[§706-606.3] Expedited sentencing program. [Repeal on June 30, 1995, by L 1993, c 316, §6 extended to June 30, 2001, by L 1995, c 157, §1.] (1) A person who has committed intra-family sexual assault may be considered for the expedited sentencing program in accordance with this section. As used in this section, "intra-family" sexual assault means any criminal offense of felony sexual assault under section 707-730, 707-731, or 707-732 or of incest, as defined in section 707-741, in which the victim of the offense is related to the alleged offender by consanguinity or marriage or residing in the same dwelling unit as the alleged offender and the victim was, at the time of the sexual assault, under the age of eighteen.

(2) The police department of the county in which the sexual assault took place or any other appropriate investigative law enforcement agency shall confer with the appropriate prosecuting authority. If the prosecuting authority determines that it would be appropriate to provide notice of the expedited sentencing program to the alleged offender, the police department or other appropriate investigative law enforcement agency shall give an alleged offender written notice of the existence of the expedited sentencing program provided in this section. The providing of the notice shall not be a prerequisite to the taking of a statement from an alleged offender, nor in any manner shall it commit a prosecuting authority to issuing a statement of no objection to the alleged offender being considered for the expedited sentencing program.

(3) The written notice shall state:

"YOU ARE ADVISED TO SEEK LEGAL COUNSEL IMMEDIATELY AND, IF YOU CANNOT AFFORD ONE, TO CONTACT THE OFFICE OF THE PUBLIC DEFENDER. FAILURE TO CONTACT AN ATTORNEY MAY KEEP YOU OUT OF THIS PROGRAM. A copy of section 706-606.3, Hawaii Revised Statutes, is attached to this notice. You are under investigation for a felony sexual assault against a minor. Upon completion of this investigation, if there is sufficient basis to believe that you have committed a sexual assault, the case will be referred to the appropriate prosecuting authority for review and possible institution of criminal charges.

Hawaii law provides for a range of ordinary prison sentences for felony sexual assault ranging from five years up to twenty years imprisonment or even life imprisonment, depending upon the offense. However, section 706-606.3, Hawaii Revised Statutes, provides that a person who commits a sexual assault upon a minor but who admits guilt, cooperates with the prosecuting authority, and participates in appropriate assessment and treatment may be considered for the expedited sentencing program. A person who is sentenced in accordance with the expedited sentencing program may be sentenced to a term of probation, which may be revoked for failure to comply with the terms of the probation pursuant to section 706-625. To qualify for consideration for the expedited sentencing program, your legal counsel first must request from the office of the prosecuting authority named in this notice a written statement as to whether that office has any objection to your being considered for the expedited sentencing program. THE COURT WILL NOT CONSIDER YOU FOR THE EXPEDITED SENTENCING PROGRAM UNDER SECTION 706-606.3, HAWAII REVISED STATUTES, UNLESS YOUR LEGAL COUNSEL HAS RECEIVED A WRITTEN STATEMENT THAT THE APPROPRIATE PROSECUTING AUTHORITY HAS NO OBJECTION TO YOUR BEING CONSIDERED FOR THE EXPEDITED SENTENCING PROGRAM AND THE REQUEST FOR THAT WRITTEN STATEMENT WAS MADE WITHIN FOURTEEN DAYS OF YOUR RECEIPT OF THIS NOTICE. FURTHER, THE COURT WILL NOT CONSIDER YOU FOR THE EXPEDITED SENTENCING PROGRAM UNDER SECTION 706-606.3, HAWAII REVISED STATUTES, UNLESS, AFTER YOUR LEGAL COUNSEL HAS RECEIVED THIS NOTICE, YOU HAVE MADE A GOOD FAITH EFFORT TO AVOID THE NECESSITY FOR THE CHILD BEING REMOVED FROM THE FAMILY HOME, INCLUDING BUT NOT LIMITED TO MOVING AND REMAINING OUT OF THE FAMILY HOME UNTIL OTHERWISE ORDERED BY THE COURT."

The written notice also shall provide:

(a) Instructions on how to contact the appropriate prosecuting authority, including any necessary addresses and phone numbers; and

(b) The name of the person delivering the notice and the date it was given to the alleged offender.

(4) A defendant shall not be considered by the court for the expedited sentencing program under this section unless the defendant's legal counsel requested, within fourteen days of the defendant's receipt of the written notice, and subsequently received a written statement from the appropriate prosecuting authority stating that office has no objection to the defendant being considered for the expedited sentencing program in accordance with this section and further, that it is established that each of the following criteria has been met:

(a) After receiving the required written notice, the defendant has made a good faith effort to avoid the necessity for the child being removed from the family home, including but not limited to moving and remaining out of the family home until otherwise ordered by the court;

(b) The victim of the sexual assault was under the age of eighteen at the time of the commission of the sexual assault;

(c) The defendant has not received a prior sentence under this section and has not received a prior conviction for felony sexual assault under section 707-730, 707-731, or 707-732 or of incest, as defined in section 707-741;

(d) A guardian ad litem appointed in a family court proceeding or a person assigned by the Children's Advocacy Center to perform the function of a guardian ad litem has agreed that it would be in the best interest of the child for the alleged offender to be considered for the expedited sentencing program. The prosecuting authority shall not issue a statement of no objection without this prior agreement; and

(e) The defendant has complied with the requirements for consideration for the expedited sentencing program as established in subsection (6); provided that the prosecuting authority may oppose at sentencing the defendant's participation in the expedited sentencing program, if the prosecuting authority determines that the defendant has failed to satisfy the criteria under subsection (6).

(5) The prosecuting authority and the child's guardian ad litem or a person assigned to perform the function of a guardian ad litem may consult with any other appropriate agency or individual to assist in a decision whether to provide a written statement of no objection prior to the defendant being considered for sentencing under the expedited sentencing program.

(6) Within seven business days of receipt of the written notice stating that the appropriate prosecuting authority has no objection to the alleged offender being considered for the expedited sentencing program in accordance with this section, unless the prosecuting authority waives compliance with the time limit, the alleged offender shall comply with each of the following requirements:

(a) Continue to make a good faith effort to avoid the necessity for the child being removed from the family home, including but not limited to moving and remaining out of the family home until otherwise ordered by the court;

(b) Admit to commission of the sexual assault to the police department of the county in which the assault took place or other appropriate investigative law enforcement agency;

(c) Provide to the appropriate prosecuting authority a written waiver of indictment and preliminary hearing for any criminal charges arising from the sexual assault; and

(d) Enter a voluntary plea of guilty to the charge or charges alleged upon or following arraignment.

(7) Notwithstanding sections 706-606.5, 706-620, 706-659, 706-660, and 706-660.2, a defendant who may be considered for the expedited sentencing program in accordance with this section as of the date sentence is imposed may be sentenced to a term of probation upon the conditions specified in section 706-624; provided that, if the defendant is sentenced to a term of imprisonment, which may be up to one year, as a condition of probation, the term of imprisonment may allow for the defendant's retention of employment.

(8) The term of probation under this section shall be as follows:

(a) For an offense under section 707-730 or 707-731, twenty years; and

(b) For an offense under section 707-732 or 707-741, ten years.

(9) In addition to the conditions of probation provided under section 706-624, a sentence under this section shall include that the defendant comply with the following conditions:

(a) To participate in court approved, appropriate sex offender assessment and treatment, that must conform to the guidelines developed by the adult probation division of the appropriate circuit court, until clinically discharged; provided that the prosecuting authority shall be provided notice and the opportunity for a hearing prior to any treatment discontinuance being allowed by the court or the adult probation division; provided further that the defendant shall pay for the cost of the assessment and treatment to the extent that the defendant has the ability to do so; and provided further that a lack of assessment and treatment resources shall result in the defendant not being considered for the expedited sentencing program;

(b) To provide a written waiver of confidentiality for any assessment, treatment, counseling, therapy, or other program ordered as a condition of probation;

(d) Any other condition deemed by the court to be reasonably necessary for the protection of the victim of the sexual assault or the rehabilitation of the defendant.

(10) There shall be a rebuttable presumption in favor of the court imposing a sentence in accordance with this section on a person who is provided a written notice of no objection by the prosecuting authority and who qualifies for the expedited sentencing program. The court shall provide written findings of fact setting forth specific reasons that justified imposition of a sentence which is not in accordance with this section.

(11) The prosecuting authority shall record each request received pursuant to this section and shall report the requests and the action taken to the Children's Advocacy Center in each county. The Children's Advocacy Center Interagency Advisory Committee in each county shall monitor the expedited sentencing program. The county committees also shall identify problems relating to the expedited sentencing program within the civil and criminal legal processes and propose solutions. The state director of the Children's Advocacy Center shall compile the information from each county committee and submit a report to the appropriate legislative committees on or before January 15 of each year. [L 1993, c 316, §1]