dissenting.
I do not believe that the Graves Act, N.J.S.A. 2C:43-6c, applies to an accomplice of an armed robbery who did not *133himself possess or use the weapon involved in the crime. I therefore disagree with the Court’s two-fold holding in this case. One of its rulings is that a convicted accomplice of an “armed Graves Act offense that was committed with a firearm” is subject to the Act. Ante at 126-127. The other ruling is that even an accomplice convicted “only of an unarmed offense” but who “knew or had reason to know that his cohort would use or be in possession of a firearm in the course of committing or attempting to commit the crime, including the immediate flight” must be given a mandatory custodial term under the Graves Act. Ante at 126.
In State v. DesMarets, 92 N.J. 62 (1983), this Court ruled “that simple possession of a weapon — that is a bare possession without any intent to use it — is covered by the Graves Act and triggers its mandatory sentencing provisions.” Id. at 101. “[T]he Graves Act sanctions,” according to the. Court, “apply upon a showing of possession of a firearm, without any need to demonstrate intent to use ....” Id. at 68. In State v. Stewart, 96 N.J. 596 (1984), this Court ruled that “possession of a firearm for the purposes of the Graves Act includes not only actual possession but constructive possession that the defendant is able to convert practically immediately to actual possession .” Id. at 604. Under these cases, a Graves Act offense for sentencing purposes clearly required the actual, immediate, and personal possession of the gun by the offender. The offense indisputably was deemed to be a possessory offense in which intent-state of mind of mens rea — was not relevant.
In this case, the Court goes well beyond these decisions. It now sanctions for Graves Act purposes a definition of possession that in no way requires the “ability to exercise imminent control over the firearm,” id., effectively retrenching upon its latest holding in Stewart. Further, it substitutes as a requirement “intent to use” for “actual possession,” notwithstanding that “intent to use” had been “unmistakably eliminated ... as a constituent element of Graves Act possession,” *134Stewart, supra, 96 N.J. at 609 (Handler, J., concurring), effectively reversing its holding in DesMarets. In so doing the Court in effect has strayed far from the statutory language of the Act itself, which enhances the sentence of a defendant who “used or was in possession of a fire arm.” N.J.S.A. 2C:43-6c.
The root of the problem is that the Legislature simply did not deal with the sentencing consequences for accomplices or other non-possessory offenders under the Graves Act. By its provisions the statutory enactment dealt directly and only with those actually using and possessing a gun in the commission of the weapons offense. The Legislature, it would seem, reserved its new, severe, mandatory penal scheme for the actual, direct perpetrators of the weapons crime. Now, according to the Court, a Graves Act offense for sentencing purposes can be either a non-intentional possessory offense, under DesMarets-Stewart, or an intentional, non-possessory offense, as we say in this opinion.
Canons of judicial construction and deference to the legislative will do not lead us inexorably to the result reached by the Court today. We venture well beyond the accepted judicial role in construing this highly penal sentencing statute by divining a legislative intent that is neither expressed by the terms of the statute itself nor intrinsic to its acknowledged purpose. Though a part of the New Jersey Criminal Code, the Graves Act is a penal statute and still must be dominated by, if not subject to, the traditional principles of strict construction. Neeld v. Giroux, 24 N.J. 224, 229 (1957); State v. Brenner, 132 N.J.L. 607, 611 (E. & A. 1944). Thus, as a penal statute, the Graves Act’s operative provisions cannot be extended by implication. State v. Fair Lawn Service Center, Inc., 20 N.J. 468, 472 (1956); Brenner, supra, 132 N.J.L. at 611. The rule of strict construction is designed to narrow the scope of the conduct covered or the penalty applicable' to such conduct, so as to avoid *135both fundamental unfairness and the unfairness of arbitrary enforcement. State v. Maguire, 84 N.J. 508, 514 n. 6 (1980).
There is, moreover, nothing in the Code that would dictate a different understanding. The Legislature has prescribed standard rules of construction of all Code provisions. N.J.S.A. 2C:1-2c. Several of these standards apply directly to the sentencing provisions of the Code. They emphasize the objectives of discretionary, enlightened, fair and individualized sentencing, e.g., N.J.S.A. 2C:1-2b(2), (4), (5), (6) and (7). The Legislature has not in any way intimated that these statutory principles of interpretation should not govern the sentencing provisions of the Graves Act.
These statutory provisions emphasize the importance of individualized sentencing. They are particularly relevant in instances where criminal guilt is predicated on notions of vicarious, constructive, or substituted responsibility, as is accomplice liability. N.J.S.A. 2C:2-6b(3). Even though criminal guilt may be affixed on grounds of criminal agency, and such guilt may be deemed the equivalent to that of one who is guilty as a principal, the penal consequences of such guilt — sentencing —must nonetheless remain an individualized matter.
The Court suggests that its interpretation of the Graves Act as applied to accomplices is parallel to the pre-Code sentencing scheme. It points out that under N.J.S.A. 2A:151-5, unarmed accomplices were subject to enhanced punishment if the principal offender was armed. Ante at 130 n. 2. The analogy, however, is inapposite. Enhanced punishment under that statute consisted of an additional sentence that could be imposed, but only in the sound discretion of the court. Unlike the Graves Act, as now interpreted by the Court, the judge was still required to consider the precise circumstances of the defendant’s involvement in the crime, as well as all other factors relevant to sentencing, when deciding whether to impose an enhanced sentence upon one convicted as an accomplice.
*136It is therefore fundamentally unsound and unfair to impose upon an accomplice the identical penalty visited upon the principal if in fact the accomplice’s underlying individual criminal acts do not merit the same punishment. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). This is especially true of mandatory or automatic sentences that carry severe penal consequences.
Unless and until the Legislature indicates in clear statutory terms its purpose to sentence an accomplice under the mandatory provisions of the Graves Act, without regard to the defendant’s personal possession and use of the gun involved in the crime, I would not presume to do so under the guise of executing the Legislature’s will or effectuating its purpose.
For affirmance — Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, POLLOCK, O’HERN and GARIBALDI— 6.
For reversal — Justice HANDLER — 1.