State v. Demello, No. SCWC–10–0000173.

• Court: Supreme Court of Hawai'i
• Writing for the Court: Opinion of the Court by NAKAYAMA, J.
• Citation: 136 Hawai'i 193,361 P.3d 420
• Parties: STATE of Hawai‘i, Petitioner/Plaintiff–Appellee, v. Lawrence DEMELLO, Jr., Respondent/Defendant–Appellant.
• Docket Number: No. SCWC–10–0000173.
• Decision Date: 02 November 2015

136 Hawai'i 193
361 P.3d 420

STATE of Hawai‘i, Petitioner/Plaintiff–Appellee,
v.
Lawrence DEMELLO, Jr., Respondent/Defendant–Appellant.

No. SCWC–10–0000173.

Supreme Court of Hawai‘i.

Nov. 2, 2015.

361 P.3d 421

Artemio C. Baxa, Wailuku, for petitioner.

Audrey E. Stanley, (Jennifer D.K. Ng on the briefs), for respondent.

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.

136 Hawai'i 194

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 § 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.

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:

361 P.3d 422

136 Hawai'i 195

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 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 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, 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).

361 P.3d 423

136 Hawai'i 196

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. 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 subsection 3 are not the only categories of losses that may be recovered pursuant to the...