(dissenting) — I disagree with the majority of this court which finds that an exceptional sentence below the standard range is not warranted based on a lack of any prior contact with the police. Once again the court refuses to recognize nonstatutory factors justifying an exceptional sentence downward, closing the door on the exercise of trial court discretion. As I noted in my dissent in State v. Freitag, 127 Wn.2d 141, 896 P.2d 1254, 905 P.2d 355 (1995), this court has consistently allowed departures from the standard sentencing range upward using nonstatutory aggravating circumstances. However, when examining an exceptional sentence downward, this court has on only few occasions upheld such a departure, absent a statutory mitigating factor, despite the Sentencing Reform Act’s (SRA) clear intent to the contrary. Id. at 146-49.
The majority indicates that the only time a lack of police contacts can be considered when justifying a down*849ward sentence is pursuant to RCW 9.94A.390(l)(d), which allows a judge to depart from the sentencing guidelines where "[t]he defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.” However, I am troubled that in addition to refusing to recognize circumstances warranting a decreased sentence outside those allowed by statute, the court is now adding requirements to the statutory mitigating factors which are not contained in the statute. Nowhere in RCW 9.94A.390(l)(d) does it indicate a defendant must show a lack of prior police contacts to show he or she, with no apparent predisposition to commit the crime, was induced by others to participate. A defendant may have a record of police contacts but not be predisposed to commit a particular crime. A lack of prior contacts should not be grafted onto the statutory mitigating factors and, instead, should be considered independently by judges in departing downward from a standard sentence.
Although the Legislature provides judges with the authority to impose a downward sentence based on mitigating factors, this court consistently finds their reasons for doing so to be unjustified. In creating sentencing ranges, the Legislature had in mind a "typical” crime. The SRA contemplates departure from the range, both upward and downward, reflecting the Legislature’s determination that some crimes are "atypical,” justifying a more stringent or lenient sentence based on mitigating circumstances. Thus, it is just as important for judges to be able to depart downward, when justified, as it is for them to depart upward. "Imposing a penalty which is within the standard range but unduly harsh, considering the circumstances of a case, does not '[pjromote respect for the law by providing punishment which is just.’ ” State v. Nelson, 108 Wn.2d 491, 502, 740 P.2d 835 (1987) (quoting RCW 9.94A.010(2)).
Quoting our recent decision in Freitag, the majority explains that " 'lack of criminal history is an insufficient ground for sentencing below the standard range since the *850Legislature specifically considered criminal history when establishing standard sentencing ranges.’ ” Majority at 841 (quoting Freitag, 127 Wn.2d at 144). This statement is based on the fact that " 'criminal history is one of the components used to compute the presumptive range for an offense’.” Id. at 144. Using this reasoning to support the ultimate conclusion that a lack of police contacts cannot be taken into account in giving an exceptional sentence downward, however, is not supportable because, as this court pointed out in Nelson, the standard range does not take a complete absence of police contacts into account. Nelson, 108 Wn.2d at 498. Thus, it follows from Nelson that the standard range for a zero offender score encompasses only counted convictions, and does not take into account the complete lack of police contacts.
While the court allows past history not used to determine the offender score, such as prior juvenile offenses committed before the age of 15 and prior misdemeanors, to impose an exceptional sentence above the standard range, it refuses to allow the lack of such a record to be allowed as a mitigating factor to depart downward from the standard range. The majority reasons that "[w]e have repeatedly held that the lack of an aggravating factor does not create a mitigating circumstance.” Majority at 843-44 (citing State v. Alexander, 125 Wn.2d 717, 724, 888 P.2d 1169 (1995)). Of course, though, the lack of an aggravating factor can create a mitigating circumstance if it is sufficiently substantial and compelling to distinguish the crime in question from others in the same category. Alexander, 125 Wn.2d at 725. Thus, this statement by the majority cannot dispose of the inquiry.
The majority also states that nothing in the comments from the Sentencing Guidelines Commission indicates a lack of misdemeanors should be used as a factor to impose a sentence downward. However, in Nelson, this court found those same comments, noted by the majority here, showed the drafters of the statute realized that a "com-*851píete lack of misdemeanors ... is appropriate for the sentencing judge to consider, in that it supports a finding that the defendant lacked the predisposition to commit the crimes.” Nelson, 108 Wn.2d at 498. The court in Nelson went on to explain that this "position is consistent with the goal of the SRA, which is to treat people equally, considering their crimes and past history.” Id. Thus, treating a "person who has no record at all . . . on par with the person who has an extensive misdemeanor record,” the court concluded, violates the SRA’s goal of equality. Id.
Additionally, relying on Nelson, the Court of Appeals in State v. Baucham, 76 Wn. App. 749, 752, 887 P.2d 909 (1995), held that the sentencing court may take into consideration not only that the defendant has a zero offender score, but also that the offender has "a complete absence of police contacts, an item not already accounted for under the Sentencing Reform Act of 1981.” The court upheld Baucham’s exceptional sentence downward based on the fact that Baucham had no criminal history, was steadily employed, and was supporting her minor daughter and grandson. Id. at 753. The court also particularly noted the defendant’s lack of sophistication in smuggling the narcotics. Id. This, coupled with Baucham’s otherwise law abiding life, the court stated, distinguished her from other first time offenders. Id.
Likewise, I agree that a lack of police contacts may be the basis for an exceptional sentence downward. Once it has been determined that a particular factor may justify a departure from the standard range, the decision to grant an exceptional sentence is reviewed based on an abuse of discretion standard. See State v. Branch, 129 Wn.2d 635, 645-46, 919 P.2d 1228 (1996). Although reasonable minds may differ as to whether the lack of prior contacts in conjunction with other facts surrounding this case warrant a downward sentence, I cannot say that the trial judge has abused her discretion by imposing an exceptional sentence in this case.
*852Johnson and Sanders, JJ., concur with Madsen, J.