The Appellate Division’s opinion deprives trial judges of their discretion to make nuanced assessments of the nature and circumstances of offenses involving child pornography. Miller’s possession charge involved child pornographic material beyond that involved in his distribution charge — there was pornographic material in Miller’s possession for an extended period of time that was not encompassed in the distribution charge. The possession and distribution offenses were therefore distinct, and the trial court appropriately determined that the offenses did not merge for sentencing purposes.
Aggravating factor one requires the trial court to consider “the nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner.” N.J.S.A. 2C:44-1(a)(1). When it assesses whether a defendant’s conduct was especially “heinous, cruel, or depraved,” a sentencing court must scrupulously avoid double-counting facts that establish the elements of the relevant offense. The Court has recognized that facts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence. Nevertheless, a sentencing court may consider aggravating facts showing that a defendant’s behavior extended to the extreme reaches of the prohibited behavior. Thus, in appropriate cases, a sentencing court may justify the application of aggravating factor one, without double-counting, by reference to the extraordinary brutality involved in an offense.
The ”possession for an extended period of time” language is likely to be seized upon by the prosecution. It lends itself to the argument that in cases of drug distribution and drug possession that the defendant can receive consecutive sentences if he distributed certain drugs, but possessed others for an extended period of time. On the other hand, Miller’s case involves separate and tangible victims whereas drug distribution and possession does not.