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HomeMy WebLinkAboutCOM 1068.000 2006-2008 ~tv or y phone: (808) 2 -5421 BRENDA J FORD y Council Member Fax: (808) 4786 E-Mail: bfoy~co.ha ii.hi.us District 7 - Central Kona C C3 HAWAII COUNTY COUNCIL County of Hawaii _ rv Kailua Trade Center 75-5706 Hanama Place, Suite 109 Kailua-Kona, Hawaii 96740 DATE: February 28, 2008 TO: Pete Hoffmann, Chair and Members of the Hawaii County Council FROM: Brenda J. Ford, Council Member V( RE: Proposed ordinance to amend article XIII, section 13-11, of the Hawaii County Charter (2000), relating to penalties. Attached for your consideration is a bill to amend article XIII, section 13-11, of the Hawaii County Charter (2000), relating to penalties. This proposed amendment would increase the criminal penalty amount from one thousand, to an amount not to exceed two thousand dollars. The bill also amends the section to clarify the County's authority regarding the imposition of civil fines. The Flooding Adhoc Committee voted to move this legislation to the Public Works and Intergovernmental Relations Committee agenda for the March 11, 2008 meeting. BJFldkr Enclosures • HRS 706-640 • HRS 706-641 3iA~. ab3~ Comm. No. l0 Ref. To: PW~ t Ref, Date FFB 2 Bg _ Voll4 Ch0701-0853 PART III. FINES AND RESTITUTION Note Part heading amended by L 1998, c 269, §3; L 2000, c 205, §5. §706-640 Authorized fines. (1) A person who has been convicted of an offense may be sentenced to pay a fine not exceeding: (a) $50,000, when the conviction is of a class A felony, murder in the first or second degree, or attempted murder in the first or second degree; (b) $25,000, when the conviction is of a class B felony; (c) $10,000, when the conviction is of a class C felony; (d) $2,000, when the conviction is of a misdemeanor; (e) $1,000, when the conviction is of a petty misdemeanor or a violation; (f) Any higher amount equal to double the pecuniary gain derived from the offense by the defendant; (g) Any higher or lower amount specifically authorized by statute. (2) Notwithstanding section 706-641, the court shall impose a mandatory fine upon any defendant convicted of theft in the first or second degree committed by receiving stolen property as set forth in section 708-830(7). The fine imposed shall be the greater of double the value of the stolen property received or $25,000 in the case of a conviction for theft in the first degree; or the greater of double the value of the stolen property received or $10,000 in the case of a conviction for theft in the second degree. The mandatory fines imposed by this subsection shall not be reduced except and only to the extent that payment of the fine prevents the defendant from making restitution to the victim of the offense, or that the defendant's property, real or otherwise, has been forfeited under chapter 712A as a result of the same conviction for which the defendant is being fined under this subsection. Consequences for nonpayment shall be governed by section 706-644; provided that the court shall not reduce the fine under section 706-644(4) or 706-645. [L 1972, c 9, pt of §1; am L 1986, c 314, §33; am L 1987, c 181, §5; am L 1997, c 149, §4] Cross References Unauthorized removal of shopping carts, see §633-16. COMMENTARY ON §706-640 This section sets forth the maximum fine authorized for any offense according to grade and class. The maximum amount provided should be sufficient for both deterrent and correctional purposes; discretion in imposing a fine within the set maximum should be guided by the criteria set forth in §706-641. The most significant use of the fine as a means of penalizing the offender is in offenses involving pecuniary gain. When the amount of pecuniary gain is proven, subsection (5) subordinates the stated amounts and authorizes a greater fine in an amount equal to double the pecuniary gain. The third paragraph of the commentary appearing in the main volume is reproduced to correct a printing error: "Subsection (6) acknowledges that other higher or lower fines may be authorized with respect to specific offenses when deemed necessary or appropriate to the situation. Subsection (6) also preserves and recognizes higher and lower limits for offenses which are set by provisions of law not within the Penal Code." Because of the questionable wisdom and constitutionality of authorizing the disposition of assessing costs against convicted defendants in criminal cases, the Code departs from prior Hawaii law and does not authorize such a sentence. As a practical matter, costs are almost never imposed in criminal cases. The departure is from previous statutory language rather than practice. SUPPLEMENTAL COMMENTARY ON §706-640 Act 314, Session Laws 1986, increased the maximum amounts of fines to allow a sentencing court discretion to impose severe fines, especially when the offender derives great financial gain from the criminal activity. Conference Committee Report No. 51-86. Act 181, Session Laws 1987, added language to this section to reflect the recently created statutory murder and attempted murder crimes. These crimes are murder in the first and second degree and attempted murder in the first and second degree. Senate Standing Committee Report No. 1130. Act 149, Session Laws 1997, amended this section to impose mandatory fines upon persons convicted of receiving stolen property. With the property crime rate continuing to escalate at a dramatic rate, the legislature supported the imposition of severe penalties for those who are in receipt of stolen property, in an effort to deter the criminal activity. Senate Standing Committee Report No. 1600. Vo114 Ch0701-0853 §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 tine 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.[I] It also supplies legislative guidelines previously absent from the law. Case Notes Where defendant was sentenced pursuant to §431:1 OC-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. §706-641 Commentary: 1. See H.R.S.§712-4.