On appeal from the Appellate Division, Superior Court. On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J.
[95 NJ Page 371] Defendant, Hodge, pleaded guilty to aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a), admitting he had committed acts of sexual intercourse with his stepdaughter, aged 13, over a year's time. The statute makes sexual contact of this sort a crime of the first degree when the victim is 13 to 16 years old and the offender has a supervisory role within the
household, even in the absence of force or violence, as in this case. N.J.S.A. 2C:14-2(a)(2)(c).
Defendant was a first offender, employed full-time and was supporting his wife and their natural daughter. The presentence report recommended that despite his status as a first offender, defendant should be imprisoned, in view of the victim's youth. In addition to the presentence report, the trial judge consulted a report from the Adult Diagnostic and Treatment Center, furnished under N.J.S.A. 2C:47-2, and reviewed interviews with the defendant's neighbors and doctors' evaluations.
The court formulated the sentence by balancing the aggravating and mitigating factors listed in N.J.S.A. 2C:44-1(a) and (b). The aggravating factors were the extreme gravity of the offense and the victim's age. The mitigating circumstances included the facts that defendant was a first offender and the forbidden conduct was unlikely to reoccur; defendant was likely to respond favorably to probationary treatment, was regularly employed, supported a family, and was well thought of by his peers; and the fact that the effect of imprisonment on his family would be severe.
Against this background, the trial judge sentenced Hodge to 63 days in prison, five years' probation, fines totalling $2,525.00, and a directive to undergo psychiatric care.
The State appealed the sentence pursuant to N.J.S.A. 2C:44-1(f)(2). The Appellate Division, in a divided opinion, affirmed the judgment of the trial court, noting that the "pertinent criteria for withholding or imposing a sentence of imprisonment involve a weighing of the aggravating and mitigating factors enumerated in N.J.S.A. 2C:44-1." Under the sentencing review standards of State v. Whitaker, 79 N.J. 503 (1979), the court confirmed that it should refrain from interfering with the sentencing function in the absence "of such shock to the judicial conscience as to be convincing that upholding the action reviewed would be 'manifestly unjust.'" Whitaker, 79 N.J. at 514
(quoting Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971)). The dissenting judge emphasized that the "crime is egregious" and the "mitigating factors are comparatively few," and that incarceration more accurately reflected the severity of the crime. In his view, the presence of mitigating factors might have justified a sentence appropriate to a second degree crime, under N.J.S.A. 2C:44-1(f)(2). The State appealed under R. 2:3-1(a), and the defendant petitioned for certification, challenging the State's right to appeal. We granted certification. 94 N.J. 517 (1983).
This case presents an additional issue not present in State v. Roth, 95 N.J. 334 (1984), also decided today. An amendment to N.J.S.A. 2C:44-1 that became effective in September 1981, redefined the presumption of imprisonment for all first and second degree crimes. L. 1981, c. 290, § 40. Until shortly before defendant's sentencing, however, this provision read:
d. Presumption of imprisonment. Where a statute defining a crime of the first or second degree provides that a presumption of imprisonment shall be applied upon conviction or where a statute outside the code defining an offense which would be a crime of the first or second degree under the code provides for a mandatory sentence, a presumption of imprisonment shall apply. The court shall deal with a person who has been convicted of such a crime by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others. [ L. 1979, c. 178, § 93.]
The aggravated sexual assault statute under which Hodge was charged did not expressly include a presumption of imprisonment. L. 1979, c. 178, § 26.
In 1981, the Code was amended to provide a presumption of imprisonment for all first and second degree crimes:
d. Presumption of imprisonment. The court shall deal with a person who has been convicted of a crime of the first or second degree by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others. [ N.J.S.A. 2C:44-1(d), as amended by L. 1981, c. 290, § 40.]
It is the State's position that the amendment merely clarified, but did not change the prior law. This ...