§706-602  Pre-sentence diagnosis, notice to
victims, and report.  (1)  The pre-sentence diagnosis and report shall be
made by personnel assigned to the court, intake service center or other agency
designated by the court and shall include:



(a) An analysis of the circumstances attending the
commission of the crime;



(b) The defendant's history of delinquency or
criminality, physical and mental condition, family situation and background,
economic status and capacity to make restitution or to make reparation to the
victim or victims of the defendant's crimes for loss or damage caused thereby,
education, occupation, and personal habits;



(c) Information made available by the victim or other
source concerning the effect that the crime committed by the defendant has had
upon said victim, including but not limited to, any physical or psychological
harm or financial loss suffered;



(d) Information concerning defendant's compliance or
non- compliance with any order issued under section 806-11; and



(e) Any other matters that the reporting person or
agency deems relevant or the court directs to be included.



(2)  The court personnel, service center, or
agency shall give notice of the Crime Victim Compensation Act, the application
for compensation procedure, and the possibility of restitution by the defendant
to all victims of the convicted defendant's criminal acts. [L 1972, c 9, pt of
§1; am L 1973, c 179, §23; am L 1975, c 89, §1; am L 1990, c 256, §1; gen ch
1992; am L 1993, c 215, §5; am L 1998, c 240, §8]



 



COMMENTARY ON §706-602



 



  This section sets forth the topics required to be covered in
the pre-sentence investigation and report.  The Code recognizes that these
topics constitute a minimum of the information which should be before the
sentencing judge.  Additional matters may be included by the pre-sentence
investigator.  A defendant is protected against the inclusion of unfounded
facts, derogatory information, statements and conclusions by the provision of
§706-604 providing for notice and opportunity to controvert.



  This section is in accord with existing Hawaii rules of
procedure[1] and, although it is somewhat more specific, it has been approved
by the Adult Probation Office of the First Circuit.



 



SUPPLEMENTAL COMMENTARY ON §706-602



 



  In enacting the Code, the Legislature changed the Proposed
Draft by substituting the phrase "pre-sentence diagnosis" for the
phrase "pre-sentence investigation".  (See Supplemental Commentary on
§706-601.)



  Act 179, Session Laws 1973, amended this section to provide
that the pre-sentence diagnosis and report shall "be made by personnel
assigned to the court, intake center, or other agency designated by the
court."  This amendment was made as part of an extensive act implementing
that portion of the Hawaii Correctional Master Plan pertaining to the
management and establishment of intake service centers, correctional
facilities, and programs.



  Act 89, Session Laws 1975, amended this section to require
that an analysis of the convicted person's ability to make restitution to the victim
of the convicted person's crime be included in the pre-sentence diagnosis and
report.  As amended, the section further requires appropriate personnel to
notify the victim of the victim's right to restitution.  The intent of the
legislature was to repay the victim for the victim's loss and develop in the
convicted person "...a degree of self-respect and pride in knowing that he
or she has righted the wrong committed."  Senate Standing Committee Report
No. 789, House Standing Committee Report No. 425.



  Act 256, Session Laws 1990, amended this section to require
the inclusion of information on the effect of the crime to the victim in all
pre-sentencing reports submitted to the courts.  The legislature believed that
sentencing decisions which are based solely on the circumstances of the
defendant's prior history and on an abstract view of the offense are decisions
made in a vacuum.  The legislature was convinced that the sentencing judge
should, therefore, be informed of the impact which the offense has had on the
victim as a representative of the entire community because criminal proceedings
are brought on behalf of and intended to protect everyone.  House Standing
Committee Report No. 1193-90.



  Act 215, Session Laws 1993, amended this section to provide that
the pre-sentence diagnosis and report shall include information concerning the
defendant's compliance or noncompliance with any order issued to the defendant
pursuant to §806-11, at the time of arraignment, to dispose of all firearms and
ammunition within the defendant's possession in a manner in compliance with
chapter 134 within forty-eight hours of the issuance of the order.  Conference
Committee Report No. 66.



  Act 240, Session Laws 1998, renamed the criminal injuries
compensation commission to the crime victim compensation commission to more
accurately reflect the commission's purpose.  This section was amended to
conform to that name change.  House Standing Committee Report No. 1060-98.



 



Case Notes



 



  "History of delinquency" construed to authorize use
of defendant's juvenile record in pre-sentence report, and such use is not a
violation of §§571-49 and 571-84.  56 H. 75, 527 P.2d 1269.



  Pre-sentence report sufficiently complied with this section
and chapter 706 was not violated, where defendant asserted that court did not
order or receive a pre-sentence correctional diagnosis and report as required
by §706-601(1)(a), therefore, since the information required under this section
was not furnished to the court for its consideration in imposing sentence, the
sentences were not imposed in accordance with provisions of chapter 706 and
were illegal.  10 H. App. 535, 880 P.2d 208.



  Where defendants were convicted of misdemeanor offenses
and were more than twenty-two years old at the time of their convictions, trial
court was not statutorily required to order the preparation of a presentence
investigation report for defendants before sentencing them.  117 H. 490 (App.),
184 P.3d 805.



  Where record indicated that defendants were afforded their
right under subsection (2) to be meaningfully heard or to controvert any
"unfounded facts, derogatory information, statements and conclusions"
in the partial presentence investigation report, trial court did not violate
their due process right when it denied their motion to strike a paragraph from
the report.  117 H. 490 (App.), 184 P.3d 805.



  Cited:  73 H. 259, 831 P.2d 523.



 



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§706-602 Commentary:



 



1.  H.R.Cr.P., Rule 32(c)(2) (1960).