¶1dissenting: I agree that we are to strictly scrutinize this dispositional departure sentence because it is based upon an alleged aggravating factor divined by the State rather than enumerated by the legislature. I respectfully disagree that being the general of an army of thieves is a valid departure factor.
¶2Apparently, the premise underlying the State’s argument is that codefendants should receive disparate punishment for committing the same crime based upon their respective role in the criminal *648enterprise. The State contends that the defendant who conceives, plans, and directs a criminal activity is more culpable than the persons who execute the plan and actually commit the crime. This argument suggests that an aider and abettor should be more harshly punished than the principal actor.
¶3As the majority notes, the legislature specifically provided a means for the sentencing court to mete out different sentences to codefendants based upon relative culpability. Under K.S.A. 2003 Supp. 21-4716(c)(l), the district court is permitted to downwardly depart based upon the mitigating factor that the offender had a minor or passive role in the crime. Unlike the majority, I do not read the specific inclusion of the mitigating factor as supporting an argument that we should further widen the disparity in sentencing between codefendants committing the same crime by also permitting an upward departure for the “leader and organizer” of the criminal enterprise. To the contrary, the fact that the legislature considered the concept of relative culpability and chose to include that reason in the mitigating factors, but not in the aggravating factors, cuts against the proposed creation of a “ringleader” upward departure. Cf. State v. Favela, 259 Kan. 215, 234-35, 911 P.2d 792 (1996) (the doctrine of expressio unius est exclusio alteñus applied to conclude the legislature must not have intended for the defendant’s young age to be a mitigating factor when the victim’s young age is an enumerated aggravating factor).
¶4Obviously, Martin’s enlistment of foot soldiers to effect his criminal scheme has subjected him to prosecution, as an aider and abettor, for each and every criminal act committed by his “gang.” However, with respect to each charge, I do not believe that Martin’s role as the leader, rather than the actor, constitutes a valid departure factor. The legislature is charged with the responsibility and invested with the sole authority to establish the punishment for acts it defines as criminal. A policy decision to impose harsher punishment upon the “brains” or “leader” of a group of criminals, based solely upon tire leader’s administrative role in the particular crime, should emanate from the legislature, not the judiciary. I would reverse and remand for imposition of the presumptive sentences.