I dissent. In my view, the majority today has adopted the doctrine of the dissenting opinion in State v. Buch, 83 Hawai`i 308, 325-26, 926 P.2d 599, 616-17 (1996) (Levinson, J., concurring and dissenting) (noting that "[e]ven 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") (citing State v. Meyer, 61 Haw. 74, 77-78, 595 P.2d 288, 291 (1979)). Despite any rule of statutory construction, I believe that our foremost obligation in construing a statute is to ascertain and give effect to the intent of the legislature. With respect to this case, I disagree that the language of HRS § 709-906(5) is so plain and unambiguous as to justify a departure from the clear legislative intent to have the repeat offender provision apply to cases where there is a prior abuse conviction.
Absent constitutional obstacles, we have long recognized that our foremost obligation in construing a statute is to ascertain and give effect to the intention of the legislature to the fullest degree. See CARL Corp. v. State, Dept. of Educ., 85 Hawai`i 431, 459, 946 P.2d 1, 29 (1997); see
also Kim v. Contractors License Bd., 88 Hawai`i 264, 269, 965 P.2d 806, 811 (1998) (quoting Korean Buddhist Dae Won Sa Temple of Hawaii, 87 Hawai`i 217, 229-30, 953 P.2d 1315, 1327-28 (1998) (quoting State v. Cullen, 86 Hawai`i 1, 8-9, 946 P.2d 955, 963-64 (1997))); Kawamata Farms, Inc. v. United Agri Products, 86 Hawai`i 214, 255, 948 P.2d 1055, 1096 (1997) (quoting State v. Wells, 78 Hawai`i 373, 376, 894 P.2d 70, 73, reconsideration denied, 78 Hawai`i 474, 896 P.2d 930 (1995)); Macabio v. TIG Ins. Co., 87 Hawai`i 307, 311, 955 P.2d 100, 104 (1998) (citing State v. Aluli, 78 Hawai`i 317, 320, 893 P.2d 168, 171 (1995)); Richardson v. City and County of Honolulu, 76 Hawai`i 46, 68-69, 868 P.2d 1193, 1215-16 (Klein, J., dissenting), reconsideration denied, 76 Hawai`i 247, 871 P.2d 795 (1994) (citing Methven-Abreu v. Hawaiian Ins. & Guar. Co., Ltd., 73 Haw. 385, 392, 834 P.2d 279, 284, reconsideration denied, 73 Haw. 625, 838 P.2d 860 (1992) (citation omitted)). Indeed, although the established rules of statutory construction may be of aid in ascertaining and implementing legislative intent, they may not be used to deflect legislative purpose and design. State v. Murray, 63 Haw. 12, 18, 621 P.2d 334, 339 (1980) (citing State v. Smith, 59 Haw. 456, 461-62, 583 P.2d 337, 341-42 (1978) and State v. Prevo, 44 Haw. 665, 668-69, 361 P.2d 1044, 1047 (1961)). As this court has aptly stated in the past:
In construing a statute the paramount guide is the intent of the legislature. While the established rules of construction, including that of ejusdem generis, are aids in ascertaining and giving effect to the legislative intent, these rules cannot be used in contravention of the purpose of the legislature by confining the operation of the statute within narrower limits than intended. They are neither final nor conclusive but must yield to the legislative will.
Prevo, 44 Haw. at 668-69, 361 P.2d at 1047 (citing 50 Am.Jur., Statutes, § 224, p. 203). Therefore, notwithstanding the rules of statutory construction, our paramount objective in construing a statute is to ascertain and give effect to the intent of the legislature.
Although it is true that we obtain the intent of the legislature primarily from the language of the statute itself, we have rejected an approach to statutory construction which limits our inquiry to the bare words of a statute. Four Star Ins. Agency, Inc. v. Hawaiian Elec. Indus., Inc., No. 20710, slip op. at 10 (Haw. Feb. 26, 1999) (quoting Bragg v. State Farm Mut. Auto Ins. Co., 81 Hawai`i 302, 306, 916 P.2d 1203, 1207 (1996) (quoting Sato v. Tawata, 79 Hawai`i 14, 17, 897 P.2d 941, 944 (1995)). Instead, we must consider the words of a statute in the context of the entire statute and construe it in a manner consistent with its purpose. See Shipley v. Ala Moana Hotel, 83 Hawai`i 361, 364-65, 926 P.2d 1284, 1287-88 (1996) (quoting State v. Toyomura, 80 Hawai`i 8, 19, 904 P.2d 893, 904 (1995)); see also Mendes v. Hawaii Ins. Guar. Ass'n, 87 Hawai`i 14, 17, 950 P.2d 1214, 1217 (1998) (citing Mathewson v. Aloha Airlines, Inc., 82 Hawai`i 57, 71, 919 P.2d 969, 983 (1996)).
In considering the meaning of the words in a statute, "[t]he legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction[,] and illogicality." Kim, 88 Hawai`i at 270, 965 P.2d at 812 (quoting State v. Arceo, 84 Hawai`i 1, 19, 928 P.2d 843, 861 (1996) (citation and internal quotation marks omitted)); see also HRS § 1-15(3) (1993) (providing that "[e]very construction which leads to an absurdity shall be rejected"). To determine whether an interpretation of a statute will yield an absurd result, we may consider "[t]he reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning." HRS § 1-15(2) (1993). Further, "[l]aws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another." State v. Ake, 88 Hawai`i 389, 395, 967 P.2d 221, 227 (1998) (quoting HRS § 1-16 (1993)). Indeed,
when aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. Thus, the plain language rule of statutory construction, does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review. Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.
Four Star, No. 20710, slip op. at 10 (quoting Bragg, 81 Hawai`i at 306, 916 P.2d at 1207 (quoting Sato, 79 Hawai`i at 17, 897 P.2d at 944)) (emphasis added); see also Kahana Sunset Owners Ass'n v. Maui County Council, 86 Hawai`i 132, 134, 948 P.2d 122, 124 (1997) (quoting Crompton v. Tern Corp., 83 Hawai` 1, 6, 924 P.2d 169, 175 (1996) (citation omitted)).
In light of our foremost obligation to ascertain and give effect to the intent of the legislature, I disagree with the majority's use of the bare words of HRS § 709-906 to contravene the clear intent of the legislature.
As the majority concedes, in enacting HRS § 709-906, the legislature had intended for the repeat offender provision of HRS § 709-906 to be consistent with the repeat offender provisions of HRS §§ 580-10, 586-4, and 586-11. Majority at 7-11. In this regard, the legislature intended that the repeat offender provision of HRS § 709-906 to apply to convictions occurring after a first conviction. Having accurately ascertained the intent of the legislature, our foremost obligation requires us to give effect to the intent of the legislature by construing the repeat offender provision of HRS § 709-906 to apply to abuse convictions occurring after the first abuse conviction.
Indeed, as the majority notes, subsection (5) of HRS § 709-906 was added to the statute in 1992 by Act 290. Majority at 7-8. In addition to amending HRS § 709-906, Act 290 amended three other repeat offender provisions similar to that added to HRS § 709-906. Each of the three other "repeat offender" provisions created by Act 290 expressly refers to convictions with respect to the imposition of additional or enhanced sentencing.
In amending HRS § 709-906 in 1992, the House Judiciary Committee reported that the purpose of the amendment was to make
any person convicted of a second offense or any subsequent offense or any subsequent offense which occurs within one year of the previous offense to be termed a "repeat offender" for the purposes of sentencing and . . . serve a minimum jail sentence of thirty days.
Hse. Stand. Comm. Rep. No. 20-92, in 1992 House Journal, at 906 (emphasis added). As the majority notes, House Bill 3326, which related to HRS § 709-906, was consolidated with several other bills relating to HRS §§ 580-10, 586-4, and 586-11. Majority at 8-9. The Senate Judiciary Committee described the purpose of consolidating the bills as follows:
Your Committee . . . found this bill to be an appropriate vehicle to consolidate several bills amending the provisions of chapter 586, a bill dealing with chapter 709 and a proposed amendment to chapter 580. These bills were thematically related and consolidation provided a better prospect of consistency. More specifically[,] the following bills were incorporated: H.B. 2605, H.D. 1 (§ 586-4 and -11), H.B. 3221, H.D. 1 (§ 585-5 and -6) and H.B. 3326, H.D. 1 (§ 709-906). In addition, a proposed amendment to section 580-1, Hawai`i Revised Statutes was included.
. . . .
H.B. No. 3326, H.D. 1 proposed mandatory jail time, similar to the provision of H.B. No. 2605, H.D. 1 for abuse of a household member or refusal to comply with a lawful order of a police officer who is interceding in a domestic dispute concerning the provisions taken from H.B. 2605, H.D. 1. Your Committee notes that this consistency is achieved at the cost of reducing the currently applicable penalties. Consistency was chosen, over maintaining the more stringent penalties in the current law[.]
Sen. Stand. Comm. Rep. No. 2651, in 1992 Senate Journal, at 1181 (emphases added). The conference committee made further reference to the goal of "consistency":
This bill is used as a vehicle to consolidate several bills amending the provisions of Chapter 586, HRS, a bill dealing with Chapter 709, HRS, and a proposed amendment to Chapter 580, HRS. These bills are thematically related and consolidation provides a better prospect of consistency.
Conf. Comm. Rep. No. 122, in 1992 House Journal, at 854 (emphasis added). Given the legislative history behind the enactment of HRS § 709-906, it is unmistakable that the legislature intended for the repeat offender amendments to HRS §§ 580-10, 586-4, 586-11, and 709-606 to "have the same effect." Majority at 11. Therefore, as the majority acknowledges, the legislature intended that the repeat offender amendments to HRS § 709-906 apply to convictions occurring after a first conviction. Majority at 7-11.
Based upon the majority's accurate recitation of the legislature's intent, it is puzzling how the majority can ignore the legislature's intent to apply the repeat offender provision of HRS § 709-906 in this case where Dudoit did not have a prior abuse conviction. Because our foremost obligation is to give effect to the intent of the legislature, I would limit the application of the repeat offender provision of HRS § 709-906 to cases where there is a prior abuse conviction.
We have previously stated that the words of a statute are only a starting point in the construction of a statute. Shipley, 83 Hawai`i at 364-65, 926 P.2d at 1287-88. Yet, the majority effectively concludes that the term "offense," as used in HRS § 709-606, is so plain and unambiguous that it justifies a departure from the legislature's clear intent. With this proposition, I cannot agree.
In arriving at its definition of "offense," the majority cites to Black's Law Dictionary 1081 (6th ed. 1990). Majority at 12-13. In my view, however, the dictionary definition of "offense" is only a starting point in ascertaining its meaning. See Shipley, 83 Hawai`i at 364-65, 926 P.2d at 1287-88 (noting that the dictionary definition of "constantly necessary" is only a starting point). As the majority observes, Black's Law Dictionary defines an "offense" as "a breach of the criminal laws," i.e., a "violation of law for which [a] penalty is prescribed." Majority at 12 (emphases added). In contrast, the term "conviction" is "[t]he final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere[.]" Id. at 12.
However, these dictionary definitions are not conclusive for purposes of enhancing a defendant's sentence under the repeat offender provision of HRS § 709-906. Although the terms "offense" and "conviction" have different dictionary meanings, they are not mutually exclusive. As the majority observes, "one may be 'convicted' of a 'crime,' which is a type of 'offense.'" Majority at 14. Because a conviction is merely a type of offense, it is unclear whether the term "offense," for purposes of enhancing a defendant's sentence under the repeat offender provision, means: (1) an "offense" that a defendant has been convicted of, i.e., adjudication of guilt; or (2) an "offense" that has simply "occurred," i.e. the moment at which the "elements . . . [of the crime] have actually taken place."(1) Id. Given the statute's ambiguity as to which type of "offense" would subject a defendant to a mandatory jail term, I am not convinced that the term "offense" is so plain and unambiguous as to justify the departure from the clear legislative intent to have the repeat offender provision of HRS § 709-906 apply to cases involving convictions occurring after a first conviction.
The majority's disregard of the clear legislative intent to have the repeat offender provision of HRS § 709-906 to apply to cases involving convictions occurring after a first conviction leads to an absurd result in this case. A review of the record indicates that the events forming the bases of the separate offenses in this case occurred on the same day during the same incident. According to the factual basis presented by the prosecution, in the course of an argument between Dudoit and his wife, Dudoit kicked his wife (Josette) in the arm and kicked the refrigerator door causing it to hit Josette's arm. Immediately thereafter, as Josette's daughter (Michelle) went to stop Dudoit, Dudoit pulled Michelle's hair and punched her in the head. These events took place virtually simultaneously.
Thereafter, the prosecution charged Dudoit with one count of abuse of a family and household member for his actions against Josette (Count I). In the same complaint but in a separate count, the prosecution charged Dudoit with abuse of a family and household member for his actions against Michelle (Count II). Dudoit pleaded no-contest to both counts. At sentencing, the family court ruled that Count II of the complaint was a "second offense" under the repeat offender provision of HRS § 709-906 and on that basis, imposed the enhanced minimum jail term.
By upholding the enhanced sentence in this case, the majority allows a defendant who committed essentially a single offense in a single incident to be classified a "repeat offender." In other words, the majority allows a defendant convicted on two counts under the same indictment or complaint to be classified as a "repeat offender" and subject to an enhanced mandatory minimum term of incarceration. In light of the legislative intent to apply the repeat offender provision of HRS §§ 580-10, 586-4, 586-11, and 709-906 consistently to a second or subsequent conviction, I presume that the legislature could not have intended the absurd result of subjecting a defendant to an enhanced term of incarceration simply by virtue of having been convicted on multiple counts in the same indictment or complaint (i.e., in a single incident). See Kim, 88 Hawai`i at 270, 965 P.2d at 812 (noting that because legislature is presumed not to intend an absurd result, we will construe a statute to avoid inconsistency, contradiction, and illogicality).
Moreover, the majority fails to acknowledge that in considering whether to impose the enhanced sentencing provision of HRS § 706-906, the family court must necessarily consider a defendant's prior abuse convictions, as opposed to a defendant's prior charged "offenses." Indeed, without a prior conviction, it is absurd to impose an enhanced jail term under the repeat offender provision of HRS § 709-906. Otherwise, a defendant may be sentenced under the repeat offender provision on the basis of a prior charge for which the defendant was not convicted. In other words, given the effect of the majority's position that a conviction is irrelevant for purposes of sentencing a defendant under the repeat offender provision, the majority's definition of the term "offense" could very well include a situation where a defendant was previously charged but not convicted of an abuse charge.
Although an "offense" occurs when "the elements of the offense have actually taken place," it is undisputable that "it is not known legally that an offense has been committed until there is a conviction." People v. Nees, 615 P.2d 690 (Colo. 1980). In this regard, the sentencing court cannot legally know whether a person has committed a "breach" or "violation" of our penal code until there is an adjudication of that fact.
Therefore, I cannot agree with the majority's construction of the term "offense" in a vacuum. Instead, in deciding whether to impose the enhanced jail term under the repeat offender provision of HRS § 709-906, the family court must necessarily consider a defendant's prior abuse convictions, as opposed to prior "offenses." Because the majority's strict construction of the bare words of HRS § 709-906 leads to an absurd result, I disagree with the majority's conclusion that this court has no authority to depart from the plain meaning of the language used in HRS § 709-906.
Accordingly, because the majority's construction of HRS § 709-906(5) ignores our foremost obligation to give effect to the intent of the legislature, I respectfully dissent.
1. "Offense" could also mean a charge or an indictment for an offense that has occurred, i.e., the elements of the crime have taken place. In any event, it is unclear, based on the bare words of the statute, what kind of "offense" would subject a defendant to the repeat offender provision of HRS § 709-906.