dissenting:
For the reasons stated below, I believe the sentence imposed by the district court should have been affirmed, and therefore respectfully dissent.
When, as in this case, the sentencing judge has determined a fixed period of confinement under the Unified Sentencing Act, the fixed portion of the sentence imposed is the term of confinement for the purpose of appellate review. State v. Kysar, 116 Idaho 992, 783 P.2d 859 (1989); see also State v. Broadhead, 120 Idaho 141, 814 P.2d 401 (1991). Therefore, the term of confinement which we review under the circumstances of this case is ten years. Perhaps, because of the statutory requirements of I.C. 20-223,4 our case law should change so that in sexual offense cases we recognize a diminished likelihood that the defendant will serve only the fixed portion of his sentence. See State v. Smith, 117 Idaho 657, 791 P.2d 38 (Ct.App.1990). However, that change must come from our Supreme Court, and without violating the separation of powers between the judiciary—which performs the sentencing function—and the executive branch’s Commission of Pardons and Parole—which determines how much of the maximum sentence an inmate will actually serve. Until and unless the Supreme Court effects such a change, on appeal we must consider the fixed portion of the sentence imposed as the period of confinement. I do not believe that a total of ten years for these offenses is excessive or amounts to an abuse of discretion.
In examining Alberts’ character and the nature of his offenses, the majority cites from reports submitted to the district court *210by Alberts’ counselors and therapists. Characterizing these reports as “favorable” toward the treatment and control of Alberts’ sexual deviancy, the majority notes Alberts’ expression of remorse for his conduct, his recognition of his problem, his willingness to accept treatment and other positive attributes of his character. The majority focuses on language in the reports which indicates that because Alberts seems to lack certain psychopathic deviant characteristics commonly found among homosexual pedophiles, and because he has behaved respectfully while in custody and at the same time presented himself as being honest and remorseful about his deviancy, “he presents as an ideal candidate for treatment.”
I do not believe these reports draw favorable conclusions regarding Alberts’ prospects for rehabilitation and his potential to reoffend. When these reports are taken as a whole they support the district court’s greater attribution of weight to the primary sentencing objective of protecting society. The most optimistic depiction of Alberts’ character is that Alberts, through consistent treatment and a personal dedication to permanent self-control and denial, could become a moderate rather than a high risk to the children of the community in which he lives. He can never be left alone with children. He will always have to exercise self-restraint to structure his environment and his own thought processes in order to suppress his fixated sexual orientation toward young males. The reported conclusion that Alberts presents as an ideal candidate for treatment must be read in the context it was intended; Alberts is an ideal candidate for treatment among the population of pedophiles. The reporting experts recommended to the district court that Alberts remain under the supervision of the criminal justice system for the entire length of his then thirty-year sentence.
The following excerpts from the sentencing hearing demonstrate the district court’s reasoned judgment:
[Tjhere are four basic objectives of sentencing that I am charged by law to meet. Those four objectives are:
First, is to protect society from this type of criminal conduct.
Second, is to consider what will deter you and others like you in a similar circumstance from this type of criminal conduct.
Third, is to consider the possibility of your rehabilitation.
And fourth, is to consider punishment or retribution for wrongdoing.
I have those objectives in mind. Fve read the presentence report several times. I’ve read the psychological report that’s been added. I’ve read the letters that have been submitted on your behalf by your friends and co-workers. I listened carefully to the witnesses who testified in this matter and heard your comments and comments of counsel.
[The district judge then reviewed the positive aspects of Alberts’ character and the evidence presented in his favor, after which he stated:]
All those don’t change the fact, however, that among one of the greatest responsibilities we have as a civilized country, ... is the responsibility that the adults bear towards the children of our society. The fact parents or adults, generally, are expected to foster, nurture, encourage and protect young children as opposed to abuse them.
The chain or the pattern that is set forth by the abuse of a child at a young age and how it continues on and how you break that chain. (Sic) And certainly the role that comes from these individuals is probably incalculable.
But clearly one of the things I have to be concerned with is whether you’re going to reoffend.
I’m not prepared to say that there isn’t some chance for you being rehabilitated. Perhaps in some way paying back to society or in fact to the specific individuals who you have harmed, in some measure the problems you’ve caused them. But, I’m not sure of that. And one of the things I’ve seen from sitting in this *211position for over the last three years in dealing with a number of these cases, a number of the reports we get from the Cottonwood program and from other experts when they testify, is that one of the important factors or heavily weighted factors in determining whether a person is at risk or the degree of risk for reoffense, is the length of time and the number of involvements of this type of conduct.
Certainly this presentence report and the testimony that is revealed here through your own admissions, is that this has gone on over a matter of decades, that it’s a matter that may have its foundation in your own youth, and that there are numerous young children who were abused by you during the course of this period of time.
I’m concerned about protecting those children as I hope you are at this point in time. We can’t put our children at risk. Because if we put those children at risk and you abuse another child, there’s a possibility that in 20 years that child may be standing in the same position you are now for the same type of offenses and it will be a never ending cycle of sexual abuse. The ones that have been hurt prior to this time, I can’t stop that, I can’t repair those damages. If I could I would. But I can take and try and prevent any future harm or hurt to other children.
Alberts’ remorse, cooperation, honesty, productivity, and desire to change are encouraging, and it is hoped that those character traits will prevail upon his release from custody so that he will be able to live a happy, fulfilling life while at the same time suppressing the desire to act out the impulses of his sexual orientation. The positive attributes of Alberts’ character were expressly and reasonably considered by the sentencing judge; however, the judge also expressly and reasonably considered the fact that Alberts’ sociopathic character trait, pedophilia, is essentially permanent, and although it is within his power not to reoffend, Alberts will only be able to do so through extensive external and internal controls throughout the remainder of his life. When Alberts is released from prison, he will pose at least a moderate, perhaps a high, risk to children. It was within the district court’s sound discretion to weigh that risk and the devastating harm that would result, even if in the life of only one child and his family, and perhaps many others, should Alberts fail to control his sexual deviancies upon release from the controlled environment of prison life. While reasonable minds might differ, I cannot say that the district judge’s decision to completely remove that risk from society for ten years was unreasonable, in light of Alberts’ character and the nature of his offenses.
. I.C. § 20-223(b) provides in pertinent part:
(b) No person serving a sentence for rape, incest, committing a lewd act upon a child, crime against nature, or with an intent or an assault with intent to commit any of the said crimes or whose history and conduct indicate to the commission that he is a sexually dangerous person, shall be released on parole except upon the examination and evaluation of one or more psychiatrists or psychologists to be selected by the commission and such evaluation shall be duly considered by the commission in making its parole determination.