The trial court continued in relevant part: Although defendant here is charged with theft of services, not theft by deception, the court finds this distinction to be immaterial. N.J.S.A. 2C:20-2(b) applies equally to both statutes. Defendant allegedly engaged in a course of conduct that involved an intent to deceive the same victim. The State presented evidence to the grand jury that defendant evaded $1120 in tolls, each time driving through the EZ-Pass Only lane with no transponder. Defendant used the same vehicle each time, which belonged to his girlfriend, and deliberately avoided paying the tolls. Similar to the defendants in Tyson and Childs, defendant engaged in repeated, similar acts of deception, with the overarching goal of avoiding paying tolls. Therefore, the third-degree charge here is proper.
Finally, the court rejects defendant’s argument that the penalty for toll evasion should be limited to civil liability only. The court rejects this argument since the imposition of a civil remedy and a criminal penalty are not mutually exclusive events.
The Appellate Division examined the dichotomy between criminal sanctions and civil penalties in the context of an analysis whether double jeopardy barred a later criminal proceeding in the case of Darby, 246 N.J. Super. at 432. There, the defendant argued that the prior imposition of civil penalties for violations of the Uniform Securities Law barred a later prosecution alleging conspiracy to commit theft. The defendant moved to dismiss the indictment based upon the constitutional protection against double jeopardy, arguing that the prior civil action seeking civil penalties under the Uniform Securities Law precluded the later criminal prosecution.
The Darby court explained that the twin goals of a criminal prosecution are retribution and deterrence. Id. at 445. Civil penalties on the other hand also have a remedial purpose and do not exclusively serve the goals of retribution and deterrence. Id. at 444. The Darby court instructed that a court must evaluate whether the civil penalty is actually assessed for a punitive purpose to determine whether double jeopardy applies. Id. at 443.
Retribution is synonymous with “revenge” and focuses on making the victim whole. “Deterrence” is synonymous with “discouraging”, i.e. discouraging the perpetrator and society as a whole from committing a crime through imposition of a sufficient punishment. “Punitive” refers to the imposition of a punishment and its goal overlaps with retribution and deterrence.