2013 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
706. Disposition of Convicted Defendants
706-660.2 Sentence of imprisonment for offenses against children, elder persons, or handicapped persons.

Law Journals and Reviews

The abandonment of Punishment. 16 HBJ 63.

§706-660.2 Sentence of imprisonment for offenses against children, elder persons, or handicapped persons. Notwithstanding section 706-669, a person who, in the course of committing or attempting to commit a felony, causes the death or inflicts serious or substantial bodily injury upon a person who is:

(1) Sixty years of age or older;

(2) Blind, a paraplegic, or a quadriplegic; or

(3) Eight years of age or younger;

and such disability is known or reasonably should be known to the defendant, shall, if not subjected to an extended term of imprisonment pursuant to section 706-662, be sentenced to a mandatory minimum term of imprisonment without possibility of parole as follows:

(1) For murder in the second degree--fifteen years;

(2) For a class A felony--six years, eight months;

(3) For a class B felony--three years, four months;

(4) For a class C felony--one year, eight months. [L 1988, c 89, §1; am L 1990, c 67, §8]

COMMENTARY ON §706-660.2

Act 89, Session Laws 1988, added this section to mandate harsher penalties for crimes against victims who are less able to protect themselves. The legislature found that passage of this section will afford a greater measure of protection for the groups designated in this section. House Standing Committee Report No. 459-88, Senate Standing Committee Report No. 2544.

Case Notes

No error in sentence of life imprisonment with a mandatory minimum term of fifteen years for attempted second degree murder of infant by abandonment where defendant left infant in danger of death by reason of exposure or accident. 73 H. 109, 831 P.2d 512.

Determination that a defendant is within the class of offenders to which this section applies to be made by sentencing court after defendant's adjudication of guilt at trial by the trier of fact. 82 H. 304, 922 P.2d 358 (1996).

As an attempt to commit a crime is an offense of the same class and grade as the offense which is attempted, and second degree murder committed under the "aggravated circumstances" set forth in this section is expressly distinguished from classified felonies and, pursuant to §706-610, from unclassified felonies; thus, attempted second degree murder is not an "unclassified" offense for purposes of sentencing and is not treated as a class C felony pursuant to this section. 96 H. 17, 25 P.3d 792 (2001).

Failure to instruct the jury to determine whether infant victim was under the age of eight and whether defendant knew it, or should have known it, was harmless beyond a reasonable doubt; omitted sentencing factor was supported by uncontroverted evidence, including defendant's admission, that defendant's infant daughter was under the age of eight. 96 H. 17, 25 P.3d 792 (2001).

As defendant could only be sentenced under the options available for the offense for which defendant was convicted, defendant had only pled guilty to and was convicted of the offense of assault in the first degree, and plea was devoid of reference to all necessary aggravating circumstances, trial court erred in resentencing defendant to an indeterminate ten-year sentence with a mandatory minimum term of three years and four months under this section. 93 H. 189 (App.), 998 P.2d 70 (2000).

Where aggravating circumstance of complainant's age was not set forth in the plea agreement or admitted or stipulated to as part of the guilty plea, there was an insufficient factual basis in the accepted guilty plea to support the mandatory prison term under this section. 93 H. 189 (App.), 998 P.2d 70 (2000).