For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None.
We granted certification, 114 N.J. 471 (1989), to consider whether the Appellate Division had exceeded its proper scope of review in revising the sentence under appeal here. In State v. Roth, 95 N.J. 334, 365 (1984), we assured trial courts that if they followed the sentencing guidelines of our Code of Criminal Justice, they need not fear "second-guessing" of their sentencing decisions by appellate courts. We have repeatedly reaffirmed our commitment to this principle of sentencing. See State v. O'Donnell, 117 N.J. 210, 220 (1989) (Appellate Division "should not have substituted its judgment for that of the trial court"); State v. Ghertler, 114 N.J. 383, 394 (1989) (when the principles of sentencing are adhered to, "sentencing decisions will be upheld despite the presence of room for reasonable disagreement").
The sentencing guideline at issue here deals with consecutive sentencing. In State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), we set down guidelines for courts in fashioning consecutive sentences. In State v. Baylass, 114 N.J. 169 (1989), we provided a useful summary of their general characteristics:
[It] suffices to note that they generally concentrate on such considerations as the nature and number of offenses for which the defendant is being sentenced,
whether the offenses occurred at different times or places, and whether they involve numerous or separate victims. The Yarbough criteria conclude by placing an outer limit on "consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses." [ Id. at 180 (citations omitted).]
The Yarbough opinion ends with the statement: "We recognize that even within the general parameters that we have announced there are cases so extreme and so extraordinary that deviation from the guidelines may be called for." Yarbough, supra, 100 N.J. at 647.
The defendant's crimes would test the objectivity of any principled sentencer. For purposes of this appeal, we accept the statement of facts in the State's Appellate Division brief.
In the early morning hours of May 4, 1984, defendant and a woman companion entered the Trenton apartment of a young woman. Defendant trapped the woman in her bedroom. She called out to her child to flee. The other criminal caught her child and dragged her into the bedroom. Defendant had knives brought from the kitchen, held one at the throat of the mother and had one held at the back of the child. Despite threats, the mother refused to remove her clothing in her child's presence. After the child was taken away, defendant forced the mother to turn over her money, dragged her into the bathroom, sexually assaulted her, and slashed her with the knife. He dragged her into the living room where she saw her daughter gagged and bound with telephone wire around her hands, feet, and neck. She too was bound and gagged. Defendant told the child to say her prayers. He stabbed the mother and child, and appeared to choke the child to death. Although the mother feigned unconsciousness, defendant continued to stab her. The two bound bodies were thrown back into the bedroom. The criminals started a fire in the bedroom of the apartment and fled. Miraculously, the mother, with her hands still tied behind her back, managed to escape from the burning apartment, and her daughter, who was believed to be dead, came down the stairs behind her.
It is unlikely that any horror could exceed this. Consequently, the State poses in its petition to us the question whether such a matter is "the extreme and extraordinary case" referred to in State v. Yarbough, where deviations from its guidelines may be called for. The answer to that question is quite easy. The extraordinary bestiality of these crimes would well warrant a departure from Yarbough's presumptive outer limits. The incalculable cruelty of raping a mother and stabbing her minor child in the presence of each other are aggravating factors not mentioned in the Code. See State v. O'Donnell, supra, 117 N.J. at 217 (when intent is an element of an offense, it may not be considered an aggravating factor). The crimes cry out for something beyond the norm. The only question is whether their horror warrants a wholesale departure from any considerations of principled sentencing in favor of fashioning the longest sentence possible.
In a jury trial, this defendant was convicted of two counts of attempted murder, two counts of kidnapping, one count of robbery, one count of theft, two counts of aggravated assault, one count of aggravated sexual assault, one count of aggravated arson, one count of possession of a weapon for an unlawful purpose, and one count of unlawful possession of a weapon. The trial court, after merging the theft into the robbery, the aggravated assault into the attempted murder, and the unlawful ...