The Court continued in relevant part: At the time Miller committed the relevant offenses in this case, the statute he violated defined a “child” as any person under sixteen years old and prohibited the possession of material depicting a child engaging in a “prohibited sexual act,” defined as “sexual intercourse” and “nudity,” among other things. N.J.S.A. 2C:24-4 (2012). At Miller’s sentencing hearing, the court explained that the child pornography found on defendant’s computer “depicted rape essentially, penetration, bondage, really horrific displays of cruel treatment to these children.” The extraordinary brutality depicted in defendant’s pornography demonstrated that his possession and distribution of such content extended to the extreme reaches of the behavior prohibited by N.J.S.A. 2C:24-4.
Further, the trial judge appropriately considered the victims’ ages when applying aggravating factor one. N.J.S.A. 2C:24-4 contained an element of age, but that element did not preclude consideration of the victims’ ages for sentencing purposes because it did not distinguish between a sixteen-year-old girl who sends an explicit photo to her fifteen-year-old boyfriend and an individual who acquires violent child pornography involving the sexual assault of toddlers. Like any other fact, age is for the determination of the factfinder. The immaturity and extreme youth of the victims in this case allowed the trial judge to determine that “infants” and “very young children” were caused to engage in sexual activities. The appellate panel’s opinion in this case deprives trial judges of their discretion to make nuanced assessments of the nature and circumstances of offenses involving child pornography.
The “extreme reaches of the prohibited behavior” language is key to application of aggravating factor one. This opinion waters down prior holdings prohibiting an element of the offense from being used to aggravate a sentence. A creative prosecutor will almost always be able to make an argument that a given offense involved “the extreme reaches of the prohibited behavior.”