(dissenting) — The majority holds that a "complete absence of criminal history”, majority opinion, at 145, is a proper ground for an exceptional sentence. Such a result is contrary to the spirit and the letter of the Sentencing Reform Act of 1981 (SRA) and is not supported by Washington case law. Accordingly, I dissent.
It is important to note that the majority’s reasoning would permit an exceptional sentence if the victim had been killed, rather than injured. Indeed, even a person convicted of murder, who like Freitag had no criminal convictions, for this reason alone would be eligible for an exceptional sentence downward. On appeal the only issue would be whether the *150exceptional sentence was too lenient. Such a result is inconsistent with the structured sentencing of the SRA.
Freitag was a first-time offender.17 For such defendants the Legislature has conferred broad discretion on the trial court to impose sentences in most cases.18 The Legislature decided, however, that certain offenses, including vehicular assault, were so serious that the first-time offender option should not be available.19 It would be inconsistent with that legislative policy to hold that an absence of misdemeanor violations entitles the defendant to the same treatment available to a first-time offender when the Legislature has specifically provided that the option should not be available for the offense in question.
The majority fails to give effect to the Supreme Court’s holdings as to lack of criminal history. The Supreme Court has repeatedly stated that the lack of criminal history is not a mitigating circumstance justifying departure from the presumptive sentence.20 In State v. Rogers, 112 Wn.2d 180, 183, 770 P.2d 180 (1989), the court stated:
One finding was that "defendant has never before been convicted of a crime.” That fact does not justify an exceptional sentence. Because criminal history is one of the components used to compute the presumptive range for an offense, it may *151not be used as a mitigating factor. Such is the clear holding of State v. Pascal, 108 Wn.2d 125, 137, 736 P.2d 1065 (1987).
The majority’s reliance on State v. Nelson, 108 Wn.2d 491, 740 P.2d 835 (1987) to create an exception is not persuasive.21 The focus in Nelson is on RCW 9.94A.390(l)(d), "[t]he defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.” This is in essence a failed entrapment defense.22 The court held that the trial court was entitled to rely on the fact that Nelson’s codefendant, Moore, had planned the robberies and, hence, in some sense induced the crime. Under these circumstances, the court held the absence of police contacts "is appropriate for the sentencing judge to consider, in that it supports a finding that the defendant lacked the predisposition to commit the crimes.” (Italics mine.) Nelson, 108 Wn.2d at 498. In other words, lack of predisposition, a legislatively specified reason, was the key factor arid the lack of convictions was only evidentiary. In this case there was no such finding and there was no other person involved in the crime. There is nothing here resembling an entrapment offense. Hence, predisposition has little if any significance.
The majority rejects a "narrow” reading of Nelson. Majority opinion, at 141. The majority fails to note that Rogers, which contains an unequivocal statement that an absence of convictions does not justify an exceptional sentence,23 was decided after Nelson. This strongly supports limiting Nelson to its facts, where a codefendant was shown to have been the principal instigator, and Nelson cooperated with authorities to convict the codefendant.
*152Neither of those factors is present here. Freitag had no codefendant, and thus did not cooperate with the authorities to convict a codefendant. In fact, Freitag initially even refused to give a Breathalyzer sample. Moreover, Freitag was the instigator of this offense: there was no codefendant who encouraged Freitag to drink and then drive.
The majority concludes "that all 'O’ offender scores are not created equal”. Majority opinion, at 140. No statutory language or legislative history is cited to support that conclusion, and I reject it. The majority presumes the Legislature intended that a "0” offender score assumes some unspecified number of misdemeanor offenses which defendants would have, and accordingly, the absence of that mysterious number would be grounds for an exceptional sentence.
The majority acknowledges the lack of any counted criminal history cannot constitute a mitigating factor. Majority opinion, at 140. In other words, if Freitag had one uncounted misdemeanor, she would not be eligible for an exceptional sentence. The majority holds the difference between one uncounted misdemeanor and no misdemeanors justifies an exceptional sentence. I disagree. This distinction is too insubstantial to support the radical consequences of a departure from the standard range. If such a tenuous distinction is to be made, it certainly should be made by the Legislature, not the courts. In fact, the Legislature has impliedly rejected that distinction by providing that misdemeanors are not counted in offender scores, except for "serious traffic offense[s]”. RCW 9.94A.360C12).
The majority asserts that in State v. Roberts24 and other cases,25 this court has approved consideration of uncounted misdemeanors as constituting an aggravating circumstance. From that, the majority concludes by some logical symmetry or corollary that a complete absence of such convictions constitutes a mitigating circumstance.26
*153A brief review of the statutory mitigating circumstances, RCW 9.94A.390(1), will demonstrate their absence does not establish an aggravating circumstance. Likewise, review of the aggravating circumstances, RCW 9.94A.390(2), will demonstrate that their absence does not establish a mitigating circumstance. "The lack of an aggravating circumstance does not create a mitigating circumstance.” State v. Armstrong, 106 Wn.2d 547, 551, 723 P.2d 1111 (1986). There is no such logical corollary.27 To hold that uncounted misdemeanors may become an aggravating factor is inconsistent with treating the lack thereof as a mitigating circumstance only if you assume that a "0” offender score does not include a complete absence of convictions. If the majority’s position that the complete absence of misdemeanors constitutes a mitigating circumstance because the "0” offender score is to be understood as embracing some unspecified number of misdemeanors, then reliance on the presence of such misdemeanors as an aggravating circumstance would be incorrect.28
In the absence of a direct holding by the Supreme Court that a lack of any criminal convictions in and of itself constitutes a mitigating circumstance entitling the trial judge to impose an exceptional sentence, I choose to rely on the repeated statements of the Supreme Court that lack of criminal convictions is not a mitigating circumstance. I would limit Nelson to its precise facts, where the lack of convictions supports a finding that the defendant lacked a predisposition to commit the crime.
I believe the foregoing analysis is dispositive of this appeal. However, because the majority stated that the trial court’s findings should be considered as a whole, I will also analyze them.
Finding of fact 3 states:
The defendant has led a life where she has shown a concern for people beyond that normally shown by others. Her volun*154tary efforts made on behalf of others positively reflects on her character and the quality of life she has led.
There is no effort by the trial court to relate this finding to the philosophy, or to any specific provision, of the SRA. This finding, insofar as it is offered as a reason for a departure from the standard range, implicitly depends on the principle that we punish people for who they are and not what they do; the exact converse of the principles of the SRA. RCW 9.94A.340 explicitly states that the guidelines must be applied "equally to offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous record of the defendant.”29 It hardly need be said that "previous record” means previous criminal record and not the defendant’s general life history. Finding of fact 3 is not a substantial and compelling reason for an exceptional sentence.
The court’s finding of fact 4 reads as follows:
The Court believes that there are meaningful punishments that should exist in the law beyond a jail or prison term. There are ways to impose real sanctions on offenders in society other than putting them in jail and the Court acknowledges that restitution and community service hours provide such sanctions.
No effort is made to relate this to any section of the SRA or, indeed, to find any statutory or case law basis. As has been succinctly stated,
[t]he trial court’s subjective determination that these ranges are unwise, or that they do not adequately advance the above goals, is not a substantial and compelling reason justifying a departure.
State v. Pascal, 108 Wn.2d 125, 137-38, 736 P.2d 1065 (1987).
Determination of crimes and punishment has traditionally been a legislative prerogative, subject to only very limited review in the courts. State v. Monday, 85 Wn.2d 906, 540 P.2d 416 (1975); State v. Cerny, 78 Wn.2d 845, 480 P.2d 199 (1971); Hendrix v. Seattle, 76 Wn.2d 142, 456 P.2d 696 (1969). A belief on the part of the judiciary that sentencing possibilities are inadequate goes to the wisdom of the dispositional standards *155and cannot be enough to overcome the legislatively prescribed range of punishment.
State v. Bryan, 93 Wn.2d 177, 181, 606 P.2d 1228 (1980). As this court stated in State v. Harper, 62 Wn. App. 69, 78, 813 P.2d 593 (1991), review denied, 118 Wn.2d 1017 (1992):
We can empathize with judges who feel frustration with the sentencing options available. In this case the judge stated "I think we are letting ourselves get too impoverished by the options we choose to deal with serious and complex problems of criminal law violations in relation to long-standing addictions. I just think we have to try some of these other things.” This view is supported by a number of the materials cited by Harper in his brief. However, no matter how persuasive those arguments may be as a matter of policy, they must be addressed to the Legislature and not to the courts. . . . Our responsibility is to apply the SRA as written.
(Footnote omitted.) Finding of fact 4 is not a substantial and compelling reason for an exceptional sentence.
The trial court’s findings of fact 530 and 631 are implicitly based on RCW 9.94A.010, the SRA’s statement of purpose:
The purpose of this chapter is to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences . . . [the chapter] is designed to:
(1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender’s criminal history;
(2) Promote respect for the law by providing punishment which is just;
(3) Be commensurate with the punishment imposed on others committing similar offenses;
(4) Protect the public;
*156(5) Offer the offender an opportunity to improve him or herself; and
(6) Make frugal use of the state’s resources.
RCW 9.94A.010. Finding of fact 5 relies on subsection (5), the offender’s opportunity for improvement, and also on subsection (6), frugal use of the state’s resources. Finding of fact 6 relies on subsection (4), protection of the public, and also on subsection (1), proportionality.
The general statement of purposes cannot be relied upon directly as a basis for an exceptional sentence.32 In Pascal, 108 Wn.2d at 137, the trial court made the following findings:
(a) An exceptional sentence is justified to insure [that] punishment is proportionate to the offender’s criminal history, which in this case is zero.
Ob) Protection of the public must be considered, and Mary Louise Pascal does not pose a threat to the public.
(c) An offender is to be offered an opportunity to improve herself, and Mary Louise Pascal has demonstrated her ability and willingness to improve herself vocationally and educationally.
(d) Frugal use of the State’s resources must be considered and the imposition of institutional confinement would be contrary to this purpose.
These reasons are very similar to those accepted by the trial court here, and rejected by the Supreme Court in Pascal:
We note that these considerations, standing alone, would not justify an exceptional sentence. The first reason listed, the defendant’s criminal history, is one of the components used to compute the presumptive range for an offense under the sentencing reform act. Therefore, criminal history may not be counted again as a mitigating circumstance to justify departure from the range. The next three reasons are also inadequate. The Legislature has stated that the sentencing reform act was designed to promote several significant interests, including protection of the public, the need for rehabilitation, and the need to make frugal use of state resources. See RCW 9.94A.010(4), (5), (6). The presumptive sentence ranges established for each crime represent the legislative judgment as to how these interests shall best be accommodated. See D. Boerner, § 2.5(b), (c), (d). The trial court’s subjective determination that these ranges are unwise, or that they do not ade*157quately advance the above goals, is not a substantial and compelling reason justifying a departure.
(Citation omitted.) Pascal, at 137-38.
Aside from State v. Friederich-Tibbets,33 which I find unpersuasive for the reasons stated in my dissent in that case,34 there is simply no case cited which sustains an exceptional sentence merely by citing to the statement of purposes of the SRA in the absence of some factors inherent in the commission of the crime.
Taken in toto, the trial court’s findings indicate a belief the SRA should be amended. The majority improperly does so by its holding.
I would reverse and remand for sentencing within the standard range.
Judge Marshall Forrest was a member of the Court of Appeals at the time oral argument was heard on this matter. He is now serving as a judge pro tempore of the court pursuant to CAR 21(c).
" 'First-time offender’ means any person who is convicted of a felony (i) not classified as a violent offense or a sex offense under this chapter . . . who previously has never been convicted of a felony”. RCW 9.94A.030(20)(a)(i).
"In sentencing a first-time offender the court may waive the imposition of a sentence within the standard range and impose a sentence which may include up to ninety days of confinement in a facility operated or utilized under contract by the county and a requirement that the offender refrain from committing new offenses. The sentence may also include up to two years of community supervision. . ..” RCW 9.94A.120(5).
" 'Violent offense’ means:
"(a) Any of the following felonies, as now existing or hereafter amended: . . . vehicular assault . . .”. Former RCW 9.94A.030(33)(a). Any person convicted of a violent offense is, by definition, not a "first-time offender”. RCW 9.94A.030(20)(a)(i).
State v. Allert, 117 Wn.2d 156, 168-69, 815 P.2d 752 (1991); State v. Rogers, 112 Wn.2d 180, 770 P.2d 180 (1989); State v. Pascal, 108 Wn.2d 125, 736 P.2d 1065 (1987).
See majority opinion, at 139.
David Boerner, Sentencing in Washington § 9.12(c)(4) (1985).
"One finding was that 'defendant has never before been convicted of a crime.’ That fact does not justify an exceptional sentence. Because criminal history is one of the components used to compute the presumptive range for an offense, it may not be used as a mitigating factor. Such is the clear holding of State v. Pascal, 108 Wn.2d 125, 137, 736 P.2d 1065 (1987).” State v. Rogers, 112 Wn.2d 180, 183, 770 P.2d 180 (1989).
55 Wn. App. 573, 779 P.2d 732, review denied, 113 Wn.2d 1026 (1989).
See majority opinion, at 145 n.12.
See majority opinion, at 145.
State v. Alexander, 70 Wn. App. 608, 613, 854 P.2d 1105 (1993).
E.g., State v. Roberts, 55 Wn. App. at 579.
I doubt there have been or will be any sentences of 1 day in jail and 89 days’ community service for vehicular assault.
"The sentence imposed by the Court will enable the defendant to improve herself by service to the community and makes frugal use of state and local resources by alleviating the problem of jail overcrowding faced by local government.”
"The public will be protected because the defendant does not pose a threat to reoffend and the sentence helps further the purpose of the Sentencing Reform Act in that the punishment is proportional to the defendant's criminal history in the sense that defendant is totally lacking in criminal history, not just 'counted’ criminal history.”
State v. Pascal, 108 Wn.2d at 137-38, quoted with approval in State v. Gaines, 122 Wn.2d 502, 513, 859 P.2d 36 (1993); State v. Alexander, 70 Wn. App. at 615-17.
70 Wn. App. 93,853 P.2d 457 (1993), rev’d on other grounds, 123 Wn.2d 250,866 P.2d 1257 (1994).
Two panels of this court have declined to follow Friederich-Tibbets. See State v. Alexander, 70 Wn. App. at 617; State v. Hodges, 70 Wn. App. 621, 625, 855 P.2d 291 (1993).