to the IO on Mar. 21, 2018 requesting a return date of Mar. 28; however, the IO report regarding Tabete’s immigration status "only arrived on the morning of Apr. 5, 2018 — the same morning the defendant was scheduled to appear before the court for sentencing,” Polu told the court.

During his testimony, Peseta — who has headed the local Immigration Office for over 5 years — told the court his responsibility is to administer and supervise various divisions and there have been staff training sessions to discuss issues regarding immigration procedures.

When asked about the problem in not providing complete information to the CPO about Tabete’s immigration status, Peseta said he was unaware of the case until Paelo briefed him last week, before departing the territory.

“Why was the date of expiration left blank in the report your office provided to the CPO?"  Patea asked.

“Um… Your honor, we leave it blank because we don’t have the exact date his contract with the fishing agent is up. All crewmembers like this man before the court have a signed agreement for 2 years with their fishing agent,” Peseta said.

He added that it’s the primary responsibility of the shipping agent to advise the IO upon the completion of each crewmember’s 2-year contract, even if they leave the vessel without permission.

“So, did you receive any notice from the agent that this defendant was no longer employed by the vessel?" Patea asked. Peseta responded, “No, your honor. I was only informed by my supervisor Paelo last week about this defendant.”

Patea wanted more details.

According to Peseta, Paelo asked Mr. Kim — the owner of Manuia Fisheries — to explain why he failed to notify their office that one of his crewmembers had left the vessel. Kim told Paelo he’s no longer in the fishing business because his vessel is undergoing repairs.

Peseta testified that any crewmember who leaves the fishing boat without permission from the fishing agent, is considered a “ship jumper”.

“So what happened to the rest of the crew members if Mr. Kim’s fishing vessel is no longer in business?" Patea asked. Peseta answered, “Sorry, your honor, we don’t know where the rest of the crewmembers are”.

Peseta said Paelo has already informed Kim to come to court with a list of all of his crewmembers, and to answer all the court’s questions pertaining to this issue.

Kim was not in court during the proceedings.

According to the file provided by the CIO to the court, Tabete entered the territory on May 14, 2015 as a crewmember. He then went out fishing — and returned — about three times. His last date of entry was Nov. 5, 2015.

DEFENDANT’S SENTENCE

Tabete was arrested on Nov. 2017 for stealing items from a store in Faleniu.

When given the opportunity to address the court, Tabete said he was employed by Island Technology and the company paid him $60 a week.

He said the money he received was not enough to take care of his family in Fiji and that's the reason he stole from the company, because the owner betrayed him so many times, not only was he underpaid, but he was also lied to when the company said it would fix his immigration status.

He apologized to the court for his wrongdoing and asked for a second chance to return to Fiji to care for his family.

Defense attorney, deputy public defender Michael White said his client was under the impression that the company he worked for would fix his immigration papers. And when he found out that nothing was being done, he tried to do something that'll give him the chance to go back home.

“Nobody wants to get caught when they steal from somebody else, but my client stole from his employer because he wanted him to get caught, so he'd get a chance to go back to his family in Fiji,” White told the court.

Attorneys for both sides asked the court for a light sentence. Prosecutor Christy Dunn noted that Tabete has been in custody at the TCF for over 6 months.

The court's decision is as follows:

Tabete is sentenced to 7 years imprisonment for each count of 2nd degree burglary. Execution of the sentence is suspended and Tabete is placed on probation for 7 years under certain conditions that include serving 28 months at the TCF without release, except for medical purposes or by order of the court.

All but 12 months of the jail term is stayed. Upon release from detention, Tabete has to depart the territory and remain outside its borders for the remainder of his probation.

The fine of $3,000 — $1,000 for each count — is to be paid by his sponsor within 30 days, including Tabete's return airfare to Fiji.