(dissenting) — I dissent. I am unable to agree with the majority's decision to uphold a 5-year sentence under the Sentencing Reform Act of 1981 for the defendant's conviction of second degree assault. Such a sentence is "clearly excessive" in light of the sentences prescribed by the new sentencing act, and should be reduced accordingly.
Armstrong committed a second degree assault on a 10-month-old baby by throwing hot coffee on the infant and then dunking its feet in the boiling liquid. Such action constituted second degree assault, which requires an assault that causes "grievous bodily harm". RCW 9A.36.020(l)(b). The trial court quite properly elected to go outside the presumptive range, because the judge found, pursuant to RCW 9.94A.120(2), that "considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence." The court listed these factors in its findings of fact pursuant to RCW 9.94A-.120(3).
*553However, the analysis of the judge's sentencing decision should not end after an appellate court decides that an exceptional sentence was justified. The trial court must give the defendant a determinate sentence, RCW 9.94A.120(3), and this sentence is subject to meaningful appellate review. RCW 9.94A.210(4)(b) provides:
To reverse a sentence which is outside the sentence range, the reviewing court must find . . . (b) that the sentence imposed was clearly excessive or clearly too lenient.
The statute does not expressly state what is meant by "clearly excessive".
According to the majority's analysis, appellate courts would use an abuse of discretion standard of review. This standard would ensure that rarely, if ever, would an appellate court be able to overturn a sentence imposed by a trial court. Only one appeal in the history of this state has ever successfully overturned a sentence because the trial court abused its discretion. State v. Potts, 1 Wn. App. 614, 464 P.2d 742 (1969). Thus, meaningful appellate review which, pursuant to RCW 9.94A.210(6), "would provide guidance to sentencing judges and others in implementing this chapter and in developing a common law of sentencing within the state" would simply not exist under the majority's interpretation.
Furthermore, the purpose of the sentencing reform act, codified in the first section, "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". RCW 9.94A.010. While the presumptive range matrix offers quite a structured sentencing pattern for presumptive sentences, a very broad discretionary standard for review of exceptional sentences would defeat the purpose of the act once departure was justified. The sentencing of criminals outside the presumptive range would have no structure except that the sentence could not exceed the statutory máximums in RCW 9A.20.020.
*554Moreover, the majority's decision would defeat the first listed purpose of the sentencing reform act: "[T]hat the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history". RCW 9.94A.010(1). When the offense falls within the presumptive sentence range, then proportional punishment is guaranteed, as the sentencing matrix dictates within a few months, the total period of confinement the defendant will receive. This is not true when the offense justifies an exceptional sentence. What is a proper "proportional" sentence is difficult, if not impossible, to decide in the abstract. Guidance and structure must be given if the trial court can exercise whatever discretion it has in a meaningful way. An "abuse of discretion" standard would simply not provide such a structure, and sentences for similar crimes could vary widely owing to different trial courts' perceptions of what punishment is "proper" for a given offense.
To illustrate this point, without reference to other child assault cases, or other sentences for different offenses, it would be impossible to make a meaningful decision on what sentence to give Armstrong in this case. Even if we use the philosophy of the sentencing reform act and sentence Armstrong to punish him for his actions, no sentence — or even sentence range — becomes self-evident. Some point of comparison must be used. Therefore, it would be instructive to look at what crime the Legislature intended should give Armstrong 5 years in prison. For an offender score of 2, Armstrong would have had to commit a crime between class 9 (first degree robbery, first degree manslaughter, first degree statutory rape) and class 10 (first degree kidnapping, first degree rape) to justify 5 years. I find it virtually impossible to equate the actions of Armstrong with an individual who, with deliberate calculation, inflicts serious bodily injury when committing forcible rape.
This example shows that some definite structure must be given in exceptional sentences, and that Armstrong's sentence of 5 years is in fact "clearly excessive", when compared with the other sentences given in the sentencing *555reform act. Merely because this court feels that the presumptive sentences are too lenient does not justify the imposition of harsher sentences. Deciding sentence length is a legislative and not a judicial function. This court stated in relation to the Juvenile Justice Act of 1977:
A belief on the part of the judiciary that sentencing possibilities are inadequate goes to the wisdom of the dispo-sitional standards and cannot be enough to overcome the legislatively prescribed range of punishment.
State v. Bryan, 93 Wn.2d 177, 181, 606 P.2d 1228 (1980). If the Legislature has erred in setting too lenient sentences, then it is for the Legislature, and not the courts, to rectify the mistake.
The solution to the problem of what sort of sentence to give an individual such as Armstrong lies in this court's creating certain rules on what sentences aggravated crimes should presumptively receive. The trial court could have sentenced Armstrong to between 14 months and 10 years once it found aggravating circumstances, so clearly some standards are necessary. I would propose the following guidelines.
In order to receive the maximum sentence allowable for a crime under RCW 9A.20.021, a defendant must commit the worst possible offense which still would fall within the statutory limits of the particular crime in question. Here, Armstrong would have had to commit a second degree assault so heinous that this court could not contemplate a different assault which would be more severe. I do not believe this to be the case. Such a case only arises in very unusual circumstances, such as our decision in State v. Oxborrow, 106 Wn.2d 525, 723 P.2d 1123 (1986), in which a defendant charged with theft of an amount of over $1,500 actually stole millions of dollars from hundreds of persons.
Once the trial court has determined that the legislatively imposed maximum sentence does not apply, then the trial court should determine, exercising its sound discretion, how severe the aggravating factors were which justified an exceptional sentence, and the presence of any mitigating *556factors. Typically, two types of cases will result. There will be cases in which aggravating factors exist which do justify an exceptional sentence, but the crime does not call for a huge disparity between the presumptive range and the actual sentence imposed. Other cases will exist which, because of their outrageous and heinous nature, cry out for a sentence closer to the statutory maximum. No firm rule can exist to distinguish these types of offenses, but the distinction should be based on the nature of the offense committed versus the typical offense contemplated by the particular statute. As the common law develops regarding sentencing, the earlier decisions of trial courts, reviewed meaningfully by appellate courts, will also serve as a guideline for trial judges.
Cases which fit into this lesser aggravated range merit an exceptional sentence close to the presumptive range and, therefore, should not receive a sentence greater than twice the presumptive maximum. This would achieve proportional punishment based on the seriousness of the offense, would help structure the trial court's discretion, and would still leave the trial court substantial discretion in deciding the proper punishment based on the severity of the offense.2 Moreover, such a rule would not effectively repeal the sentencing guidelines set down by the Legislature after years of committee research, simply because this or any other court feels that the guidelines proposed were improper.
It seems to me that Armstrong fits into this category. While one cannot help but feel that this crime was truly aggravated because of the defenseless position of the infant, the assault undoubtedly could have been far more severe. Furthermore, Armstrong did care for the infant after the injury and voluntarily turned himself in to the police. These factors convince me that the trial court gave Arm*557strong a clearly excessive sentence of nearly five times the presumptive maximum, nearly the same sentence he would have received had Armstrong committed first degree rape. I would hold that this type of assault is one that fits into a lesser aggravated range, and that the trial court should resentence Armstrong to a maximum sentence of 28 months, twice the presumptive maximum. To do otherwise would defeat the proportional punishment purpose of the new sentencing reform act.
Utter, Dore, and Pearson, JJ., concur with Goodloe, J.
I recognize this rule should not apply to sentences of less than 1 year, because doubling such a short sentence may not achieve the aim of sentencing proportionate to the offense.