On appeal from the Superior Court, Appellate Division.
For modification and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Pollock, J.
This appeal, like State v. Johnson, 118 N.J. 10, 395 A.2d 570 (1990), also decided today, centers on the propriety of sentencing a sex offender to a non-custodial sentence. In each case, the Law Division sentenced the defendant to a non-custodial term on the premise that imprisonment would constitute a "serious injustice" overriding the presumption of imprisonment applicable to first- and second-degree offenses. N.J.S.A. 2C:44-1d.
Defendant, Mark Jabbour, pled guilty pursuant to a plea agreement to one count of sexual assault in violation of N.J.S.A. 2C:14-2b. The trial court sentenced him to a five-year period of probation, conditioned on his receiving continued psychiatric treatment. In an unreported opinion, the Appellate Division affirmed. One member of the panel dissented, and the State appealed as of right. R. 2:2-1(a)(2). We reverse.
The offense occurred when defendant, who was employed as a housecleaner, was cleaning the home of the victim's family. His four-year-old victim was at home with her grandmother. While defendant was cleaning the victim's bedroom, she entered the room for a toy. Defendant asserts that as she entered the room, she brushed against him, causing him to become sexually aroused. In response, he pulled down his pants and forced her to masturbate him for approximately three minutes. According to the victim, however, defendant exposed his penis and asked her to bite it. When she refused, he laid her on the bed and placed his penis against her underwear, which was covering her vagina. He also placed his penis against her mouth in an unsuccessful attempt to force her to perform fellatio.
Defendant was indicted on one count of attempted aggravated assault in violation of N.J.S.A. 2C:14-2a(1) and 2C:5-1a(3), and three counts of sexual assault contrary to N.J.S.A. 2C:14-2b.
He agreed to plead guilty to one count of sexual assault for having forced the victim to touch his genitals. In exchange, the State recommended the dismissal of all other charges and the imposition of a sentence not to exceed a five-year custodial term. The actual sentence was five years' probation on condition that defendant continue to receive psychiatric care.
The trial court found as aggravating factors the victim's inability to resist due to her extreme youth, N.J.S.A. 2C:44-1a(2), and the need to deter others, N.J.S.A. 2C:44-1a(9). It also found a number of mitigating factors: defendant did not contemplate that his conduct would cause serious harm, N.J.S.A. 2C:44-1b(2); defendant had no prior history of criminal conduct, N.J.S.A. 2C:44-1b(7); the conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8); defendant was unlikely to commit another offense, N.J.S.A. 2C:44-1b(9); defendant was particularly likely to respond positively to a probational term, N.J.S.A. 2C:44-1b(10); and imprisonment would impose excessive hardship on defendant, N.J.S.A. 2C:44-1b(11). Balancing those factors, the trial court concluded that imprisoning defendant would be a serious injustice:
Mr. Jabbour has impressed the Court as a sad, sorry, weak individual in need of psychiatric attention of such frequency and intensity as to be virtually impossible in a prison setting, since * * * in prison he will lose the momentum he has established. Moreover, this college graduate seems to be progressing toward a normal psyche and a useful, productive life. A period of incarceration will carry a high risk of his never overcoming his present emotional difficulties and achieving normalcy in his young adult years.
A divided Appellate Division panel affirmed. The court noted that the sentence reflected the trial court's awareness that defendant was convicted of a second-degree offense, which is subject to a presumption of imprisonment under N.J.S.A. 2C:44-1d. It concluded that the imposition of a non-custodial sentence was within the trial court's discretion. Judge Gruccio dissented. In his opinion, the trial court erred by focusing on the offender, ...