The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of RCW 9.94A.537.

     Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard sentence range shall be a determinate sentence.

     If the sentencing court finds that an exceptional sentence outside the standard sentence range should be imposed, the sentence is subject to review only as provided for in RCW 9.94A.585(4).

     A departure from the standards in RCW 9.94A.589 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in this section, and may be appealed by the offender or the state as set forth in RCW 9.94A.585 (2) through (6).

     (1) Mitigating Circumstances - Court to Consider

     The court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.

     (a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.

     (b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained.

     (c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.

     (d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.

     (e) The defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired. Voluntary use of drugs or alcohol is excluded.

     (f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.

     (g) The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

     (h) The defendant or the defendant's children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.

     (2) Aggravating Circumstances - Considered and Imposed by the Court

     The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances:

     (a) The defendant and the state both stipulate that justice is best served by the imposition of an exceptional sentence outside the standard range, and the court finds the exceptional sentence to be consistent with and in furtherance of the interests of justice and the purposes of the sentencing reform act.

     (b) The defendant's prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

     (c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.

     (d) The failure to consider the defendant's prior criminal history which was omitted from the offender score calculation pursuant to RCW 9.94A.525 results in a presumptive sentence that is clearly too lenient.

     (3) Aggravating Circumstances - Considered by a Jury -Imposed by the Court

     Except for circumstances listed in subsection (2) of this section, the following circumstances are an exclusive list of factors that can support a sentence above the standard range. Such facts should be determined by procedures specified in RCW 9.94A.537.

     (a) The defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim.

     (b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance.

     (c) The current offense was a violent offense, and the defendant knew that the victim of the current offense was pregnant.

     (d) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:

     (i) The current offense involved multiple victims or multiple incidents per victim;

     (ii) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;

     (iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time; or

     (iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.

     (e) The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:

     (i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so;

     (ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use;

     (iii) The current offense involved the manufacture of controlled substances for use by other parties;

     (iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy;

     (v) The current offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, or involved a broad geographic area of disbursement; or

     (vi) The offender used his or her position or status to facilitate the commission of the current offense, including positions of trust, confidence or fiduciary responsibility (e.g., pharmacist, physician, or other medical professional).

     (f) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.835.

     (g) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time.

     (h) The current offense involved domestic violence, as defined in RCW 10.99.020, and one or more of the following was present:

     (i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time;

     (ii) The offense occurred within sight or sound of the victim's or the offender's minor children under the age of eighteen years; or

     (iii) The offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.

     (i) The offense resulted in the pregnancy of a child victim of rape.

     (j) The defendant knew that the victim of the current offense was a youth who was not residing with a legal custodian and the defendant established or promoted the relationship for the primary purpose of victimization.

     (k) The offense was committed with the intent to obstruct or impair human or animal health care or agricultural or forestry research or commercial production.

     (l) The current offense is trafficking in the first degree or trafficking in the second degree and any victim was a minor at the time of the offense.

     (m) The offense involved a high degree of sophistication or planning.

     (n) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.

     (o) The defendant committed a current sex offense, has a history of sex offenses, and is not amenable to treatment.

     (p) The offense involved an invasion of the victim's privacy.

     (q) The defendant demonstrated or displayed an egregious lack of remorse.

     (r) The offense involved a destructive and foreseeable impact on persons other than the victim.

     (s) The defendant committed the offense to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group.

     (t) The defendant committed the current offense shortly after being released from incarceration.

     (u) The current offense is a burglary and the victim of the burglary was present in the building or residence when the crime was committed.

     (v) The offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim's status as a law enforcement officer is not an element of the offense.

     (w) The defendant committed the offense against a victim who was acting as a good samaritan.

     (x) The defendant committed the offense against a public official or officer of the court in retaliation of the public official's performance of his or her duty to the criminal justice system.

     (y) The victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense. This aggravator is not an exception to RCW 9.94A.530(2).

     (z)(i)(A) The current offense is theft in the first degree, theft in the second degree, possession of stolen property in the first degree, or possession of stolen property in the second degree; (B) the stolen property involved is metal property; and (C) the property damage to the victim caused in the course of the theft of metal property is more than three times the value of the stolen metal property, or the theft of the metal property creates a public hazard.

     (ii) For purposes of this subsection, "metal property" means commercial metal property, private metal property, or nonferrous metal property, as defined in RCW 19.290.010.

     (aa) The defendant committed the offense with the intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang as defined in RCW 9.94A.030, its reputation, influence, or membership.

[2008 c 276 § 303; 2008 c 233 § 9; 2007 c 377 § 10; 2005 c 68 § 3; 2003 c 267 § 4; 2002 c 169 § 1; 2001 2nd sp.s. c 12 § 314; 2000 c 28 § 8; 1999 c 330 § 1; 1997 c 52 § 4. Prior: 1996 c 248 § 2; 1996 c 121 § 1; 1995 c 316 § 2; 1990 c 3 § 603; 1989 c 408 § 1; 1987 c 131 § 2; 1986 c 257 § 27; 1984 c 209 § 24; 1983 c 115 § 10. Formerly RCW 9.94A.390.]

NOTES:

     Reviser's note: This section was amended by 2008 c 233 § 9 and by 2008 c 276 § 303, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1).

     Severability -- Part headings, subheadings not law -- 2008 c 276: See notes following RCW 36.28A.200.

     Captions not law -- Severability -- 2007 c 377: See RCW 19.290.900 and 19.290.901.

     Intent -- Severability -- Effective date -- 2005 c 68: See notes following RCW 9.94A.537.

     Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250.

     Application -- 2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030.

     Technical correction bill -- 2000 c 28: See note following RCW 9.94A.015.

     Effective date -- 1996 c 121: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [March 21, 1996]." [1996 c 121 § 2.]

     Effective date -- Application -- 1990 c 3 §§ 601 through 605:See note following RCW 9.94A.835.

     Index, part headings not law -- Severability -- Effective dates -- Application -- 1990 c 3: See RCW 18.155.900 through 18.155.902.

     Severability -- 1986 c 257: See note following RCW 9A.56.010.

     Effective date -- 1986 c 257 §§ 17 through 35: See note following RCW 9.94A.030.

     Effective dates -- 1984 c 209: See note following RCW 9.94A.030.