2906-S AMH KOHJ H4332.1

2906-S AMH KOHJ H4332.1

SHB 2906 - H AMD TO H AMD (H-4293.2/94) 1126 LOST 02/21/94

By Representative J. Kohl and others

On page 78, after line 4 of the amendment, insert the following:

"Sec. 503. RCW 9.94A.390 and 1990 c 3 s 603 are each amended to read as follows:

If the sentencing court finds that an exceptional sentence outside the standard range should be imposed in accordance with RCW 9.94A.120(2), the sentence is subject to review only as provided for in RCW 9.94A.210(4).

The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.

(1) Mitigating Circumstances

(a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.

(b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained.

(c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.

(d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.

(e) The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, was significantly impaired (voluntary use of drugs or alcohol is excluded).

(f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.

(g) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

(h) The defendant or the defendant's children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.

(i) The defendant is subject to adult criminal court jurisdiction pursuant to RCW 13.04.030(1)(e)(iv) and the court finds that the presumptive sentence is excessive in light of the defendant's age.

(2) Aggravating Circumstances

(a) The defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim.

(b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.

(c) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:

(i) The current offense involved multiple victims or multiple incidents per victim;

(ii) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;

(iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;

(iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.

(d) The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:

(i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so; or

(ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or

(iii) The current offense involved the manufacture of controlled substances for use by other parties; or

(iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy; or

(v) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement; or

(vi) The offender used his or her position or status to facilitate the commission of the current offense, including positions of trust, confidence or fiduciary responsibility (e.g., pharmacist, physician, or other medical professional); or

(e) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.127;

(f) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time; or

(g) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

NEW SECTION. Sec. 504. A new section is added to chapter 9.94A RCW to read as follows:

When the defendant is convicted of a crime the defendant committed when he or she was less than eighteen years old and the adult criminal court acquired jurisdiction over the defendant under RCW 13.04.030(1)(e)(iv), the court shall consider the defendant's age when sentencing the defendant and may impose an exceptional sentence below the presumptive range pursuant to RCW 9.94A.390(1)(i)."

EFFECT: If the adult court has jurisdiction over an offender because the juvenile was automatically considered an adult under the new "decline" standards, and the juvenile is convicted, the court must consider the juvenile's age at sentencing and may impose an exceptional sentence below the presumptive range if the court finds that the presumptive range is excessive in light of the offender's age. The same standards and caselaw that apply to imposition of exceptional sentences will apply to this provision. The difference between this provision and other mitigating factors is that the court must consider the juvenile's age at sentencing while the court may consider whether other mitigating factors exist.