R. v. K.S., 2019 NLCA 74

K.S. (appellant) v. Her Majesty the Queen (respondent) (19/26) Indexed As: R. v. K.S. 2019 NLCA 74 5 C.A.N.L.R. 185 Court of Appeal of Newfoundland and Labrador Welsh, White and Hoegg JJ.A. December 2, 2019

Summary: K.S. was convicted of sexual assault and sentenced for 4.5 years imprisonment. K.S. appealed against the conviction, arguing that thetrial judge erred, in the assessment of credibility, by applying a different standard with regards to the complainant’s evidence whencompared to that of K.S. and other defence witnesses. K.S. also alleged that the trial judge erred by referring to the complainant’s priortestimony at the preliminary inquiry and prior statements she had made to the police.

K.S. also appealed against the sentence, arguingthat the trial judge misapprehended the evidence regarding aggravating factors and failed to properly consider mitigating factors. Held: Appeal dismissed. Welsh J.A. (White and Hoegg JJ.A. concurring): No basis on which to conclude that the trial judge erred by subjecting the complaint’sevidence to a less stringent standard of assessment than he applied to the evidence of the defence.

The trial judge took care to assess theevidence of each witness, reviewed the relevant law, and provided cogent reasons for rejecting the evidence of each defence witness andaccepting that of the complainant (paragraphs 7-12). The trial judge did not err by using the complainant’s prior statements for the truth of its contents; the prior statement was consistentwith the complainant’s testimony at trial and was referenced for the purpose of responding to defence counsel’s submission.

To theextent that the trial judge erred by referring to the complaint’s testimony from the preliminary inquiry and the complaint’s statement topolice, that error had no effect on the guilty verdict. There was no basis on which to set aside the trial judge’s determinations that theoffence of sexual assault had been proven beyond a reasonable doubt (paragraphs 13-28). The trial judge did not err by finding that K.S. was in a position of trust in relation to the complainant; there was ample evidence tosupport this finding.

As such, the trial judge did not err in considering this as an aggravating factor in determining the appropriatesentence (paragraphs 34-39). The trial judge did not err by failing to consider K.S.’s positive pre-sentence report. The trial judge considered the mitigating factors setout in the pre-sentence report, including the assessment of K.S.’s likelihood to re-offend and his lack of a prior criminal record. There was no basis on which to conclude that the trial judge’s weighing of the mitigating factors wasunreasonable.

As such, there was no basis on which to interfere with the trial judge’s sentencing decision (paragraphs 4-45). Cases cited: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 R. v. Mannion, (SCC), [1986] 2 S.C.R. 272 (S.C.C.) R. v. Cloutier, 2011 ONCA 484 R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 (S.C.C.)

R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 R. v. Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96 Statutes considered: Criminal Code , RSC 1985, c. C-46, sections 271 , 718.01 , 718.2 , 724(3) Counsel: Rosellen Sullivan, for the appellant; Kathleen O’Reilly, for the respondent. The appeal was heard on September 16, 2019 before Welsh, White and Hoegg JJ.A. The following judgment was filed on December 2, 2019 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] K.S. was convicted of one count of sexual assault contrary to

section 271 of the Criminal Code , and sentenced to four and one- half years imprisonment. He appeals against the conviction on the basis that the trial judge erred regarding use of the complainant’s testimony at the preliminary inquiry and statements she made to the police. K.S. also appeals against the sentence, and submits that, if the conviction is upheld, a sentence of three and one-half years imprisonment should be substituted on the basis that the trial judge misapprehended the evidence regarding aggravating factors and failed to take account of mitigating factors.

BACKGROUND [ 2 ] In an oral decision on January 11, 2019, K.S. was convicted of one count of sexual assault, alleged to have been committed between January 1 and December 31, 2009, contrary to

section 271 of the Criminal Code . At the time, the complainant was fifteen to sixteen years of age. K.S. was in a common-law relationship with the complainant’s step-mother. (The complainant’s father, before his death, had been in a relationship with the complainant’s step-mother. Together, they had three children. It was after the complainant’s father’s death that K.S. commenced a relationship with the complainant’s step-mother.

For convenience, I will refer to the complainant’s step-mother as her mother.) [ 3 ] While K.S. was renovating a house in another community for the use of the two families, the complainant chose to move with K.S. and his two children to the house that was being renovated, while the complainant’s mother stayed in her house with the other children pending completion of the renovations. The trial judge concluded that it was during that time that the offence of sexual assault, with three incidents of intercourse, was committed.

ISSUES [ 4 ] At issue in the appeal against conviction is (1) whether the trial judge erred by referring to prior statements made by the complainant to police officers and in her testimony at the preliminary inquiry; and (2) whether, in assessing their credibility, the judge applied a different standard regarding the complainant’s evidence compared to that of K.S. and other defence witnesses. [ 5 ] At issue in the appeal against sentence is whether the trial judge erred by (1) misapprehending the evidence relating to aggravating factors; and (2) failing to recognize mitigating factors.

ANALYSIS Appeal Against Conviction [ 6 ]

Section 271 of the Criminal Code , which establishes the offence of sexual assault, provides, in relevant parts: Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; … Assessing Witnesses’ Credibility [ 7 ] In convicting K.S. of one count of sexual assault, in his oral decision, the trial judge reviewed the law and the evidence, and addressed the question of credibility in respect of the several witnesses. Regarding the complainant, he concluded:

I do accept the complainant’s evidence notwithstanding a few inconsistencies. She was straightforward in her assertions. Despitevigorous and extensive cross-examination, she spoke with clarity and integrity and without embellishment about the sexual assaultivebehaviour of [K.S.] towards her. [8] Regarding inconsistencies in the complainant’s evidence, the judge recognized that the incidents had occurred nine years earlier,and that the complainant had “some difficulty recalling some of the details”.

However, the judge was satisfied that the inconsistencieswere not sufficiently serious so as to affect the complainant’s credibility. He concluded that three incidents of sexual intercourse andseveral incidents of touching for a sexual purpose had been established. [9] The judge considered the evidence of each defence witness. He found the evidence of K.S.’s friend, B.H., not credible. Rather,the judge concluded that that witness “played loosely with the truth”, and “appeared too enthusiastic to champion the accused’s cause”.

He dismissed as incredulous B.H.’s testimony that he was virtually always in K.S.’s presence, making it impossible for K.S. to haveassaulted the complainant. [10] The trial judge also dismissed the testimony of the complainant’s mother. He concluded that the complainant’s mother had “aninterest in the outcome” and had “reason to give evidence more favourable to the accused”.

To the extent that her mother’s evidence wasinconsistent with that of the complainant, the judge accepted the latter, concluding that the complainant’s mother was “not beingtruthful”. [11] Regarding K.S.’s evidence, the judge concluded: The accused’s assertion that [B.H.] was always present during the [renovations] is not believable, nor is his assertion that he and [thecomplainant] never watched TV together. That is not reasonable in that place and under those circumstances. Most importantly, hisdenials of impropriety with [the complainant] sounded hollow.

I find that [K.S.’s] evidence of denial is not believable. As recognized by the Supreme Court of Canada in R. v. Gagnon [2006 SCC 17],again, “Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of the event”. See also R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paragraph 26. [12] In

summary, K.S. has not provided a basis on which to substantiate his submission that the judge subjected the complainant’sevidence to a less stringent standard of assessment than he applied to the evidence of the defence. It is clear from reading the decision asa whole that the trial judge took care to assess the evidence of each witness. He reviewed relevant law and provided cogent reasons forrejecting the evidence of each defence witness and accepting that of the complainant.

Prior Inconsistent Statements [13] In addition, K.S. submits that the trial judge erred in his use of the complainant’s statements to the police and her testimony at thepreliminary inquiry. During the complainant’s cross-examination, the transcription of her two statements to the police and of herevidence at the preliminary inquiry were provided to the judge.

Counsel agreed that the statements would not be entered as exhibits andcould not be relied upon for the truth of their contents, but were to be used only to assist the judge in understanding the questions putduring cross-examination. [14] In the first passage relied upon by K.S., the issue is whether the judge erred by using the statement for the truth of its contentswhen he resolved an ambiguity which K.S. submitted was, in fact, a prior inconsistent statement. The use of a prior inconsistentstatement is discussed in R. v. Mannion, (SCC), [1986] 2 S.C.R. 272.

McIntyre J., for the Court, explained, at pages 277to 278: It has long been well settled in the criminal law of Canada that the prior inconsistent statement of a witness, when put to the witness incross-examination, may be used by the jury in assessing the credibility of the witness but may not be used as evidence of the truth of theinconsistent statement.

That is to say, the fact that the witness has made different statements on the same subject on an earlier occasionmay afford evidence that the witness is unreliable but it does not afford affirmative evidence which can be weighed against the accusedat his trial. Failure to warn a jury that such an inconsistent statement may be used only on the issue of the credibility of the witness,unless the witness has adopted the earlier statement as true, has been held to be reversible error … . [15] I would add a caution, succinctly expressed in R. v.

Cloutier, 2011 ONCA 484: [103] What the impugned references do illustrate is the danger of a trial judge accepting a copy of the preliminary inquiry transcript or aprior statement of a witness which is being used in cross-examination and which, of course, is not part of the evidence unless the priorstatement is specifically adopted by the witness.

If counsel wish to assist the trial judge, it is preferable to give the judge a copy of therelevant portions of the pages used in cross-examination only and with the portions of the page that are not to be referred to in cross-examination blacked out. [16] In this case, the complainant testified at the trial that there were three incidents of sexual intercourse, and that there were otherincidents of sexual touching.

In her short initial statement to Constable McRae, which was transcribed on one page, it was unclearwhether the complainant’s reference to “I don’t even know how many times, but probably at least a dozen” was a reference to incidentsof intercourse or touching.

Having been referred to that statement during cross-examination, but before a question had been put, thecomplainant, responded, “How many times he had bothered me, yes.” Defence counsel then pointed out the ambiguity to thecomplainant, suggesting that she actually meant to say there had been twelve incidents of intercourse: “Do you not hear that that appearsthat you’re making a statement that there were a dozen incidents of sexual – vaginal penetration?” The complainant replied, “Iapologize.

The first time I said any of that out loud in eight years (sic).” Cross-examination then moved on to another topic, withoutfurther clarification.

[17] In his oral decision, the judge commented on that issue, which had arisen both during cross-examination and during defencecounsel’s closing submissions: … I read her statement closely and my

interpretation is that what she was saying is that the behaviours in total occurred approximately12 times. … (Emphasis added.) [18] Reading the decision in context, it is clear that, in making the underlined comment, the judge was indicating his awareness ofdefence counsel’s position, put during closing arguments, that the complainant’s evidence at trial was inconsistent with what she toldConstable McRae, and that this undermined her credibility. However, the judge rejected that position. He was satisfied that there wasno inconsistency, just an ambiguity, which he resolved.

It was unnecessary for the judge to go beyond the passages used during thecomplainant’s cross-examination to reach that determination. [19] Further, this was not a case of using the passages for the truth of their contents, but rather, interpreting what the complainant hadsaid in her statement to Constable McRae to determine whether this resulted in an inconsistency with her testimony at trial, which wasthat there had been three incidents of sexual intercourse and other incidents of sexual touching. [20] Finally, there is no indication that the judge used the complainant’s prior statement, which he determined was not inconsistentwith her testimony at trial, in order to bolster her credibility.

His reference to the issue was for the purpose of responding to defencecounsel’s submission. Prior Consistent Statements [21] K.S. also submits that the trial judge erred by using the following statements from the preliminary inquiry and from thecomplainant’s statement to Constable Marrara for the truth of their contents in order to buttress the complainant’s credibility: … At the Preliminary Inquiry, the complainant said she never spoke to her mother after her mother was told by [S.] about what [M.] hadrelayed.

She confirmed her position at trial, but she said there was a phone call wherein her mother was screaming, but she was adamantthere was no conversation and she said the same thing in her statement to Constable McRae at lines 544 and 545. In my view, the complainant was consistent on that point. … (This was clearly a reference to the thirty-eight page statement taken by Constable Marrara; the reference to Constable McRae was inerror.) [22] I begin by noting that the referenced portion of the transcript was not put to the complainant during cross-examination, andshould not have been considered by the trial judge.

In referring to the complainant’s testimony at the preliminary inquiry and to herstatement to Constable Marrara, the judge was referencing prior consistent statements. [23] Consideration of a prior consistent statement is discussed in R. v. Dinardo, supra. Charron J., for the Court, explained: [36] As a general rule, prior consistent statements are inadmissible (R. v. Stirling, [2008] 1 S.C.R. 272, 2008 SCC 10).

There are twoprimary justifications for the exclusion of such statements: first, they lack probative value (Stirling, at para. 5), and second, theyconstitute hearsay when adduced for the truth of their contents. … [40] The Court of Appeal correctly concluded that the trial judge erred when he considered the contents of the complainant’s priorconsistent statements to corroborate her testimony at trial, noting in his judgment that [translation] “there is a form of corroboration in thefacts and statements of the victim, who never contradicted herself” (para. 68).

I am unable to agree with the majority, however, that theaccused suffered no prejudice from the trial judge’s improper use of the statements. The trial judge relied heavily on the corroborativevalue of the complainant’s prior statements in convicting Mr. Dinardo. He was clearly of the view that the complainant’s consistency inrecounting the allegations made her story more credible.

Accordingly, I would also allow the appeal on this basis. [24] As applied in this case, the fact that the complainant had given consistent testimony at the preliminary inquiry and in herstatement to Constable Marrara, could not be used by the judge to corroborate her testimony at trial. However, the judge’s commentmust be considered in the context of the trial and the decision as a whole. In assessing the complainant’s credibility, the judge wasconcerned with identifying inconsistencies.

In that context, he noted that the complainant had been consistent “on that point”. [25] The issue of whether the complainant had discussed assaults by K.S., directly or indirectly, with her mother and what reactionsthe issue engendered were the subject of both the complainant’s mother’s evidence and the complainant’s cross-examination. Thatevidence, including the above passage, though not used during cross-examination of the complainant, was referred to in defencecounsel’s closing argument.

It is important for counsel to be cautious not to refer to material in a complainant’s prior statement unlessthe statement is evidence. Otherwise it is akin to inviting the judge to consider material that is not evidence. In such circumstances, it isunderstandable that the judge referenced the issue in his decision.

In any event, without reference to the complainant’s prior statements,there was ample evidence at trial from both the complainant and her mother from which the judge could assess their credibility. [26] Further, whether the complainant had discussed the assaults with her mother and her mother’s reactions were not issues that werecentral to the trial judge’s decision.

Although defence counsel emphasized the issues, the complainant’s mother was not residing in thehouse when the assaults involving sexual intercourse took place. [27] Having reviewed the evidence and assessed the credibility of each witness, the judge applied the analytical approach set out in R.v. W. (D.), (SCC), [1991] 1 S.C.R. 742, engaged when the accused testifies. He gave reasons for rejecting the evidence

of K.S. and other defence witnesses and for accepting that of the complainant. The complainant’s testimony regarding communications with her mother was not central to his assessment of the complainant’s credibility or to his conclusion that the charge had been proven beyond a reasonable doubt. [ 28 ] In the result, to the extent that the trial judge erred by referring to the above passage from the preliminary inquiry and the complainant’s statement to Constable Marrara, I am satisfied that the error had no effect on the verdict.

There is no basis on which to set aside the trial judge’s determination that the offence of sexual assault had been proven beyond a reasonable doubt. Appeal Against Sentence [ 29 ] K.S. appeals against the sentence of four and one-half years imprisonment on the basis that the trial judge erred by (1) misapprehending the evidence relating to aggravating factors; and (2) failing to recognize mitigating factors. [ 30 ] Where a sentence is challenged on the basis of error by the trial judge, the guiding principle is set out in R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 .

Wagner J., for the majority, explained: [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence. [ 31 ] In imposing a sentence of four and one-half years imprisonment, the trial judge considered his findings at trial that the complainant was fifteen to sixteen years of age when she was sexually assaulted by K.S., involving “three separate incidents of sexual intercourse and several incidents of bodily contact for a sexual purpose”.

The judge found that K.S. was in a position of trust in relation to the complainant. The Crown had submitted a range of sentence of four and one-half to five years imprisonment, while defence counsel submitted a range of two and one-half to three and one-half years imprisonment. [ 32 ] In addressing the aggravating and mitigating factors in his oral decision, the judge stated: … The aggravating factors in this case: the intrusive nature of the sexual assault, it involved intercourse and it occurred on three different occasions. There were other occurrences of sexual assault involving touching and fondling.

The victim was a minor. The accused was approximately 15 years older than his victim. He was in a position of trust in relation to the victim. The accused continues to deny his actions. He has expressed no remorse and he has refused counselling. The mitigating factors are: [K.S.] does not have a prior criminal record. He is at [a] low risk to re-offend.

He cooperated in the completion of the pre-sentence report, and the pre-sentence report is for the most part positive. [ 33 ] After a review of cases, the trial judge explained: The punishment that I am imposing upon [K.S.] reflects the serious nature of the charge and society’s condemnation of his conduct. As directed by

section 718.01 [of the Criminal Code ], I am giving primary consideration to the principles of denunciation and deterrence. … Aggravating Factors – Position of Trust [ 34 ] K.S. submits that the Crown did not satisfy the burden of proving the aggravating factors beyond a reasonable doubt. Section 724(3) of the Criminal Code addresses the question of the Crown’s burden of proof: Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, … (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. [ 35 ] Application of those principles is succinctly stated in R. v.

Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96 , in the context of a jury trial: [18] … To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities … . [ 36 ] In this case, K.S. submits that the Crown did not prove beyond a reasonable doubt that he was in a position of trust in relation to the complainant.

In response, the Crown submits that, at the sentencing hearing, defence counsel conceded the relationship and referred to K.S. as a step-parent. At the sentencing hearing, then, the relationship was not a disputed fact, with the result that section 724(3) (

e) was not engaged. [ 37 ] On this appeal, it is not necessary to consider the extent to which it is open to K.S. to resile from his position on this point at trial because that was not the focus of the submissions on appeal. Rather, the Crown relies on its submission that, in any event, the fact of the

relationship was proven beyond a reasonable doubt by the evidence. [ 38 ] To that purpose the Crown relies on evidence of the relationship between K.S. and the complainant’s mother and the fact that the complainant was a minor at the time of the offences that involved sexual intercourse. The complainant’s mother, who described K. S. as her partner, lived with her children and K.S. and his children as a blended family. The intention was that, when K.S. completed the renovations to his house in another community, the blended families would live together.

The complainant was not a mere visitor, but was a member of the blended families in which the complainant’s mother and K.S. exercised the role of parents. The fact that the complainant chose to move before her mother to the house being renovated does not alter K.S.’s position of trust in relation to the complainant.

Nor would K.S.’s responsibility in relation to the complainant be altered by whether the complainant viewed him as a step- parent with authority over her. [ 39 ] In the result, I accept the Crown’s submission that there was ample evidence on which the judge could find beyond a reasonable doubt that K.S. was in a position of trust in relation to the complainant. Accordingly, the trial judge did not err in considering this as an aggravating factor in determining an appropriate sentence.

Mitigating Factors K.S. submits that the trial judge did not give consideration to his positive pre-sentence report, which the judge referred to as being “for the most part positive”, his lack of a criminal record, and his low risk to re-offend (paragraph 32, above). The judge, in fact, mentioned these factors in his oral sentencing decision. [ 40 ] A similar situation was addressed in Lacasse .

Wagner J., for the majority, explained that assigning weight to mitigating factors falls within the trial judge’s discretion: [77] My colleague is of the opinion that Judge Couture overemphasized the objective of deterrence (para. 145). He also maintains that Judge Couture made several errors of law by considering aggravating factors that were not really aggravating factors and by failing to consider some important mitigating factors, such as the respondent’s youth and the facts that he had expressed remorse, that he had no criminal record and that the presentence report was favourable to him ( ibid .).

For these reasons, my colleague “believe[s] the Court of Appeal was justified in intervening and reopening the analytical process in order to determine whether the sentence was just and appropriate” (para. 164). [78] Here again, I find that my colleague’s comments need to be qualified. Judge Couture did not fail to consider the mitigating factors in question (para. 33), but instead attached less weight to them because of the nature of the offence at issue, as the respondent himself acknowledges (at para. 29 of his factum). In short, what is being criticized is the weight the trial judge attached to those factors.

As I mentioned above, however, determining the weight to be given to aggravating or mitigating circumstances falls strictly within the sentencing judge’s discretion. The decision to weigh such factors in a given way is not in itself an error that opens the door to appellate intervention unless the weighing is unreasonable . (Emphasis added.) [ 41 ] In this case, the judge turned his mind to the mitigating factors identified by K.S.

While the judge did not explain his analysis in detail, I am satisfied that he considered the pre-sentence report, including the assessment of K.S.’s likelihood to re-offend, and his lack of a prior criminal record. The weight to be given to such factors was a matter for the trial judge. There is no basis on which to conclude that his weighing of the mitigating factors was unreasonable. Indeed, what K.S. submits is that the judge gave no consideration to those factors. [ 42 ] Further, the judge recognized the statutory mandate to give paramount consideration to the principles of denunciation and deterrence.

Section 718.01 of the Criminal Code provides: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 43 ] The trial judge also considered relevant parts of

section 718.2 of the Code : A court that imposes a sentence shall also take into consideration the following principles: (

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, … [ 44 ] In determining an appropriate sentence, the trial judge considered relevant case law and emphasized society’s abhorrence and condemnation of sexual assaults, especially involving intercourse, committed against children.

This applies particularly where the offender is in a position of trust in relation to the victim. [ 45 ] After reviewing case authority to determine the appropriate range of sentence, the judge considered all the circumstances. K.S. does not challenge the range of sentence which the judge found to be three to seven years imprisonment “for sexual assault of a minor involving sexual intercourse by a step-parent”. Rather, he submits that, in imposing a sentence of four and one-half years imprisonment the judge erred in his consideration of aggravating and mitigating factors.

In the absence of such error, as discussed above, and applying the principles set out in Lacasse , there is no basis on which to interfere with the trial judge’s sentencing decision.

SUMMARY AND DISPOSITION [ 46 ] In

summary, there is no basis on which to conclude that, in assessing the credibility of the witnesses, the judge applied a different standard to the complainant’s evidence as compared to that of K.S. and the other defence witnesses. [ 47 ] Further the judge did not err in the use of the complainant’s statement to Constable McRae, which the judge discussed in order to respond to defence counsel’s submissions. [ 48 ] Insofar as the judge erred by referring to the complainant’s prior consistent statements from the preliminary inquiry and her statement to Constable Marrara, as discussed above, the error had no effect on the verdict. [ 49 ] Finally, regarding the appeal against sentence, the trial judge did not err by misapprehending the evidence related to aggravating factors or by failing to take account of mitigating factors. [ 50 ] Accordingly, I would dismiss the appeal.

Appeal dismissed.