concurring.
I join in the court’s decision to affirm Braaten’s conviction. I also agree that his sentence should be vacated and the case remanded for resentencing. I am troubled by the court’s rationale for vacating the sentence, however, and believe additional remarks are in order to justify the relief which we grant.
Douglas B. Braaten gained access to G.J.’s home in the early morning hours of July 21, 1983, ignored her demand that he leave, physically assaulted and battered her, and ultimately forced her to have sexual intercourse with him. Braaten was indicted for and convicted of first-degree sexual assault in violation of AS 11.41.-410(a)(1). At sentencing, the trial court found three aggravating factors: G.J. sustained physical injuries as a direct result of Braaten’s conduct, AS 12.55.155(c)(1); Braaten knew or should have known that G.J. was particularly vulnerable or was substantially incapable of exercising normal physical or mental powers of resistance, AS 12.55.155(c)(5); and Braaten’s conduct was among the most serious included in the definition of the offense of which he was convicted, AS 12.55.155(c)(10). Braa-ten was sentenced to twenty years’ imprisonment with twelve years suspended.
Braaten appeals, inter alia, on the ground that the trial court erred in increasing his sentence based on the application of two aggravators: that G.J. was particularly vulnerable and that Braaten’s conduct was among the most serious included in the definition of the offense.
The majority remands this case for re-sentencing because Braaten’s sentence was based, in part, on the erroneous finding that G.J. had been particularly vulnerable. However, the majority affirms Judge Moody’s conclusion that Braaten’s conduct was among the most serious included in the definition of first-degree sexual assault. Although I agree with the majority’s decision to remand the case for resentencing and the court’s holding with respect to Judge Moody’s finding that G.J. was particularly vulnerable, I disagree with the court’s affirmance of the finding that Braa-ten’s conduct was among the most serious contemplated within the definition of the offense. My reasons are as follows.
*1324A. Most Serious Conduct Aggravator.
First-degree sexual assault is an unclassified offense. AS 11.41.410(b). The maximum term is thirty years’ incarceration. AS 12.55.125(i). Presumptive terms are respectively: eight years for an unaggravat-ed first offense; ten years for a first offense accompanied by serious physical injury to the victim, possession of a firearm, or use of a dangerous instrument; fifteen years for a second felony conviction; and twenty-five years for a third felony conviction. Id. This is Braaten’s first felony conviction. G.J. did not suffer serious physical injury and no dangerous instrument was involved. In the absence of aggravating or mitigating factors, therefore, the trial judge was obligated to give Braa-ten the eight-year presumptive term and could not impose additional time even if it was suspended. McManners v. State, 650 P.2d 414, 416 (Alaska App.1982).
The presumptive sentencing system in the revised criminal code reflects the “just deserts” theory of punishment.1 The Alaska subcommission on criminal law revision explained the “just deserts” theory as follows:
In determining the appropriate sentence to be imposed, two basic principles guide the court:
(1) the least severe measure should always be used which accomplishes the purposes of sentencing; and
(2) primary consideration in imposing sentence should always be given to the seriousness of the offense and the prior criminal history of the convicted person.
Under the “just deserts” theory of punishment, as a matter of justice or fairness, decisions with respect to a particular defendant ought to be made on the basis of what the person has done, not on some speculative expectation of what he might do in the future. Neither rehabilitation nor deterrence, as such, are primary considerations in determining the appropriate sentence, although both remain objectives of a “deserved” sentence. If a person’s crime is serious, his punishment should be severe. If the offense is minor, the sanction should be mild.
Alaska Criminal Code Revision Part VI, at 19-20 (Tent. Draft 1978) (hereafter Tent. Draft).
The subcommission was also very concerned about “unjustified disparity in sentences and the attainment of reasonable uniformity in sentences.” See AS 12.55.-005 (Declaration of purpose). The legislature adopted the subcommission’s philosophy and incorporated it into the presumptive sentencing scheme. Under the revised code, disparity in sentencing is to be avoided by use of presumptive sentences that can be varied only under limited circumstances. The code sets out specific procedures to insure that punishment will be based solely upon past criminal convictions and the seriousness of the defendant’s conduct. Past convictions are directly addressed. Sentences which increase with the seriousness of the defendants’ conduct are addressed in two ways. First, there is a presumptive sentence for those first offenders who commit classified offenses who possess a firearm, use a dangerous instrument, or cause serious physical injury to their victim. AS 12.55.125(c)(2). In all other cases, first offenders who commit classified offenses are not subject to presumptive sentencing. AS 12.55.125(c)(1) (Those who commit unclassified offenses (murder, kidnapping, first-degree misconduct involving a controlled substance, first-degree sexual assault, or first-degree sexual abuse of a minor) are subject to presumptive sentencing. AS 12.55.125(a), (b), *1325(i).) Second, and most important, the trial court’s sentencing discretion is limited to consideration of the specific aggravating and mitigating factors identified by the legislature. Those factors are set out in AS 12.55.155. In large measure they simply duplicate the aggravating and mitigating factors suggested in Fair and Certain Punishment. See Heathcock v. State, 670 P.2d 1155, 1159 n.2 (Alaska App.1983).
The Alaska legislature adopted some aggravating and mitigating factors which are not found in Fair and Certain Punishment. Among them are AS 12.55.-155(c)(10) and (d)(9), dealing with, respectively, the most serious and least serious conduct within the definition of the offense. The legislature intended these factors to have a limited scope. The legislature explained its reason for adopting these factors as follows:
Under subsections (c)(10) and (d)(9) a presumptive term may be aggravated or mitigated if the conduct constituting the offense was among the most or least serious conduct included within the definition of the offense. For example, if the defendant was convicted of a felony two years earlier, and is now being sentenced for the theft of $24,999, theft in the second degree, a class C felony, the fact that the conduct constituting the offense was among the most serious conduct included in theft in the second degree may aggravate the presumptive term.
Commentary on the Alaska Revised Criminal Code, Supp. No. 47 at 161, 2 Senate Journal (1978), following p. 1413.2
In light of this example, conduct which, in fact, approaches the conduct which would constitute a higher offense is the most serious conduct included in the definition of the offense. Conversely, conduct which approaches conduct constituting a less serious level of the offense would be the least serious within the definition of the offense. Most of our decisions finding conduct to be among the most serious or the least serious can be explained in these terms. See, e.g., Benboe v. State, 698 P.2d 1230, 1232 (Alaska App.1985); Fee v. State, 656 P.2d 1202, 1204-05 (Alaska App.1982); Huckaby v. State, 632 P.2d 975, 976 (Alaska App.1981).
We should limit the scope of the aggravating factor and the mitigating factor to the meaning intended by the legislature. Conduct is among the most serious within the definition of the offense if and only if it approximates conduct which would constitute a higher degree of crime. Conversely, conduct is among the least serious within the definition of the offense if and only if it approximates a lesser-included offense.
Viewing the most serious offense aggra-vator and the least serious offense miti-gator in this way avoids two obvious problems which occur if the two factors are given a broader reading. First, use of these factors, narrowly construed, reduces the possibility of disparate sentencing.3 If the factors only apply when the defendant’s conduct approximates a greater or lesser offense, we avoid the problem of each judge reading back into the statute *1326his or her idiosyncratic list of aggravating and mitigating factors under the guise of determining which conduct is among the most and least serious within the definition of the offense. Second, by giving the factors a meaning consistent with the legislative history, we distinguish between these factors and the other aggravating and mitigating factors, avoiding the overlap which we noticed in Juneby v. State, 641 P.2d 823 (Alaska App.1982) (Juneby I) modified on rehearing, 665 P.2d 30 (Alaska App.1983) (Juneby II).
Braaten’s conduct clearly does not verge on some higher degree of offense. The only offenses more serious than first-degree sexual assault are kidnapping and murder. While Braaten restrained G.J.’s freedom, it is clear that he did so only in order to attain his objective of having sexual intercourse with her. Such conduct is expressly excluded from the restraint that will authorize a finding of kidnapping.4 While Braaten apparently threatened both to stab G.J. or smother her, it is not contended that his conduct rose to the level of attempted murder. In summary, Braaten’s conduct cannot be classed with the most serious within the definition of the offense of first-degree sexual assault. Judge Moody’s finding of this aggravating factor was therefore clearly erroneous.5
B. Excessiveness.
The majority holds, and I agree, that the trial court properly found that Braaten’s *1327sentence should be increased because he physically injured G.J., AS 12.55.155(c)(1). However, the majority does not address an issue which I believe to be important on remand, which is the weight the trial court should attach to the “physical injury” ag-gravator.
It is undisputed that Braaten caused G.J. “physical injury” as defined in AS 11.81.-900(b)(40), the definition incorporated into AS 12.55.155(c)(1). Under AS 11.81.-900(b)(40), “physical injury” means a physical pain or an impairment of physical condition. Physical pain or impairment of physical condition, in turn, is limited to that suffered as a result of physical contact.6 Thus, if there is physical contact, then any resulting pain or suffering, constitutes physical pain and, by definition, physical injury. One manner of committing sexual assault in the first degree requires “sexual penetration,” which is defined to require contact with the victim’s body. AS 11.41.-410(a)(1). See, e.g., AS 22.81.900(b)(53). Consequently, any pain, suffering or discomfort which is directly caused by the sexual penetration will satisfy the definition of physical injury.
G.J. was sexually penetrated and did suffer pain and discomfort. Therefore, she suffered physical injury. Although G.J. was also beaten by Braaten, I do not believe that her physical injuries warrant a substantial increase in his sentence.
I reach this conclusion for three reasons. First, as we pointed out in Juneby I, physical injuries of the kind suffered by G.J. are fairly typical in connection with sexual assault cases. 641 P.2d at 838-39. While it is true that it is possible to have a sexual assault without having a beating, the typical case does involve some physical violence. Second, viewed purely as physical violence, Braaten’s assault on G.J. would constitute at most assault in the fourth degree, a class A misdemeanor with a maximum one-year penalty. See AS 11.41.-230(a)(1) (recklessly causing physical injury to another). While physical injury warrants some aggravation of a presumptive sentence, the degree of aggravation should correspond to an appropriate sentence for the physical injury itself. Viewed simply as an assault in the fourth degree and disregarding any concomitant burglary or sexual assault, Braaten’s conduct would appear to be a relatively minor fourth degree assault. Finally, and most important, the legislature has specifically provided an enhanced presumptive sentence of ten years for one convicted of sexual assault in the first degree, who causes his victim “serious physical injury.” AS 12.55.125(i)(2). (if the sexual assault is a first felony conviction, and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, presumptive term is ten years). It would be anomalous if the legislature established a ten-year maximum sentence for a sexual assault in which the victim suffered serious physical injuries but permitted mere physical injury, used as an aggravating factor, to justify a sentence in excess of ten years.
While this provision would seem to set a ten-year ceiling as an appropriate sentence *1328for Braaten, we cannot overlook the fact that all of the time Braaten received in excess of the eight-year presumptive sentence was suspended. See, e.g., Tazruk v. State, 655 P.2d 788 (Alaska App.1982) (in applying the Austin rule, we look primarily to time actually imposed and give lesser consideration to suspended time). Under these circumstances, a four-year suspended sentence, in addition to the eight-year presumptive sentence, would not be clearly mistaken.
I therefore join in the decision of the majority to REMAND for the purpose of resentencing.
. The legislature adopted a system of "presumptive sentencing" patterned upon recommendations contained in The Report of the Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment (1976) (hereafter Fair and Certain Punishment). While the revised code differs in some particulars from the recommendations set out in Alaska Criminal Code Revision Part VI (Tent. Draft 1978) (hereafter Tent. Draft), it clearly adopts the philosophy found in those proposals. That philosophy was intended to reflect to the greatest extent possible the "just deserts” theory of punishment. Tent. Draft at 19, citing A. Von Hirsch, Doing Justice: The Choice of Punishments (Hill and Wang ed. 1976).
. The legislature's comment refers to the fact that theft of $25,000 would constitute theft in the first degree, a class B felony. See, e.g., AS 11.46.120.
. The proponents of specific statutory aggravating and mitigating factors recognized that different judges differ substantially in determining which offenses are aggravated and which mitigated. They observed:
In an effort to construct a list of aggravating circumstances, we began with a rather inclusive catalogue of factors that are probably considered — by at least some judges — in imposing sentences. Some of these are clearly improper, such as the defendant’s race, appearance, and sex. Others are debatable, such as whether the defendant pleaded guilty or cooperated with the authorities. Our experience suggests that different judges — acting without legislative or appellate court guidance — have different views as to whether a given factor is appropriately considered in sentencing. It is our conclusion that these issues should be openly debated, that in situations where the factors are fairly typical and frequently recurring, the legislature should decide whether they should be considered in sentencing.
Fair and Certain Punishment at 42.
*1326After discussing proposed aggravators, the proponents of presumptive sentencing concluded:
After considerable debate among members of the Task Force about which of these to recommend, we could only agree on those few listed below. To our minds, this disagreement demonstrates most dramatically the necessity for having open legislative debate about the mitigating and aggravating factors that are appropriately considered by a sentencing judge. There are undoubtedly many that we simply failed to think of and that, had we thought of them, might well have been included in the consensus. Again, however, our list is merely illustrative and suggestive. Our point is that the legislature should— through open debate — decide which among the typical recurring factors should and should not be considered by the sentencing judge.
Id. at 43.
. This is clear from the Commentary and Sectional Analysis for the 1980 Amendments to the Revised Criminal Code:
It should be noted that this amendment [clarifying that "restraint” of a victim with intent to commit a sexual assault is kidnapping] would not turn a restraint that was merely incidental to a sexual assault into kidnapping. For example, defendant who forces a victim who is jogging along a bike path into the woods a few feet from the bike path in order to commit a sexual assault has not committed kidnapping. The “restraint” of the victim was too closely related to the sexual assault, both in time and the degree of movement, to qualify as a separate crime. However, if the victim was forced into the defendant’s car and then driven a block to a nearby deserted house and sexually assaulted, or sexually assaulted while his accomplice was driving the car, kidnapping has occurred. In this situation the restraint was specifically done to facilitate the commission of the felony and there was significant confinement or movement of the victim beyond that necessary to commit the sexual assault. (See generally Levshakoff v. State, 565 P.2d 504 (Alaska 1977)).
Supp. No. 44 at 6 in 2 Senate Journal (1980), following p. 1436.
. Braaten's conduct may have constituted burglary in the first degree because he assaulted G.J. after she ordered him to leave her apartment. See, e.g., AS 11.46.300; AS 11.46.-350(a)(1). In Juneby I, we rejected a finding that Juneby’s conduct was among the most serious within the contemplation of the offense. 641 P.2d at 840-44. Juneby’s conduct was very similar to Braaten’s. We intimated, however, that if Juneby had not been separately charged with burglary, the burglary might have aggrava- . ted his offense. Id. at 842. Juneby’s case is distinguishable from the instant case, however, because Juneby’s conduct as described by the court might well have constituted attempted murder. Id. at 837.
In a later case, Hansen v. State, 657 P.2d 862, (Alaska App.1983), we mentioned in passing that an attempted sexual assault which took place in the night time, in which Hansen used a dangerous weapon, could qualify as the most serious within the contemplation of the offense. Id. at 864, citing Erhart v. State, 656 P.2d 1199 (Alaska App.1982). Hansen’s case must be viewed in context, however. First, as • a first felony offender, Hansen was not subject to presumptive sentencing. Austin v. State, 627 P.2d 657 (Alaska App.1981). Normally a first felony offender should receive a more favorable sentence than a second felony offender subject to *1327presumptive sentencing. However, Hansen’s long record of misdemeanor offenses, consisting of approximately thirty-two convictions in nine years, justified deviating from Austin and imposing a sentence increased on the basis of the most serious conduct aggravator. Hanson broke into M.L.’s house at night and assaulted her while she was sleeping in her bed. We concluded:
If we look at the burglary as being an aggravating factor in the sexual assault, along with the other aggravating factors in this crime, we do not see sufficient reasons to give Hansen a total sentence exceeding the maximum ten-year sentence for this crime.
Hansen, 657 P.2d at 864.
. When we trace out the derivation of these terms, it is clear that the legislature wished to limit the definition of physical injury to any pain or suffering resulting from physical impact. See, e.g., the definition of "force” in AS 11.81.900(b)(22). (“force” means any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint or confinement; "force” includes deadly and nondeadly force.) Thus the legislature has apparently distinguished between "physical pain” and "mental pain” by requiring some impact or contact with the victim’s body.