Due process mandates that the State must bear the burden of proof to support its proposed risk level assessment by clear and convincing evidence. However, even where departure from the calculated presumptive risk level is not requested, it is still appropriate for the court to independently consider whether a departure from the recommendation is warranted. The board serves only in an advisory capacity similar to the role served by a probation department in submitting a sentencing recommendation. The court is not bound by the recommendation of the board and, in the exercise of its discretion, may depart from the recommendation and determine the sex crime offender’s risk level based upon the facts and circumstances that appear in the record.
Similarly, the court need not accept at face value the allocation of risk factor points by the Board, even where there has been no challenge. The court may still wish to scrutinize the underlying circumstances that the Board relied upon in assessing risk. This is especially true when the information in the record before the court appears to be more extensive than that relied upon by the Board. In assessing risk, the Board or the court may rely upon the case file, the sex offender’s admissions, the victim’s statements, the evaluative reports of the supervising probation officer, parole officer, or corrections counselor, or any other reliable source. After considering the Board’s recommendation, any victim’s statement, any statement or materials submitted by the sex crimes offender, and reliable information in the case file, the sentencing court bears the ultimate responsibility to determine whether the Board’s presumptive risk level recommendation appropriately reflects the risk posed to the public, or whether departure from that recommendation is warranted.
The Board also did not assess any points against the defendant for his non-acceptance of responsibility. A guilty plea may provide some evidence of a defendant’s acceptance of responsibility. However, it does not, by itself, constitute a sincere acknowledgment of personal culpability. For example, an offender who pleads guilty but tells his presentence investigator that he did so only to escape a state prison sentence has not accepted responsibility.
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.”
An acknowledgment of responsibility is critical to the treatment of sex crime offenders as an offender’s ability to identify and modify the thoughts and behavior that are proximal to his sexual misconduct is often a prerequisite to stopping the misconduct. Therefore, this sex offender’s denial of responsibility is evidence that he has not benefitted from the program and evidence that his deviant sexual conduct remains unaffected, and thus undeterred. As the Guidelines point out, an offender who does not accept responsibility for his conduct is a poor prospect for rehabilitation.
This 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.
As early as 1984 at the age of 23, the defendant was also arrested for criminal impersonation of a police officer and criminal possession of a weapon with intent to use. He pled guilty to disorderly conduct in satisfaction of all the charges and received a sentence of a fifty dollar fine or 10 days in jail. According to the defendant, he developed an interest in younger boys, ages 8 to 10, when he was approximately 16 or 17 years old.
This sex offender has repeatedly attempted to foster relationships with children for the purpose of seduction. He has a pattern of impersonating police officers and firefighters for the purpose of gaining access to children. Children are taught from an early age to trust these public servants and to seek their assistance when in need of aid. The defendant’s brazen conduct not only demonstrates the defendant’s cunningness to lure young, naive boys into perilous situations, but it also demonstrates that his paramount objective is to prey on the young. Those who frequently victimize children develop complicated techniques for obtaining access to children. Offenders who target young children as their victims are more likely to re-offend. The fact that his criminal impersonations were discovered prior to any completed sexual acts, does not affect the significance of the history of the defendant’s criminal behavior. An offender who intended to engage in sexual activity with his victim but is prevented from doing so by some factor other than his own change of mind, such as police intervention, still poses a serious threat to the community.
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.