§705-502 Grading of criminal attempt. An attempt to commit a crime is an offense of the same class and grade as the most serious offense which is attempted. [L 1972, c 9, pt of §1]

COMMENTARY ON §705-502

For purposes of sentencing, the Code equates the criminal attempt with the most serious substantive offense attempted. Only in the case where the crime attempted is murder does the Code authorize a different sentence for the substantive offense than for the attempt. This is because §706-606 provides a special sentence for murder. Attempted murder is treated as an ordinary class A felony.

The dispositions[1] (suspension of sentence, probation, imprisonment, etc.) authorized by chapter 706 of the Code are intended to provide primarily a flexible and corrective process. The court's order should be determined by the need for correction as demonstrated by the anti-social disposition (propensities) of the defendant. This being the case, there is generally no difference in the sanctions which ought to be available to the court when a crime is attempted but not consummated. However, where the offense attempted is murder, the unique sentence authorized for that crime is not imposed. Instead, the attempt is treated as any other class A felony. Because §706-606 requires mandatory imprisonment, possibly for life, there is room to economize on sentencing for attempted murder. The various modes of disposition available for a class A felony ought to suffice for correctional needs.

Under previous Hawaii law, the sentencing of attempts is structurally similar to that provided in the Code, except that Hawaii law formerly provided a maximum term of imprisonment of twenty years,[2] whereas the Code, in making the most serious attempt a class A felony, provides for an extended term in cases presenting aggravating circumstances.3

Case Notes

Attempted murder is treated as ordinary class A felony. 57 H. 418, 558 P.2d 1012 (1976).

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§705-502 Commentary:

1. The word "disposition" is used in the Penal Code and its commentary with two different meanings. In chapter 705 and elsewhere the commentary refers to the actor's disposition; the word is used in this context to refer to the actor's anti-social propensities. Chapter 706 deals with the disposition of convicted defendants. That chapter deals with procedures to be followed and available sanctions upon conviction (i.e., suspension of sentence or imposition of a sentence or imposition of a sentence ordering probation, fine, or imprisonment).

2. H.R.S. §702-5.

3. Cf. chapter 706, Disposition of Convicted Defendants.