§706-606 Factors to be considered in imposing a sentence. The court, in determining the particular sentence to be imposed, shall consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant;

(2) The need for the sentence imposed:

(a) To reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense;

(b) To afford adequate deterrence to criminal conduct;

(c) To protect the public from further crimes of the defendant; and

(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) The kinds of sentences available; and

(4) The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. [L 1972, c 9, pt of §1; am L 1976, c 92, §8; am L 1981, c 27, §1; am L 1986, c 314, §15]

Cross References

Imprisonment for murder, see §§706-656 and 706-657.

COMMENTARY ON §706-606

[Section 606 of the Proposed Draft of the Penal Code provided that a person convicted of murder would be sentenced to an indeterminate term of imprisonment the maximum length of which would be life or twenty years as determined by the court. The legislature revised §706-606 and added the provision for mandatory life imprisonment without parole (but subject to commutation) now contained in subsection (a). The following commentary is based on the original proposal.]

The crime of murder is the most serious offense in the penal law; because of this the Code departs from the general policy underlying §706-605 and makes murder a non-probationable offense in all cases.

The flexible mode of disposition provided by §706-605 is premised on the rationale that, although most class A felons will, perhaps, be sentenced to an indeterminate term of imprisonment, no legislative classification can take account of unusual circumstances or extreme mitigations which would indicate that a sentence to probation, rather than to imprisonment, is warranted. The case is even stronger for defendants convicted of less serious offenses. However, in providing a bar to probation for persons convicted of murder (i.e., intentionally or knowingly causing the death of another person), the Code takes the position that, regardless of the information obtained by pre-sentence procedure, the court's options ought to be limited to which maximum, life or twenty years, will be applicable to the convicted defendant's term of imprisonment. The actual time of release from imprisonment will then be determined by the board of paroles and pardons, which will have more time and resources to devote to a more deliberate determination of the defendant's fitness to return to open society.

SUPPLEMENTAL COMMENTARY ON §706-606

When the legislature adopted the Code in 1972, it revised §706-606 to provide for life imprisonment without the possibility of parole in the four enumerated cases specified in subsection (a). However, the legislature provided that upon the Governor's commutation, parole would be possible at the end of twenty years of imprisonment. Subsection (b) essentially derived from the Proposed Draft.

The Conference Committee Report specifically provides that: "It is the intent of your Committee that the term 'peace officer' [see subsection (a)(i)] includes judges and prosecuting attorneys. It is also the intent of your Committee that §701-101 of the Penal Code shall apply to prisoners presently serving sentences of life without parole who are, after twenty years of imprisonment, subject to the same review as provided in §706-606." Conference Committee Report No. 2 (1972).

Act 27, Session Laws 1981, eliminated the court's discretion under subsection (b) to impose a sentence of either life imprisonment with possibility of parole or twenty years imprisonment. As amended the subsection requires the court to impose the same indeterminate sentence in all cases.

Act 314, Session Laws 1986, deleted the provisions concerning sentencing for murder and replaced it with criteria to be considered by a court in imposing any sentence, including the need to afford deterrence to criminal conduct and to impose just punishment. Conference Committee Report No. 51-86.

Law Journals and Reviews

Risky Business: Assessing Dangerousness in Hawai‘i. 24 UH L. Rev. 63 (2001).

Case Notes

Murder contract not element of offense of murder; only relevant for purpose of sentence enhancement. 807 F.2d 805 (1987).

Not unconstitutionally vague. 751 F. Supp. 853 (1990).

The better rule is to include in indictment the aggravating circumstances which result in application of statute enhancing the penalty for the crime committed. 59 H. 625, 586 P.2d 250 (1978).

Subsection (b) not unconstitutional. Judge must impose sentence of life imprisonment with possibility of parole, but allowed to reduce it to twenty years if factors or circumstances warrant lesser sentence. 64 H. 193, 638 P.2d 307 (1981).

Sentencing court abused discretion by finding defendant committed murder by hire. 67 H. 573, 698 P.2d 287 (1985).

Trial court abused its discretion in rigidly applying family court sentencing guidelines promulgated without legislative authority. 72 H. 521, 824 P.2d 837 (1992).

Sentencing court may properly consider criminal convictions that occurred subsequent to original illegal sentence when applying §706-606 factors on resentencing. 79 H. 281, 901 P.2d 481 (1995).

Where no evidence that group engaged in or endorsed illegal activities, insufficient evidence to establish any reasonable correlation between defendant's association with group and imposition of consecutive prison sentences under paragraph (1). 81 H. 309, 916 P.2d 1210 (1996).

No abuse of discretion in court sentencing defendant to extended terms of imprisonment under §§706-661 and 706-662 where, inter alia, court considered each of the factors enumerated in this section and all the mitigating factors raised by defendant. 83 H. 335, 926 P.2d 1258 (1996).

The January 1, 1987 repeal of language in subsection (b) (pre-1986 amendment) authorizing a court to impose a sentence of life imprisonment with the possibility of parole for murder in cases other than described in subsection (a) (pre-1986 amendment) did not invalidate any such sentence imposed prior to the repeal date. 102 H. 282, 75 P.3d 1173 (2003).

A sentencing court may not impose discretionary conditions of probation pursuant to §706-624(2) unless there is a factual basis in the record indicating that such conditions "are reasonably related to the factors set forth in this section" and insofar as such "conditions involve only deprivations of liberty or property", that they are reasonably necessary for the purposes indicated in paragraph (2). 103 H. 462, 83 P.3d 725 (2004).

The circuit court's statement regarding defendant's "extensive criminality": (1) related directly to the history and characteristics of the defendant and identified the specific facts or circumstances within the range of statutory factors that the court considered in imposing a consecutive sentence; and (2) provided the conclusions drawn by the court after consideration of all the facts that pertain to the statutory factors, and confirmed for defendant, the public, and the court that the decision to impose consecutive sentences was deliberate, rational, and fair. 131 H. 94, 315 P.3d 720 (2013).

Where the determination by the intermediate court of appeals (ICA) that the circuit court, in imposing a consecutive sentence, "likely concluded" that defendant was dangerous to the safety of the public or posed an unacceptable risk of re-offending, and that rehabilitation appeared unlikely, arguably could be read as speculating as to the circuit court's reasoning, it appeared that the ICA was rather attempting to link the circuit court's express reasoning to the examples in State v. Hussein, and to the extent doing so constituted error by the ICA, the error did not warrant vacating defendant's convictions. 131 H. 94, 315 P.3d 720 (2013).

Seven-day term of imprisonment was not unreasonably related to factors set forth in this section, considering nature of offense and circumstances presented by the record. 10 H. App. 381, 876 P.2d 1331 (1994).

Trial court did not abuse its discretion in sentencing defendant to consecutive terms of imprisonment under §706-668.5 where, taking into consideration all of the factors set forth in this section, the court pointed to the high level of cruelty, violence, and viciousness involved in the commission of the offenses, that most of the offenses took place in front of defendant's two-year-old son, defendant's lack of remorse, the clear and present danger defendant posed to complainant and the community, and the poor prospects for defendant's rehabilitation. 106 H. 365 (App.), 105 P.3d 242 (2004).

Where trial court's rationale for imposing jail time reflected the factors listed in this section, and the jail time imposed did not exceed the maximum jail term authorized by §706-663, trial court did not clearly exceed the bounds of reason nor disregard rules or principles of law or practice to defendant's substantial detriment in imposing a jail term; thus, trial court did not abuse its discretion in sentencing defendant to 120 days' imprisonment. 116 H. 403 (App.), 173 P.3d 550 (2007).

Family court did not abuse its discretion by requiring defendant to attend domestic violence counseling as a condition of defendant's probation; where defendant was charged with endangering the welfare of an incompetent person under §709-905 based on substantial evidence that defendant assaulted complainant, under §706-624(2), the court was free to impose discretionary conditions of probation that are reasonably related to the factors set forth in this section and to the extent that the conditions involve only deprivations of liberty as are reasonably necessary for the purposes indicated in paragraph (2). 121 H. 228 (App.), 216 P.3d 1251 (2009).

Court did not abuse its discretion in sentencing defendant to consecutive terms of imprisonment under §706-668.5 because it considered the factors set forth in this section; defendant's extensive record and the fact that defendant caused a lot of harm in the community were specific circumstances that led the court to conclude that a consecutive sentence was appropriate. 129 H. 135 (App.), 295 P.3d 1005 (2013).

In light of prosecutor's strong emphasis in sentencing arguments on defendant's Micronesian heritage and the need to send a message to the Micronesian community, the circuit court was required to take more definitive action to dispel the appearance that the prosecutor's improper arguments may have played a role in determining defendant's sentence; sentences vacated and resentencing to be handled by a different judge. 134 H. 289 (App.), 339 P.3d 1090 (2014).

Cited: 73 H. 81, 829 P.2d 1325 (1992).

Discussed: 78 H. 127, 890 P.2d 1167 (1995); 81 H. 421 (App.), 918 P.2d 228 (1996).