§706-621  Factors to be considered in
imposing a term of probation.  [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.]  The court, in determining whether to impose a term of probation,
shall consider:



(1)  The factors set forth in section 706-606 to the
extent that they are applicable;



(2)  The following factors, to be accorded weight in
favor of withholding a sentence of imprisonment:



(a)  The defendant's criminal conduct neither
caused nor threatened serious harm;



(b)  The defendant acted under a strong
provocation;



(c)  There were substantial grounds tending to
excuse or justify the defendant's criminal conduct, though failing to establish
a defense;



(d)  The victim of the defendant's criminal
conduct induced or facilitated its commission;



(e)  The defendant has no history of prior
delinquency or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the present crime;



(f)  The defendant's criminal conduct was the
result of circumstances unlikely to recur;



(g)  The character and attitudes of the
defendant indicate that the defendant is unlikely to commit another crime;



(h)  The defendant is particularly likely to
respond affirmatively to a program of restitution or a probationary program or
both;



(i)  The imprisonment of the defendant would
entail excessive hardship to the defendant or the defendant's dependents; and



(j)  The expedited sentencing program set forth
in section 706-606.3, if the defendant has qualified for that sentencing
program. [L 1972, c 9, pt of §1; am L 1980, c 165, §1; am L 1986, c 314, §22;
gen ch 1992; am L 1993, c 316, §2]



 



Note



 



  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.



 



COMMENTARY ON §706-621



 



  This section states grounds
or the types of factors which, while not controlling the court in the exercise
of its discretion, should be accorded weight in favor of withholding the
sanction of imprisonment.  The exercise of discretion by different judges
cannot be expected to lead to precisely uniform sentences; however, legislative
guidelines such as the Code proposes will promote consistency in sentencing.



Such guides, if properly
defined, should serve to promote both the thoughtfulness and consistency of
dispositions, while distributing responsibility between the legislature and the
court.  This is the normal procedure in other fields involving large
discretionary powers; there seems no reason why it should not be attempted
here.[1]



  These factors suggest that
the court's first concern might be to determine the future danger threatened by
the defendant's continued presence in open society, and that it minimize its
concern for the purely deterrent purposes of the sanction of imprisonment.



 



SUPPLEMENTAL COMMENTARY ON §706-621



 



  Act 165, Session Laws 1980,
deleted former paragraphs (2) and (6) and amended paragraph (8).  After
reviewing the section, the Legislature "decided to leave a great deal of
discretion with the trial court to allow for the greatest possible leeway in
dealing effectively with convicted persons."  Conference Committee Report
No. 35-80 (53-80).



  Act 316, Session Laws 1993,
amended this section to provide that the court, in determining whether to
impose a term of probation, shall consider the expedited sentencing program set
forth in §706-606.3 if the defendant has qualified for that program.  House
Standing Committee Report No. 1174, Senate Standing Committee Report No. 849.



  Act 157, Session Laws 1995,
extended the sunset date of the amendment to this section made by Act 316,
Session Laws 1993, 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, and in doing so, also
prevented the possibility of the inadvertent repeal of important probation laws
established in connection with the program.  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.



 



Case Notes



 



  These grounds may be
accorded great weight, but do not control the discretion of the court.  60 H.
314, 588 P.2d 929.



  Although "drug
use" is not a prerequisite to eligibility for probation under §706-659,
the legislature contemplated, consistent with the factors enumerated in this
section, that the trial court would grant probation in cases where strong
mitigating circumstances favored it.  97 H. 440, 39 P.3d 567.



  Upon revocation of
probation pursuant to §706-625(3), in light of the record, §706-660 and this
section, trial court did not abuse its discretion in sentencing defendant to
imprisonment "for a term of not more than ten years with credit for time
served".  97 H. 135 (App.), 34 P.3d 1034.



  Cited:  73 H. 81, 829 P.2d
1325.



  Mentioned:  76 H. 408, 879
P.2d 513.



 



__________



§706-621 Commentary:



 



1.  M.P.C., Tentative Draft
No. 2, comments at 34 (1954).