Note

Part heading amended by L 1986, c 314, §20.

Law Journals and Reviews

The Abandonment of Punishment. 16 HBJ, no. 2, at 63 (1981).

§706-620 Authority to withhold sentence of imprisonment. A defendant who has been convicted of a crime may be sentenced to a term of probation unless:

(1) The crime is first or second degree murder or attempted first or second degree murder;

(2) The crime is a class A felony, except class A felonies defined in chapter 712, part IV, and by section 707-702;

(3) The defendant is a repeat offender under section 706-606.5;

(4) The defendant is a felony firearm offender as defined in section 706-660.1(2);

(5) The crime involved the death of or the infliction of serious or substantial bodily injury upon a child, an elder person, or a handicapped person under section 706-660.2; or

(6) The crime is cruelty to animals where ten or more pet animals were involved under section 711-1108.5 or 711-1109. [L 1972, c 9, pt of §1; am L 1986, c 314, §21; am L 1988, c 89, §2; am L 1990, c 67, §8; am L 1994, c 229, §1; am L 1996, c 197, §1; am L 2013, c 210, §1]

COMMENTARY ON §706-620

The broad discretion vested in the court by §706-605 with respect to choosing between and among various authorized dispositions necessitates some statutory guidelines for the exercise of that discretion. This section states a policy in favor of withholding a sentence of imprisonment unless, as stated, there is (1) undue risk by repetitive criminal behavior, (2) need for institutionalized correctional facilities, or (3) need to reflect the seriousness of the crime which, under the circumstances of the case, can only be accomplished by imprisonment. The general policy of this section is supplemented by a statement in the following section of grounds which, while not controlling the discretion of the court, should be accorded weight in favor of withholding a sentence of imprisonment.

Previous Hawaii law, while favoring probation or suspension of sentence by implication, gave the court a free hand--but no guidance--in selecting the proper sentence or disposition.

Every circuit court, when it appears to its satisfaction that the ends of justice and the best interests of the public as well as of the defendant in a criminal case will be subserved thereby, may after conviction or after a plea of guilty or nolo contendere (except in cases of [certain specified crimes[1]]) suspend the imposition or execution of sentence, in full or in part, and place the defendant upon probation for such period and upon such terms and conditions as it may deem best.2

The Code seeks to provide more definitive criteria for the exercise of the broad discretion vested in the court.

SUPPLEMENTAL COMMENTARY ON §706-620

Act 89, Session Laws 1988, amended this section for the purpose of mandating harsher penalties for crimes against victims who are less able to protect themselves. The legislature found that passage of these amendments afforded a greater measure of protection for the groups enumerated in this section. House Standing Committee Report No. 459-88, Senate Standing Committee Report No. 2544.

Act 229, Session Laws 1994, amended this section to allow the court discretion to sentence a defendant convicted of a class A felony drug offense (as defined in chapter 712, part IV) to probation. The legislature believed that, in certain instances, the public is better served by allowing judges some discretion in evaluating all appropriate sentencing and treatment alternatives available for drug offenders. Conference Committee Report No. 62.

Act 197, Session Laws 1996, amended this section to retain probation for the offense of manslaughter, which the Act made a class A felony. The legislature believed that courts should still be given the discretion to sentence a person to probation in "extremely rare circumstances where strong mitigating circumstances exist." Conference Committee Report No. 71.

Act 210, Session Laws 2013, amended this section to prohibit sentencing a defendant to a term of probation if the defendant is convicted of cruelty to animals in the first or second degree involving ten or more pet animals. Conference Committee Report No. 74.

Law Journals and Reviews

Elder Abuse and Laws to Protect Older Persons in Hawaii. 15 HBJ, no. 13, at 93 (2013).

Case Notes

Exercise of court's discretion in applying these standards is not reviewable on appeal in absence of abuse. 60 H. 314, 588 P.2d 929 (1979).

Defendant's arrest and conviction for two petty misdemeanors while awaiting sentencing for another conviction demonstrates "undue risk" justifying imprisonment. 4 H. App. 566, 670 P.2d 834 (1983).

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

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§706-620 Commentary:

1. Cf. commentary on §706-605.

2. H.R.S. §711-77.