§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;

(c) To be imprisoned for a term as authorized by part IV; or

(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 order of priority established in section 706-651.

(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; am L 2016, c 231, §18]

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 subsection (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.

Act 231, Session Laws 2016, amended subsection (6) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Case Notes

Restitution order may not be enforced against money earned from prison labor. 63 H. 12, 621 P.2d 334 (1980).

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 (1985).

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 (1989).

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 Hawaii paroling authority. 78 H. 127, 890 P.2d 1167 (1995).

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 (1996).

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 (2000).

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 (2000).

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 (2003).

Because there was no provision in this section for the imposition of anger management or other treatment programs, but §706-624(2)(j) authorized the imposition of, inter alia, mental health treatment as a discretionary term of probation, district court erred by sentencing defendant to both the thirty-day term of imprisonment (the maximum term of imprisonment for a petty misdemeanor) and anger management classes for defendant's harassment conviction (a petty misdemeanor). Defendant could have been sentenced to a thirty-day term of incarceration or a six-month term of probation, but not both, and thus defendant's sentence was illegal. 130 H. 332 (App.), 310 P.3d 1033 (2013).

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§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).