§708-842 Robbery; "in the course of committing a theft". An act shall be deemed "in the course of committing a theft or non-consensual taking of a motor vehicle" if it occurs in an attempt to commit theft or non-consensual taking of a motor vehicle, in the commission of theft or non-consensual taking of a motor vehicle, or in the flight after the attempt or commission. [L 1972, c 9, pt of §1; am L 2006, c 230, §43]
COMMENTARY ON §708-842
The nature and operation of this section is concisely explained by the Model Penal Code:
This provision is unusual only insofar as it makes classification of robbery depend in part on behavior after the theft might be said to have been accomplished. The thief's willingness to use force against those who would restrain him in flight strongly suggests that he would have employed it to effect the theft had there been need for it. No rule-of-thumb is proposed to delimit the time and space of "flight," which should be interpreted in accordance with the rationale. The concept of "fresh pursuit" will be helpful in suggesting realistic bounds between the occasion of the theft and a later occasion when the escaped thief is apprehended.1
Previous Hawaii statutory law failed to provide a standard for the determination of the duration of the "theft" aspect of a robbery--a standard which is needed in order to determine when the employment of force or threatened force converts the "theft" into a "robbery."
SUPPLEMENTAL COMMENTARY ON §708-842
Act 230, Session Laws 2006, established motor vehicle theft as part of the offenses of robbery in the first and second degrees. House Standing Committee Report No. 665-06. Act 230 amended this section to conform to the amendments made to the offenses of robbery in the first and second degrees.
Case Notes
Theft and attempted theft, regardless of degree, are included offenses of first degree robbery. 81 H. 309, 916 P.2d 1210 (1996).
Force was not used "in the course of committing theft" where force used was while defendant was returning stolen liquor bottle to store owner. 9 H. App. 263, 833 P.2d 902 (1992).
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§708-842 Commentary:
1. M.P.C., Tentative Draft No. 11, comments at 70 (1960).