§708-803 Habitual property crime. (1) A person commits the offense of habitual property crime if the person is a habitual property crime perpetrator and commits a property crime.

(2) For the purposes of this section, "habitual property crime perpetrator" means a person who, within ten years of the instant offense, has convictions for offenses within this chapter for:

(a) Any combination of two felonies or misdemeanors; or

(b) Any combination of either one felony or one misdemeanor and one petty misdemeanor; or

(c) Three petty misdemeanors.

The convictions shall be for separate incidents on separate dates. The prosecution is not required to prove any state of mind with respect to the person's status as a habitual property crime perpetrator. Proof that the person has the requisite minimum prior convictions shall be sufficient to establish this element.

(3) A person commits a property crime if the person engages in conduct that constitutes an offense under this chapter. It can be established that the person has committed a property crime by either the prosecution proving that the person is guilty of or by the person pleading guilty or no contest to committing any offense under this chapter.

(4) Habitual property crime is a class C felony.

(5) For a conviction under this section, the sentence shall be either:

(a) An indeterminate term of imprisonment of five years; provided that the minimum term of imprisonment shall be not less than one year; or

(b) A term of probation of five years, with conditions to include but not be limited to one year of imprisonment; provided that probation shall only be available for a first conviction under this section. [L 2004, c 49, §1; am L 2014, c 118, §1; am L 2016, c 231, §36]

COMMENTARY ON §708-803

Act 49, Session Laws 2004, added this section, establishing the offense of habitual property crime, a class C felony. The legislature found that in 2002, Hawaii ranked first in the nation for property crime rates and second in larceny theft rates, and that a large portion of the crimes are committed by habitual offenders. The legislature also found that Act 49 would punish repeat offenders of property crime. House Standing Committee Report No. 902-4, Senate Standing Committee Report No. 2616.

Act 118, Session Laws 2014, amended subsection (4) by clarifying that the sentence for a person convicted of habitual property crime will be: (1) an indeterminate term of imprisonment of five years, with a minimum term of one year; or (2) for a first conviction only, a term of probation of five years, with conditions to include but not be limited to one year of imprisonment. The legislature found that property crimes have been a continual problem in Hawaii. The Federal Bureau of Investigation reported in 2012 that Hawaii ranked thirty-one out of fifty-two jurisdictions when it came to the amount of property crimes at a rate per one hundred thousand inhabitants. The legislature strongly supported the services offered through the Judiciary's Hawaii's Opportunity Probation with Enforcement (HOPE) Probation program, drug court, mental health court, and veterans treatment court, and suggested, without the intent of limiting the court's discretion, that when sentencing a defendant to a term of probation for conviction of a habitual property crime, the court consider sentencing the defendant to the programs, if appropriate. Senate Standing Committee Report No. 3258, Conference Committee Report No. 42-14.

Act 231, Session Laws 2016, amended this section by reducing by one the number of qualifying convictions required to meet the habitual property crime perpetrator status and allowing any offense committed under chapter 708 to qualify. Act 231 also doubled the length of time from five years to ten years that a conviction can qualify a person for habitual theft status, based on the recommendation of the penal code review committee, which was convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015). The legislature concluded that it was necessary to further strengthen this section, the habitual property crime statute. While it is not desirable to incarcerate an individual for stealing items worth $300, the current felony theft threshold, especially when reminded of the fact that each day of incarceration costs Hawaii taxpayers $137 per incarcerated individual, it is important to properly penalize those individuals who have made a career of thievery. Conference Committee Report No. 138-16.