¶1(concurring) — The majority's jurisdictional analysis and its determination that the trial court's findings are supported in the record are sound. I take issue with the majority's opinion however because it does not adequately take into account Supreme Court precedent elaborating what constitutes "substantial and compelling" circumstances justifying the imposition of an exceptional sentence.
¶2I do not fault the majority for concluding that State v. Laik, 62 Wn. App. 734, 815 P.2d 822 (1991), review denied, 118 Wn.2d 1011 (1992) and State v. Harper, 62 Wn. App. 69, 813 P.2d 593 (1991), review denied, 118 Wn.2d 1017 (1992), are distinguishable from the case at bar insofar as they reversed exceptional sentences "of which drug treatment was a part primarily on the basis that the sentences imposed did not meet the requirement that sentences be proportionate to the seriousness of the offense and the defendant's criminal history." Majority, at 797. For the reasons developed in the majority's opinion, those cases can indeed be distinguished on that basis.
¶3The flaw in the majority's reasoning is not one of commission but of omission. Although the majority's treatment of the requirement of "substantial and compelling" does not distort case law, it ignores a limitation expressly articulated by the Washington Supreme Court in State v. Estrella, 115
¶4*804Wn.2d 350, 798 P.2d 289 (1990). There, the court indicated that an exceptional sentence may be imposed only where the circumstances of the crime distinguish it from others within the same statutory category. Estrella, 115 Wn.2d at 359 (citing and elaborating State v. Pennington, 112 Wn.2d 606, 610-11, 772 P.2d 1009 (1989)).
¶5The majority characterizes Estrellaas decided on the following basis: "that the defendant had an offender score of 14 and that his standard sentencing range was 43 to 57 months, the court determined that the sentence imposed was inconsistent with the SRA's primary purpose of punishment." Majority, at 798 (citing Estrella, 115 Wn.2d at 359-60). That statement, although correct, is incomplete. Also weighty in the court's estimation was that the facts of that case did not distinguish it from others in the same statutory category. Estrella, 115 Wn.2d at 359. It is that aspect of Estrellawhich the majority ignores.
¶6The trial court articulated its reasons for imposing an exceptional sentence as follows: (1) the defendant is addicted to numerous drugs, including alcohol and cocaine, and that his prior and current criminal activity is directly related to his addiction and substance abuse dependency; (2) the defendant requires intensive inpatient treatment beyond that which is available in prison; (3) the defendant is amenable to long-term residential drug treatment, and has not received drug treatment in the past; and (4) a standard range sentence would not promote the State's interests in both punishing and rehabilitating the defendant to prevent his commission of future offenses. None of these reasons distinguish this crime from others in the same statutory category.
¶7That is not to say that on this record the trial court erred in deviating from the standard sentence range. The majority suggests as much when it indicates that the record supports a finding that the offense was principally committed through another person. See majority, at 800, referencing RCW 9.94A.390(l)(f). There is little doubt that the record would *805have permitted the trial court, by virtue of the mitigating circumstances attending the crime, to distinguish it from others within the same category, and thus to have properly imposed an exceptional sentence. RCW 9.94A.390 for example provides that the court in deviating from the standard sentence range may consider as mitigating factors the following:
(1) Mitigating Circumstances
(a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.
(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.
(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.
¶8The record here indicates that the participants in the offense were willing, that Gaines participated in the transaction in exchange for a "hit" of cocaine, and that Gaines was a mere conduit in a transaction principally consummated between two other individuals, the person who delivered the controlled substance and the undercover agent who received it. These mitigating circumstances, expressly contemplated by the statute, and manifestly present here, together with the majority's analysis distinguishing Laikand Harper, supply a more solid ground for affirming the trial court's disposition of this case.
¶9Review granted at 120 Wn.2d 1001 (1992).