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Board of Examiners of Sex Offenders …cont

In this case, the Board noted that the defendant admitted his guilt. He stated he fondled the victim for pleasure, but at times indicated that he remembers nothing about the instant offense or his criminal history as a result of a severe beating he received in retaliation for his crime. At the time of sentence in 1995, defendant’s psychiatrist noted that, “although the defendant does not remember any pedophilic acts on his part, he personally accepts responsibility for his actions and says that if he was accused of these actions that he did them.” A second examining psychiatrist noted that the defendant stated he “rubbed this little boy’s penis.” But later, when confronted with both his admission of guilt to the Probation Department and his claims of lack of memory, he stated, “that is my thing touching boys (genital area) so I must have done it.” An individual cannot accept responsibility for committing a crime while at the same time denying memory of his criminal conduct.

The Guidelines themselves stress that both the Board and the court should examine the offender’s most recent credible statements and should seek evidence of genuine acceptance of responsibility. Here, there is no such genuine acceptance of responsibility. Quite notably the defendant’s letters are after he completed the prison’s mandatory sexual treatment program. While neither admitting nor denying his latest offense, he nonetheless expressed his willingness to continue participating in the sex offender treatment program saying “better safe than sorry” and “just in case.”

This personal injury court further finds that, although the defendant received the maximum amount of points with respect to the number and nature of his prior crimes, the objective risk assessment instrument itself cannot adequately take into consideration this pedophile’s criminal history. Prior to his latest offense, the defendant was arrested, in 1987, for criminal impersonation of a police officer and endangering the welfare of a child. The defendant approached two boys, identified himself as a police officer and displayed a badge. A police officer, who observed the defendant’s actions, intervened believing that the defendant was attempting to seduce or solicit the boys. The defendant pled guilty and received three years probation. In 1985, the defendant was also arrested for criminal impersonation and criminal trespass. In that case, the defendant dressed up in a Fire Marshall’s uniform and went into two public elementary schools posing as a Fire Marshall. He was sentenced to 60 days in jail.

When the defendant impersonated a Fire Marshall, he was already on probation with respect to an earlier 1985 conviction in which he pled guilty to sexual abuse. There, the defendant sexually abused his paramour’s nine year old son by fondling the child’s anus and rubbing his genitals against the child’s genitals. This was another offense for which the defendant pled guilty but denied his guilt or any knowledge of the offense in that presentence report. The defendant was sentenced to three years probation.

The instant offense is consistent with this defendant’s escalating pattern of anti-social criminal behavior. His criminal history dates back to 1984 and has continued unabated by prior court imposed probation or correctional sanctions. A probation failure, he remains undeterred and a serious threat to children. The personal injury defendant is fully culpable for his behavior. He did not express any remorse or concern for the eight year old victim he traumatized, by sexually deviant acts herein. Having failed to derive sustaining benefit from years of previous psychiatric intervention and treatment the outlook for this immature and non-insightful personality is necessarily pessimistic.

A mere mechanical application of the guidelines is not the appropriate manner in which to classify this offender. As risk assessment determinations become routine, the sentencing court must continue to fully exercise its independent judgment to ensure an accurate final judicial determination given the importance of the individual and public interests involved in designating an appropriate risk level. Here, there is clear and convincing evidence of the existence of aggravating factors of a kind, or to a degree, not otherwise taken into consideration by the Guidelines. In spite of the lower recommendation by the Board, and even in the absence of a request for an upward departure, this court finds that special circumstances warrant an upward departure from the presumptive risk level two to a level three. The court finds, pursuant to the Sex Offender Registration Act, that the risk of repeat offense is high and that there exists a threat to the public safety.

Accordingly, the defendant is deemed a sexually violent predator and a risk level three designation is hereby assigned to this sex offender.

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