§706-641 Criteria for imposing fines. (1) The court shall not sentence a defendant only to pay a fine, when any other disposition is authorized by law, except in misdemeanor and petty misdemeanor cases.

(2) The court shall not sentence a defendant to pay a fine in addition to a sentence of imprisonment or probation unless:

(a) The defendant has derived a pecuniary gain from the crime; or

(b) The court is of the opinion that a fine is specially adapted to the deterrence of the crime involved or to the correction of the defendant.

(3) The court shall not sentence a defendant to pay a fine unless:

(a) The defendant is or will be able to pay the fine; and

(b) The fine will not prevent the defendant from making restitution to the victim of the offense.

(4) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose. [L 1972, c 9, pt of §1; am L 1986, c 314, §34]

COMMENTARY ON §706-641

This section states the general position of the Code against the routine imposition of fines where other types of disposition are authorized. Even in the case of violations, where only a fine or suspended sentence is authorized, the fine imposed should be measured in terms of the defendant's ability to pay and in terms of the defendant's ability to make compensation to the victims, if any, of the defendant's offense.

Where other types of disposition are available, the court should not impose only a fine unless the court makes a determination that "a fine alone suffices for the protection of the public."

More is required of the court in order to impose both imprisonment and a fine or probation and a fine upon a defendant. The court is authorized by subsection (2) to impose such a sentence only if the defendant derived pecuniary gain from the crime or the court is of the opinion that a fine (in addition to imprisonment or probation) will serve either a correctional or deterrent function.

Subsection (3)(a) seeks to eliminate fines which the defendant cannot pay. Incarceration should not result from mere inability to pay an imposed fine. Contumacious non-payment is quite another thing and is handled in subsequent sections. Subsection (3)(b) seeks to prevent the imposition of a fine which would interfere with restitution or reparation to the victim.

Subsection (4) instructs the court to consider the defendant's financial resources with respect to the fine's amount and its method of payment (lump sum or installment payments).

The Code differs from prior law in that it ends the possibility of imprisonment for noncontumacious failure to make payment.1 It also supplies legislative guidelines previously absent from the law.

Case Notes

Where defendant was sentenced pursuant to §431:10C-117(a)(2), because the district court may have been unaware of the applicability of quoted parts of this section and §706-642 and of its discretionary authority to sentence defendant to perform community service rather than to pay the fine, appellate court vacated the part of the sentence ordering defendant to pay a $1,000 fine and remanded that part for resentencing. 77 H. 476 (App.), 888 P.2d 376 (1995).

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§706-641 Commentary:

1. See H.R.S. §712-4.