On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Hughes, C.J. Pashman and Handler, J.J., concurring in the result.
On the petition of the State, we granted certification of a decision by the Appellate Division which had modified sentences imposed upon a defendant convicted after jury trial of numerous serious offenses. This appellate action was predicated on a conclusion that such sentences were "unduly harsh and punitive and justice will best be accomplished by some modification." On this basis the appellate court imposed, as is procedurally accommodated by R. 2:10-3, the sentence which it thought "should have been imposed." We think the Appellate Division fell into grave error in so doing, and we reverse.
THE OFFENSES, THE COURSE OF PROSECUTION AND THE SENTENCES IMPOSED
During the late evening of December 30, 1975, while the victims, Mr. and Mrs. "C," were peaceably in their home,*fn1 the defendant and two accomplices forced an entrance thereto, brandishing knives and threatening death to the occupants. They raped the female victim and inflicted other unspeakable assaults upon her which need not be described here. They so choked and brutalized Mr. "C" as to seriously and most likely permanently damage his larynx, including binding his throat by a necktie and pulling him from room to room in their search for booty. They ripped off wall telephones, imprisoned their victims, took care to obliterate fingerprints
(one, that of defendant, survived), and stole all the money they could lay their hands on or extort, as well as a television set, watches and items of jewelry. At the end of this reign of terror they left, and later the victims were found and released by a neighbor.
Mrs. "C" identified defendant as the person who had raped her and he admitted as much in a police statement. Later in his trial testimony, as the jury verdict established, he falsely denied that factor of participation. Yet his defense counsel would suggest to the sentencing judge, in mitigation, the candor of the defendant in admitting in his testimony at least a limited participation in the criminal events involved.
The judge who had presided over the trial of defendant for some five days, had observed all witnesses and had heard and recorded the jury's verdict convicting the defendant of various offenses, then faced the responsibility of imposing sentence. The defendant by this time had enjoyed, as he should have, the fair public trial guaranteed him by the Sixth Amendment to the Constitution of the United States. Because indigent, he had been defended with competence (the record does not suggest otherwise) by the Public Defender, also appropriately his right under the law. N.J.S.A. 2A:158A-5. He had been advantaged by a presentence investigation, R. 3:21-2, in which any mitigating factors could be advanced. It is difficult to imagine any other advantage or benefit which could have been afforded this defendant by the administration of justice, or suggested by rights of constitutional origin.
Defendant had previously been characterized, in a 1973 diagnostic evaluation relating to a juvenile delinquency charge involving violence, as "highly predisposed toward asocial behavior patterns." The trial judge was entitled to find as he did that defendant represented an imbedded threat to the peaceful community.
In this posture then, the trial court proceeded to impose sentence, a societal and legal imperative. The defendant had been convicted and sentences were imposed, as follows:
Count One -- Entering with intent to rob (N.J.S.A. 2A:94-1)
Not less than 3 nor more than 4 years in the New Jersey State Prison, consecutive to the sentence to be imposed on Count Six.
Count Two -- Robbery (N.J.S.A. 2A:141-1)
A minimum of 9 and a maximum of 12 years, concurrent with sentence to be imposed on Count Six.
Count Three -- Robbery while armed (N.J.S.A. 2A:151-5)
A minimum of 5 and a maximum of 7 years, concurrent with sentence to be imposed on Count Six.
Count Four -- Robbery (N.J.S.A. 2A:141-1)
Not less than 9 nor more than 12 years, consecutive to the sentence to be imposed on Count Six.
Count Five -- Robbery while armed (N.J.S.A. 2A:151-5)
Not less than 5 nor more than 7 years, consecutive to the sentence to be imposed on Count Six.
Count Six -- Rape (N.J.S.A. 2A:138-1)
Not less than 26 nor more than 27 years.
There was a certain rationality to these sentences so far as separation of offenses was concerned. Having entered the home violently, with intent to rob, defendant and his accomplices could have abandoned that intent and need not have committed the actual robberies, distinct and separate offenses. Having committed the robberies, they need not have raped and sexually brutalized their female victim, nor need they have physically abused the male victim. There is, of course, no suggestion of legal merger of the separate and successive offenses of which defendant was convicted. The sole ...