On appeal from the Superior Court, Law Division, Essex County.
Matthews, Gaulkin and Shebell. The opinion of the court was delivered by Gaulkin, J.A.D.
By opinion of May 8, 1984,*fn1 we affirmed the convictions of defendants John Yarbough and Judy Wilson Smith but remanded the matter for reconsideration of sentence in light of State v. Hodge, 95 N.J. 369 (1984), and State v. Roth, 95 N.J. 334 (1984). We retained jurisdiction and now must review the sentences imposed on the remand.
Both Yarbough and Smith were found guilty of three counts of first-degree aggravated sexual assault (N.J.S.A. 2C:14-2) upon Smith's 11 year old daughter Kimberly, and four counts of third-degree hindering apprehension by concealment and by giving false information (N.J.S.A. 2C:29-3(a)(3), (7); N.J.S.A. 2C:29-3(b)(1), (4)).*fn2 The Adult Diagnostic and Treatment Center found that neither defendant came "under the purview of the New Jersey Sex Offender Act." See N.J.S.A. 2C:47-3. Yarbough was initially sentenced on the aggravated sexual assault convictions to three consecutive 20 year terms, each with a 10 year parole ineligibility period. On the hindering apprehension by concealment convictions he was sentenced to 4 year terms, each with 2 years of parole ineligibility, to be served consecutive to each other and to the aggravated sexual assault sentences; on the false information convictions he was given concurrent 4 year terms, with 2 years of parole ineligibility. His sentences thus aggregated 68 years with 34 years of parole ineligibility.
Smith was sentenced on her aggravated sexual assault convictions to three consecutive custodial terms of 15 years, each with 7 years of parole ineligibility; on each of the remaining convictions she was sentenced to a 4 year term, with 2 years of
parole ineligibility, all concurrent with each other and with the aggravated sexual assault sentences. Accordingly, her sentences aggregated 45 years with 21 years of parole ineligibility.
At the hearing on remand, the trial judge initially concluded that "what I did was right." After a short recess and "just to make sure that the ends of justice are served" he said he would modify Yarbough's sentence by reducing the first aggravated assault sentence to 15 years with 7 years of parole ineligibility, thus reducing the aggregate sentence to 63 years with 31 years of parole ineligibility. But because the defendants were not then in court, the judge deferred resentencing.
In resentencing Yarbough a week later, the judge imposed a 15 year custodial term with 5 years of parole ineligibility on the first aggravated sexual assault conviction; as to Smith he imposed a 15 year custodial term with 5 years of parole ineligibility on the first aggravated sexual assault conviction. The original sentences were otherwise not disturbed.
Yarbough thus stands sentenced to a total of 63 years with 29 years of parole ineligibility and Smith to a total of 45 years with 19 years of parole ineligibility. Both defendants challenge those sentences as excessive.
Our review of the sentences requires that we determine (1) whether the legislatively fixed sentencing guidelines were followed, (2) whether the aggravating and mitigating factors found below were based upon competent, credible evidence in the record and (3) whether application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience. State v. Roth, supra, 95 N.J. at 363-64, 365-66. We find both sentences vulnerable under each of these tests.
The sentencing guidelines fixed in the Code of Criminal Justice (Code) are clear. A presumptive sentence of 15 years applies to each conviction for first-degree aggravated sexual
assault; a 4 year presumptive sentence applies to each conviction for third-degree hindering apprehension and giving false information. N.J.S.A. 2C:44-1(d), (f)(1); N.J.S.A. 2C:44-5(f)(1). Only upon a finding of "preponderance of aggravating factors or preponderance of mitigating factors" (N.J.S.A. 2C:44-1(f)(1); see N.J.S.A. 2C:44-1(a), (b)) could the judge impose a sentence, other than the presumptive sentence, of not less than 10 years and not more than 20 years for the first-degree offenses and not less than 3 nor more than 5 years for the third-degree offenses. N.J.S.A. 2C:43-6(a)(1), (3). The judge could also impose parole ineligibility terms, but only if he was "clearly convinced" that aggravating factors "substantially outweigh[ed]" mitigating factors. N.J.S.A. 2C:43-6(b).
The record does not persuade us that the trial judge recognized or applied these principles. Before his original sentencing of Yarbough, the judge merely characterized Yarbough's crimes as "lecherous, debasing, vile, debauchery of an 11 year old child," "obscene criminality" and the like and said that "the severity of your crime demands that you be given the ultimate punishment . . . ." After imposing the sentences, the judge supplemented his statement of reasons as follows:
What I have done frankly is to punish you to the extent of making sure you shall spend the same period of time that you are presently on this earth in jail as punishment for what you have scarred an 11 year old for permanently. You should spend 34 years in jail before you shall be eligible for parole. And as I said before I have no hesitation in assessing that penalty and punishment against you.
Before sentencing Smith, the trial judge was only marginally more explanatory. He characterized her crimes as "the repeated rapes of your own blood" and "one of the most reprehensible crimes that anyone can know . . . ." Because the crimes evidenced "insensitivity" to Smith's parental responsibilities, the judge found that "the fact that you have no criminal background really has no relevance in what I shall do by way of sentencing." The judge also inferred that "the injuries inflicted upon your daughter were not only physical but psychological and . . . she will probably bear the scars for a long time if not
for the rest of her life." After imposing sentence, the judge gave the following reasons:
I have done what I have done because I have said you willingly permitted almost an unnatural act. You have destroyed your role as mother in destroying your daughter. And for that you have to be punished. Rehabilitation, you are beyond rehabilitation in that context. Therefore, you should be punished.
On the remand, the trial judge engaged counsel in a lengthy colloquy about Roth and Hodge and the statutory criteria there discussed. But in ruling on the motion for reconsideration, he again did little more than characterize what the jury had found. He said that defendants had "raped [the] child," that they "had actively conspired" to do so and that they also "conspired to and did seek to hinder the prosecution. . . ." He concluded that if Yarbough were not incarcerated he would continue "those predatory ways upon another young child"; as to Smith, the judge said only that "in my opinion that mother forfeited her right to be a mother." His announced determination to reimpose the sentences originally fixed was because "[t]he crime to me is the most aggravating of all aggravating factors." ...