§706-605 - Authorized disposition of convicted defendants.

§706-605 Authorized disposition of
convicted defendants. (1) Except as provided in parts II and IV or in
section 706-647 and subsections (2), (6), and (7), and subject to the
applicable provisions of this Code, the court may sentence a convicted defendant
to one or more of the following dispositions:

(a) To be placed on probation as authorized by part
II;

(b) To pay a fine as authorized by part III and
section 706-624;

(d) To perform services for the community under the
supervision of a governmental agency or benevolent or charitable organization
or other community service group or appropriate supervisor; provided that the
convicted person who performs such services shall not be deemed to be an
employee of the governmental agency or assigned work site for any purpose. All
persons sentenced to perform community service shall be screened and assessed
for appropriate placement by a governmental agency coordinating public service
work placement as a condition of sentence.

(2) The court shall not sentence a defendant
to probation and imprisonment except as authorized by part II.

(3) In addition to any disposition authorized
in subsection (1), the court may sentence a person convicted of a misdemeanor
or petty misdemeanor to a suspended sentence.

(4) The court may sentence a person who has
been convicted of a violation to any disposition authorized in subsection (1)
except imprisonment.

(5) The court shall sentence a corporation or
unincorporated association that has been convicted of an offense in accordance
with section 706-608.

(6) The court shall impose a compensation fee
upon every person convicted of a criminal offense pursuant to section 351‑62.6;
provided that the court shall waive the imposition of a compensation fee if it
finds that the defendant is unable to pay the compensation fee. When a
defendant is ordered to make payments in addition to the compensation fee,
payments by the defendant shall be made in the following order of priority:

(a) Restitution;

(b) Crime victim compensation fee;

(d) Other fees; and

(e) Fines.

(7) The court shall order the defendant to
make restitution for losses as provided in section 706-646. In ordering
restitution, the court shall not consider the defendant's financial ability to
make restitution in determining the amount of restitution to order. The court,
however, shall consider the defendant's financial ability to make restitution
for the purpose of establishing the time and manner of payment.

(8) This chapter does not deprive the court of
any authority conferred by law to decree a forfeiture of property, suspend or
cancel a license, remove a person from office, or impose any other civil
penalty. Such a judgment or order may be included in the sentence. [L 1972, c
9, pt of §1; am L 1975, c 89, §2; am L 1978, c 96, §1; am L 1980, c 93, §1; am
L 1986, c 226, §1 and c 314, §14; am L 1990, c 100, §1; am L 1995, c 215, §1;
am L 1998, c 206, §4, c 240, §6, and c 269, §4; am L 2005, c 144, §2; am L
2006, c 230, §17]

COMMENTARY ON §706-605

This section states the various sentencing alternatives that
are available to the court upon conviction of a defendant for an offense. With
the exceptions of civil commitment in lieu of sentence and mandatory life
imprisonment for murder, the authorized dispositions for crimes are:
suspension of sentence, fine, probation, imprisonment, probation with limited
imprisonment, fine and probation, and fine and imprisonment. Subsection (2)
makes clear that, with respect to violations, only suspension of sentence or a
fine are authorized.

The Code departs from previous practice in that it authorizes
suspension of the sentence but does not authorize imposition of sentence and
suspension of its execution.[1] If suspension of sentence works out badly and
the court subsequently determines that a sentence must be imposed upon the
defendant, the correct sentence ought to be determined at the time of
imposition rather than at the prior time when the court ordered its
suspension. The facts which give rise to the need for imposition and execution
of sentence should, of course, be made the subject of an up-to-date
pre-sentence investigation and report. The judge ordering suspension of sentence
(or suspension of execution) cannot be expected at the time of suspension to
formulate a contingent sentence which will account for subsequent facts.

Probation is treated as a specific sentence rather than being
treated as "the accompaniment of suspension."[2] Previous practice
was to suspend either imposition or execution of sentence and to place the
defendant on probation. As the Model Penal Code commentary points out:
"The matter is of relatively minor moment but may serve in some respects
to focus thought upon probation as an independent sanction, a result we think
important to achieve."[3]

With the exception of murder (see §706-606), the Code does
not exclude the possibility of suspension of sentence or probation in cases of
offenses thought to be particularly heinous. This is contrary to previous law
which provided mandatory imprisonment in cases of murder in the first or second
degree, rape, carnal abuse of a female under the age of twelve, incest between
parents and children or stepchildren, arson, kidnapping, robbery in the first
degree, burglary in the first degree when armed with a deadly weapon,
embezzlement of public moneys, and the giving or accepting of a bribe or
extortion by a public officer, agent or employee.[4] Although imprisonment
would most likely be warranted upon conviction on these types of serious
offenses, the Code takes the position that, with the exception of murder, the
Legislature should not compel imprisonment for any crime before the
circumstances of the crime and facts concerning the defendant are known to the
sentencing authority.

This provision
rests on the view that no legislative definition or classification of offenses
can take account of all contingencies. However right it may be to take the
gravest view of an offense in general, there will be cases comprehended in the
definition where the circumstances were so unusual, or the mitigations so
extreme, that a suspended sentence or probation would be proper. We see no
reason to distrust the courts upon this matter or to fear that such authority
will be abused.[5]

Subsection (3) indicates that the special problems presented
by corporate or associational defendants are dealt with in §706-608.

Subsection (4) reserves for the court the authority which has
been conferred upon it by law to declare forfeiture, suspend or cancel
licenses, remove persons from office and impose other penalties which are civil
in nature. The court in a criminal case retains its power to impose, in
addition to authorized penal sanctions, any civil sanction authorized by law
which is warranted by the facts of the committed offense.

SUPPLEMENTAL COMMENTARY ON §706-605

Act 89, Session Laws 1975, amended this section by adding
(1)(e), empowering the court to order the convicted person to make restitution
to the victim of the crime. The purpose of this change was to repay the victim
for 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 96, Session Laws 1978, added subsection (1)(f) to provide
an alternative sentence for convicted persons for whom fines or imprisonment
may not be deemed appropriate and to remove any doubt as to the authority of
the court to impose a sentence requiring community service. Senate Standing
Committee Report No. 974-78, House Standing Committee Report No. 586-78.

Act 93, Session Laws 1980, amended subsection (2) to make it
clear that the courts have the authority to sentence persons convicted of
violations to perform community service. House Standing Committee Report No.
131-80. The Act also substituted sex-neutral words for gender-based terms.

Act 100, Session Laws 1990, amended subsection (1)(e) to
require mandatory screening for persons sentenced to perform community service
to reduce instances of inappropriate placements which jeopardize the safety of
the agency, the public, or the offender. House Standing Committee Report No. 1191-90.

Act 215, Session Laws 1995, amended subsection (1) to
authorize the court to order a convicted defendant to pay restitution to the
criminal injuries compensation commission if the victim of the crime has been
granted a compensation award by the commission. Prior to the amendment, the
law was unclear as to whether the court had authority to order that restitution
be paid directly to the criminal injuries compensation commission. The
amendment also will provide additional revenues for the criminal injuries
compensation commission, thus allowing the commission to compensate victims
promptly for losses. The legislature found it "appropriate and fiscally
responsible" to require a convicted criminal to reimburse the commission
when the commission granted an award to the crime victim. Senate Standing
Committee Report No. 1356.

Act 206, Session Laws 1998, amended this section to, among
other things, require the imposition of a fee against convicted criminals. The
monetary assessment of convicted criminal defendants is to fund disbursements
made by the criminal injuries compensation commission. The legislature found
that state compensation of victims of criminal acts is well-founded in public
policy and is the law in every state of the Union. The legislature also found
that thirty-four states administered compensation programs that were
financially self-sufficient and funded from fees, fines, penalties, civil
recoveries, and/or restitution. Adoption of such a program would be prudent
and consistent with the legislature's objective of cutting government costs,
considering the State's economic situation. Conference Committee Report No.
156.

Act 240, Session Laws 1998, amended this section by changing
the name of the criminal injuries compensation commission to the crime victim
compensation commission. The legislature found that the purpose of the
criminal injuries compensation commission is to aid victims of crime by
providing them compensation for their victimization, and further, that the
change would more clearly reflect the purpose of the commission to the public.
Senate Standing Committee Report No. 726.

Act 269, Session Laws 1998, amended this section to allow
victims of crime to enforce a criminal restitution order in the same manner as
a civil judgment. Conference Committee Report No. 89.

Act 144, Session Laws 2005, amended this section by
establishing the order of priority for a defendant to make payments in addition
to the compensation fee. The priority schedule ensures that the victim of a
defendant's crime receives the first amount of compensation paid by the
defendant. Conference Committee Report No. 161, Senate Standing Committee
Report No. 1210.

Act 230, Session Laws 2006, amended this section to, among
other things, require that when restitution is ordered, the amount of
restitution is not based on the defendant's financial ability to make
restitution, but the defendant's financial ability to make restitution [shall]
be considered in establishing the time and manner of payment. House Standing
Committee Report No. 665-06.

Case Notes

Restitution order may not be enforced against money earned
from prison labor. 63 H. 12, 621 P.2d 334.

Purpose and intent is to have convicted person make
restitution for criminal acts; court can delegate function of making
recommendations regarding restitution but cannot delegate sentencing function.
68 H. 292, 711 P.2d 1295.

A suspended sentence may only be conditioned upon the
offender remaining free from further convictions; a formal hearing is not
required to revoke a suspended sentence. 70 H. 597, 778 P.2d 716.

Restitution order failed to comply with subsection (1)(d) and
was illegally imposed; sentencing court failed to make any finding that
$122,248.95 was an amount that defendant could afford to pay in restitution and
to prescribe manner of payment; court expressly and improperly delegated
judicial function of determining manner of payment to an administrative body,
the Hawai`i paroling authority. 78 H. 127, 890 P.2d 1167.

Court did not order defendant to pay restitution in amount
that exceeded defendant's ability to pay under subsection (1)(d) where
defendant's testimony indicated defendant would have ability to fully satisfy
amount of ordered restitution. 83 H. 105, 924 P.2d 1211.

Trial court was not authorized, under this section, to order
defendant to pay restitution to the Honolulu police department for its drug
"buy money" expenses where (1) it was unlikely that ordering
defendant to pay restitution would aid defendant in developing a degree of
self-respect and pride in knowing that defendant has righted the wrong
committed; and (2) department did not qualify as a "crime victim"
under chapter 351 and defendant's offenses did not qualify as a "violent
crime" under §351-32. 93 H. 34 (App.), 995 P.2d 335.

Trial court was required to comply with Hawaii supreme
court's instructions and enter findings and conclusions specifically
illustrating that defendant could afford to pay $20,000 in restitution pursuant
to subsection (1)(d), and determine the relevant time period, defendant's gross
income and necessary expenses during that time period. 93 H. 290 (App.), 1
P.3d 760.

Trial court erred by improperly ordering restitution without
expressly determining defendant's ability to pay and by delegating the
authority to determine the payment amounts and timing to the department of
public safety; restitution order vacated. 103 H. 68 (App.), 79 P.3d 686.

__________

§706-605 Commentary:

1. See, e.g., H.R.S. §711-77.

2. M.P.C., Tentative Draft No. 2, comments at 13 (1954).

3. Id.

4. H.R.S. §711-77.

5. M.P.C., Tentative Draft No. 2, comments at 13-14 (1954).