IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI‘I Electronically Filed

FIRST CIRCUIT
1CPC-17-0000342
│ 01-NOV-2019
│ 10:15 AM
│
STATE OF HAWAI‘I, │ Case No. 1CPC-17-0000342
│
│ COUNT 1: ACCIDENTS INVOLVING
vs. │ DEATH OR SERIOUS BODILY
│ INJURY (§291C-12, H.R.S.)
│ COUNT 2: NEGLIGENT HOMICIDE
MYISHA LEE ARMITAGE, │ IN THE FIRST DEGREE (§§707-
│ 702.5(1)(a) and/or 707-702.5(1)(b),
Defendant. │ H.R.S.)
│
│ SENTENCING ORDER

SENTENCING ORDER

On August 29, 2019, the emplaned jury in the above-entitled matter

returned a unanimous verdict convicting Defendant MYISHA ARMITAGE

(“Defendant”) as charged in Count 1 for Accidents Involving Death or Serious

Bodily Injury, and in Count 2 for Negligent Homicide in the First Degree.

Defendant now comes before this Court for sentencing for intentionally,

knowingly, or recklessly leaving the scene of an accident involving death in

Count 1, and for the negligent (or accidental) killing of Kaulana Werner in

Count 2.

In determining a fair sentence, the Court, must follow the law contained

Hawai‘i Revised Statutes (“HRS”) Chapter 706 (the Sentencing Chapter of the

Hawai‘i Penal Code. See HRS §706-600 (“No sentence shall be imposed

otherwise than in accordance with this chapter”). Only two (2) types of
sentences are available in this case: (1) the indeterminate terms of 10 of

incarceration, see HRS §706-660(1)(a); or (2) Probation, see HRS §706-620. 1

Any other type of sentence would be illegal.

In determining whether Probation is appropriate, the Court considers,

weighs, and balances, the factors in HRS §706-621. HRS §706-621(2) states

that the following factors, if present, weigh in favor of withholding a sentence of

imprisonment and imposing Probation:

(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 commission of the present crime;

(f) The defendant's criminal conduct was the result of

circumstances unlikely to recur;

(g) The character and attitudes of the defendant indicate that the
defendant is unlikely to commit another crime;

(h) The defendant is particularly likely to respond affirmatively to

a program of restitution or a probationary program or both;

1 The Court, pursuant to Hawa‘i Rule of Evidence 201, takes judicial notice of
the records, files, and proceedings in the above-entitled matter, and applies the facts
contained in the record of this case to the legal requirements of the Penal Code. The
Court also considers the State of Hawaii’s Motion for Imposition of Consecutive Terms
of Imprisonment filed on October 21, 2019, and supplemented on October 25, 2019
(collectively the State’s “Sentencing Motions”), the arguments of counsel, and the
statements made at sentencing.

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 (i) The imprisonment of the defendant would entail excessive
hardship to the defendant or the defendant's dependents.

The first four (4) factors in HRS §706-621(2)(a)-(d) all weigh against Probation:

Defendant’s conduct caused serious and grievous harm (death); Defendant did

not act under provocation; no grounds exist to excuse or justify Defendant’s

conduct, and the Decedent played no part in facilitating the offenses (Kaulana

Werner was a mere pedestrian). However, the five other (5) factors weigh in

favor of Probation: Defendant has never been convicted of a criminal offense,

and until April 24, 2016, was a law-abiding, employed, productive member of

the community; Defendant’s criminal conduct is unlikely to reoccur;

Defendant’s character indicates she is unlikely to commit another crime;

Defendant is likely to respond to rehabilitation; and Defendant’s imprisonment

would entail excessive hardship to her daughter.

The Court is also bound by HRS §706-606 in sentencing decisions.

According to HRS §706-606, the Court must consider the following factors in

reaching a fair sentence:

(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;

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 (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.

All subsections of this law must be weighed, and the Court cannot consider

some factors and conveniently ignore others. Subsections (2) and (3) of HRS

§706-606 (the “need for the sentence imposed” and the “kinds of sentences

available”) requires the Court to balance the seriousness of the offenses with

the ability to rehabilitate the Defendant and the Court in the preceding

paragraph has already weighed these factors in considering the

appropriateness of Probation. Further, in the interest of avoiding unwarranted

sentence disparities, a consideration in subsection (4) of HRS §706-606, this

Court notes that other similarly situated defendants have received Probation

terms rather than terms of imprisonment, and these Probation sentences

underscore the importance of rehabilitation under Hawai‘i law. In considering

the first factor of HRS §706-606, the Court finds the nature of the offenses to

be horrendous and shocking: Defendant killed Kaulana Werner while driving

impaired, fled the scene of the accident in a badly damaged car with deployed

airbags, and essentially left Kaulana Werner to die on the side of Farrington

Highway. Indeed, the gravity of the offenses reverberates because in this case,

an avoidable tragedy was amplified by the callous indifference to human life,

thereby tipping the balance of all sentencing factors toward imprisonment.

HRS Chapter 706 also requires a determination of whether the terms of

imprisonment be served concurrently or consecutively. The Prosecution has

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made vociferous arguments for consecutive terms. However, the statutory and

legal scheme favors concurrent terms of imprisonment. HRS §706-668.5

require “[m]ultiple terms of imprisonment to run concurrently unless the court

orders or the statute mandates that the terms run consecutively.” Further,

past appellate cases also demonstrate that consecutive terms of imprisonment

are generally reserved for convictions involving particularly cruel and sadistic

offenses, see State v. Loa, 83 Hawai‘i 335 (1996), crimes involving the savage

infliction of collateral injury beyond the underlying criminal offenses, see State

v. Baker, 142 Hawai‘i 466 (2017), or crimes demonstrating significant, long-

lasting criminality, or those committed against a significant cross-section of the

community, see State v. Kahapea, 111 Hawai‘i 267 (2006). The Court cannot

find that Defendant’s crimes, which were committed in a split second and

without stratagem or malicious intent, to be crimes that reflect the egregious

and/or prolonged criminality where the interests of justice require consecutive

sentencing.

Accordingly, Defendant is sentenced in both counts of this case to serve

the indeterminate terms of imprisonment of ten (10) years. Pursuant to HRS

§706-671, Defendant shall receive credit for any pretrial detention. Pursuant

to HRS §706-668.5, the terms of imprisonment shall run concurrently. 2

Dated: Honolulu, Hawai‘i, November 1, 2019.

_________________________________________
Judge of the above-entitled Court

2 Accordingly, the State’s Sentencing Motions are respectfully denied.