QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 374 Date: 2016 11 17 Docket: CRM 57 of 2016 Judicial Centre: Saskatoon BETWEEN: OREST STETS and HER MAJESTY THE QUEEN Counsel: Peter A. Abrametz for the appellant Cory M. Bliss for the respondent JUDGMENT SCHWANN J. NOVEMBER 17, 2016 INTRODUCTION [1] This is summary conviction appeal by the defence following trial in the Provincial Court. Mr. Stets was charged with five Criminal Code, RSC 1985, C-46, offences arising from incidents occurring on or about August 22, 2015 in Humboldt, Saskatchewan. The specific counts were as follows: (1) Count Obstructing peace officer contrary to s. 129(a) of the Criminal Code; (2) Count Dangerous driving contrary to s. 249(1)(a) of the Criminal Code; (3) Count Impaired driving contrary to s. 253(1)(a) of the Criminal Code; (4) Count Refusal to provide breath sample contrary to s. 254(5) of the Criminal Code; and (5) Count Assault on Sasha Stets contrary to s. 266 of the Criminal Code. [2] In decision rendered orally on March 21, 2016, the learned trial judge found Mr. Stets guilty of dangerous driving (Count 2) and assault (Count 5). Mr. Stets was acquitted of all other charges. [3] Mr. Stets received global sentence of $1,000 fine plus 18-months’ probation. The conditions of the probation order required Mr. Stets to attend personal counselling, including domestic violence programming, as directed to do so by his probation officer, and to have no contact with Sasha Stets except through third party for purposes of arranging access to his children. [4] On the dangerous driving conviction, three-month driving prohibition was imposed. [5] Mr. Stets appeals both conviction and sentence. [6] At the time of these offences, Mr. Stets and Sasha Stets resided together in spousal relationship in Humboldt, Saskatchewan. [7] Sasha Stets testified that on the day in question she returned home from work to find her husband drunk. In her words, “he was not very friendly” towards her and not very positive. She described her husband as being aggressive, smelling of alcohol and very agitated. [8] The complainant was not an overly cooperative witness. Indeed, she refused to repeat any conversation she had with the accused on the day of the offence based on spousal privilege set out in s. 4(3) of the Canada Evidence Act, RSC 1985, C-5. Nonetheless, Sasha Stets testified to what transpired on the day in question. She testified that Mr. Stets put his hand on her arm and then pulled her arm. She believes it was done on purpose. [9] Ms. Stets testified that she was scared by the incident and did not wish to provoke the appellant. She broke free from his grasp and left the house with their youngest child. She told him they were going to McDonald’s. As she travelled down residential street, Ms. Stets saw her husband in the rear view mirror of her vehicle. He was following her in another vehicle. As she put it, he started to “beam” her and push her towards the curb side of the road. She managed to park between two parked vehicles but was unable to exit because he had stopped beside her. [10] Ms. Stets initially testified that because there was one metre separating the two vehicles, she stopped her car and parked between two parked cars. When pressed for more details, Ms. Stets responded: He was so close that got very close, very tight to my car and didn’t let me proceed forward, so the only way out of the situation was to to veer to the right to avoid collision. (Transcript, T38, lines 10-12) [11] When asked which lane he was in when he forced her to the side of the road, she replied: In the in my lane. The same lane. In the same lane. He came and beamed my car and started forcing me off to the side. (Transcript T39, lines 16-17) [12] The Crown had Ms. Stets explain to the trial judge how the two cars were positioned by having her demonstrate with her hands. The following exchange then took place on T39, lines 36-41 and T40, lines 1-4 and 26-33 MR. BLISS: Okay. And so just for the record there, Your Honour saw what she was doing. It appeared as if she said her car then his car pulled up beside THE WITNESS: Yeah MR. BLISS: and, kind of, angled in front, pushing her to the side into to the parking spot. THE WITNESS: Yeah MR. BLISS: After after he was beside her, was she able to keep driving? A: No. No, couldn’t. had to park because he was driving parallel to me. And there was to to—too little room in-between his car and the parked cars, so had to park because otherwise there would have been an accident. And, secondly, saw that he wasn’t in adequate condition and –that’s why wanted to park as well. And was stressed out. [13] The complainant testified that each vehicle was travelling at about 20 km/hr and the two vehicles were less than one metre apart. [14] Ms. Stets testified that the parties were travelling in residential neighbourhood on two way street. There were no vehicles at the time of this incident and although children normally play in the neighbourhood, she testified none were present. STANDARD OF REVIEW [15] Pursuant to ss. 812(1)(d) of the Criminal Code, summary conviction appeals in Saskatchewan are heard and determined by the Court of Queen’s Bench. The powers of an appellate court as set out in s. 686 of the Criminal Code are made applicable to summary conviction appeals by virtue of ss. 822(1) of the Criminal Code. [16] An appeal brought by defendant may be allowed where the verdict is unreasonable and cannot be supported by the evidence, is based on wrong decision on question of law or on any ground if it is shown there was miscarriage of justice. The defendant’s appeal ought not be dismissed where, although not properly convicted on particular count, the accused was properly convicted on another count, or where legal error was made but no substantial wrong or miscarriage of justice occurred (ss. 686(1) and (2) of the Criminal Code). [17] With regard to the standard of review, this Court’s decision in Helm, 2011 SKQB 32 (CanLII), 368 Sask 115, provides helpful summary: 19 On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381; and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge's conclusion. See R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656. 20 On question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law unless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred. See R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659; and R. v. Henry (B.), 2006 SKQB 469 (CanLII), 286 Sask. R. 154. [18] The following issues are raised by this appeal: (1) Did the trial judge err in failing to give effect to implied consent and in adopting zero tolerance approach? Did the learned trial judge err in failing to apply the de minimis non curat lex principle and acquit the accused of the assault charge? (2) Did the learned trial judge err in finding that the manner in which the appellant drove was inherently dangerous? Are the facts as found by the trial judge capable of supporting the actus reus of dangerous driving? (3) If the conviction for assault is upheld, was the sentence of 18 months’ probation, coupled with the counselling condition and non-contact prohibition, disproportionate to the gravity of the offence? With regard to the dangerous driving offence, should driving prohibition have been imposed as part of the sentence? (1) Did the trial judge err in failing to give effect to implied consent and in adopting zero tolerance approach? Did the learned trial judge err in failing to apply the de minimis non curat lex principle and acquit the accused of the assault charge? [19] The appellant submits the trial judge erred in three respects. First, the trial judge failed to recognize the existence of implied consent in spousal relationships to limited form of touching. Instead, he argues, the learned trial judge simply adopted zero tolerance approach with respect to contact between spouses without consideration to the fact the parties were married and not strangers to each other. He submits they should be free to interact vocally, emotionally and even physically, within the bounds of reason. criminal conviction, he argues, is unreasonable and does not respect human nature, human emotions and the intimate nature of spousal relationship. The third argument is that the learned trial judge erred in failing to accept the defence of de minimis non curat lex and thereby erred in criminally sanctioning touching of trifling nature. [20] Analysis of all three arguments begins with the important observation that legal counsel for Mr. Stets chose not to cross-examine the complainant and conceded that all elements of an assault offence under s. 266 of the Criminal Code had been made out by the Crown. His argument before the trial judge was limited to the application of the de minimis principle because, he argued, the grabbing or touching was minimal and therefore not worthy of criminal sanction. [21] In order to convict an accused of assault, the Crown must prove beyond reasonable doubt that the accused intentionally applied force directly or indirectly to the complainant, the complainant did not consent to the force applied, and the accused knew that the complainant did not consent. Force includes any physical contact with another person, whether violent or gentle. There can be force without physical violence. To be an assault, the accused must apply the force intentionally against the complainant. An accidental touching is not the application of force. Consent is matter of the subjective state of mind of the complainant at the time the force is applied. The question is whether the complainant consented to the application of force. (David Watt, Watt’s Manual of Criminal Jury Instructions, 2d ed (Toronto: Carswell, 2015) 790-791) [22] Having conceded that all elements of this offence had been made out meant the defence acknowledged and admitted that the appellant’s use of force was not mere touching, and that Ms. Stets did not consent to the application of force. Force must be more than minor touching but it does not require injury. Furthermore, since the absence of consent is one of the constituent elements of assault, one wonders how Mr. Stets can argue on appeal that the trial judge failed to take implied consent into account. Having conceded the absence of consent of any form actual, implied or otherwise the appellant cannot resile from that position on appeal. [23] It was open to the trial judge to accept or reject the evidence of Ms. Stets. Keeping in mind that Ms. Stets was not cross-examined at trial and her evidence went in unchallenged, the trial judge is entitled to considerable deference with respect to how she treated Ms. Stets’ testimony. [24] With regard to the appellant’s second argument, the suggestion that the learned trial judge failed to properly exercise discretion by blindly adopting zero tolerance approach to domestic assault without consideration to the circumstances or the seriousness of the assault is simply not borne out by the transcript. There is nothing in the transcript which suggests the trial judge took a zero tolerance approach in rendering her decision. This is simply the appellant’s interpretation of her decision. Furthermore, this line of argument does not appear to have been drawn to the attention of the trial judge at the time of trial. Finally, as mentioned, the accused conceded that all elements of the offence had been made out which necessarily includes the intentional application of force. [25] The appellant’s final argument is that the trial judge erred in not applying the de minimis non curat lex principle. [26] The trial judge correctly identified the law in Saskatchewan in relation to this principle. She began by noting that while the application of the de minimis non curat lex defence to criminal law remains in some state of uncertainty, this Court’s decision in Wiebe, 2001 SKQB 389 (CanLII), 211 Sask 30 [Wiebe], appears to have adopted it and therefore it continues to be good law in Saskatchewan. The trial judge referenced para of Wiebe in support of her conclusion: The case law establishes that in certain circumstances while the conduct complained of may satisfy the technical elements of assault, it may be so trivial or trifling that it should not attract sanctions. By another approach, the question is whether or not the conduct of the accused is sufficiently serious that it should properly be stigmatized as criminal, since the words trifling or trivial can convey pejorative message to the complainant which may not be warranted. An accused may be acquitted on de minimus [sic] grounds even though what happened is not considered to be “trifle” but is simply considered to be conduct that, while unacceptable and wrong, did not constitute criminal misconduct (citations omitted) [27] The trial judge concluded that even though she found the assault on Ms. Stets to be at the “low end”, on the facts before her she stated the assault fell outside of the de minimis range. Consequently, she held the defence was not open to the accused. take her comments to mean that she found as fact that the application of force by Mr. Stets on Sasha Stets to be more than trifling. [28] The appellant submits the trial judge erred in failing to interpret the facts as amounting to little more than “trifling” or incidental contact. He analogized it to mere grabbing of hand and pointed out there was no bruising to Ms. Stets. Moreover, he submits that the trial judge failed to appreciate that this “assault” was between spouses where minor incidental physical touching can be expected, and that minor incidental touching is nothing more than de minimis in nature not warranting criminal sanction. [29] This argument is little more than an appeal on the evidence. An appellant is entitled to challenge verdict on the basis that it is unreasonable and cannot be supported by the evidence, i.e. it is one that properly instructed judge and jury could not have reasonably reached. Although some re-examination and re-weighing of the evidence is allowed to determine if it was reasonably capable of supporting the trial judge’s conclusion, an appeal court judge cannot simply substitute its own view of the evidence from that of the trial judge. (R Power 2016 SKCA 29 (CanLII), para 57, 476 Sask 91) [30] The trial judge had the advantage of seeing and hearing Sasha Stets on the witness stand. It must be remembered that Ms. Stets was not cross-examined on her evidence and it went in unchallenged. The trial judge is therefore entitled to deference in her assessment of the evidence. [31] In Nagel-Joseph, 1999 CanLII 5351 (BC SC), trial judge’s failure to dismiss charges on the de minimis principle was advanced as ground of appeal. In considering the grounds for appellate intervention, McEwan J. observed as follows at para. 14: 14 …I am not entitled to re-weigh the evidence and to substitute my own opinion for that of the trial judge. am only justified in intervening in the trial judge's exercise of discretion if the trial judge misdirected himself or if his decision was so clearly wrong as to amount to an injustice (see: R. v. Carosella 1997 CanLII 402 (SCC), C.R. (5th) 139, S.C.C.). The application of the de minimis principle is, think, clearly an exercise of judicial discretion. [32] am satisfied the trial judge properly instructed herself on the law and that her findings of fact are supported by the evidence. The application of the de minimis principle is an exercise of judicial discretion and see nothing from the transcript which suggests that her discretion was improperly exercised on either the law or the evidence before her. [33] Quite apart from the reasons set out above, the observations in Carson (2004), 2004 CanLII 21365 (ON CA), 185 CCC (3d) 541 (Ont CA) from the Ontario Court of Appeal concerning the application of the de minimis principle to domestic violence situations are worth repeating. At para. 25 the court noted: 25 We would not give effect to this submission. Hinchey dealt with the acceptance of benefit by public servant. In that case, the Supreme Court of Canada explicitly did not decide on the applicability of the de minimus [sic] principle as defence to criminal culpability. Murdock concerned trafficking in controlled substance. Neither case involved the use of force or domestic violence. The extent of injuries resulting from the use of force, while an important factor, is not the sole determinative of the personal or societal interest in crime. The harm to society occasioned by domestic violence, even of minor nature, cannot be understated. [emphasis added] [34] I am satisfied the trial judge made no error on the de minimis issue. (2) Did the trial judge err in finding that the manner in which the appellant drove was inherently dangerous? Are the facts as found by the trial judge capable of supporting the actus reus of dangerous driving? [35] The appellant contends there was an insufficient evidentiary basis for the trial judge to have concluded that Mr. Stets’ driving was objectively dangerous. The complainant testified that both parties were driving slowly. According to Ms. Stets they were travelling at roughly 20 kilometres per hour or less. Although Mr. Stets was immediately beside her and cut her off, she stopped without incident. While Mr. Stets’ driving could be characterized as “impolite” and “influenced by some degree of passion”, the appellant submits it failed to rise to the level of marked departure from the norm. As the Crown bears the onus of proof, the appellant argues there must be sufficient evidentiary basis upon which the trial judge could have concluded that Mr. Stets’ driving was objectively dangerous. In his view, the evidentiary record falls short of meeting that mark. [36] The learned trial judge began her decision on the dangerous driving charge by instructing herself on the law by reference to Roy, 2012 SCC 26 (CanLII), [2012] SCR 60 [Roy]. As to the actus reas component, she cited the following passage from Roy: 28 ... The actus reus of the offence is driving in manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was marked departure from the standard of care that reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes marked departure from that norm. While the distinction between mere departure from the standard of care, which would justify civil liability, and marked departure justifying criminal punishment is matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [37] In assessing whether the actus reas of this offence had been made out on the evidence before her, the trial judge made the following findings of fact: In the present case, Ms. Stets testified that she was driving down the road when she noticed that the accused was following her. The accused was driving slowly, approximately 20 kilometres per hour or less. He started overtaking her, pushing her toward the side of the road. She managed to park between two parked cars and avoid collision. find that the accused’s driving behaviour, following Mrs. Stets while he was angry, coming within one metre of her vehicle, and deliberately cutting her off so that she was forced to the side of the road to avoid an accident, meets the criteria of driving in manner that is dangerous to the public. The Crown has proven the actus reus of the offence beyond reasonable doubt. (Transcript, T126, lines 21-29) [38] At para 34 of Roy, the court explains that the trier of fact must not focus on the consequences of the driving but on the risk presented by the manner of driving: 34 In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be meaningful inquiry into the manner of driving" ... manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. [emphasis added] [39] The Crown had to prove that Mr. Stets operated his motor vehicle in manner that was dangerous to the public considering the totality of the circumstances. The law requires (1) that the driving, viewed objectively, was dangerous to the public having regard to all the circumstances; (2) that the driving must be marked departure from the standard of care that reasonably prudent driver would observe in the accused’s situation; and (3) that there was no lawful justification, excuse or explanation for driving in such manner. [40] The word “public” refers to any users of the road including other motorists, cyclists, pedestrians, or passengers. This necessarily included Ms. Stets and their young child who accompanied her in the vehicle. [41] Section 249 of the Criminal Code directs trial judge to consider all circumstances, including: (1) the nature of the location where the driving took place; (2) the weather and road conditions at the location where the driving took place; (3) the use of the location where the driving took place; and (4) the amount of traffic that was actually there or that would reasonably be expected to be there. [42] As noted in Roy, in deciding whether Mr. Stets’ driving, viewed objectively, was dangerous to the public having regard to all the circumstances, the trial judge was required to focus on the manner of his driving, not on the consequences. [43] The trial judge also had to decide whether the Crown satisfied her beyond reasonable doubt that Mr. Stets’ driving was marked departure from the standard of care that reasonably prudent driver would observe in the same circumstances. Dangerous driving requires more than simple carelessness. The driving must be marked departure from what is expected of reasonably prudent driver in similar circumstances. momentary lapse in attention to circumstances where the accused’s manner of driving up to that point has been proper in all other respects constitutes careless driving but does not, without more, constitute the crime of dangerous driving. momentary lapse in attention in those circumstances is “a departure” but not “a marked departure” from the conduct of reasonably prudent driver. [44] The trial judge found that Mr. Stets intentionally drove in a manner which he knew created a danger for others, and drove in a manner intended to scare Ms. Stets. She was entitled to conclude from the appellant’s intentional action that his conduct was a marked departure from the conduct expected of a reasonably prudent driver and not a momentary lapse. [45] The trial judge’s decision focussed primarily on the fact the accused overtook Ms. Stets’ vehicle and “pushed” her to the side of the road. In concluding this manner of driving was dangerous, the trial judge took into consideration these additional facts: Mr. Stets was angry, he came within one meter of the complainant’s vehicle, and he deliberately tried to cut her off. The evidence also shows that Ms. Stets was forced off the road to avoid collision. [46] Although the trial judge failed to comment upon other surrounding circumstances brought out in Ms. Stets testimony, the evidence shows that the incident occurred on residential two way street, and that, apart from the two parked vehicles, no other vehicles, pedestrians or children were present at the time of the incident. [47] Both Ms. Stets and her young daughter were in her vehicle and could potentially have been injured had the appellant struck her vehicle or forced it into one of the parked cars. In this respect Mr. Stets’ driving presented some degree of danger to the complainant and her daughter. Moreover, the location of where the incident occurred elevates the dangerous nature of the appellant’s actions. Mr. Stets drove in the other lane, parallel to Ms. Stets on two lane residential street. This was not an infrequently travelled country road. Since Mr. Stets drove parallel to the complainant, his driving could have presented danger for oncoming vehicles or for pedestrians. The fact he encountered neither is sheer luck, not acceptable driving. [48] This appeal is essentially an appeal on the facts. The appellant invites this Court to review and re-interpret the evidence and substitute its own view of the evidence from that of the trial judge. [49] The standard of review on an appeal on factual grounds is not whether the conclusion was correct, or even if an appellate court would have interpreted the evidence differently. The standard of review is whether there is evidence upon which trier of fact properly instructed could have reasonably reached the verdict she did. [50] Having reviewed and re-examined the evidence I am satisfied that although I may not have come to the same conclusion as the trial judge, the evidence was nonetheless reasonably capable of supporting the decision made by the trial judge. [51] The appeal from the dangerous driving conviction must also be dismissed. (3) If the conviction for assault is upheld, was the sentence of 18 months’ probation, coupled with the counselling and non-contact prohibition, disproportionate to the gravity of the offence? With regard to the dangerous driving offence, should driving prohibition have been imposed as part of the sentence? [52] The standard of review on appeals from sentence has become more deferential following the Supreme Court of Canada’s decision in Lacasse, 2015 SCC 64 (CanLII), [2015] SCR 1089. In L.V., 2016 SKCA 74 (CanLII), Ryan-Froslie J.A. summarized this new standard at paras. 72-74: 72 Lacasse emphasizes the long-standing notion that, within the limits of the law, sentencing judges have broad discretion to impose the sentences they consider appropriate. An appellate court may not intervene merely because it would have chosen different sentence than did the sentencing judge. 73 The standard of review for sentence appeals is deferential. In Lacasse, the Supreme Court indicated that: (a) an error in principle, failure to consider relevant sentencing factor or an erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only when the trial judge's decision in that regard had an impact on the sentence (at para 44) (b) court of appeal may not intervene simply because it would have weighed sentencing factors differently than the trial judge (at para 49); (c) court of appeal may not intervene on the ground that it would have put the sentence in different range or category. The choice of sentencing range or of category within range does not itself constitute reviewable error (at para 51); and (d) sentence may be demonstrably unfit even if the judge has made no error in imposing it (at para 52). 74 In the end, therefore, Lacasse indicates that an appellate court may substitute its own sense of an appropriate sentence for the one imposed by trial level court in only two circumstances. The first is when the sentence imposed by the trial level court is demonstrably unfit. The second is when the trial level court made an error in principle, failed to consider relevant factor, or gave erroneous consideration to an aggravating or mitigating factor and that error had an impact on the sentence. [53] An appellate court may substitute its own sentence where the sentence imposed by the trial judge was demonstrably unfit, where the trial judge made an error in principle, failed to consider relevant factor or gave erroneous consideration to an aggravating or mitigating factor and that error had an impact on sentence. [54] The appellant did not explain how the sentence imposed by the learned trial judge was demonstrably unfit, nor has he pointed to any error in principle, failure to consider relevant factor or erroneous consideration of an aggravating factor. In short, the appellant asks this Court to impose different sentence from the one imposed by the trial judge. [55] Absent an error of the type described, an appellate court may not intervene simply because it would have weighed sentencing factors differently than the trial judge. [56] Since no error has been identified, or for that matter is apparent from the record, there is no basis to intervene with the sentence imposed. The appeal from sentence is therefore dismissed. J. L.M. SCHWANN
HELD: The appeal as to the convictions and the sentences imposed was dismissed. The court found with respect to each issue that the trial judge had not erred: 1) the defence had acknowledged the appellant had used force and that his spouse had not consented to it. Therefore the appellant could not argue on appeal that the trial judge failed to take implied consent into account. The trial judge was entitled to accept the spouse’s testimony as she was not cross-examined at trial. There was nothing in the transcript that showed the trial judge took a zero tolerance approach. The trial judge found that defence of de minimis was not open to the appellant based on her finding that the application of force by the appellant was more than trifling. On appeal, the court could not substitute its view of the evidence from that of the trial judge; 2) the trial judge found that the appellant intentionally drove in a manner that he knew created a danger for others and to frighten his spouse. She was entitled to conclude the appellant’s conduct was a marked departure from that expected of reasonably prudent driver. The evidence was reasonably capable of supporting her decision; and 3) the appellant had not identified how the trial judge had erred on any of the grounds an appeal court could consider. It was not open to it to intervene only because it would have weighed sentencing factors differently from the trial judge.