On appeal from the Superior Court, Law Division, Somerset County.
Furman, Dreier and Stern. The opinion of the court was delivered by Stern, J.A.D. Dreier, J.A.D., concurring in part and dissenting in part.
[215 NJSuper Page 87] Defendant, a volunteer fireman, pled guilty to third degree arson in violation of N.J.S.A. 2C:17-1b. Defendant admitted setting a fire to an abandoned building in Franklin Township, Somerset County, with two other volunteer firemen. In entering his plea, defendant stated, "Sir, we were out drinking that night. We came to the house. We saw the house on Davidson Avenue and we went up and we lit the house with the intent to put the fire out. We went to the firehouse." Defendant also admitted that he and the others "burned the building."*fn1
The sentencing judge recognized that, as a first offender, defendant was entitled to the presumption against imprisonment embodied in N.J.S.A. 2C:44-1e, but found that the presumption was overcome. The judge concluded that because defendant was a volunteer fireman his crime took on added significance, and he was sentenced to an indeterminate term at the Youth Correctional Institution Complex. See N.J.S.A. 2C:43-5. The judge gave the following reasons for his sentence pursuant to R. 3:21-5:
The facts of this case are relatively clear. You and your co-defendants who are all members of a volunteer fire department, had been drinking on the night of the incident. You were apparently on your way to the fire house, observed the abandoned building, decided to set it on fire, drove to the fire house, got some gasoline and then went back to the abandoned house and set it on fire. Needless to say, this reckless act exposed other volunteer fire fighters and policemen who responded to the alarm, to the risk of serious injury and there is clear need to deter this conduct.
In mitigation I note you have no prior record and you are likely to respond affirmatively to supervision.
Arson takes a tremendous toll in human life and property damage. It is not a mere prank, nor can the risk it causes be excused by saying that the arsonist had been drinking or was drunk. In this case, while you and your co-defendants may have been drinking, you were sober enough to go the fire house to get gasoline and return to the scene and start the fire.
The seriousness of the risk of harm and the need to deter not only outweighs the mitigating factors but overcomes the presumption of non-incarceration.
Prior to the imposition of sentence, the court also emphasized:
There is no one in this courtroom who isn't aware, unless they are blind or deaf, of the tremendous loss of human life caused by fire. When one who takes on, for whatever reason, voluntary or pay, to fight fire and then becomes involved in actually starting fire, it must be made clear that we will not tolerate this. We have enough problems with the fires for which no human is responsible for, lightning, spontaneous combustion. We are not going to tolerate fires which are caused by humans. I feel the need to deter is very strong.
As the exclusive question on this appeal relates to the sentence imposed, our function is a limited one:
In sum, . . . appellate review of a sentencing decision calls for us to determine, first, whether the correct sentencing guidelines, or in this case, presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a
conclusion that could not have reasonably been made upon a weighing of the relevant factors. [ State v. Roth, 95 N.J. 334, 365-366 (1984)].
As we have noted, the sentencing judge recognized that the presumption against imprisonment is applicable. That ...