For reversal and remandment -- Justices Jacobs, Hall, Mountain, Sullivan and Clifford. For affirmance -- None. The opinion of the Court was delivered by Hall, J.
[65 NJ Page 427] Defendant in 1964, following guilty pleas, was committed for an indeterminate term for treatment under the sex offender act, N.J.S.A. 2A:164-3 et seq., and given penal sentences consecutive thereto for other contemporaneous sex offenses, unquestionably resulting from the same mental and physical aberration, but not then included within the coverage of the act. He was paroled in 1971 from the commitment
under the act, N.J.S.A. 2A:164-8, following therapy treatment, as capable of making an acceptable social adjustment in the community and no longer a threat. He has since been serving the penal sentences. The question is the propriety of those sentences. It is raised by a pro se petition for post-conviction relief. R. 3:22. The trial court dismissed the petition without hearing and the Appellate Division affirmed. We granted defendant's pro se petition for certification, 63 N.J. 580 (1973), and directed the Public Defender to represent him in the resultant appeal.
The 1964 guilty pleas were to five accusations filed by the Prosecutor following defendant's waiver of indictment and trial by jury. He was at the time 37 years of age, married and the father of six children. The first accusation charged carnal abuse of a ten year old neighbor girl, N.J.S.A. 2A:138-1, which, by reason of the child being under the age of 12 years, carried a maximum sentence of 30 years. The second was for "incestuous conduct between parent and child," N.J.S.A. 2A:114-2, alleging that he "did unlawfully commit the crime of incest by having carnal knowledge of his * * *" nine year old daughter. The maximum penalty under this section is imprisonment for 15 years.*fn1 Two other accusations dealt with similar "unnatural" sex acts between defendant and two young males, one 16 and the other 19
years of age. Apparently because of the difference in age, the offenses were charged under differing statutory sections. That involving the 16 year old was brought under N.J.S.A. 2A:96-4 -- contributing to a child's delinquency. (It has been held that "child" in this statute refers to a person under 18 years of age. State v. Montalbo, 33 N.J. Super. 462 (Co. Ct. 1954).) The charge concerning the 19 year old was "lewdness" under N.J.S.A. 2A:115-1.*fn2 Both charges are misdemeanors with a three year imprisonment maximum. N.J.S.A. 2A:85-7. (No violence was involved in any of these four charges.) The fifth accusation charged possession of obscene pictures (nude photographs he took of the two girls and others) with intent to utter and expose in violation of N.J.S.A. 2A:115-2, also a misdemeanor.
Upon the guilty pleas defendant was committed to the Diagnostic Center for physical and mental examination, required by the sex offender act since two of the offenses -- carnal abuse and open lewdness -- were within the then coverage of the act. L. 1950, c. 207, as amended by L. 1951, c. 44; N.J.S.A. 2A:164-3. The Center's report in fact dealt with all the offenses, which defendant readily admitted, and found that they derived from "deep psychosexual conflicts and deep feelings of male inadequacy" of long standing and that his offensive conduct was repetitive and compulsive and so fell within the purview of the act. He was said to be a menace to his family and other children and the recommendation was that he be committed to an institution for, as the statute (N.J.S.A. 2A:164-5) puts it, "a program of specialized treatment for his mental and physical aberrations." The recommendation being mandatory
upon the trial court, defendant was committed, on August 20, 1964, to concurrent indeterminate terms for treatment on the carnal abuse and lewdness convictions covered by the act.*fn3 This resulted in possible detention for 30 years, the maximum imprisonment prescribed for carnal abuse, N.J.S.A. 2A:138-1, without credit for good behavior or work performed. N.J.S.A. 2A:164-6 and 10.
The purpose of the sex offender act is cure through treatment of the aberrations which caused the sexually deviant offenses rather than punishment. To that end the act provides for release under parole supervision "when it shall appear to the satisfaction of the state parole board, after recommendation by a special classification review board appointed by the state board of control of institutions and agencies, that such person is capable of making an acceptable social adjustment in the community." N.J.S.A. 2A:164-8. The converse is that if one so committed does not so respond to treatment and remains a menace to the community, he may be retained in confinement for the maximum term authorized for the crime of which he was convicted. See State v. Wingler, 25 N.J. 161, 175 (1957); State v. Mickschutz, 101 N.J. Super. 315, 320-321 (App. Div. 1968).
The trial judge, however, went beyond the commitment under the sex offender act and imposed penal sentences for the offenses not then within the coverage of the act -- 10 to 15 years for incestuous conduct, 1 to 3 years for contributing to the delinquency of a minor and 1 to 3 years for possession of obscene pictures --, concurrent with each other, but consecutive to the sex offender commitment. This made for a maximum possible confinement of 45 years (less good time and work credits on the penal sentences). The
propriety of the consecutive nature of these sentences is ...