
    IN the INTEREST OF JE
    NO. CAAP-16-0000021
    Intermediate Court of Appeals of Hawai'i.
    DATED: Honolulu, Hawai'i, February 16, 2018.
    On the briefs:
    Lisa R. Arin, for Minor-Appellant.
    Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai, for Petitioner-Appellee.
    (By: Fujise, Presiding Judge and Ginoza, J., with Leonard, J., concurring and dissenting)
    SUMMARY DISPOSITION ORDER
    Minor-Appellant JE (JE) appeals from the December 14, 2015 Family Court of the Fifth Circuit's (Family Court) Decision and Order Regarding Restitution Hearing (Order). Pursuant to a plea agreement, JE admitted the charge of Harassment in violation of Hawai'i Revised Statutes (HRS) § 711-1106(1)(a) (2014), reduced from a charge of Assault in the Second Degree in violation of HRS § 707-711(1) (d) (2014) (amended 2016) . JE was sentenced to probation for eighteen months, and ordered to, inter alia , complete sixty hours of community service, and pay $24,978.90 in restitution at a rate of $200.00 per month.
    On appeal, JE contends the Family Court abused its discretion in ordering him to pay restitution to the complaining witness. After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issue raised and the arguments advanced by the parties, we vacate the Family Court's Order on different grounds.
    JE was sentenced pursuant to HRS § 571-48(11) (2006) which provides: "The court may order any person adjudicated pursuant to section 571-11(1) to make restitution of money or services to any victim who suffers loss as a result of the child's action, or to render community service[.]" (Emphasis added). The plain language of the statute authorizes the Family Court to impose either alternative. State v. Wells, 78 Hawai'i 373, 376, 894 P.2d 70, 73 (1995) ( "[The appellate court's] foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And where the language of the statute is plain and unambiguous, [a court's] only duty is to give effect to [the statute's] plain and obvious meaning.") (citation, internal quotation marks, and brackets omitted); see also State v. Demello, 136 Hawai'i 193, 213, 361 P.3d 420, 440 (2015) (under the rule of lenity a penal statute must be strictly construed against the government and in favor of the accused). The rule of lenity will also be applied to statutes dealing with juveniles, because it potentially involves the same deprivation of liberty similar to adult criminal statutes. 3 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes & Statutory Construction § 59:1, at 154-55 (7th ed. 2008). As quoted above, HRS § 571-48(11) authorized the Family Court to impose restitution or community service, but not both.
    In its "Decree Re: Law Violation Petition(s)," the Family Court imposed, amongst others, the following special term of probation: "1. The minor shall complete 60 hour(s) of community service via the Community Service Sentencing Program by January 10, 2016 and comply with the conditions of the program." In its December 14, 2015 Decision and Order Regarding Restitution Hearing, the Family Court subsequently ordered JE to pay restitution as well.
    The record reflects that JE completed his conditions of probation, including community service. However, because the order of restitution was stayed pending this appeal, JE has not yet paid the ordered restitution. As HRS § 571-48(11) authorizes the Family Court to exercise its discretion in deciding whether to impose restitution or community service in a given case, and because JE has already completed the ordered community service, we cannot allow the restitution order to stand.
    For the foregoing reasons, we vacate the December 14, 2015 Family Court of the Fifth Circuit's Decision and Order Regarding Restitution Hearing.
    
      
      The Honorable Edmund D. Acoba presided.
    
    
      
      HRS § 711-1106 provides, in relevant part, "(1) A person commits the offense of harassment if, with intent to harass, annoy, or alarm any other person, that person: (a) Strikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact[.]"
    
    
      
      HRS § 707-711(1)(d) provides, in relevant parts, "(1) A person commits the offense of assault in the second degree if ... (d) The person intentionally or knowingly causes bodily injury to another with a dangerous instrument[.]"
    
    
      
      Alternatively, JE's mother (Mother) was ordered to pay the restitution.
    
   CONCURRING AND DISSENTING OPINION BY LEONARD, J.

I concur with the majority's conclusion that the Family Court of the Fifth Circuit (Family Court ) erred in its December 14, 2015 Findings of Fact; Conclusions of Law; Decision and Order Regarding Restitution Hearing (Restitution Order ). However, I respectfully dissent from the majority's determination that the juvenile restitution statute, Hawai'i Revised Statutes (HRS ) § 571-48(11) (2006), precludes the Family Court from imposing a combination of restitution and community service.

HRS § 571-48(11) provides that the Family Court "may order any person adjudicated pursuant to section 571-11(1) to make restitution of money or services to any victim who suffers loss as a result of the child's action, or to render community service[.]" The majority's reading of the statute is a fair, literal interpretation of the use of the word "or," but in my opinion is inconsistent with and undermines the intent of the Legislature when it amended the statute to provide the family courts more options in dealing with juvenile law violators. I also note that, recognizing that the words "and" and "or" are particularly susceptible to unintended interpretations, Hawai'i has codified the following rule of statutory interpretation:

§ 1-18 "Or", "and". Each of the terms "or" and "and", has the meaning of the other or of both.

HRS § 1-18 (2009).

HRS § 571-48(11) was amended as part of a broad reformation of Hawai'i's juvenile justice in 1980. See generally S. Stand. Comm. Rep. No, 440-80, in 1980 Senate Journal, at 1203-16. The Senate Standing Committee Report explains the purpose of the amendment to HRS § 571-48 as follows:

Your Committee has amended section 571-48, Hawai'i Revised Statutes, to increase the range of dispositions available to family court with respect to adjudicated minors. Section 571-48(11)authorizes the court to order a law violator to make restitution to the victim of the minor's offense and to render community service. Until very recently, victims have been the forgotten people in the criminal justice system. We believe that requiring a minor to make restitution of money or services to the victim of the offense can be of great benefit to both the victim and the offender. Restitution humanizes the criminal justice process by focusing attention and concern on the particular harm done. Appropriately designed and supervised community service can help a troubled youngster appreciate the cooperation required to make society work for our common benefit and can provide a positive learning experience. Your Committee has accordingly authorized the court to order community service for both law violators and status offenders.

Id. at 1209 (emphasis added).

The over-arching purpose of this amendment was to provide a broader range of dispositions to the family courts. Interestingly, although the statute says restitution "or" community service, the rationale for the statute specifically says that it authorizes restitution "and" community service. While this language is not dispositive, it aptly demonstrates the interchangeability of the words and why we should not rest our analysis on the literal interpretation of the word "or" in this instance. Clearly, the Legislature saw great value in the availability of both restitution and community service in addressing juvenile law violations.

As this court recently observed in In re CM, No. CAAP-15-0000411, 2017 WL 4325895, *9 (Haw. App. Sept. 29, 2017) (op.):

HRS § 571-1 provides that, pursuant to chapter 571, the family courts are established "for a policy and purpose of said courts to promote the reconciliation of distressed juveniles with their families, foster the rehabilitation of juveniles in difficulty, render appropriate punishment to offenders, and reduce juvenile delinquency." The mandate of the family courts includes that "all children found responsible for offenses shall receive dispositions that provide incentive for reform or deterrence from further misconduct, or both." HRS § 571-1.

As discussed in In re CM, even when restitution is ordered, unlike the adult restitution statute, the juvenile restitution statute does not require reimbursement of the "full amount" of the victim's loss and does not prohibit, for example, the consideration of the juvenile law violator's ability to pay full restitution or the impact of the restitution on the juvenile's family. Id. at *8-*9.

It light of the above, I conclude that HRS § 571-48(11) should be interpreted to give the Family Court the discretion to order both restitution and community service, under the appropriate circumstances.

I further conclude that, in this case, the Family Court erred in relying strictly on State v. Tuialii, 121 Hawai'i 135, 214 P.3d 1125 (App. 2009), for the proposition that JE must make restitution in the full amount of his victim's losses. See In re CM, 2017 WL 4325895, at *6-*9. Therefore, I would vacate the Restitution Order and remand the case for further consideration of the appropriate disposition in light of this court's Opinion in In re CM. 
      
      HRS § 571-11(1) grants the family courts exclusive jurisdiction over proceedings "[c]oncerning any person who is alleged to have committed an act prior to achieving eighteen years of age which would constitute a violation or attempted violation of any federal, state, or local law or municipal ordinance."
     