On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
King, O'Brien and Simpson. The opinion of the court was delivered by King, P.J.A.D.
The history of this case appears in State v. Hodge, 95 N.J. 369 (1984); see State v. Roth, 95 N.J. 334 (1984). Defendant pled guilty to aggravated sexual assault in violation of N.J.S.A. 2C:14-2(a). He admitted acts of sexual intercourse with his step-daughter, age 13, over the period of a year between July 1978 and June 1979. 95 N.J. at 371. Defendant was arrested in July 1980. The Code makes sexual contact of this sort a crime of the first-degree when the victim is 13 to 16 years of age.
The Supreme Court summarized the relevant sentencing data in this way.
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. [ State v. Hodge, 95 N.J. at 372].
Because the sentencing standards embraced by the Code of Criminal Justice "were not applied" appellant Hodge's original sentence was set aside and the case was remanded for resentencing.
On resentencing a different judge than the original sentencing judge imposed a 15-year term on the single count to which defendant pled guilty. This is the presumptive term for a first-degree sexual assault. He also imposed a $1,000 fine. The maximum is 20 years. N.J.S.A. 2C:43-6(a)(1).
At the time of resentencing the relevant factors remained the same as described by the Supreme Court. Defense counsel asked that the judge reduce the charge to a second-degree offense for sentencing purposes. N.J.S.A. 2C:44-1(f)(2). In cases "where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands" the judge may sentence defendant to an appropriate term for a crime one degree lower than that for which he was convicted. Ibid. The State urged that the presumptive 15-year term be imposed.
The sentencing judge gave these reasons when sentencing defendant on March 26, 1984.
This crime is a crime of the first degree. Here the crime was, in my opinion, egregious involving a victim who was then 13 years of age. And you were the stepfather in that household. While no force has been shown to have occurred, the silent abuse inflicted upon this young female child threatens in my opinion the fabric of society.
As the Supreme Court has indicated, punishment must fit the crime and not the criminal. Here this sentence reflects primarily the severity of the crime as the diagnostic center examination indicates that you do not come within the purview of the Sex Offender's Act.
The aggravating circumstances include the nature and circumstances of this offense involving a 13 year old girl and her stepfather in their home over an extended period of time. These were, in my opinion, depraved acts by a substitute parent. The extreme gravity and the seriousness of the harm inflicted on the 13 year old victim is another aggravating circumstance.
As a sequel of these crimes, she left the home to start a new life at the age of 13. You either knew or should have known that the victim was ...