Before Judges Pressler, Brody and Cohen.
Pressler, Brody and Richard S. Cohen. The opinion of the court was delivered by Richard S. Cohen, J.A.D.
Defendant was indicted by the Monmouth County Grand Jury on two counts charging attempted aggravated sexual assault by attempting vaginal penetration of two girls each less than 13 years old. (N.J.S.A. 2C:14-2a(1) and 2C:5-1). He was also the subject of an Ocean County accusation charging sexual assault by touching the breasts of one of the girls (N.J.S.A. 2C:14-2b) and endangering her welfare by taking nude photographs of her. (N.J.S.A. 2C:24-4b(4)).
Pursuant to a plea agreement, defendant pleaded guilty to both counts of the accusation and one count of the indictment which had been amended to charge sexual assault by intentionally touching the intimate parts of one of the girls for defendant's sexual gratification. N.J.S.A. 2C:14-2b. The State agreed to move for dismissal of the second count of the
indictment and to recommend a maximum aggregate sentence of seven years' imprisonment.
The court made certain that defendant and his attorney understood that the seven year sentence ceiling included the possibility of a period of parole ineligibility of up to three and a half years. See State v. Kovack, 91 N.J. 476 (1982). The defendant received a concurrent sentence of seven years on each count to which he had pleaded guilty, with a period of parole ineligibility on each count of three and a half years. He unsuccessfully moved for reconsideration of the sentence, seeking cancellation of the period of parole ineligibility. He then appealed to this court, and we now reverse.
The girls who were the victims of defendant's offenses were sisters. According to a Monmouth County pre-sentence report, they had already been victims of sexual abuse by a number of family members, possibly including their grandfather, uncle and stepfather. Criminal charges had been brought against the stepfather. Apparently, he was convicted and served about one and a half years under the Sex Offender Act. See N.J.S.A. 2A:164-3 et seq. (Repealed). While the stepfather was away, his cousin, defendant in the present case, came to live in the household. Thereafter occurred the incidents of defendant's unlawful sexual behavior which included fondling the girls' intimate parts and photographing one of the girls while she was unclothed. According to defendant, he had sex on one occasion with the girls' mother.
Defendant was 28 years old at the time of the incidents. He had no prior arrests or convictions. At the time of his sentence, he was recently married, with a small child. He had a good history of employment. Evaluation at the Adult Diagnostic and Treatment Center, pursuant to N.J.S.A. 2C:47 revealed no compulsive psychosexual pathology. On that basis, he was found not to qualify for sentencing to the Center or for outpatient psychological treatment. N.J.S.A. 2C:47-3. Psychological evaluation revealed defendant to be a childish person who related to women on an immature level.
The sentencing judge found impressive as aggravating circumstances the vulnerability of the victims, defendant's taking advantage of their prior experiences, the harm inflicted upon them, the need not to depreciate the seriousness of the offenses and the need to deter defendant and others. The aggravating circumstances outweighed the mitigating, according to the judge, who did not mention what mitigating circumstances he considered.
At the hearing of defendant's motion to reduce the sentence, R. 3:21-10, the judge's remarks made it clear that, if the plea agreement had not capped the sentence at seven years, the sentence would have been greater. He imposed a period of parole ineligibility "because of the aggravating circumstances" and without further explanation.
The offenses to which defendant pleaded guilty are all second degree crimes. The sentence for such offenses is imprisonment, unless imprisonment would be a serious injustice which overrides the need to deter such conduct by others. N.J.S.A. 2C:44-1d. State v. Roth, 95 N.J. 334, 358 (1984). The permissible range of terms of imprisonment is between five and ten years. N.J.S.A. 2C:43-6a(2). The presumptive sentence is seven years; that is, the sentence for a second degree crime is seven years unless a ...