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Samoa citizen raised in American Samoa now faces deportation

Pago Pago, AMERICAN SAMOA — A man who was born in Samoa but raised in American Samoa all of his life was ordered to depart the jurisdiction of American Samoa after his period of incarceration and remain outside for the remaining period of his detention, after being convicted of breaking the law again while he was serving 10 years probation for a similar offense.

Harry McCarthy appeared before the High Court last week for sentencing, after being convicted of the crime of assault in the second-degree assault, a class D felony, punishable by an imprisonment term of up to 5 years, a fine of up to $5,000, or both.

McCarthy was convicted of using a hammer to assault a family member at the beginning of last year, while he was serving a 10-year probation, after being convicted in 2014 for using a hammer to assault his sister.

He appeared before Acting Associate Justice Elvis P. Patea last week for sentencing, and a preliminary examination to revoke probation in his 2014 case.

The defendant admitted to the court he had violated a condition of his probation when he failed to be a law abiding citizen — after he was arrested last year March, and later convicted for assaulting another family member.

Before McCarthy addressed the court, his attorney Acting Public Defender Michael White called two witnesses to the stand — the defendant’s wife and his sister. Both witnesses asked the court to be lenient with McCarthy.

The defendant’s wife told the court that McCarthy was the only breadwinner for their family, and ever since his arrest, no one is working in the family to take care of herself and their young child. The wife told the court that she really needs her husband to come back home to care of their family.

His sister described McCarthy as a loving person and a very supportive man for the family. She told the court about the financial impact on her brother’s family after his arrest. She then asked for a chance for him to come back to the family. He’s the right hand man of the family right now, because their parents are not living with them.

“You have mentioned that your parents are not living with you. Where are your parents?” Patea asked. The sister told the court that their mother is in Utah while their father has passed away.

McCarthy’s attorney asked the court to consider the wife’s statement that the defendant is the only one whom she reply on to take care of their family especially their young child. White informed the court that McCarthy was born in Samoa, but he had been raised in the territory since he was a child.

“McCarthy considers American Samoa as his home where he was raised since he was a child. He has a wife and child and he is a hard-working man. We know that everyone make mistakes and I feel that giving another chance to my client would help him straighten up his life and redeem himself. I believe that there is power in forgiveness,” White told the court.

White said that he doesn’t dispute the seriousness of his client’s action, and asked that the court not revoke his client’s 10-year probation, but modify conditions of his probation.

“Putting him in jail for a long period of detention will not cure his anger problem, and my client needs to attend an anger counseling program while on probation. I humbly ask your honor not to impose a long period of incarceration for my client,” White said to the court.

Prosecutor, Assistant Attorney General Woodrow Pengelly acknowledged the statements from the defendant’s wife and sister, and also appreciated the hardship the family has gone through since McCarthy was arrested last year.

However, Pengelly pointed out to the court that the defendant was charged with another felony assault, within a 3-year period of his 10-year probation, where he used the same behavior of alcohol and a hammer to assault yet another family member.

Pengelly stated to the court that the government also agreed with the defense counsel’s plea to not revoke the defendant’s probation, because the purpose of probation is to give the defendant the time to redeem himself and learn from his mistakes.

The government asked the court in reference to this second assault to place McCarthy on a 5-year probation, on the condition that he has to serve a period of detention of 20 months. Upon release, he would be required to depart the territory. For his first probation, the government asked the court to modify the conditions.

Before delivering the court’s decision, Patea stated that the criminal cases the defendant has been involved with were very violent crimes, and the court has to consider ways to protect the community from the hands of this defendant.

“Your family is suffering and your wife has to find ways to feed your child because you’re in custody. The court has to consider that. We also have to look at the safety of this community and consider a right decision to make sure this type of behavior does not happen again,” Patea said.

Patea then turned to the defendant and explained to him the consequences he may face if the court revokes his 10-year probation, and orders him to serve the whole 10 years at TCF.

“You were given the chance to redeem yourself before,” Patea said.

“You asked for a second chance 4 years ago to go back home to start another chapter of your life and to be a productive member of society. The court gave you that chance. Today (last Friday), you’re asking for another chance to redeem yourself and to be a productive member, but that opportunity is no longer there for you.”

For the second-degree assault conviction, the court sentenced the defendant to a period of incarceration of 5 years. Execution of the sentence was suspended, and the defendant was placed on probation for the period of 5 years under the following conditions:

McCarthy has to serve a period of detention of 20 month at TCF. Upon release from detention, he has to depart the territory and remain outside of its jurisdiction for the period of his probation. He was also ordered to pay the amount of restitution of $79.

The court ordered that the defendant’s sponsor be held responsible for paying his return fare to Samoa and also the amount of restitution.

In his first criminal case, the court did not revoke his probation but modified its conditions. The additional condition was that the defendant would depart American Samoa after his period of detention and remain outside for the remaining period of his 10-year probation.