213-008-0002 Departure Factors (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). (2) If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the Crime Seriousness Scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime. (3) Any aspect of the current crime of conviction which serves as a necessary element of a statutory mandatory sentence may not be used as an aggravating factor if that aspect is also used to impose the mandatory sentence. (4) As used in this rule, “disproportionate impact” means: (a) The offender caused damage to property during the commission of the theft and the cost to restore the damaged property to the condition the property was in immediately before the theft is more than three times the value of the property that was the subject of the theft; or (b) The theft of the property creates a hazard to public health or safety or the environment. Statutory/Other Authority: ORS 137.667 Statutes/Other Implemented: ORS 137.667 - 137.669, SB 570 (2009), SB 124 (2013) & SB 577 (2019) History: CJC 2-2019, amend filed 12/19/2019, effective 01/01/2020 CJC 1-2014, f. 1-31-14, cert. ef. 2-3-14 CJC 2-2010, f. 6-30-10, cert. ef. 7-1-10 CJC 1-2010(Temp), f. & cert. ef. 4-15-10 thru 10-11-10 CJC 1-1996, f. 3-6-96, cert. ef. 3-8-96, Renumbered from 253-008-0002 SSGB 2-1993, f. 10-28-93, cert. ef. 11-1-93 SSGB 2-1989, f. 10-17-89, cert. ef. 11-1-89 SSGB 1-1989, f. 5-25-89, cert. ef. 9-1-89 SSGB 2-1988, f. 12-30-88, cert. ef. 9-1-89