(dissenting) — Although I agree with the majority on many of the issues presented by this appeal, there are two points upon which I disagree.
The record from the sentencing proceeding supports the majority’s holding that the trial court did not improperly rely on RCW 9A.52.025, the residential burglary statute, when imposing its exceptional sentence. I disagree, however, with the majority’s conclusion that the victim’s presence during a burglary presents a sufficiently substantial and compelling reason to depart from the standard range. The majority states that the victim’s presence during the crime was a legally adequate aggravating factor for two reasons: because the victim’s presence during a burglary is not a necessary component of burglary; and because the victim’s presence makes it more likely that a serious injury "might” result from the commission of a burglary. Majority, at 56-57.
The test for the legal adequacy of an aggravating factor is set out in State v. Grewe, 117 Wn.2d 211, 813 P.2d 1238 (1991). The first part of the Grewe test is whether the Legislature considered the aggravating factor at issue when establishing standard range sentencing for the particular crime. In 1975, the Legislature amended the criminal code to abolish the distinction between degrees of burglary based on the presence or absence of victims, as noted by the majority. Grewe, at 215-16. It appears, therefore, that when the Legislature adopted the 1975 amendment discarding the presence of victims as a distinction between first and second degree burglary it considered and rejected the presence of a victim as an aggravating factor in the crime of burglary.
More importantly, under the second part of the Grewe test, the aggravating factor must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category. Two aspects of the majority’s holding on this point are troubling. The first is quite simply that the majority punishes the defendant for what could have, but did not, happen. It is true that serious injury may *60occur in any set of circumstances where a crime is committed in the proximity of other people. This is certainly not limited to the context of a burglary nor does the mere possibility that a serious injury might occur serve to set this defendant’s crime apart from others. If the evidence here showed that an injury had occurred, or even that an actual threat of injury was present, then additional punishment may have been warranted.9 There is nothing in this record, however, to indicate that the victims were even aware that the defendant was present in the residence, let alone that any threat or violence occurred. The defendant here is receiving nearly six times the standard range because something serious could have happened.
Equally troubling is that the majority, by holding that the presence of a victim during a burglary is, by itself, an aggravating circumstance, essentially usurps the Legislature’s role. It is the job of the Legislature to distinguish between crimes and vary penalties where the distinctions can easily be incorporated into the statute.10 On the other hand, it is the court’s role to make case-specific decisions regarding the seriousness of an individual offense where the inquiry is too detailed or qualitative to be captured in a statute. In promulgating the Grewe test, this court acknowledged that the Legislature cannot anticipate every nuance of criminal conduct. Kevin R. Reitz, Sentencing Facts: Travesties of Real-Offense Sentencing, 45 Stan. L. Rev. 523 (1993). By holding that the presence of the victim is an aggravating factor in a burglary, however, the majority blurs the roles of the court and the Legislature.
*61The American Bar Association Criminal Justice Standards Committee (Committee) recently addressed this "blurring” of the legislative and judicial roles in sentencing. The Committee specifically recommended that the Legislature define offenses so that "important factors determining the gravity of offenses are made elements of the offenses rather than aggravating factors to be considered only in sentencing”. American Bar Association Standards for Criminal Justice, 52 Crim. L. Rep. (BNA) 2353 (Mar. 17, 1993), Std. 18-3.3, Definition of offenses; aggravating factors. The House of Delegates subsequently adopted this recommendation in the 1993 American Bar Association Standards for Criminal Justice: Sentencing Alternatives and Procedures and Appellate Review of Sentences. This recommendation makes sense not only because it acknowledges the separate roles of the legislative and judicial branches in sentencing, but also because it promotes the goals recited by the Legislature in enacting the Sentencing Reform Act of 1981. In its statement of "Purpose”, the Legislature cited several reasons for adopting a determinate sentencing scheme for Washington. RCW 9.94A.010. These reasons reflect a clear intent to provide certain, just, proportionate, and equal sentences to criminal defendants. When the courts create new crime categories these goals are likely to be frustrated.
My second concern in this case is with the reason given by the majority for remand. In footnote 8, the majority states that remand is required because "it is doubtful that the trial judge would have exceeded the standard range by almost six times solely because the defendant would receive one-half of a 'free’ crime under the presumptive range”. Majority, at 58. While I concur in this result, I would remand because the sentence is clearly excessive. RCW 9.94A.210(4). This court has been reluctant to apply the "clearly excessive” standard since rejecting the "doubling” rule in State v. Oxborrow, 106 Wn.2d 525, 723 P.2d 1123 (1986). This phrase has essentially existed without definition and it is time for this court to provide some guidance to trial courts attempting to impose fair and reasonable sentences.
*62The Court of Appeals has observed in several opinions that the length of an exceptional sentence "cannot come out of thin air.’ ” State v. Barnes, 58 Wn. App. 465, 477, 794 P.2d 52 (1990) (quoting State v. Pryor, 56 Wn. App. 107, 123, 782 P.2d 1076 (1989), aff’d, 115 Wn.2d 445, 799 P.2d 244 (1990) (quoting State v. Wood, 42 Wn. App. 78, 84, 709 P.2d 1209 (1985), review denied, 105 Wn.2d 1010 (1986))), aff’d in part, rev’d in part, 117 Wn.2d 701, 818 P.2d 1088 (1991). Pursuant to RCW 9.94A.120(3), trial courts are presently required to make findings and conclusions in support of exceptional sentences. The courts are not, however, required to indicate the reasons supporting the length of those sentences. Since it is likely that the length of the exceptional sentences now imposed is based on an articulable rationale, it makes sense to require the trial court to include those reasons in its conclusions.
This specific recommendation was made by the court in Pryor when it urged that the trial court be required to fully state the reasons "not only for imposing an exceptional sentence, but also for the length of the exceptional sentence imposed”. Pryor, at 122-23. As the court stated, "[t]he reasons in the record can then be reviewed in a meaningful way. At the appellate level, precise articulation and identification of those reasons is necessary for review.” Pryor, at 123.
The American Bar Association Criminal Justice Standards Committee also recognized the problems involved in appellate review when the record from the sentencing court fails to provide sufficient information. In its 1993 recommendations, the Committee proposed that trial courts be required to supply, among other things, the rationale underlying the length of exceptional sentences. Specifically, in Standard 18-5.19 the Committee stated:
(b) The rules should provide that a sentencing court, when imposing sentence, should state or summarize the court’s findings of fact, should state with care the precise terms of the sentence imposed, and should state the reasons for selection of the type of sanction and the level of severity of the sanction in the sentence.
*63(i) The statement of reasons may be relatively concise when the level of severity and type of sanction are consistent with the presumptive sentence, but the sentencing court should always provide an explanation of the court’s reasons sufficient to inform the parties, appellate courts, and the public of the basis for the sentence.
(Italics mine.) American Bar Association Standards for Criminal Justice: Sentencing Alternatives and Procedures and Appellate Review of Sentences, Standard 18-5.19, Imposition of sentence.
As long as there is a role for the appellate courts to play-in determining the reasonableness of an exceptional sentence, the court must find a mechanism for evaluation. As it stands now, there is no reason to find that any exceptional sentence, based on any proper aggravating factor, is "clearly excessive” as long as it does not exceed the statutory maximum. Assuming this court sees an obligation to continue reviewing the length of exceptional sentences, it is imperative that meaningful guidelines be developed.
The difficulty involved in appellate review when the trial court fails to include the reasons for imposing a. particular lengthy sentence was highlighted in the recent Court of Appeals decision in State v. Elsberry, 69 Wn. App. 793, 850 P.2d 590 (1993). In Elsberry, the court reversed a. sentencing decision which exceeded the standard range by eight times. In doing so, the court observed that the trial court had not explained why it had imposed a term of imprisonment for second degree assault equivalent to a standard range sentence for first degree assault. Elsberry, at 797. While the sentencing court had indicated a legitimate basis for imposing an exceptional sentence, in the absence of reasons explaining the length of the exceptional sentence, the Court of Appeals was left to conclude that the trial court had simply disagreed with the jury’s acquittal verdict on first degree assault.
A similar concern is present here. This court is left to speculate as to the reasons for the length of the sentence imposed here, one that is six times the standard range. While the majority’s remand deals with the immediate con*64cern, a sentence which is substantially out of proportion, it does not answer the problem when the trial court reimposes the same exceptional sentence based on the remaining aggravating factor(s).
While avoiding the strictures of the "doubling” rule, a requirement that the trial court state the reasons justifying the length of an exceptional sentence would not only assist the trial court in reaching a decision as to the appropriate length of the sentence, but also allow the appellate courts to begin defining "clearly excessive” and "clearly too lenient”. I would remand this matter for resentencing and require the trial court to articulate the reasons for the length of the sentence if it again elects to impose an exceptional sentence.
Utter and Johnson, JJ., concur with Madsen, J.
Reconsideration denied March 24, 1994.
depending on the circumstances of a threat or injury the defendant may well be charged with first degree burglary.
Where the Legislature has intended to distinguish seriousness levels of burglary based on the existence of a particular factor in the commission of that crime it has done so. The clearest example of this is the increased seriousness level for a residential burglary. RCW 9A.52.025(2). A burglary committed where occupants are present describes a discrete, easily identified conduct, similar to burglary of a residence, to which the Legislature could assign a greater seriousness level. However, the Legislature has not chosen to make this distinction and it is not the court’s role to act in its stead.