dissenting.
By my reading, the lead opinion establishes two new mitigating factors based on the legislative history of the 2006 sentencing legislation-mitigating factors that apply only to sex offenses. In my opinion, these mitigating factors are not supported by this legislative history.
The first factor is based on the court's conclusion that the legislature believed that "the typical sexual offender is a repeat offender." This conclusion is apparently based on legislative findings regarding two studies reporting polygraph interviews with convicted sex offenders.1 Based on this conclusion, *798the lead opinion establishes a mitigating factor that applies to any sex offender who does not have a prior history of sex offenses.
I do not agree that these findings warrant a new mitigating factor. A sentencing judge generally does not have a polygraph interview to rely on. So the problem with requiring proof of unreported offenses is that the offenses cannot be documented: The legislature found that only sixteen percent of vie-tims report a sexual assault2 and that only twenty-seven percent of reported sex crimes result in an arrests3 These unreported and unprosecuted offenses will be unavailable to the sentencing judge; we should not make this routine cireumstance the basis for a mitigating factor.
In addition, this mitigating factor would be inconsistent with the statutory context outlined in the lead opinion. The legislature did not change the aggravating factors that apply to these sex offenses. If the prosecution can prove that an offender is guilty of previously unreported sex offenses, then those offenses may support the aggravating factors for a prior history of aggravated assaultive behavior 4 or a prior history of similar of- offenses5 This court has approved the application of these aggravating factors to sexual assault convictions on numerous occasions.6
One could argue that the 2006 legislation impliedly repealed or amended these aggravating factors, but this approach would be unwarranted. We should not infer an amendment of the aggravating factor statute because the enforcement of this statute does not raise any actual conflict with the 2006 legislation.7 We should presume that the legislature was aware of our interpretation of this statute when it enacted the 2006 legislation.
So it appears to me that the presumptive sentencing ranges that were modified in the 2006 legislation remain subject to the aggravating factors that apply when the prosecution can prove a sex offender is guilty of previously unreported sex offenses. As noted in the lead opinion, these aggravating factors are intended to identify circumstances that tend to make a case atypically aggravated.8 If the prosecution cannot prove these aggravating factors, then the sentence properly belongs within the presumptive range; the absence of these factors does not make the case atypically mitigated.
The second mitigating factor in the lead opinion is based on the court's conclusion that the legislature found that most sex offenders have "very poor prospects for rehabilitation." This observation is apparently based on legislative findings regarding the ineffectiveness of institutional treatment programs.9 From these findings, the opinion reasons that it would be manifestly unjust to sentence a sex offender with normal prospects for rehabilitation to a sentence within the normal presumptive sentencing range. I disagree.
According to the legislative findings, a sex offender with moderate prospects for rehabilitation (and a correspondingly moderate risk of recidivism) may be unusual in the sense that he may have a better chance of rehabilitation than the usual sex offender. But it does not follow that it would be manifestly unjust to sentence a sex offender with a moderate risk of recidivism to a sentence within the presumptive range. The legislature recognized that sex offenses can have a *799serious impact on the victim and society.10 So a sex offender who poses a moderate risk of recidivism may still pose an unacceptable danger to the community. We should maintain the same standard for a sex offender that we have previously established for other defendants, requiring the defendant to show particularly favorable prospects for rehabilitation in order to establish a non-statutory mitigating factor.11
In the trial court, Collins argued that he had unusually favorable prospects for rehabilitation, but the sentencing judge found that Collins had not proven this mitigating factor. Collins did not submit a psychological evaluation or a sex offender assessment to establish how he could be supervised in the community. And the sentencing judge found that Collins's conduct on pretrial release was not good-he became intoxicated and then lied about his identity when he was confronted by the police. I conclude that the sentencing judge made a reasonable decision that Collins has not established any mitigating factors sufficient to warrant a referral to the three-judge panel.
*800800 Ariz.
. 2006 Senate Journal 2209 (citing Ahlmeyer, Heil, McKee and English, "The Impact of Polygraph on Admissions of Crossover Offending Behavior in Adult Sexual Offenses," Sexual Abuse: A Journal of Research and Treatment, 12(2): 123-138, 2000; Wilcox and Sosnowski, "Polygraph Examination of British Sexual Offenders: A Pilot Study on Sexual History Disclosure Testing," Journal of Sexual Aggression, 11(1), 3-25: 2005).
. 2006 Senate Journal 2208 (citing Kilpatrick, Rape in America Report, 1992).
._ Id. (citing Snyder, 2000).
. AS 12.55.155(c)(8).
. &_ AS 12.55.155(c)(21).
. See, e.g., Moore v. State, 174 P.3d 770 (Alaska App.2008) (applying AS 12.55.155(c)(8) to convictions for attempted sexual assault); Tazruk v. State, 67 P.3d 687, 689 (Alaska App.2003) (applying AS 12.55.155(c)(21) to a sexual assault conviction).
. See Allen v. Alaska Oil & Gas Conservation Com'n, 147 P.3d 664, 668 (Alaska 2006) (stating that a prior statute may be impliedly repealed if the enforcement of the statute is in irreconcilable conflict with later legislation).
. See Knight v. State, 855 P.2d 1347, 1349 (Alaska App.1993).
. 2006 Senate Journal 2208 (citing Sex Offender Treatment Evaluation Project Report, January 2005).
. See 2006 Senate Journal 2209, 2211.
. See Smith v. State, 711 P.2d 561, 571-72 (Alaska App.1985).