On appeal from Resentencing Panel.
Baime and Ashbey. The opinion of the court was delivered by Baime, J.A.D.
[224 NJSuper Page 265] On May 28, 1986, our Supreme Court rendered its decision in Gerald v. Commissioner, N.J. Dept. of Corr., 102 N.J. 435 (1986), holding that defendants serving Title 2A indeterminate terms under the new repealed Sex Offender Act (N.J.S.A. 2A:164-3 et seq.) who are transferred into the general prison population are entitled to be resentenced under the Code of Criminal Justice (N.J.S.A. 2C:1-1 et seq.). Defendant, a confirmed pedophile with an extensive criminal history, appeals from his resentencing. He contends that the custodial terms
imposed ran afoul of the double jeopardy and ex post facto prohibitions and deprived him of due process. We disagree and affirm.
The salient facts are not in dispute. On April 27, 1963, defendant, who had already been twice convicted in New York for sexual offenses against children, was entrusted with the care of a six year-old boy, whom he was to take to the Palisades Amusement Park. Instead, defendant accompanied the child to Bowen's house where he sodomized him. Defendant entered a plea of guilty to the crime of sodomy, a high misdemeanor under N.J.S.A. 2A:143-2, and was sentenced under the Sex Offender Act to an indeterminate term subject to the statutory maximum of 30 years.
Defendant subsequently escaped from custody, but was recaptured and returned to the treatment unit at Rahway some three years later. Although he was paroled on March 27, 1973, defendant was arrested in New York and was extradited back to New Jersey as a parole violator. Defendant resumed his custodial sentence and was ultimately reparoled on July 20, 1976.
Following his release, defendant obtained employment at a day care center. In June 1977, defendant met and befriended an eight year-old boy whose family resided in an apartment above the day care center. Defendant managed to attract that child and another ten year-old boy to his apartment where, according to the evidence presented at his subsequent trial, he forced or persuaded them to engage in various sexual acts. During the ensuing months, defendant committed fellatio on the two children and they on him. For these acts, defendant was tried and convicted on two counts of impairing the morals of a minor, in violation of N.J.S.A. 2A:96-3. Again, defendant was found to fall under the purview of the Sex Offender Act. He was thus sentenced to consecutive indeterminate terms, subject to the aggregate maximum of six years. In addition, the trial court ordered that these sentences be served consecutively
with the term remaining on the parole violation for the prior sodomy conviction.
From February 6, 1981 until May 5, 1981, defendant was consistently offered treatment at the Adult Diagnostic and Treatment Center (ADTC). However, defendant obdurately refused to participate in the treatment and rehabilitative program. Based upon defendant's lack of amenability to treatment, the Commissioner of the Department of Corrections ordered his transfer to the general prison population at the Rahway facility. Defendant's subsequent motions for resentencing pursuant to N.J.S.A. 2C:1-1c(2) and N.J.S.A. 2C:1-1d(2) were denied. We later affirmed defendant's convictions and the orders denying resentencing in an unpublished opinion, and the Supreme Court denied certification.
Following the Court's decision in Gerald v. Commissioner, N.J. Dept. of Corr., supra, defendant again applied for resentencing. Since the Commissioner had refused to return defendant to the ADTC, the Resentencing Panel determined that the threshold requirements for reconsideration of sentence were satisfied. After protracted hearings, the Panel decided that (1) the congruent Code offense for impairing the morals of a minor was attempted aggravated sexual assault*fn1 (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a), (2) the equivalent Code offense for sodomy was aggravated sexual assault (N.J.S.A. 2C:14-2a), (3) the aggravating factors substantially outweighed the mitigating circumstances and (4) public security mandated imposition of lengthy sentences. On the aggravated sexual assault offense, defendant was sentenced to a custodial term of 20 years. Two consecutive eight year sentences were imposed on the attempted aggravated sexual assault crimes. Thus, the aggregate
sentence imposed was 36 years, the same as had previously been set on the pre-Code offenses. Although defendant urged that this restructuring of the sentences violated the ex post facto and double jeopardy provisions contained in the federal Constitution, these questions were not addressed by the Panel.
Our inquiry commences with a brief review of the evolution of our laws dealing with the treatment and punishment of sex offenders. The problems raised by the sex offender are perhaps symptomatic of the broader issues presented in the custody and treatment of all criminal offenders. The philosophical basis for "punishment" has divided scholars for centuries. At varying times, emphasis has been placed on (1) retribution, (2) deterrence of others, (3) rehabilitation of the offender and (4) protection of the public by isolation of the defendant. See State v. Ivan, 33 N.J. 197, 199 (1960). While no single aim or thesis can claim scientific verity or universal support, sex offenses involving force or age disparity, because of their particularly abhorrent nature, have generated the most insistent public demands for the institutionalization and treatment of abnormal offenders until they may safely be released. State v. Wingler, 25 N.J. 161, 169-170 (1957).
Predicated upon this demand, our Legislature enacted the Sex Offender Act in 1950. See L. 1950, c. 207. The statutory scheme was designed to provide treatment to those whose aberrant conduct was characterized by (a) a pattern of repetitive-compulsive behavior, and (b) violence or (c) an age disparity between the offender and the victim. N.J.S.A. 2A:164-5. We stress the rehabilitative purpose of the former Act. Under its provisions, the sentence was required to be indeterminate subject to a maximum term not exceeding the maximum sentence imposable for the crime. No minimum term, however, could be fixed, and the defendant was entitled to release as soon as the Special Classification Review Board concluded that he would be
able to make "an acceptable social adjustment in the community." See N.J.S.A. 2A:164-6 and -8.
It was recognized that not all offenders could be treated in a single program and thus the Commissioner was empowered to order a transfer to any institution within his jurisdiction for the "purpose of providing for the needs and requirements" of the violator "according to the individual circumstances of the case." N.J.S.A. 2A:164-7. Despite pointed editorial criticisms, see 9 Rutgers L.Rev. 567 (1955), and the adoption of several amendments, the Legislature did not move to narrow the sweep of the transfer powers of the Commissioner. See State v. Wingler, supra, 25 N.J. at 171-172; State v. Newton, 17 N.J. 271, 273 (1955). However, while a defendant could be transferred from the diagnostic facility to the general prison population, the Commissioner was nevertheless obliged to provide him or her with treatment for any psychiatric problems in whatever institution to which he or she was transferred. See State v. Harvey, 162 N.J. Super. 386 (Law Div.1978), aff'd 170 N.J. Super. 391 (App.Div.1979).
Although the Code retained many of the provisions contained in the original Sex Offender Act, its emphasis shifted to structured determinate sentencing and, at least to some extent, punishment and "just deserts" for the offense committed. Under the Code, the trial court must set a fixed term consistent with the sentencing provisions of Chapters 43 and 44. See State v. Chapman, 95 N.J. 582, 591-592 (1984). The Code thus recognizes that "sex offenders, in addition to being treated for psychological problems, should be punished for their wrongful acts." Id. at 592.
Consistent with this thesis, the Code, unlike the former Act, recognizes that not every sex offender sentenced for treatment can or will respond affirmatively to rehabilitative efforts. While N.J.S.A. 2A:164-7 required a sex offender to be accorded treatment even after his transfer to the ...