(dissenting) — The majority’s handwringing over being boxed into its result by the Sentencing Reform Act of 1981 (SRA) inspires my dissent. It is a majority of this court, not the SRA, that has closed the door on the exercise of trial court discretion. It is this court which has consistently disregarded personal factors justifying departures downward despite the SRA’s clear intent to the contrary, and it is this court which has, in contrast, broadly construed the SRA to ardently uphold innumerable contortions used to justify departures upward. See *146John M. Junker, Guidelines Sentencing: The Washington Experience, 25 U.C. Davis L. Rev. 715, 742-49 (1992).
A study of this court’s departure cases bears this out. Citing the discretion left to judges under the SR A as its justification, this court has scrupulously developed common law regarding reasons for departures upward and has sustained a host of aggravating circumstances. See, e.g., State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995) (deliberate cruelty, multiple injuries, victim’s vulnerability, abuse of a position of trust, and an ongoing pattern of abuse); State v. Stewart, 125 Wn.2d 893, 897-99, 890 P.2d 457 (1995) (clearly too lenient); State v. Johnson, 124 Wn.2d 57, 67, 75-76, 873 P.2d 514 (1994) (gang motivation and community impact); State v. Smith, 123 Wn.2d 51, 57, 864 P.2d 1371 (1993) (victim’s presence during burglary); State v. Solberg, 122 Wn.2d 688, 707-08, 861 P.2d 460 (1993) (quantity of drug and degree of sophistication greater than usual); State v. Valdobinos, 122 Wn.2d 270, 286-87, 858 P.2d 199 (1993) (same); In re Farmer, 119 Wn.2d 597, 599, 835 P.2d 219 (1992) (per curiam) ("especially culpable mental state”); State v. Chadderton, 119 Wn.2d 390, 398, 832 P.2d 481 (1992) (reckless abuse of a position of trust regardless of whether used to commit crime); State v. Post, 118 Wn.2d 596, 614, 826 P.2d 172, modified, 837 P.2d 599 (1992) (future dangerousness for sex offender); State v. Grewe, 117 Wn.2d 211, 216-18, 813 P.2d 1238 (1991) (abuse of trust); State v. Batista, 116 Wn.2d 777, 785-86, 808 P.2d 1141 (1991) (clearly too lenient); State v. Farmer, 116 Wn.2d 414, 431, 805 P.2d 200, 13 A.L.R.5th 1070, corrected, 812 P.2d 858 (1991) (knowing exposure to AIDS virus); State v. Crane, 116 Wn.2d 315, 334, 804 P.2d 10 (unusual number and severity of injuries), cert. denied, 501 U.S. 1237 (1991); State v. Stephens, 116 Wn.2d 238, 242-45, 803 P.2d 319 (1991) (multiple current offenses); State v. Pryor, 115 Wn.2d 445, 454, 799 P.2d 244 (1990) (future dangerousness); State v. Handley, 115 Wn.2d 275, 284-85, 796 P.2d 1266 (1990) (lack of intent to injure does not prevent use of the aggravator of vulnerability and the absence of the defendant when *147crime was committed does not prevent use of the aggravator of abuse of trust); State v. Dunaway, 109 Wn.2d 207, 218-20, 743 P.2d 1237 (1987), corrected, 749 P.2d 160 (1988) (sophistication and multiple injuries); State v. McAlpin, 108 Wn.2d 458, 463-65, 740 P.2d 824 (1987) (prior felony convictions before the age of 15); State v. Fisher, 108 Wn.2d 419, 424-25, 739 P.2d 683 (1987) (extreme youth and particular vulnerability of individual victim); State v. Armstrong, 106 Wn.2d 547, 550, 723 P.2d 1111 (1986) (vulnerability of victim and multiple incidents); State v. Nordby, 106 Wn.2d 514, 519, 723 P.2d 1117 (1986) (defendant’s especially culpable mental state); see also State v. Perez, 69 Wn. App. 133, 138, 847 P.2d 532 (conduct "more egregious than typical”), review denied, 122 Wn.2d 1015 (1993); State v. Creekmore, 55 Wn. App. 852, 861-63, 783 P.2d 1068 (1989) (defendant’s lack of remorse), review denied, 114 Wn.2d 1020 (1990); State v. Weaver, 46 Wn. App. 35, 43, 729 P.2d 64 (1986) (particular offense "more onerous than that contemplated by the Legislature”), review denied, 107 Wn.2d 1031 (1987); but see State v. Hammond, 121 Wn.2d 787, 794, 854 P.2d 637 (1993) (absconding of defendant not a justified aggravator); In re Vandervlugt, 120 Wn.2d 427, 434, 842 P.2d 950 (1992) (rejecting future dangerousness as an aggravating factor for nonsexual offense); State v. Barnes, 117 Wn.2d 701, 711-12, 818 P.2d 1088 (1991) (same).
Yet, when examining departures downward, this court has not undertaken its duty to create common law with the same vigor, nor has it respected the discretion of trial judges to the same degree. It has only allowed departures for very few mitigating factors. See, e.g., State v. Alexander, 125 Wn.2d 717, 730, 888 P.2d 1169 (1995) (rejecting peripheral participation in drug hierarchy as a mitigating factor); State v. Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993) (rejecting drug addiction coupled with direct causal connection of addiction to crime as a mitigating factor); State v. Hutsell, 120 Wn.2d 913, 919-21, 845 P.2d 1325 (1993) (rejecting drug addiction as a mitigating circumstance); State v. Allert, 117 Wn.2d 156, 164, 169, 815 P.2d *148752 (1991) (rejecting alcoholism and absence of future dangerousness as mitigating circumstances); State v. Estrella, 115 Wn.2d 350, 353, 359-60, 798 P.2d 289 (1990) (rejecting rehabilitation potential and low risk to reoffend as mitigating circumstances); State v. Pennington, 112 Wn.2d 606, 610-11, 772 P.2d 1009 (1989) (rejecting a drug or alcohol problem as a mitigating circumstance); State v. Rogers, 112 Wn.2d 180, 183-85, 770 P.2d 180 (1989) (rejecting no prior criminal history, emotional and psychological stress, and impaired capacity as mitigating circumstances); Armstrong, 106 Wn.2d at 551 (rejecting criminal history and lack of aggravating circumstances such as premeditation and deliberate cruelty). In sharp contrast to its findings regarding nonstatutory aggravating factors, this court has rarely found mitigators to be justified unless statutorily provided. See Alexander, 125 Wn.2d at 726-30 (approving extraordinary small amount of controlled substance and low level of sophistication as mitigators); State v. Nelson, 108 Wn.2d 491, 496-501, 740 P.2d 835 (1987) (upholding departure downward for mitigators of incomplete defense of entrapment, cooperation and assistance to the State, and that he played a secondary role in the crime); State v. Pascal, 108 Wn.2d 125, 136, 736 P.2d 1065 (1987) (upholding departure for victim being the initiator, duress, and battered woman syndrome).
One is left with the nagging question of why upward departures are any different than those downward. The Legislature provided for mitigators and departures downward, yet this court consistently finds neither to be justified, effectively depriving trial courts of the discretion downward the Legislature intended. See RCW 9.94A.120; RCW 9.94A.390. Moreover, in designing the standard sentencing ranges, the Legislature intended merely to account for the "typical” crime. Wash. Sentencing Guidelines Comm’n, Implementation Manual at 1-36,-37 (1994); Wash. Sentencing Guidelines Comm’n, Report to the Legislature 18 (Jan. 1983). Implicit in this reasoning is the fact that some crimes would be less serious than typical and some more serious. Therefore, departing downward is just as *149justified as departing upward. See, e.g., ABA Standards for Criminal Justice: Sentencing, std. 18-2.6, at 34-36 (3d ed. 1994) (recognizing that personal characteristics of an offender which are not material to culpability may justify a lesser sanction); std. 18-3.2, at 45-49 (recognizing factors which may mitigate the gravity of the offense or culpability of the offender).
If this court continues to find personal factors distinguishing the defendant to be unacceptable, there is little left open that will ever justify a departure downward. Here, the trial court, after viewing the defendant’s history and demeanor and the facts of the case, determined that a downward exceptional sentence was justified based on Freitag’s complete lack of any criminal history and police contacts (beyond that counted by the SRA), her contributions to society, her ability to better herself through community service, and her lack of a threat to reoffend. All of these are legitimate considerations under the SRA and therefore justify a departure downward. The Court of Appeals, in affirming the trial court, properly recognized that lack of criminal history does tend to show lack of a predisposition to commit the crime and is the logical corollary to this court’s cases which have allowed departures upward for uncounted offenses. State v. Freitag, 74 Wn. App. 133, 140-45, 873 P.2d 548 (1994). In reexamining and recharacterizing these factors, this court has commandeered the discretion away from the trial court.
To justify its results, this court continues to focus on punishment as the primary purpose of the SRA. Estrella, 115 Wn.2d at 357; Pennington, 112 Wn.2d at 611; State v. Rice, 98 Wn.2d 384, 393, 655 P.2d 1145 (1982). In contrast, the Legislature cited six different goals and did not preference any of these higher than the others. These goals are (1) ensuring proportionality of punishment to the seriousness of the offense and the offender’s criminal history, (2) just punishment, (3) ensuring punishment is commensurate with that imposed on others committing similar offenses, (4) protecting the public, (5) offering the offender *150an opportunity to improve him or herself, and (6) making frugal use of the State’s resources. RCW 9.94A.010. While punishment is indeed a goal, the Legislature clearly intended that each of these be equally important since it did not rank its goals in level of importance. This court has lost track of the balance the SRA was intended to create and, in so doing, has eliminated the discretion that was to be left to trial judges who sentence downward as well as upward. To date, this court has not provided a sound reason for why trial courts’ discretion downward should be any less than that upward, but its precedent implies this is so. Because its implication flies in the face of the SRA, I cannot concur in such an unsound result.
Johnson, J., and Utter, J. Pro Tern., concur with Mad-sen, J.
Reconsideration granted September 8, 1995; opinion modified November 14, 1995.