§706-621 Factors to be considered in imposing a term of probation. 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, 6; am L 1995, c 157, §1; am 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 (1979).

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 (2002).

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 (2001).

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

Mentioned: 76 H. 408, 879 P.2d 513 (1994).

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§706-621 Commentary:

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