(concurring) — I concur in the result. This is an aggravated crime. The facts of the case as set out in the majority opinion abundantly justify an exceptional sentence and indeed a severe exceptional sentence. Nonetheless, in my opinion, the sentence imposed is "clearly excessive". This opinion is based on the overall Washington sentencing grid for crimes, the standard range for the new crime of homicide by abuse created in response to the facts of this case,2 the facts in other child abuse cases, and the proportionality between the facts and the penalty. However, I am unable to say that no reasonable judge would impose such a sentence.3 Accordingly, under present law I am bound to concur in the result.4
Because of the importance of the standard of review of exceptional sentences, I briefly state my objections to the current standard that reviews the duration of an exceptional sentence only for an abuse of discretion. By definition, an abuse of discretion standard permits a wide range of sentencing. That width is illustrated by this case. The maximum sentence within the standard range would be 192 months. A sentence within the standard range would be nonreviewable. The actual sentence imposed, and now rendered nonreviewable in the majority opinion, is 720 months. The vast range of discretion is candidly acknowledged by the majority, at 864:
Stated otherwise, the "clearly excessive" prong of appellate review under the sentencing reform act gives courts near plenary discretion to affirm the length of an exceptional sentence, *874just as the trial court has all but unbridled discretion in setting the length of the sentence.
As Justice Goodloe prophetically observed, the practical effect of an abuse of discretion standard is to guarantee that an appellate court will rarely, if ever, overturn an exceptional sentence because of its length.5 The majority places the responsibility for this essentially uncontrolled discretion upon the Legislature. "This necessarily follows from the lack of a legislative definition of 'clearly excessive’ and from the abuse-of-discretion standard of review." Majority, at 864.
I find the term "clearly excessive" a fair and reasonable standard. No formula will dictate the results. It is a normal and essential function of appellate courts to give specific content to broad general terms such as "due process of law." The United States Supreme Court deals comfortably with the broad general standard of "cruel and unusual punishment1'.6 So too have the Washington courts. In State v. Fain,7 the Supreme Court held that a sentence of life imprisonment was cruel and unusual when imposed upon a person found to be a habitual criminal based on three convictions for minor offenses not involving offenses to persons or property. In State v. Ross,8 this court upheld a life sentence imposed on a person found to be a habitual offender based on seven convictions for offenses involving severe penalties.
This is analogous to the type of review that would be involved in deciding that in a given case, a sentence of 700 months is "clearly excessive" while a sentence of 600 months is not. In my view, it is the courts' responsibility to *875implement "clearly excessive" in light of the purposes of the SRA. Furthermore, it is the courts that chose the abuse of discretion standard, not the Legislature. A frequently stated test for abuse of discretion is a decision "no reasonable judge would have made"; State v. Nelson9 specifically applies this test to sentencing. The other classic formulation of the abuse of discretion standard is a decision that is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker.10 In the sentencing context, before reaching the issue of duration, tenable grounds and tenable reasons for the exceptional sentence have already been found. Therefore, the two formulas yield identical results: Is the sentence one that no reasonable judge would impose?
It is unfortunate that this formula has been adopted, as it focuses on the judge's mental state instead of the reasons for his decision. An experienced and reasonable trial judge does not suddenly become "unreasonable" on a particular day. He may make an erroneous or unreasonable decision, just as a normally prudent driver can be negligent and cause an accident. The true question is always: Do the facts and reasons given justify the result in question?
To emphasize the fallacy of this test for abuse of discretion, let me pose an unlikely hypothetical. A motion for reconsideration is made on the basis that the judge abused his discretion. In opposition to the motion, the affidavits of two recently retired superior court judges are filed, each one stating he has reviewed the facts and circumstances and he would make the same decision. The judge adheres to his decision and the matter is appealed. The Court of Appeals would be hard pressed to say that no reasonable judge would make such a decision in the face of the affidavits. But its responsibility for review does not evaporate. It retains the responsibility and authority to determine *876whether or not the facts and circumstances justify the decision.
Appendix 1 lists a number of reasons approved by appellate courts as justifying an exceptional sentence. Appendix 2 lists all reasons used by trial courts to justify an exceptional sentence, whether approved or not. The list of reasons, already long, continues to grow. By itself, this list of reasons is not out of harmony with the SRA. However, in conjunction with the absence of any appellate control over the duration of sentences, it becomes so. The majority finds no case reversing a sentence as clearly excessive because of duration. Majority, at 864. It accepts this with equanimity. To me it suggests that the appellate courts have effectively read "clearly excessive" out of the SRA.
Discretion in criminal sentences is a function of the number of reasons approved as justifying an exceptional sentence as one variable, and the approved durations of exceptional sentences as the other variable. With no control of duration, the total amount of discretion increases as new reasons are approved. The present standard for review of duration and the presently approved reasons together generate excessive individual discretion. The purpose of the SRA was to provide structure to the trial court's exercise of discretion, to promote uniformity in sentencing and, ultimately, to build a common law of sentencing.11 By requiring that punishment be "commensurate with the punishment imposed on others committing similar offenses",12 the SRA promotes the concept of proportionality. It encourages respect for law by requiring "punishment which is just".13 Under the current policy, once the threshold of an acceptable reason justifying an exceptional sentence is passed, the trial court is permitted "unbridled *877discretion" as to the duration of the sentence. This is not the purpose of the SRA.
In an ideal judicial world, the same defendant would receive the same sentence regardless of which of the 156 superior court judges presided. While that ideal cannot be achieved, the SRA is an effort to approach such ideal by structuring discretion, and should be interpreted to that effect. The abuse of discretion standard as applied to duration of exceptional sentences does nothing to realize this goal. Rather, it ensures that in the area of exceptional sentences, the judge before whom the defendant appears will make an enormous difference.
In my view, it is the responsibility of the appellate court to decide whether a sentence is "clearly excessive" by exercising its own judgment as to the relationship between the reasons given and the duration imposed; not by reference to what some hypothetical reasonable judge would not do. If a sentence of 20 years is imposed and the reviewing court finds the sentence to be "clearly excessive", it should say that 20 years is clearly excessive and that 15 years is appropriate in light of the reasons found by the trial court. This may seem strange, but once the duration of a sentence is regarded as a legal conclusion to be drawn from the reasons given, it will be recognized to be consistent with the appellate process.14
I find it hard to understand how a court could ever recognize a sentence as being clearly excessive if it does not have a standard of what is an appropriate sentence. Such a standard, if unexpressed, should be made explicit. An appellate court's announcement that a sentence of 20 years is not in its judgment "clearly excessive" furnishes much greater guidance to trial courts than simply holding that 20 years is not an abuse of discretion. Indeed, approving a sentence of 20 years using an abuse of discretion standard *878does not even establish if it is the maximum that could be imposed. It therefore provides no effective guidance.
Another problem exists. If an appellate court does find the duration of a sentence to be an abuse of discretion, how should the matter be handled? Is the case remanded with no specific direction as to the appropriate sentence? What is the trial judge to do? Except in the unlikely case where the appellate opinion has presented a genuinely new consideration, the trial court presumably remains of the same opinion. Surely the judge exercised his best judgment at the time he determined the original sentence. He now must guess how much to reduce the sentence in order to have it approved on a new appeal. No "correct" sentence exists. The trial judge must ask: Is a reduction of 10 percent what the appellate court had in mind? Or perhaps 20 percent? This indirect approach to establishing the appropriate sentence is not a satisfactory method of implementing the SRA.
A determination by three appellate judges as to the appropriate duration of an exceptional sentence represents the common agreement of three minds. Such sentences will presumably cluster around a narrower range than those of individual trial judges. Appellate judges are somewhat removed from the immediate impact of the trial and the community in which it took place. Such detachment should help ensure fairness and proportionality. In due course, there will be examples of analogous facts and durations to help structure the results. There will never be one demonstrably correct sentence. It will never be possible to say that 20 years is right and 21 years is wrong. The fact that it is a question of range rather than an exact number does not alter the appellate court's responsibility to independently determine a result appropriate to the reasons given by the trial judge.
Norms and patterns will develop. A trial judge will be able to compare the unique facts of his case with the facts *879of other cases, and then relate his sentence to other sentences which have been specifically approved at the appellate level. An abuse of discretion standard will never produce a common law of sentencing as to the duration of exceptional sentences. Appellate court determinations will. Having appellate court judges express their own judgment as to the appropriate duration by either affirming the exceptional sentence or reducing it to what they deem an appropriate length is new. But sentencing under the SRA is sui generis. In my judgment, the only way to structure sentencing in regard to the length of an exceptional sentence, and thus properly implement the SRA, is for the appellate court to accept this responsibility.
Appendix 1
Reasons for an Exceptional Sentence Approved on Appeal
* Reasons specifically listed as illustrative in RCW 9.94A.390
1. State v. Altum, 47 Wn. App. 495, 735 P.2d 1356, review denied, 108 Wn.2d 1024 (1987)
First Degree Rape, Second Degree Robbery
Standard Sentence Range: 98-130 months
Imposed Sentence: 480 months
Reasons Given: A. Excessive violence, brutality
B. Victim particularly vulnerable*
C. Repeated acts of forcible intercourse
2. State v. Armstrong, 106 Wn.2d 547, 723 P.2d 1111 (1986)
Second Degree Assault
Standard Sentence Range: 12-14 months
Imposed Sentence: 60 months
Reasons Given: A. Victim particularly vulnerable*
B. Multiple injuries
3. State v. Bernhard, 108 Wn.2d 527, 741 P.2d 1 (1987)
Second Degree Burglary
Standard Sentence Range: 4-12 months
Imposed Sentence: 4 months prison, 12 months drug rehabilitation
*880Reasons Given: A. Crimes resulted from addiction
B. Prior jail time did not affect behavior
C. Further incarceration would not affect behavior
4. State v. Butler, 53 Wn. App. 214, 766 P.2d 505, review denied, 112 Wn.2d 1014 (1989)
Second Degree Assault
Standard Sentence Range: 13-17 months
Imposed Sentence: 48 months
Reasons Given: A. Victim particularly vulnerable*
B. Multiple incidents upon the same victim
C. Injuries inflicted were very severe
D. Injuries could have been avoided
5. State v. Clinton, 48 Wn. App. 671, 741 P.2d 52 (1987)
First Degree Rape, First Degree Burglary
Standard Sentence Range: 67-89 months for first rape;
51-68 months for second and third rape
Imposed Sentence: 108 months for each rape consecutive, burglary sentenced concurrently
Reasons Given: A. Victim particularly vulnerable*
B. Deliberate cruelty*
C. Excessive brutality
6. State v. Davis, 47 Wn. App. 91, 734 P.2d 500, review denied, 108 Wn.2d 1029 (1987)
First Degree Assault, First Degree Robbery
Defendant was sentenced "outside the presumptive range"
Reasons Given: A. Deliberate cruelty*
B. Victim particularly vulnerable*
C. Defendant used a position of trust to facilitate the crime
7. State v. Davis, 53 Wn. App. 306, 766 P.2d 1120, review denied, 112 Wn.2d 1015 (1989)
Vehicular Homicide
Standard Sentence Range: 21-27 months
Imposed Sentence: 48 months
Reasons Given: A. Three other persons were injured
B. Defendant demonstrated disregard for the danger his chemical abuse causes
C. Failed rehabilitation
D. Danger to the public
*8818. State v. Dennis, 45 Wn. App. 893, 728 P.2d 1075 (1986), review denied, 108 Wn.2d 1008 (1987)
First Degree Kidnapping, First Degree Rape
Standard Sentence Range: 67-89 months
Imposed Sentence: 180 months
Reasons Given: A. Deliberate cruelty*
B.Purposeful, thought-out course of conduct
9. State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237, 749 P.2d 160 (1987)
Attempted Murder
Standard Sentence Range: 203.25-270.25 months
Imposed Sentence: 480 months
Reasons Given: A. Planning, sophistication of the crime
B. Deliberate cruelty*
C. Sentencing range does not provide adequate protection for society*
10. State v. Edwards, 53 Wn. App. 907, 771 P.2d 755, review denied, 113 Wn.2d 1002 (1989)
First Degree Rape (3 counts)
Standard Sentence Range: 72-96 months
Imposed Sentence: 156 months
Reasons Given: A. Nonamenability to treatment
B. Multiple incidents of abuse
C. Victims particularly vulnerable*
11. State v. Falling, 50 Wn. App. 47, 747 P.2d 1119 (1987)
First Degree Rape
Standard Sentence Range: 62-82 months
Imposed Sentence: 120 months
Reasons Given: A. Rape occurred at victim's residence
B. Defendant used a knife during a
C. Prolonged ordeal of sexual abuse
D. Continuing series of threats
E. Deliberate cruelty*
F. No remorse
12. State v. Fisher, 108 Wn.2d 419, 739 P.2d 683 (1987)
Indecent Liberties (2 counts)
Standard Sentence Range: 15-20 months (per count)
Imposed Sentence: 24 months (per count)
Reasons Given: A. Victim particularly vulnerable*
B. Multiple incidents
C. Position of trust
*88213. State v. Gamier, 52 Wn. App. 657, 763 P.2d 209 (1988), review denied, 112 Wn.2d 1004 (1989)
Second Degree Burglary, Attempted Second Degree Burglary
Standard Sentence Range: 43-57 months
Imposed Sentence: 108 months
Reasons Given: A. Multiple victims
B. High degree of sophistication
C. Unusually high offender's score
14. In re George, 52 Wn. App. 135, 758 P.2d 13 (1988)
Indecent Liberties, Second Degree Statutory Rape, Incest
Standard Sentence Range: 68-88 months
Imposed Sentence: 211 months
Reasons Given: A. Multiple incidents with each victim
B. Crimes were predatory and violent
C. Defendant not amenable to treatment
15. State v. Gunther, 45 Wn. App. 755, 727 P.2d 258 (1986), review denied, 108 Wn.2d 1013 (1987)
Delivering Cocaine
Standard Sentence Range: 12-14 months
Imposed Sentence: 24 months
Reasons Given: A. Quantity larger than for personal use*
B. Defendant possessed a firearm
16. State v. Handley, 54 Wn. App. 377, 773 P.2d 879 (1989)
Second Degree Possession of Stolen Property, First Degree
Rendering Criminal Assistance, First Degree Conspiracy
To Commit Robbery
Standard Sentence Range: 2-5 months, 13-17 months, 30.75-40.50 months
Imposed Sentence: 81 months
Reasons Given: A. Victim particularly vulnerable*
B. Defendant used a position of trust to facilitate the crime
C. Defendant knew there was a high probability of injury to the victim
17. State v. Harmon, 50 Wn. App. 755, 750 P.2d 664, review denied, 110 Wn.2d 1033 (1988)
First Degree Murder
Standard Sentence Range: 250-333 months
Imposed Sentence: 648 months
Reasons Given: A. Deliberate cruelty*
B. Multiple injuries
*88318. State v. Hernandez, 48 Wn. App. 751, 740 P.2d 374, review denied, 109 Wn.2d 1020 (1987)
First Degree Rape, First Degree Robbery
Standard Sentence Range: 86-106 months
Imposed Sentence: 159 months
Reasons Given: A. Deliberate cruelty*
B. Defendant invaded zone of privacy
19. State v. Hernandez, 54 Wn. App. 323, 773 P.2d 857 (1989)
First Degree Murder, First Degree Assault
Standard Sentence Range: Concurrent
Imposed Sentence: Consecutive (474 months)
Reasons Given: A. Deliberate and premeditated
B. Victims particularly vulnerable*
C. Presumptive sentence clearly too lenient*
20. State v. Holyoak, 49 Wn. App. 691, 745 P.2d 515 (1987), review denied, 110 Wn.2d 1007 (1988)
First Degree Assault
Standard Sentence Range: 93-123 months
Imposed Sentence: 246 months
Reasons Given: A. Victim particularly vulnerable*
B. Exceptional cruelty*
C. Future dangerousness
21. State v. McAlpin, 108 Wn.2d 458, 740 P.2d 824 (1987)
First Degree Robbery
Standard Sentence Range: 46-61 months
Imposed Sentence: 90 months
Reasons Given: A. Criminal history
B. Danger to the community
C. Sophisticated criminal
22. State v. Mejia, 111 Wn.2d 892, 766 P.2d 454 (1989)
Possession of Cocaine With Intent To Deliver
Standard Sentence Range: 12-14 months
Imposed Sentence: 30 months
Reasons Given: A. The largest seizure of cocaine in Yakima County history*
23. State v. Nordby, 106 Wn.2d 514, 723 P.2d 1117 (1986) Vehicular Assault
Standard Sentence Range: 6-12 months
Imposed Sentence: 16 months
Reasons Given: A. Victim particularly vulnerable*
B. Intention to commit crime
C. Seriousness of victim's injuries
*88424. State v. Olive, 47 Wn. App. 147, 734 P.2d 36, review denied, 109 Wn.2d 1017 (1987)
Unlawful Imprisonment
Standard Sentence Range: 3-8 months
Imposed Sentence: 14 months
Reasons Given: A. Victim particularly vulnerable*
B. Prior sexual offenses
C. Need for confined treatment
D. Threat to others
25. State v. Oxborrow, 106 Wn.2d 525, 723 P.2d 1123 (1986)
First Degree Theft, Violation of a Cease and Desist Order
Standard Sentence Range: 0-3 months, 0-12 months
Imposed Sentence: 180 months
Reasons Given: A. Major economic offense and
B. Involved multiple victims*
C. Monetary loss was greater than typical*
D. High degree of sophistication*
E. Defendant used a position of trust to facilitate the crime*
26. State v. Payne, 45 Wn. App. 528, 726 P.2d 997 (1986)
Second Degree Assault
Standard Sentence Range: 3-9 months
Imposed Sentence: 60 months
Reasons Given: A. Defendant forced victim to perform sexual acts
B. Victim particularly vulnerable*
C. Deliberate cruelty*
D. Risk to reoffend
27. State v. Ratliff, 46 Wn. App. 325, 730 P.2d 716 (1986), review denied, 108 Wn.2d 1002 (1987)
Second Degree Malicious Mischief
Standard Sentence Range: 0-3 months
Imposed Sentence: 6 months
Reasons Given: A. Deliberate maliciousness toward police
B. Pattern of similar convictions
C. Standard range not commensurate with the seriousness of the crime*
28. State v. Ratliff, 46 Wn. App. 466, 731 P.2d 1114 (1987)
Intimidating a Witness
Standard Sentence Range: 15-20 months
Imposed Sentence: 40 months
*885Reasons Given: A. Deliberate cruelty*
B. Invasion of the zone of privacy
C. Intention to cause mental anguish
29. In re Rolston, 46 Wn. App. 622, 732 P.2d 166 (1987)
Indecent Liberties
Standard Sentence Range: 12-14 months
Imposed Sentence: 20 months
Reasons Given: A. Victim particularly vulnerable*
B. Flagrant probation violations
C. Failure at rehabilitation
D. Lack of appreciation for damage caused
E. Danger to the community
30. State v. Shephard, 53 Wn. App. 194, 766 P.2d 467 (1988)
Indecent Liberties
Standard Sentence Range: 12-14 months
Imposed Sentence: 63 months (includes probation violation)
Reasons Given: A. Victim particularly vulnerable*
B. Sexual deviancy has not been cured by prior treatment
C. Danger to the community
31. State v. Smith, 49 Wn. App. 596, 744 P.2d 1096 (1987), review denied, 110 Wn.2d 1007 (1988)
Second Degree Possession of Stolen Property
Standard Sentence Range: 0-2 months
Imposed Sentence: 3 months
Reasons Given: A. First-time offender provision
32. State v. Stalker, 42 Wn. App. 1, 707 P.2d 1371 (1985), review denied, 107 Wn.2d 1018 (1986)
Attempting To Sell Marijuana
Standard Sentence Range: 1-3 months
Imposed Sentence: 12 months
Reasons Given: A. Major drug transaction involving a large area*
B. Amount of marijuana substantially more than necessary for personal use*
33. State v. Taatjes, 43 Wn. App. 109, 715 P.2d 1152, review denied, 105 Wn.2d 1020 (1986)
Manufacturing a Controlled Substance
Standard Sentence Range: 6-12 months
Imposed Sentence: 24 months
*886Reasons Given: A. Sophisticated drug enterprise*
B. Larger quantities than necessary for personal use*
C. Significant status in drug distribution system*
D. Prior history of drug violations*
34. State v. Tunnel, 51 Wn. App. 274, 753 P.2d 543, review denied, 110 Wn.2d 1036 (1988)
Statutory Rape, Indecent Liberties
Standard Sentence Range: 88-116 months
Imposed Sentence: 264 months
Reasons Given: A. Continuing pattern of conduct*
B. Children were seriously impacted by defendant's conduct
C. Multiple incidents, multiple victims*
D. Victims particularly vulnerable*
E. Defendant refused to acknowledge the severity of the offense
35. State v. Weaver, 46 Wn. App. 35, 729 P.2d 64 (1986), review denied, 107 Wn.2d 1031 (1987)
Vehicular Assault
Standard Sentence Range: 3-9 months
Imposed Sentence: 30 months
Reasons Given: A. History of alcohol abuse
B. Disdain for rehabilitation
C. Driving without insurance
D. Driving while intoxicated
36. State v. Wood, 42 Wn. App. 78, 709 P.2d 1209 (1985), review denied, 105 Wn.2d 1010 (1986)
Indecent Liberties
Standard Sentence Range: 15-20 months
Imposed Sentence: 30 months
Reasons Given: A. Defendant's age
B. Victim particularly vulnerable*
C. Prior conviction for incest
D. Defendant not amenable to treatment
37. State v. Woody, 48 Wn. App. 772, 742 P.2d 133 (1987), review denied, 110 Wn.2d 1006 (1988)
Indecent Liberties
Standard Sentence Range: 15-20 months
Imposed Sentence: 120 months
*887Reasons Given: A. Age of victim
B. Knowledge of consequences to victim
C. Future dangerousness
[[Image here]]
*888[[Image here]]
After modification, further reconsideration denied January 16, 1990.
Review denied at 114 Wn.2d 1020 (1990).
RCW 9A.32.055.
State v. Nelson, 108 Wn.2d 491, 740 P.2d 835 (1987).
State v. Altum, 47 Wn. App. 495, 735 P.2d 1356, review denied, 108 Wn.2d 1024 (1987); State v. Oxborrow, 106 Wn.2d 525, 723 P.2d 1123 (1986).
State v. Armstrong, 106 Wn.2d 547, 553, 723 P.2d 1111 (1986) (Goodloe, J., dissenting).
Stanford v. Kentucky,_ U.S _, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989); Penry v. Lynaugh, _ U.S _, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989).
94 Wn.2d 387, 617 P.2d 720 (1980).
30 Wn. App. 324, 634 P.2d 887 (1981), review denied, 96 Wn.2d 1027 (1982).
108 Wn.2d 491, 496, 740 P.2d 835 (1987).
79 Wn.2d 12, 26, 482 P.2d 775 (1971).
RCW 9.94A.010(3).
RCW 9.94A.010(2). See also D. Boerner, Sentencing in Washington § 2.5(a), at 2-31 (1985).
State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980); State v. Ross, 30 Wn. App. 324, 634 P.2d 887 (1981), review denied, 96 Wn.2d 1027 (1982).