dissenting.
I disagree that a 10:00 p.m. curfew is a reasonable condition of probation for a 20-year-old woman, with no prior arrest record, who is convicted of harassment. The majority opinion finds the curfew "reasonably related to the needs of an effective probation” without any discussion of the purposes of probation. The proper test to be applied was set forth by the Supreme Court in State v. Martin, 282 Or 583, 580 P2d 536 (1978), applying ORS 138.040, which forbids the imposition of a sentence that is cruel, unusual or excessive in light of the nature and background of the offender or the facts and circumstances of the offense, to conditions of probation. The court said:
*1068"[T]he purposes of probation include rehabilitation and the freedom of the individual, as long as these are consistent with public safety * * *. Thus, a condition of probation that is not related to the offense or does not promote public safety or rehabilitation is not permitted under the statute.” (Citations omitted.) 282 Or at 588.
It is clear, viewing the court’s comments in toto, that the trial judge focused on two things: the fact that the defendant had a child, and what he considered to be the unsavory character of her friends. The child was the center of the court’s attention:
'THE COURT: * * * The factors that went into that decision were that this did of course occur in the evening hours. It occurs because apparently Ms. Sprague has a habit of hanging around with friends or at parties where she apparently came from according to the testimony. She is under the age of 21 or was at this time. She has a child. This situation, this is a type of a situation that did arise because of a gathering of young people in an area where young people tend to gather after the general evening hours when they probably should not be around the streets.
"The reason I did it — and I’ve only done this three times in sentencing situations — two were in the case of prostitution convictions where people were always convicted and picked up after hours — Ms. Sprague apparently, she’s got a small child. I don’t know if the child is in custody or a ward of the court or whatever, but she’s got a small child, she should be home prior to 10:00. She should not be out. * *
The offense for which defendant was arrested was totally unrelated to her care of the child, which would, of course, more likely be required in the daytime than after 10:00 p.m. The court indicated it did not even know whether the child was living with defendant. While the altercation and defendant’s subsequent arrest apparently occurred after 10:00 p.m., the underlying event, a stop for driving while suspended, might occur at any time of day. There was no integral relationship between the offense and the hours during which defendant was barred from the streets. The curfew was thus not, in my mind, in any way related to defendant’s offense. Second, the condition was not related to "public safety.” There is no showing that *1069defendant was, or was likely to be, any more a threat to the public after 10:00 p.m. than at any other hour of the day.
Lastly, the curfew was unrelated to defendant’s likelihood of rehabilitation. While obviously disapproving of defendant’s friends, the court did not forbid defendant from associating with them before 10:00 p.m., or in her own home or otherwise indoors after that hour. If it believed her associations were the cause of her behavior, the court might have more logically forbidden defendant from associating with the group or individuals which it felt were a bad influence. The majority’s view, that forbidding defendant from any public associations after 10:00 p.m. is somehow less stringent than forbidding her to associate at any time with a particular group, is a rather fine point, about which I might also disagree.
There were other options available to the court. It might have forbidden defendant from associating with anyone having the particular tattoo it thought identified them as a group, if it found that these people were in some way contributing to defendant’s antisocial behavior. If the court found that defendant’s arrest occurred because she was in a place where young people tended to gather and get into trouble, it might have barred her from that place, or from that place at a specific time. With findings that her behavior was alcohol-connected, the court might have barred defendant from premises where alcohol was served. There was no finding that a confrontation in which defendant might feel compelled to come to the aid of a friend was more likely to occur after 10:00 p.m. than before 10:00 p.m. if defendant was free to associate with her friends at their usual gathering spots at other times. The curfew imposed by the court was unrelated to the offense, to public safety or to defendant’s rehabilitation, as required by State v. Martin, supra. It was therefore "excessive” under the terms of ORS 138.040.
I respectfully dissent.