§706-646 Victim restitution. (1) As used in this section, "victim" includes any of the following:

(a) The direct victim of a crime including a business entity, trust, or governmental entity;

(b) If the victim dies as a result of the crime, a surviving relative of the victim as defined in chapter 351;

(c) A governmental entity that has reimbursed the victim for losses arising as a result of the crime or paid for medical care provided to the victim as a result of the crime; or

(d) Any duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals, contracted with the county or State to enforce animal-related statutes or ordinances, that impounds, holds, or receives custody of a pet animal pursuant to section 711-1109.1, 711-1109.2, or 711-1110.5; provided that this section does not apply to costs that have already been contracted and provided for by the counties or State.

(2) The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant's offense when requested by the victim. The court shall order restitution to be paid to the crime victim compensation commission if the victim has been given an award for compensation under chapter 351. If the court orders payment of a fine in addition to restitution or a compensation fee, or both, the payment of restitution and compensation fee shall be made pursuant to section 706-651.

(3) 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. The court shall specify the time and manner in which restitution is to be paid. While the defendant is in the custody of the department of public safety, restitution shall be collected pursuant to chapter 353 and any court-ordered payment schedule shall be suspended. Restitution shall be a dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to:

(a) Full value of stolen or damaged property, as determined by replacement costs of like property, or the actual or estimated cost of repair, if repair is possible;

(b) Medical expenses, which shall include mental health treatment, counseling, and therapy;

(c) Funeral and burial expenses; and

(d) Lost earnings, which shall include paid leave.

(4) In any criminal proceeding before any court, all money deposited by the defendant as bail and not declared forfeited shall be applied toward payment of any restitution, fines, or fees ordered by the court in the same case, consistent with the priorities in subsection (2).

(5) The restitution ordered shall not affect the right of a victim to recover under section 351-33 or in any manner provided by law; provided that any amount of restitution actually recovered by the victim under this section shall be deducted from any award under section 351-33. [L 1998, c 269, pt of §1; am L 1999, c 18, §17; am L 2006, c 230, §22; am L 2012, c 211, §5; am L 2013, c 207, §1; am L 2016, c 231, §25; am L 2017, c 77, §4; am L 2019, c 108, §2]

COMMENTARY ON §706-646

Act 269, Session Laws 1998, added this section and §706-647 to allow victims of crime to enforce a criminal restitution order in the same manner as a civil judgment. This section also includes within the definition of "victim" a governmental entity which has reimbursed the victim for losses arising as a result of the crime, and allows the court to order restitution to be paid to the criminal injuries compensation commission if the victim has been given an award for compensation by the commission. Under current law, a defendant may be required by the court to pay restitution for losses caused to the victim. Collection of the restitution was left to governmental entities such as the judiciary, paroling authority, and department of public safety; these entities often were able to collect only a small fraction of the amount. Moreover, although the criminal injuries compensation commission helped victims by providing some compensation, victims of property crimes and some violent crimes were ineligible for any compensation from the commission. Furthermore, although a victim may bring a civil action against the defendant, the process was costly and time-consuming. The legislature believed that victims should have a "fast track" ability to be compensated for their losses by allowing victims to enforce the criminal restitution order as a civil judgment, using all of the civil collection remedies. Conference Committee Report No. 89, Senate Standing Committee Report No. 3008.

Act 230, Session Laws 2006, amended this section to, among other things, require that when restitution is ordered, the amount ordered 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 211, Session Laws 2012, amended this section by making a conforming amendment to include medical assistance provided by the State as an expense for which restitution may be ordered to conform with amendments made to other sections in the Hawaii Revised Statutes by Act 211. The legislature found that the medicaid program's ability to recover moneys from third parties to which it was entitled must be strengthened to maintain the viability of the medicaid program. Act 211 would assist the medicaid program in recovering those moneys, thereby reducing the burden on the program imposed by third parties and helping to ensure that the program is sustainable. Senate Standing Committee Report No. 3314.

Act 207, Session Laws 2013, amended subsection (1) by expanding the definition of "victim" to: (1) include duly incorporated humane societies or duly incorporated societies for the prevention of cruelty to animals, contracted with the county or State, in order to provide those societies with restitution for reasonable and verified losses suffered; and (2) provide that duly incorporated humane societies or duly incorporated societies for the prevention of cruelty to animals, contracted with the county or State, should not receive restitution as a victim for costs that have already been contracted and provided for by the counties or State. The legislature found that in a recent decision, the circuit court of the first circuit denied restitution to the Hawaiian Humane Society for their expenses incurred in caring for one hundred fifty-three dogs previously subjected to animal cruelty in the second degree. The court held that the Hawaiian Humane Society was not a government agency or a "direct victim" of the crime committed. Although the Hawaiian Humane Society assumed care of the dogs and became the legal owner of all of the dogs upon forfeiture proceedings, the court held that it was not the "actual owner" and was not entitled to restitution under this section. Act 207 provided clear language to allow any duly incorporated humane society contracted with a county or State to receive restitution for expenses incurred when caring for an animal as a result of animal forfeiture or impoundment. Senate Standing Committee Report No. 1294, Conference Committee Report No. 19.

Act 231, Session Laws 2016, amended subsections (2) and (3) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Act 77, Session Laws 2017, amended this section by requiring that any bail posted by a defendant be applied toward payment of any court-ordered restitution, fines, or fees in the same case. The legislature recognized concerns raised by the [city and county of Honolulu] department of the prosecuting attorney concerning the ineffectiveness of §10 of Act 139, Session Laws of Hawaii 2012 amending §353-22.6 "Victim restitution", in facilitating the payment of restitution to crime victims since a vast majority of offenders owing restitution are not in prison. The legislature found that Act 77 established additional mechanisms to increase offender accountability and secure restitution payments to crime victims. Senate Standing Committee Report No. 956, Senate Standing Committee Report No. 1523, Conference Committee Report No. 33.

Act 108, Session Laws 2019, amended this section to clarify that restitution payments to crime victims may include reimbursements for mental health treatment, counseling, therapy, and lost earnings, including paid leave. The legislature found that an ambiguity existed as to what losses are eligible for reimbursement to crime victims. The legislature further found that losses suffered by crime victims can include the cost of damaged or stolen property and hospitalization, as well as lost earnings and the cost of mental health treatment. Act 108 made a broader range of losses eligible for reimbursement in order for crime victims to be made as whole as possible. Conference Committee Report No. 36.

Case Notes

Defendant's argument that a crime victim who received indemnification from an insurer did not suffer a "loss" within the meaning of this section was without merit; the only exception for or reduction of restitution plainly stated in this section is that any amount actually recovered by the victim from the criminal should be deducted from the amount the victim might recover from the crime victim compensation special fund pursuant to §351-33. 121 H. 135 (App.), 214 P.3d 1125 (2009).

Trial court properly ordered defendant to repay the full amount of losses to employer without reduction for amounts paid by insurance, which furthered the rehabilitative purposes of this section to the greatest extent possible; if defendant was not required to pay any restitution, defendant would not have righted the wrong defendant committed and no rehabilitative purpose would be achieved; the interests of justice would not be served by allowing a thief to retain or otherwise benefit from the spoils of the thief's crime simply because the thief picked a victim who was prudent enough to have obtained insurance. 121 H. 135 (App.), 214 P.3d 1125 (2009).

Where defendant was ordered to pay restitution to employer, the direct victim of defendant's crime, not employer's insurer, defendant's sentence complied with subsection (1). 121 H. 135 (App.), 214 P.3d 1125 (2009).

Where (1) traffic accident victim, and not defendant, caused the accident, (2) it appeared that victim's vehicle flipped over on its roof causing victim's immediate death upon impact, and (3) there was no evidence in the record that defendant's criminal misconduct of failing to remain at the scene of the accident, provide information, and render reasonable assistance pursuant to §§291C-12 and 291C-14 caused victim's injuries or death, no nexus between defendant's conduct and victim's injuries and death had been demonstrated; thus, restitution could not be imposed under this section. 121 H. 191 (App.), 216 P.3d 117 (2009).

District court erred by ordering defendant to pay restitution for victim's lost wages under subsection (3); restitution for wage loss was contrary to the legislative intent behind this section, and thus, lost wages were not compensable as restitution. 130 H. 332 (App.), 310 P.3d 1033 (2013).

In light of this section's requirement that the restitution amount be "reasonable and verified" and that the victim is in the best position to provide information regarding and verification of his or her losses caused by the defendant, where restitution is contested, the burden to present a prima facie showing regarding restitution request is best placed on the prosecution who brings the restitution motion on behalf of the victim of the crime. 130 H. 332 (App.), 310 P.3d 1033 (2013).

Portion of restitution award for medical expenses vacated and remanded where district court found there was a basis in evidence to conclude defendant caused injury and resultant expenses to victim, while recognizing that victim had a preexisting neck condition and had been receiving treatment, but ruled no apportionment was possible where no expert medical opinion or competent medical evidence was presented; conclusion was at odds with the court's findings regarding the worsening of the victim's condition and consequential change in victim's medical treatment and based on a misconception that imposition of all medical expenses could be made on defendant where there was insufficient evidence upon which to base an apportionment. 130 H. 332 (App.), 310 P.3d 1033 (2013).