State v. DeMello. , 136 Haw. 193 ( 2015 )

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Electronically Filed
Supreme Court
SCWC-10-0000173
02-NOV-2015
09:20 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Petitioner/Plaintiff-Appellee,
vs.
LAWRENCE DEMELLO, JR.,
Respondent/Defendant-Appellant.
SCWC-10-0000173
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-10-0000173; CASE NO. 2P108-02074)
NOVEMBER 2, 2015
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.,
WITH POLLACK, J., DISSENTING, WITH WHOM CIRCUIT JUDGE PERKINS,
IN PLACE OF ACOBA, J., RECUSED, JOINS
OPINION OF THE COURT BY NAKAYAMA, J.
Petitioner/Plaintiff-Appellee the State of Hawai#i
(State) has asked this court to determine whether the
Intermediate Court of Appeals (ICA) gravely erred when it held
that lost wages may not be awarded as restitution pursuant to HRS
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§ 706-646 (Supp. 2006). We hold that HRS § 706-646 permits
restitution for reasonable and verified lost wages in appropriate
circumstances. Here, the District Court of the Second Circuit
(district court) acted within its discretion when it ordered
Respondent/Defendant-Appellant Lawrence DeMello, Jr. (DeMello) to
pay restitution for wages that the Complaining Witness (CW) lost
as a result of DeMello’s unlawful conduct.
I. BACKGROUND
On May 10, 2008, a physical altercation involving
DeMello and the CW occurred at the CW’s home. As a result of the
altercation, DeMello was charged with one count of harassment in
violation of HRS § 711-1106(1)(a) (Supp. 1996) and one count of
trespass in violation of HRS § 708-815(1) (1993). The district
court held a bench trial on December 14, 2009.1
At trial, the CW testified that on the night in
question, she, her husband, and DeMello had been arguing about
the proper care of her husband’s son. The argument escalated
into a physical altercation. Eventually DeMello grabbed the CW
by the hair and dragged her about ten feet across her lawn. The
CW testified that she experienced immediate, excruciating pain,
and that she blacked out. At the close of trial, the district
court found DeMello guilty of both charges.
1
The Honorable Kelsey T. Kawano presided.
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At the State’s request, the district court held
restitution hearings on August 2, 2010, and September 20, 2010.
During the first hearing, the CW testified that in the days
following the altercation, she experienced chronic pain in her
neck and shoulders, blurred vision, and that she had difficulty
standing. The CW also testified that due to her injuries, she
was unable to perform her job duties as a hairdresser for a ten-
day period. The State entered the CW’s hairdressing appointment
ledger into evidence. With respect to the ledger, Defense
counsel stated:
We will stipulate that [the CW] will say each of these names
that are listed on her ledger, that she will say how much
she charged, and . . . the taxes added, . . . and that the
total amount is indicated as $1,155.12.
We are not stipulating that this is true, only that this is
what [the CW] will testify to.
At the second hearing, DeMello argued:
With respect to the lost wages and therapy, we would argue
that that is not applicable to the restitution statute.
. . . .
We would argue that the Legislature, when they amended [HRS
§ 706-646] in 1998, did not intend to include wage loss and
therapy.
And [House] Standing Committee Report Number 683-98, the
House stated . . . “wage loss was ‘more appropriate’ for the
civil arena.”
The district court disagreed. It ordered DeMello to pay $3,387
in restitution, including $1,155 in restitution for the ten-day
period when the CW was unable to work.
On appeal, the ICA reversed. It held, among other
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things, that lost wages are not a compensable category of
restitution pursuant to HRS § 706-646. Accordingly, the ICA
vacated the restitution order and remanded for a new restitution
hearing.2
II. STANDARD OF REVIEW
The proper interpretation of a statute is a question of
law that is reviewed de novo under the right/wrong standard.
Gillan v. Gov’t Emps. Ins. Co., 119 Hawai#i 109, 124, 194 P.3d
1071, 1086 (2008).
III. DISCUSSION
HRS § 706-646(2) (subsection 2) provides, in relevant
part: “The court shall order the defendant to make restitution
for reasonable and verified losses suffered by the victim or
victims as a result of the defendant’s offense when requested by
the victim.” HRS § 706-646(3) (subsection 3) provides, in
relevant part: “Restitution shall be a dollar amount that is
sufficient to reimburse any victim fully for losses, including
but not limited to: (a) Full value of stolen or damaged property
. . . ; (b) Medical expenses; and (c) Funeral and burial expenses
incurred as a result of the crime.” The State has asked this
court to determine whether HRS § 706-646 authorizes restitution
2
The ICA also remanded for a new hearing on the apportionment of
medical expenses and for resentencing on DeMello’s harassment conviction.
Neither of those determinations were challenged in the State’s application for
writ of certiorari.
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for lost wages. We hold that HRS § 706-646 permits restitution
for reasonable and verified lost wages in appropriate
circumstances.3
A. The Plain Language of HRS § 706-646
The plain language of a statute is “the fundamental
starting point of statutory interpretation.” State v. Wheeler,
121 Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009) (internal
quotations omitted). “Courts are bound, if rational and
practicable, to give effect to all parts of a statute and no
clause, sentence or word shall be construed as superfluous, void
or insignificant if construction can be legitimately found which
will give force to and preserve all words of the statute.” Dawes
v. First Ins. Co. of Hawai#i, Ltd., 77 Hawai#i 117, 135, 883 P.2d
38, 56 (1994) (citation omitted). Additionally, “this court must
presume that the legislature meant what it said and is further
barred from rejecting otherwise unambiguous statutory language.”
Morgan v. Planning Dep’t, Cnty. of Kauai, 104 Hawai#i 173, 185,
86 P.3d 982, 994 (2004) (quoting Sato v. Tawata, 79 Hawai#i 14,
23, 897 P.2d 941, 950 (1995) (Ramil, J., dissenting)).
[W]here there is no ambiguity in the language of a statute,
3
We define “wage” to mean: “[A] payment usu. of money for labor or
services usu. according to contract and on an hourly, daily, or piecework
basis.” Merriam-Webster’s Dictionary of Law 529 (1996). Although some
sources define “lost wages” to encompass loss of earning capacity, Black’s Law
Dictionary 1812 (10th ed. 2014), that concept is not at issue in this case and
would seem to fall outside the scope of HRS § 706-646’s requirement that lost
wages be “verified” rather than merely quantifiable.
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and the literal application of the language would not
produce an absurd or unjust result, clearly inconsistent
with the purposes and policies of the statute, there is no
room for judicial construction and interpretation, and the
statute must be given effect according to its plain and
obvious meaning.
State v. Palama, 62 Haw. 159, 161, 612 P.2d 1168, 1170 (1980)
(brackets in original, citation omitted).
The plain language of HRS § 706-646(2) states that the
court “shall order the defendant to make restitution for . . .
losses suffered by the victim.” In other words, subsection 2 is
mandatory and its scope is broad. However, subsection 2 imposes
four requirements before restitution must be awarded; the
victim’s losses must be (1) “reasonable,” (2) “verified,” (3)
“suffered . . . as a result of the defendant’s conduct,” and (4)
“requested by the victim.” These limitations impose thresholds
that relate to proof and to procedure, but do not limit the
categories of restitution that are compensable. Thus, as
subsection 2 contains no language that would exclude lost wages,
an award that did not compensate a victim for lost wages would
not fulfill the court’s mandatory duty to order restitution for
“losses” in appropriate circumstances. Accordingly, the plain
language of subsection 2 appears to require restitution for lost
wages subject to the aforementioned limitations.
Subsection 2 operates in harmony with subsection 3,
which also is mandatory and broad in scope. Subsection 3
contains both a prefatory clause and an illustrative list.
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Turning first to the prefatory clause, subsection 3 mandates that
“[r]estitution shall be a dollar amount that is sufficient to
reimburse any victim fully for losses.” (Emphasis added). An
award that did not include reasonable and verified income lost as
a result of the defendant’s unlawful conduct would not reimburse
a victim fully for losses. Therefore, the plain language of the
prefatory clause also appears to require restitution for lost
wages.
Subsection 3’s illustrative list states, in context:
“Restitution shall be a dollar amount that is sufficient to
reimburse any victim fully for losses, including but not limited
to: (a) Full value of stolen or damaged property . . .; (b)
Medical expenses; and (c) Funeral and burial expenses.”
(Emphasis added). This list is an inclusive list rather than an
exhaustive one. See State v. Mita, 124 Hawai#i 385, 391, 245
P.3d 458, 464 (2010) (explaining that the phrase “shall include
but not be limited to” provides “an inclusive, rather than
exclusive, list of examples”); see also Black’s Law Dictionary at
880 (10th ed. 2014) (“The participle including typically
indicates a partial list . . . [b]ut some drafters use phrases
such as including without limitation and including but not
limited to -- which mean the same thing.”). In other words, the
legislature’s use of the phrase “including but not limited to”
indicates that the three categories of losses enumerated in
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subsection 3 are not the only categories of losses that may be
recovered pursuant to the statutory scheme. Any other reading
would render the phrase “including but not limited to”
meaningless.
Even if subsection 3 were to be viewed as a
definitional parameter, verified lost wages are similar in kind
to the losses illustrated in subsection 3 -- verified pecuniary
losses. See Zanakis-Pico v. Cutter Dodge, Inc., 98 Hawai#i 309,
321, 47 P.3d 1222, 1234 (2002) (stating that pecuniary losses are
“those damages (either general or special) which can be
accurately calculated in monetary terms such as loss of wages and
cost of medical expenses”). Indeed, lost wages are routinely
grouped with the types of losses illustrated in subsection 3.
See, e.g., State Farm Mut. Auto. Ins. Co. v. Dacanay, 87 Hawai#i
136, 138 n.3, 952 P.2d 893, 895 n.3 (App. 1998) (“Special damages
are often considered synonymous with pecuniary loss and include
such items as medical and hospital expenses [and] loss of
earnings.”). Of course, pecuniary losses that are merely
quantifiable rather than verified, would not comport with the
requirements of subsection 2.
Requiring restitution for reasonable and verified lost
wages would not lead to an absurd result. One purpose motivating
the passage of HRS § 706-646 were the perceived gaps in victim
compensation through the Crime Victim Compensation Commission
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(CVCC). See H. Stand. Comm. Rep. No. 683-98, in 1998 House
Journal, at 1305 (“Although the Criminal Injuries Compensation
Commission helps victims by providing some compensation, victims
of property crimes and some violent crimes are not eligible for
any compensation from the Commission.”).4 Here, due to the
nature of DeMello’s crimes, the CW would not have been eligible
for an award from the CVCC. See HRS §§ 351-31 and 351-32. Thus,
our interpretation of HRS § 706-646 is in accordance with the
legislature’s underlying purpose to provide restitution for
victims who are ineligible for CVCC compensation.
Additionally, restitution for reasonable and verified
lost wages would not place an unreasonable administrative burden
on trial courts. HRS § 706-646 already requires the allocation
of court resources to provide restitution for medical expenses,
especially where apportionment for a pre-existing, symptomatic
injury is at issue. See Montalvo v. Lapez, 77 Hawai#i 282, 299,
884 P.2d 345, 362 (1994) (requiring apportionment of damages
caused by a pre-existing, symptomatic injury). In most cases,
the additional burden of adjudicating reasonable and verified
lost wages will be consolidated into other hearings that trial
courts are already required to hold. Furthermore, HRS § 706-646,
according to its terms, safeguards against adjudication of unduly
4
The CVCC was originally called the Criminal Injuries Compensation
Commission. See 1967 Haw. Sess. Laws Act 226, § at 332.
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complex wage loss issues. Where lost wages cannot be verified,
which may be the case if the victim was unemployed or if the
request is for expected future income, adjudication will require
a more extensive civil proceeding.
In sum, there is nothing in the language of HRS § 706-
646 to suggest that the kind of losses at issue in this case,
reasonable and verified lost wages, would be unrecoverable in a
restitution proceeding. Not only are such losses capable of
adjudication in the type of streamlined proceedings contemplated
by the statute, they comport with the statutory mandate that the
court “shall order the defendant to make restitution for . . .
losses suffered by the victim . . . [in] a dollar amount that is
sufficient to reimburse any victim fully for losses.” Therefore,
in accordance with the plain language of the statute, we hold
that lost wages are recoverable pursuant to HRS § 706-646.
B. The Legislative History of HRS § 706-646
If statutory language is ambiguous or doubt exists as
to its meaning, “‘[c]ourts may take legislative history into
consideration.’” Franks v. City and Cnty. of Honolulu, 74 Haw.
328, 335, 843 P.2d 668, 671-72 (1993) (quoting Life of the Land
v. City and Cnty. of Honolulu, 61 Haw. 390, 447, 606 P.2d 866,
899 (1980). Even where statutory language appears unambiguous
upon initial review, “an examination of sources other than the
language of the statute itself” may be essential “to adequately
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discern the underlying policy which the legislature seeks to
promulgate . . . to determine if a literal construction would
produce an absurd or unjust result, inconsistent with the
policies of the statute.” Sato, 79 Hawai#i at 17, 897 P.2d at
944.
However, “we do not resort to legislative history to
cloud a statutory text that is clear.” State v. Kalama, 94
Hawai#i 60, 64, 8 P.3d 1224, 1228 (2000) (internal citation and
quotation marks omitted) (declining to rely on a legislative
committee report expressing views that did not correspond to the
statutory language ultimately enacted). This court has
repeatedly declined to rely on legislative history where the
plain language of the statute did not produce an absurd result,
even in situations where “the history may show that the
legislature really meant and intended something not expressed by
the phraseology of the statute.” State v. Mainaaupo, 117 Hawai#i
235, 251, 178 P.3d 1, 17 (2008) (internal quotations and citation
omitted).
We cannot change the language of the statute, supply a want,
or enlarge upon it in order to make it suit a certain state
of facts. We do not legislate or make laws. Even where the
Court is convinced in its own mind that the Legislature
really meant and intended something not expressed by the
phraseology of the Act, it has no authority to depart from
the plain meaning of the language used.
State v. Dudoit, 90 Hawai#i 262, 271, 978 P.2d 700, 709 (1999)
(emphasis removed) (quoting State v. Meyer, 61 Haw. 74, 77, 595
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P.2d 288, 291 (1979)).
Additionally, the role of legislative history is
limited to the extent it sheds reliable light on the enacting
legislature’s understanding of an otherwise ambiguous term. See
Exxon Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 550
(2005). “‘Statements by legislators or even committee reports
need not reflect the purpose which a majority of the legislators
believed is carried out by [a] statute.’” Dines v. Pac. Ins.
Co., Ltd., 78 Hawai#i 325, 332, 893 P.2d 176, 183 (1995) (quoting
Yoshizaki v. Hilo Hosp., 50 Haw. 150, 153 n.5, 433 P.2d 220, 223
n.5 (1967)). “Only ‘unmistakable support in the history and
structure of the legislation’ can justify a rejection of
otherwise unambiguous language.” Richardson v. City and Cnty. of
Honolulu, 76 Hawai#i 46, 57, 868 P.2d 1193, 1204 (1994) (quoting
Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975)
(Powell, J., concurring)).
In this case, the relevant legislative history
encompasses the 1998 enactment of HRS § 706-646 and the 2006
amendments to the statute.
1. 1998 Enactment of HRS § 706-646
In 1998, House Bill No. 2776 (H.B. 2776) was introduced
to “permit an order for restitution in a criminal case to be
enforceable as a civil judgment.” H. Stand. Comm. Rep. No. 683-
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98, in 1998 House Journal, at 1305. At that time, the collection
of restitution was consigned to governmental entities that were
only able to collect “a small fraction of the amount.” Id. The
legislation was also designed to provide restitution to victims
who were ineligible for compensation from the CVCC. See id.
(“Although the Criminal Injuries Compensation Commission helps
victims by providing some compensation, victims of property
crimes and some violent crimes are not eligible for any
compensation from the Commission.”). The proponents of H.B. 2776
acknowledged that “although a victim may bring a civil action
against the defendant, this process is costly and time
consuming.” Id. Therefore, the legislature proposed “that
victims should have a ‘fast track’ ability to be compensated for
their losses . . . using all of the civil collection remedies.”
Id.; see also S. Stand. Comm. Rep. No. 3008, in 1998 Senate
Journal, at 1224; Conf. Comm. Rep. No. 89, in 1998 Senate
Journal, at 780.
H.B. 2776, as initially proposed, expressly included
“wage loss” and the cost of “therapeutic treatment” in the
partial list of compensable losses contained in subsection 3.
However, the House Judiciary Committee removed those categories
from subsection 3 prior to the second reading of H.B. 2776. See
H. Stand. Comm. Rep. No. 683-98, in 1998 House Journal, at 1305-
06. The committee stated:
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[A]llowing restitution for therapy and wage loss presents
difficulty because these costs are often immeasurable.
While the value of stolen or damaged property, medical
expenses, and funeral and burial expenses can be determined
with specificity, costs of therapy, which can last for
months or years after the defendant is sentenced, are not.
Also, wage loss may be measurable if the victim has an
occupation at the time of the offense, but it becomes
difficult to determine if the victim is unemployed at the
time. Your Committee finds that this remedy is more
appropriate for the civil arena.
. . . .
Accordingly, your Committee has amended this bill by:
. . . .
(2) Not allowing for reimbursement of wage loss incurred by
the victim and cost of therapeutic treatment required by the
victim to recover from the psychological and emotional
effects of the offense in the restitution order.
H. Stand. Comm. Rep. No. 683-98, in 1998 House Journal, at 1305-
06. Despite these statements, the legislature did not amend H.B.
2776 to expressly provide that lost wages were not recoverable,
nor did it propose language that would have made subsection 3 an
exhaustive list. Rather, H.B. 2776, as initially amended,
appeared to encompass restitution for a broad scope of losses.
The Senate Ways and Means Committee attempted to
clarify the scope of H.B. 2776 by deleting the word “fully” from
subsection 3’s full compensation clause. See S. Stand. Comm.
Rep. No. 3008, in 1998 Senate Journal, at 1224 (explaining that
the Committee deleted the word “fully” “to clarify the legitimate
types of damages” that a victim could recover). It stated:
“Reimbursing the victim ‘fully’ for losses may be interpreted as
having an unlimited practical application, and allows for many
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legitimate types of damages that may require a more extensive
civil proceeding.” Id.; see also H. Stand. Comm. Rep. No. 683-
98, in 1998 House Journal, at 1305 (attempting to relegate wage
loss to the civil arena). Thus, the Senate Ways and Means
Committee’s amendment attempted to effectuate the House’s intent
to limit the scope of compensable losses contained in H.B. 2776.
However, when House and Senate representatives convened
in conference, the Conference Committee reinserted the word
“fully” into the statute. See Conf. Comm. Rep. No. 89, in 1998
Senate Journal, at 780-81 (“Your Committee on Conference has
amended this bill by: . . . . (2) Reinserting the word ‘fully’ in
section (3) of the new section 706- (Victim Restitution”)). The
Conference Committee explained that it reinserted the word
“fully” “so that restitution shall be a dollar amount sufficient
to reimburse any victim fully for losses.” Id. In light of the
purpose behind the House’s and the Senate’s previous amendments
to H.B. 2776, the Conference Committee’s reinsertion of the word
“fully” expresses the intent of both chambers to not
categorically exclude such losses as wage loss from the scope of
HRS § 706-646. See Demby v. Schweiker, 671 F.2d 507, 510 (D.C.
Cir. 1981) (explaining that a conference report that presents the
final statement of terms accepted by both houses is the most
persuasive evidence of legislative intent, next to the statute
itself). To the extent there is an alternative interpretation of
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the legislative history, it does not provide the “unmistakable
support” required to “justify a rejection of otherwise
unambiguous [statutory] language.”5 Richardson, 76 Hawai#i at
57, 868 P.2d at 1204.
2. 2006 Amendments to HRS § 706-646
The dissent focuses on the legislative history of the
original 1998 version of HRS § 706-646 to argue that the
legislature did not intend to allow recovery for “lost wages” in
a restitution award. Whatever the legislature may have stated in
1998, the 2006 amendments to Section 706-646 make it clear that
reasonable and verified lost wages must be included in a
restitution award when requested by a victim.
Section 22 of Act 230 of 2006 amended HRS § 706-646 as
follows:
SECTION 22. Section 706-646, Hawai#i Revised Statutes, is
amended by amending subsections (2) and (3) to read as
follows:
“(2) The court [may] shall order the defendant to make
restitution for reasonable and verified losses suffered by
the victim or victims as a result of the defendant’s
offense[.] when requested by the victim. The court [may]
shall order restitution to be paid to the crime victim
compensation commission in the event that the victim has
been given an award for compensation under chapter 351. If
the court orders payment of a fine in addition to
restitution or a compensation fee, or both, the payment of
restitution and compensation fee shall have priority over
5
The dissent erroneously ascribes the intent of the entire
legislature to a report from a single house committee that is contra-indicated
by the plain language of the statute. See Dines, 78 Hawai#i at 332, 893 P.2d
at 183 (“Statements by legislators or even committee reports need not reflect
the purpose which a majority of the legislators believed is carried out by [a]
statute.”).
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the payment of the fine, and payment of restitution shall
have priority over payment of a compensation fee.
(3) In ordering restitution, the court shall not consider
the defendant’s financial ability to make restitution in
determining the amount of restitution to order. The court,
however, shall consider the defendant’s financial ability to
make restitution for the purpose of establishing the time
and manner of payment. The court shall specify the time and
manner in which restitution is to be paid. Restitution
shall be a dollar amount that is sufficient to reimburse any
victim fully for losses, including but not limited to:
(a) Full value of stolen or damaged property, as
determined by replacement costs of like property, or the
actual or estimated cost of repair, if repair is possible;
(b) Medical expenses; and
(c) Funeral and burial expenses incurred as a result of
the crime.”
(Emphasis added). This amendment to HRS § 706-646 was one of
numerous proposed amendments to the Hawai#i Penal Code included in
the Report of the Committee to Conduct a Comprehensive Review of
the Hawai#i Penal Code (“Penal Code Review Committee”) Submitted
to the Twenty-third Legislature of the State of Hawai#i on
December 29, 2005. See S. Stand. Comm. Rep. No 3215, in 2006
Senate Journal, at 1557. According to this committee report, the
proposals of the Penal Code Review Committee were recommended for
adoption. Id.
Furthermore, according to the Comment of the Penal Code
Review Committee regarding the proposed amendments to the
restitution statute:
(1) The proposed amendments to subsections (2) and (3) make
it mandatory for the court to order a defendant to pay full
restitution for reasonable and verified losses suffered by
the victim of a crime when requested by the victim. An
informal request for restitution may be sufficient. The
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court is prohibited from considering the defendant’s
financial ability to make restitution in determining the
amount of restitution to order. The court, however, is
required to consider the defendant’s financial ability for
the purpose of establishing the time and manner of payment.
. . . .
Restitution serves two purposes: (1) to repay crime victims
for financial losses they have suffered as a result of
crimes, and (2) to help rehabilitate offenders by requiring
them to take responsibility for the consequences of their
actions. In 1975, the Legislature empowered courts to order
a convicted person to pay restitution. The committee report
accompanying the bill stated:
Reparation and/or restitution by wrongdoers to their victims
is basic to justice and fair play. The penal system should
not be excluded from this concept. Your Committee believes
that by imposing the requirement that criminal repay not
only “society” but the persons injured by the criminal’s
acts, society benefits not once, but twice. The victim of
the crime not only receives reparation and restitution, but
the criminal should develop or regain a degree of self
respect and pride in knowing that he or she righted, to as
great a degree as possible, the wrong that he or she had
committed. S.C. Rep. No. 425, 1975 House Journal at 1148.
The restorative justice envisioned by the Legislature in
enacting restitution laws has not been fully realized.
Under current law, courts cannot impose restitution unless
they determine that the offender can afford to pay it. This
determination is difficult to make at sentencing because
accurate information regarding the offender’s true financial
status is often unavailable and the offender’s future
earnings capacity is often unclear.
The proposed amendments would create a restitution system
similar to the federal Mandatory Victims Restitution Act
(MVRA), 18 U.S.C. §[sic]3663A-3664. Courts imposing
restitution pursuant to the MVRA must order full restitution
without consideration for the defendant’s economic
circumstances, but they are directed to consider the
defendant’s ability to pay in establishing a restitution
payment schedule.
Penal Code Review Committee, Final Report 27j (2005) (emphasis
added). Thus, the 2006 amendments removed a judge’s discretion
to award restitution, and made restitution mandatory for
“reasonable and verified” losses requested by a crime victim.
The Penal Code Review Committee report makes it clear
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that the amendments were intended to require “full restitution
for reasonable and verified losses,” and to “create a restitution
system similar to the federal Mandatory Victims Restitution Act
(MVRA), 18 U.S.C. §§ 3663A to 3664.” Id. at 27j-k. Section 3663
of the MVRA provides in pertinent part, as it did in 2006 and
2012 at the time of this sentencing:
(b) The order of restitution shall require that such
defendant–
. . . .
(2) in the case of an offense resulting in bodily injury to
a victim–
(A) pay an amount equal to the cost of necessary medical and
related professional services and devices relating to
physical, psychiatric, and psychological care, including
nonmedical care and treatment rendered in accordance with a
method of healing recognized by the law of the place of
treatment;
(B) pay an amount equal to the cost of necessary physical
and occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a
result of such offense;
(Emphasis added). The proposed amendments to HRS § 706-646 of
the Penal Code Review Committee were adopted without change by
the Legislature. Thus, whatever the 1998 Legislature may have
said, in accordance with the clear language of the statute as of
2006, reasonable and verified lost wages are to be included in a
restitution award.
IV. CONCLUSION
For the foregoing reasons, we vacate in part the ICA’s
November 18, 2013 Judgment on Appeal, affirm the district court’s
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*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
order of restitution as it relates to lost wages in the amount of
$1,155.00, and remand to the district court for further
proceedings consistent with this opinion and the remainder of the
ICA’s opinion.6
Artemio C. Baxa /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Audrey E. Stanley
(Jennifer D.K. Ng on the /s/ Sabrina S. McKenna
briefs) for respondent
6
The dissent asserts: “In this case, a court would have to
determine whether [the CW] incurred the same chair rent and business costs
during the time she could not work. Presumably, [the CW] would not have
incurred her ordinary inventory costs, and an order of restitution based on
gross receipts, instead of net income, would seemingly not represent her
actual loss.” Although this might be true in future cases, DeMello waived
these arguments by failing to raise them before the district court and the
ICA.
20