On appeal from Superior Court of New Jersey, Law Division, Union County.
Michels, Skillman and Landau. The opinion of the court was delivered by Skillman, J.A.D.
This is an appeal by the State from an order which vacated a seven year term of imprisonment imposed upon defendant for an aggravated sexual assault upon a child under the age of thirteen, in violation of N.J.S.A. 2C:14-2(a)(1), and imposed a four year probationary term conditioned upon his participation in an alcohol and drug treatment program.
Defendant pled guilty to the crime pursuant to a plea bargain under which the prosecutor agreed to recommend that defendant be sentenced to no more than ten years in prison, with two years of parole ineligibility. Defendant stated at the plea hearing that the crime occurred after he entered the apartment of his former girlfriend and found that she was not at home. He went into the bedroom of her ten year old daughter, who had been asleep, and penetrated her with his finger. According to the presentence report, the child told her grandmother shortly after the crime that defendant also had sexual intercourse with her. Defendant stated that he was under the influence of alcohol and cocaine at the time of the crime.
Before sentencing defendant was evaluated by the Adult Diagnostic and Treatment Center at Avenel, which concluded that he was not a "compulsive sex offender" subject to sentencing pursuant to N.J.S.A. 2C:47-3a. A presentence report was submitted by the county probation department, which included a notation that defendant had been admitted to an alcohol clinic at Elizabeth General Medical Center. An addendum to the report stated that defendant had completed an in-patient alcohol
treatment program at Fair Oaks Hospital in Summit and that he had been receiving after-care therapy there on a regular basis.
At sentencing another patient testified concerning defendant's successful completion of the alcohol rehabilitation program at Fair Oaks. In addition, letters from several members of the professional staff at Fair Oaks were submitted, which reported that defendant was doing well in their program. The victim's mother also testified on behalf of defendant at sentencing. She stated that defendant was a nice person when sober but that he became violent when intoxicated. The mother expressed her desire that defendant not be imprisoned.
Based on this information the sentencing judge determined, in accordance with N.J.S.A. 2C:44-1f(2), that "the mitigating factors substantially outweigh the aggravating factors" and that "the interests of justice demands" that defendant be sentenced "to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted." Accordingly, on August 23, 1985 defendant was sentenced for the first degree crime of aggravated sexual assault to the presumptive term of imprisonment for a second degree crime, that is, seven years, with no period of parole ineligibility. In concluding that the mitigating factors substantially outweigh the aggravating, the sentencing judge noted that defendant had been previously convicted of only three minor offenses, had worked steadily in recent years and had made "a substantial effort to deal with [his] substantial abuse problems." Nevertheless, the judge concluded that a custodial sentence was required in recognition of the seriousness of the crime and the need for deterrence of others:
The legislature has labeled this type of offense as the highest degree of offense short of murder. A first-degree offense. And the purpose of the legislature in the sentencing scheme that it has established is not only to punish, but to deter others in crimes of this nature, the most important element is the deterrence of others. And, the fact that you yourself may have reached a
point where you will be able to deal with your problem and become rehabilitated without incarceration does not answer the issue here.
The mitigating do outweigh the aggravating factors, but there is still the overriding need to deter others. We can't let people believe they can commit sexual assault ...