(a) The trial court may deviate from the presumptive sentence without providing a written justification.

(b) (1) (A) When sentencing is done by the judge following the entry of a plea of guilty or nolo contendere or a trial before the judge, either party or both parties may present evidence to justify a departure.

(B) The judge may allow argument if he or she finds that it would be helpful.

(2)

(A) If both sides agree on a recommended sentence, the judge may choose to accept or reject the agreement based upon the facts of the case and whether those facts support the presumptive sentence or a departure different from any recommendation.

(B) If there is an agreed departure from the presumptive sentence, written reasons shall be supplied by the parties to the court to attach to the commitment and to forward to the Arkansas Sentencing Commission.

(C) If the judge rejects the agreement, the defendant shall be allowed to withdraw his or her plea.

(c) The following is a nonexclusive list of factors which may be considered as reasons for departure:

(1) Mitigating Factors.

(A) While falling short of a defense, the victim played an aggressive role in the incident or provoked or willingly participated in it;

(B)

(i) While falling short of a defense, the offender lacked substantial capacity for judgment because of physical or mental impairment.

(ii) Voluntary use of drugs or alcohol does not fall within this factor;

(C) The offender played a minor or passive role in the crime;

(D) Before detection, the offender compensated or made a good faith effort to compensate the victim for any damage or injury sustained;

(E) The offense was principally accomplished by another person, and the offender manifested extreme caution or sincere concern for the safety or well-being of the victim;

(F) The offender or the offender'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;

(G) The operation of the multiple offense policy results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter;

(H) Before detection in sexual offenses, the offender has voluntarily admitted the nature and extent of the sexual offense and has sought and participated in professional treatment or counseling for such offenses; or

(I) Upon motion of the state stating that the defendant has made a good faith effort to provide substantial assistance to the investigation or prosecution of another person who has committed an offense, the circumstances listed below may be weighed as mitigating factors with respect to the defendant's offense:

(i) The timeliness of the defendant's assistance;

(ii) The nature and extent of the defendant's assistance; and

(iii) The truthfulness, completeness, and demonstrable reliability of any information or testimony provided by the defendant; and

(2) Aggravating Factors.

(A) The offender's conduct during the commission of the current offense manifested deliberate cruelty to the victim exhibited by degrading, gratuitous, vicious, torturous, and demeaning physical or verbal abuse, unusual pain, or violence in excess of that necessary to accomplish the criminal purpose;

(B) The offender knew or should have known that the victim 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. This factor does not apply if it constitutes an element of the crime; or

(v) The defendant has been involved in other conduct similar to the current offense as evidenced by the findings of civil or administrative law proceedings or the imposition of professional sanctions;

(D) The offense was a major controlled substance offense, identified as an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual offense. The presence of two (2) or more of the circumstances listed below is an aggravating factor with respect to the offense:

(i) The offense involved at least three (3) separate transactions wherein controlled substances were sold, transferred, or possessed with intent to do so;

(ii) The offense involved an attempted or actual sale or transfer of controlled substances in amounts substantially larger than the statutory minimum which defines the offense;

(iii) The 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;

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

(v) The offender used his or her position or status to facilitate the commission of the offense, including positions of trust, confidence, or fiduciary relationships, for example, a pharmacist, physician, or other medical professional; or

(vi) The offender has received substantial income or resources from his or her involvement in drug trafficking;

(E) The offender employed a firearm in the course of or in furtherance of the felony or in immediate flight therefrom. This factor does not apply to an offender convicted of a felony, an element of which is:

(i) Employing or using, or threatening or attempting to employ or use, a deadly weapon;

(ii) Being armed with a deadly weapon;

(iii) Possessing a deadly weapon;

(iv) Furnishing a deadly weapon; or

(v) Carrying a deadly weapon;

(F) The offense was a sexual offense and was part of a pattern of criminal behavior with the same or different victims under the age of eighteen (18) years of age manifested by multiple incidents over a prolonged period of time;

(G) The operation of the multiple offense policy results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter;

(H) The offense was committed in a manner that exposed risk of injury to individuals other than the victim or victims, for example, shooting into a crowd;

(I) The offense was a violent or sexual offense committed in the victim's zone of privacy, for example, his or her home or the curtilage thereof;

(J) The offender attempts to cover the offense by intimidation of witnesses, destruction or tampering with evidence, or purposely misleading authorities;

(K) The offense was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody; or

(L) In offenses related to vehicular homicides, the offender does not have the minimum insurance required by law.

(d) This section shall not apply when a jury has recommended a sentence to the trial judge.

(e)

(1) For all arrests or offenses occurring before July 1, 2005, that have not reached a final disposition as to judgment in court, sentencing should follow the law in effect at the time the offense occurred.

(2) Any defendant is subject to the sentencing guidelines in effect at that time and not under the provisions of this section.