§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 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 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; am L 2012, c 51, §1]

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 procedure1 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.

Act 51, Session Laws 2012, amended this section by deleting the Intake Service Center as an agency responsible for preparing the pre-sentence diagnosis and report for defendants and for giving notices of the Crime Victim Compensation Act and other specified restitution procedures to increase efficiency in the pre-sentence investigative process as it relates to convicted defendants. The legislature found that Act 51 updated the law relating to pre-sentence investigation process and reporting and correctly designated pre-sentence investigation and reporting duties to the Judiciary. House Standing Committee Report No. 607-12, Senate Standing Committee Report No. 3187.

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 (1974).

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 (1992).

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 (2008).

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 (2008).

Cited: 73 H. 259, 831 P.2d 523 (1992).

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§706-602 Commentary:

1. H.R.Cr.P., Rule 32(c)(2) (1960).