In any event, monetary compensation, even to the most cynical, does not make Seeman whole for Helene’s loss and his own injuries. Payments by insurance companies do not advance the rehabilitation goals found in the restitution statutes. Thus, it is not clear to us on this record that the factor should have been accorded any weight.
We also question the judge’s findings regarding mitigating factors eight and nine, that defendant’s conduct is unlikely to recur, and that she is unlikely to reoffend. In 2001, this defendant was granted a conditional discharge in municipal court for marijuana possession. Although far from a conviction, and occurring years before, this contact with the system went unmentioned. It undermines the judge’s conclusion.
Mitigating factors eight and nine are not intended to trigger predictions that lack anchors in the record. Driving and consuming alcohol are not uncommon experiences. This was not defendant’s first brush with the system. The judge did not focus on the nature of the crime and defendant’s past history. Her sobriety alone, no matter how laudable, is not adequate support for those mitigating factors.
The judge’s statement unwittingly minimizes the harm done to the children of all incarcerated defendants. That minimization was unsupported in the record. We are not so certain that these children’s suffering and trauma, short- and long-term, is any different in nature than the suffering unfortunately inflicted upon all young children whose parents are incarcerated. The suffering of this defendant’s children is better documented, but there is no evidence that their experience is different in quality from that of others.
In fact, these children will continue to live with their custodial parent regardless of their mother’s incarceration, and have the benefit of loving grandparents and other caretakers. These children will enjoy a relatively stable and comfortable life, financially and otherwise, even if their mother is re-incarcerated. They have strong support from defendant and others who love them, as well as therapeutic resources. We agree with the judge’s conclusion that mitigating factor eleven was supported by the record, but not with the weight it was given.
The Appellate panel goes so far as to undermine the presumption of innocence in giving weight to a victimless offense allegation. The successful completion of a conditional discharge for marijuana possession without any admission of guilt should not be weighed against the defendant. Moreover, the unproven offense is so benign that it will soon be removed from our criminal code.