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[T] State v. Yi1/20/2004
y or knowingly" engaged in the conduct that violated the TRO.
Although Yi argues on appeal that "the [family] court should have listed the conduct element and the result element separately and required that the state of mind applied to each element[,]" the jury instructions that Yi claims in his opening brief should have been given materially differ from the family court's jury instructions only in that Yi's instructions proposed that the State prove that Yi knew that the order was "issued by a judge of the family court[.]"
Nothing in HRS § 586-4(d) implies that a defendant must know which type of judge issued the TRO against him or her before the defendant can be convicted of violating that TRO. It is enough that the defendant knew that the TRO was a court order.
C. The Family Court's Sentence of Yi
1.
HRS § 586-4(d) provides that " hen a is granted and the respondent or person to be restrained knows of the , a knowing or intentional violation of the is a misdemeanor." The sentencing options for a person convicted of a misdemeanor are set forth in HRS § 706-663 (1993), which provides, in relevant part:
Sentence of imprisonment for misdemeanor and petty misdemeanor. After consideration of the factors set forth in sections 706-606 and 706-621, the court may sentence a person who has been convicted of a misdemeanor . . . to imprisonment for a definite term to be fixed by the court and not to exceed one year in the case of a misdemeanor[.]
HRS § 706-606 (1993) sets out the factors to be considered by a court in imposing a sentence:
Factors to be considered in imposing a sentence. The court, in determining the particular sentence to be imposed, shall consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense;
(b) To afford adequate deterrence to criminal conduct;
(c) To protect the public from further crimes of the defendant; and
(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.
HRS § 706-621 (1993) explains in greater detail what factors the court should consider when determining whether to grant probation to, rather than imprison, a convicted defendant:
Factors to be considered in imposing a term of probation. The court, in determining whether to impose a term of probation, shall consider:
(1) The factors set forth in section 706-606 to the extent that they are applicable;
(2) The following factors, to be accorded weight in favor of withholding a sentence of imprisonment:
(a) The defendant's criminal conduct neither caused nor threatened serious harm;
(b) The defendant acted under a strong provocation;
(c) There were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense;
(d) The victim of the defendant's criminal conduct induced or facilitated its commission;
(e) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Hawaii DUI Attorneys
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