concurring.
I concur in the result. I recognize that this case was decided under prior law and that the provisions of the new code are not therefore binding. See Sundberg v. State, 652 P.2d 113 (Alaska App.1982) (Sundberg II decided by this court today). Nevertheless, the majority has elected to evaluate this case under the new code prompting these additional comments. Given the substantial number of similar cases involving sexual abuse of children with substantially disparate sentences, I would prefer a rule which would attack this disparity directly by: (1) precluding a sentence for a first offender convicted of a class A felony (in the absence of statutory aggravating factors under AS 12.55.155) that exceeds a presumptive term for a class A felony offender who uses a firearm or causes serious physical injury, see AS 12.55.-125(c)(1), or in the case of those convicted of class B and C felonies, that exceeds the presumptive term for a second offender and (2) precluding consecutive sentences, unless the trial court made an express finding supported by substantial evidence that the presumptive sentence for a second offender, taking into account all proven aggravating factors for the most serious offense, was inadequate to protect the public from the defendant. Lacquement v. State, 644 P.2d 856, (Alaska App.1982). See also Mutschler v. State, 560 P.2d 377 (Alaska 1977). Such a determination, in my opinion, must be made on the basis of the aggravating factors specified in the code as well as the defendant’s criminal record, if any, and the number of the defendant’s victims. The legislature clearly intended first offenders to be eligible for nonincarcerative sentences where second offenders would have to go to prison, but there is nothing in the code or its legislative history which suggests that a first offender not subject to presumptive sentencing should ever receive a more severe sentence than the same individual committing the same crime in the same way would have received had he been subject to presumptive sentencing. To conclude otherwise is to treat a prior felony, the use of a firearm or serious injury to the victim, in effect, as mitigating factors, raising serious equal protection problems. Griffith v. State, 641 P.2d 228 (Alaska App.1982).
Nevertheless, this is an old code case and I agree that Qualle presents a substantial risk of recidivism, precluding a determination in his case that twenty-one years of supervision is clearly mistaken. I would agree that a sentence for Qualle in excess of twenty-one years would not be consistent with Hintz v. State, 627 P.2d 207 (Alaska 1981) and Tookak v. State, 648 P.2d 1018, (Alaska App., 1982) (both of which involved consecutive sentences for aggravated kidnapping and forcible rape by defendants with prior felony convictions). Moreover, in Helmer v. State, 616 P.2d 884 (Alaska 1980) for a rape, assault with intent to kill and burglary in a dwelling conviction, the court reduced a sentence from thirty to twenty-five years, even though the youthful assailant there intended tó kill his victim and inflicted serious and permanent injuries upon her. While Qualle is substantially older than Helmer, both are first offenders and Helmer’s crime appears more aggravated.