§706-606.3 - Expedited sentencing program.

§706-606.3 Expedited sentencing program.
[Repeal on June 30, 1995, by L 1993, c 316, §6 extended to June 30, 2001, by
L 1995, c 157, §1 and deleted by L 2001, c 127, §3.] (1) A person who has
committed intra-family sexual assault may be considered for the expedited
sentencing program in accordance with this section. As used in this section,
"intra-family" sexual assault means any criminal offense of felony
sexual assault under section 707-730, 707-731, or 707-732, or incest, as
defined in section 707-741, in which the victim of the offense is related to
the defendant by consanguinity or marriage, or resides in the same dwelling
unit as the defendant, and the victim was, at the time of the sexual assault,
under the age of eighteen.

(2) The police department of the county in
which the sexual assault took place or any other appropriate investigative law
enforcement agency shall confer with the appropriate prosecuting authority. If
the prosecuting authority determines that it is appropriate to provide notice
of the expedited sentencing program to the defendant, the police department or
other appropriate investigative law enforcement agency shall give the defendant
written notice of the existence of the expedited sentencing program provided in
this section. The notice provision shall not be a prerequisite to questioning
the defendant. The notice provision shall not obligate the prosecuting
authority to issue a statement of "no objection" when considering the
defendant for the expedited sentencing program.

(3) The written notice shall state:

"YOU
ARE ADVISED TO SEEK LEGAL COUNSEL IMMEDIATELY. IF YOU CANNOT AFFORD PRIVATE
COUNSEL, CONTACT THE OFFICE OF THE PUBLIC DEFENDER. FAILURE TO CONTACT AN
ATTORNEY MAY DISQUALIFY YOU FROM THIS PROGRAM. A copy of section 706-606.3,
Hawaii Revised Statutes, is attached to this notice. You are under
investigation for a felony sexual assault against a minor. Upon completion of
this investigation, if there is sufficient basis to believe that you have
committed a sexual assault, the case will be referred to the appropriate
prosecuting authority for review and possible institution of criminal charges.
Hawaii law provides for a range of ordinary prison sentences for felony sexual
assault ranging from five years up to twenty years, or life imprisonment,
depending upon the offense. However, section 706-606.3, Hawaii Revised
Statutes, provides that a person who commits a sexual assault upon a minor but
who admits guilt, cooperates with the prosecuting authority, and participates
in appropriate assessment and treatment may be considered for the expedited
sentencing program. A person who is sentenced in accordance with the expedited
sentencing program may be sentenced to a term of probation. Probation may be
revoked, however, for failure to comply with the terms of the probation
pursuant to section 706-625. To qualify for consideration for the expedited
sentencing program, your legal counsel first must request from the office of
the prosecuting authority named in this notice a written statement as to
whether that office has any objection to your being considered for the
expedited sentencing program. THE COURT WILL NOT CONSIDER YOU FOR THE
EXPEDITED SENTENCING PROGRAM UNDER SECTION 706-606.3, HAWAII REVISED STATUTES,
UNLESS YOUR LEGAL COUNSEL HAS RECEIVED A WRITTEN STATEMENT THAT THE APPROPRIATE
PROSECUTING AUTHORITY HAS NO OBJECTION TO YOUR BEING CONSIDERED FOR THE
EXPEDITED SENTENCING PROGRAM AND THE REQUEST FOR THAT WRITTEN STATEMENT WAS
MADE WITHIN FOURTEEN DAYS OF YOUR RECEIPT OF THIS NOTICE. FURTHER, THE COURT
WILL NOT CONSIDER YOU FOR THE EXPEDITED SENTENCING PROGRAM UNDER SECTION
706-606.3, HAWAII REVISED STATUTES, UNLESS, ONCE YOUR LEGAL COUNSEL HAS
RECEIVED THIS NOTICE, YOU HAVE MADE A GOOD FAITH EFFORT TO AVOID THE NECESSITY
OF THE CHILD BEING REMOVED FROM THE FAMILY HOME, INCLUDING BUT NOT LIMITED TO
MOVING AND REMAINING OUT OF THE FAMILY HOME UNTIL OTHERWISE ORDERED BY THE
COURT."

The written notice also shall provide:

(a) Instructions on how to contact the appropriate
prosecuting authority, including any necessary addresses and telephone numbers;
and

(b) The name of the person delivering the notice and
the date it was given to the alleged offender.

(4) A defendant shall not be considered by the
court for the expedited sentencing program under this section unless the
defendant's legal counsel requests within fourteen days of the defendant's
receipt of the written notice, that the defendant be considered for the
expedited sentencing program, and defendant's counsel subsequently receives a
written statement from the appropriate prosecuting authority stating that it
has no objection to the defendant being considered for the expedited sentencing
program in accordance with this section. Additionally, each of the following
criteria shall be met:

(a) After receiving the required written notice, the
defendant made a good faith effort to avoid the necessity of the child being
removed from the family home, including but not limited to moving and remaining
out of the family home until otherwise ordered by the court;

(b) The victim of the sexual assault was under the
age of eighteen when the sexual assault was committed;

(c) The defendant was never previously sentenced
under this section and has never been convicted of felony sexual assault under
section 707-730, 707-731, or 707-732, or incest under section 707-741;

(d) A guardian ad litem appointed in a family court
proceeding, or a person assigned by the Children's Advocacy Center to serve as
guardian ad litem, agreed that it would be in the best interest of the child
for the defendant to be considered for the expedited sentencing program. No
prosecuting authority shall issue a statement of no objection without this
prior agreement; and

(e) The defendant has complied with the requirements
for consideration for the expedited sentencing program as established in
subsection (6); provided that at sentencing the prosecuting authority may
oppose the defendant's participation in the expedited sentencing program if the
prosecuting authority determines that the defendant has failed to satisfy the
criteria under subsection (6).

(5) The prosecuting authority and the child's
guardian ad litem may consult with any other appropriate agency or individual
to assist in a decision whether to provide a written statement of "no
objection" prior to the defendant being considered for sentencing under
the expedited sentencing program.

(6) Within seven business days of receipt of
the written notice stating that the appropriate prosecuting authority has no
objection to the defendant being considered for the expedited sentencing
program in accordance with this section, unless the prosecuting authority
waives compliance with the time limit, the defendant shall:

(a) Continue to make a good faith effort to avoid the
necessity of the child being removed from the family home, including but not
limited to moving and remaining out of the family home until otherwise ordered
by the court;

(b) Admit to commission of the sexual assault to the
police department of the county in which the assault took place or other
appropriate investigative law enforcement agency;

(c) Provide to the appropriate prosecuting authority
a written waiver of indictment and preliminary hearing for any criminal charges
arising from the sexual assault; and

(d) Enter a voluntary plea of guilty to the charge or
charges alleged upon or following arraignment.

(7) Notwithstanding sections 706-606.5,
706-620, 706-659, 706-660, and 706-660.2, a defendant considered for the
expedited sentencing program under this section when sentence is imposed may be
sentenced to a term of probation pursuant to section 706-624; provided that if
the defendant is sentenced to a term of imprisonment as a condition of
probation, the term of imprisonment may allow for the defendant's retention of
employment.

(8) The term of probation under this section
shall be as follows:

(a) For an offense under section 707-730 or 707-731,
twenty years; and

(b) For an offense under section 707-732 or 707-741,
ten years.

(9) In addition to the conditions of probation
provided under section 706-624, a sentence under this section shall include
that the defendant shall:

(a) Participate in court approved, appropriate sex
offender assessment and treatment that shall conform to the guidelines
developed by the adult probation division of the appropriate circuit court,
until clinically discharged; provided that:

(i) The prosecuting authority shall be
provided notice and the opportunity for a hearing prior to any authorization for
treatment discontinuance by the court or the adult probation division;

(ii) The defendant shall pay for the cost of
the assessment and treatment to the extent that the defendant has the ability
to do so; and

(iii) A lack of assessment and treatment
resources shall result in the defendant not being considered for the expedited
sentencing program;

(b) Provide a written waiver of confidentiality for
any assessment, treatment, counseling, therapy, or other program ordered as a
condition of probation;

(d) Comply with other condition deemed by the court
to be reasonably necessary for the protection of the victim of the sexual
assault or the rehabilitation of the defendant.

(10) There shall be a rebuttable presumption
in favor of the court imposing a sentence in accordance with this section when
a defendant qualifies for the expedited sentencing program, and written notice
of "no objection" is issued by the prosecuting authority. The court
shall provide written findings of fact setting forth specific reasons
justifying imposition of a sentence that is not in accordance with this
section. [L 1993, c 316, §1; am L 2001, c 127, §2]

Cross References

Children's advocacy program, see chapter 588.

COMMENTARY ON §706-606.3

Act 316, Session Laws 1993, added this section to create an
option for expedited sentencing of persons who have committed intra-family
sexual assault. The legislature found that this section offers a new approach
to removing obstacles that delay and hinder the successful prosecution of
certain sex offenders, offers prosecutors an option to encourage offenders to
plead guilty and accept treatment early in the proceedings, and offers hope
that treatment and intensive monitoring will minimize the chance of further
abuse. The intent is to accomplish an increase in criminal convictions,
punishment, and deterrence, while providing better protection for potential
victims, not only from sexual assault but from the trauma of being the primary
witness against a family member. House Standing Committee Report No. 1174,
Senate Standing Committee Report No. 849.

Act 157, Session Laws 1995, extended the sunset date of this
section from June 30, 1995 to June 30, 2001. The legislature found that the
expedited sentencing program served as "a viable alternative in a small
number of select cases" and that the program should continue to be
available within the criminal justice system. However, the legislature believed
that there was insufficient basis to determine whether the program should be
made permanent. Conference Committee Report No. 62.

Act 127, Session Laws 2001, repealed the sunset date for the
expedited sentencing program of the family court. The purpose of the program
was to allow for the expeditious removal of the offender from the family home,
in cases of intra-family felony sexual assault or incest, thus allowing the
child to remain in the home. The legislature found that the program applied
only to those offenders found to be "safe to probate" and minimized
the possibility of revictimizing the child by eliminating the need to testify
and requiring treatment and supervision of all members of the child's family.
The legislature further found that the program had been effective and
beneficial to the families concerned. Senate Standing Committee Report No.
1453, Conference Committee Report No. 114.