(1) Subject to
the provisions of sections (2) and (3) of this rule, the following nonexclusive
list of mitigating and aggravating factors may be considered in determining
whether substantial and compelling reasons for a departure exist:
(a) Mitigating factors:
(A) The victim was an aggressor or
participant in the criminal conduct associated with the crime of
conviction.
(B) The defendant acted
under duress or compulsion (not sufficient as a complete defense).
(C) The defendant's mental capacity was
diminished (excluding diminished capacity due to voluntary drug or alcohol
abuse).
(D) The offense was
principally accomplished by another and the defendant exhibited extreme caution
or concern for the victim.
(E) The
offender played a minor or passive role in the crime.
(F) The offender cooperated with the state
with respect to the current crime of conviction or any other criminal conduct
by the offender or other person. The offender's refusal to cooperate with the
state shall not be considered an aggravating factor.
(G) The degree of harm or loss attributed to
the current crime of conviction was significantly less than typical for such an
offense.
(H) The offender's
criminal history indicates that the offender lived conviction-free within the
community for a significant period of time preceding his or her current crime
of conviction.
(I) The offender is
amenable to treatment and an appropriate treatment program is available to
which the offender can be admitted within a reasonable period of time; the
treatment program is likely to be more effective than the presumptive prison
term in reducing the risk of offender recidivism; and the probation sentence
will serve community safety interests by promoting offender
reformation.
(J) The offender's
status as a servicemember as defined in ORS
135.881.
(b) Aggravating factors:
(A) Deliberate cruelty to victim.
(B) The offender knew or had reason to know
of the victim's particular vulnerability, such as the extreme youth, age,
disability or ill health of victim, which increased the harm or threat of harm
caused by the criminal conduct.
(C)
Threat of or actual violence toward a witness or victim.
(D) Persistent involvement in similar
offenses or repetitive assaults. This factor may be cited when consecutive
sentences are imposed only if the persistent involvement in similar offenses or
repetitive assaults is unrelated to the current offense.
(E) Use of a weapon in the commission of the
offense.
(F) The offense involved a
violation of public trust or professional responsibility.
(G) The offense involved multiple victims or
incidents. This factor may not be cited when it is captured in a consecutive
sentence.
(H) The crime was part of
an organized criminal operation.
(I) The offense resulted in a permanent
injury to the victim.
(J) The
degree of harm or loss attributed to the current crime of conviction was
significantly greater than typical for such an offense.
(K) The offense was motivated entirely or in
part by the race, color, religion, ethnicity, national origin, gender identity
(as defined in ORS 166.155), or sexual orientation
of the victim.
(L) Disproportionate
impact (for Theft I under ORS
164.055, and Aggravated Theft I
under ORS 164.057).