concurring in part and dissenting in part.
We agree with Justice Martone’s analysis under Harmelin and Bartlett II and with his conclusion that DePiano’s sentence is not unconstitutionally cruel and unusual. We therefore join in that portion of his opinion designated “Part II. Cruel and Unusual Punishment.” Because we disagree with the majority’s decision to inject A.R.S. § 13-4037(B) into the case and to reduce DePiano’s sentence, we dissent from that portion of the opinion designated “Part III. Statutory Reduction.”
Colette Renee DePiano decided to kill herself and her two children on October 16, 1991. At the time, DePiano was experiencing financial problems and the breakup of a relationship. At approximately 2:00 a.m., DePiano placed towels along the base of the garage door at the house where she was staying. She got into her car with her children, Dustin (age three) and Dakota (age four), and started the engine. Fortunately, because the windows of the car were shut, the level of carbon monoxide in the car’s interior rose slowly. Before DePiano and her two children were overcome by the fumes, a concerned neighbor heard the car’s noise and alerted police. Responding officers entered the garage and rescued DePiano and the two children. Inside the ear, police found a note, quoted in the majority opinion (maj. op. at 31, 926 P.2d at 498). DePiano claimed at trial that she had attempted neither suicide nor murder but was merely repairing her car. She maintained she had closed the garage door so as not to disturb her neighbors and the ear’s engine was running only because she was testing her repair work. She claimed that the children were with her because they had been *33unable to sleep in the house. She explained that the towels along the garage door were there to limit the noise and because her children had been playing with them. Quite understandably, the jury rejected DePiano’s absurd explanations and convicted her of two counts of child abuse.
While the jury was out, DePiano fled the jurisdiction for a period of weeks. At sentencing, the trial court found that DePiano’s lack of a criminal record and the lack of physical injury to the children were mitigating factors. The judge found this mitigation counterbalanced by DePiano’s flight following the verdict. Therefore, the judge imposed the presumptive term: two consecutive seventeen-year sentences.
The constitutional issue of whether her sentence was cruel and unusual was the only issue raised by DePiano in her petition for review. Thus, disposition of that issue would ordinarily have disposed of the case. However, the majority chose to inject a new, second issue into the case and sua sponte asked the parties to brief that issue; namely, the availability of a sentence reduction under A.R.S. § 13-4037(B). This new issue is the vehicle by which the majority now reduces DePiano’s sentence. In addition to disagreeing with the decision to inject the new issue into this appeal, we disagree with the reduction of sentence for two reasons: 1) the majority finding of excessiveness is based on an unjustified construction of the child abuse statute and an improper appellate finding that DePiano suffered from depression; and 2) this case does not fall within the narrow range of cases in which Arizona appellate courts have historically invoked their statutory authority to reduce sentences under § 13-4037(B).
1. Is the presumptive term imposed by the trial court “excessive”?
A. “Typical” Child Abuse
In large part, the majority bases its conclusion that DePiano’s sentence is excessive on the notion that this case is not a “typical” case of child abuse because it did not involve “the evil, wicked, depraved or otherwise bad state of mind one associates with child predators.” See maj. op. at 31-32, 926 P.2d at 498-499. The majority’s error begins with its characterization of the nature of the crime. The majority opinion states: “Although her children were with her, the crime here is essentially a botched suicide.” Maj. op. at 31, 926 P.2d at 498. While it is clear that DePiano intended suicide, it is equally clear that she intended a double murder of her own children. She is not being sentenced for a “botched suicide.” She is being sentenced for her “botched” acts of child abuse by which she intended to kill her children, a result averted only through a neighbor’s watchfulness and prompt police intervention.
The majority also finds a legislative intent that we fail to discern in the statutory language or otherwise. A.R.S. § 13-3623(B) imposes substantial penalties on those who “having the care or custody” of a child, “intentionally or knowingly” place the child “in a situation where its person or health is endangered.” The majority acknowledges that DePiano violated the statute but asserts that the statute was intended to apply to cases involving “child predators,” which, we can only infer from the majority opinion, would involve the beating, torture, or molestation of children. See maj. op. at 31, 926 P.2d at 498. A “predator limitation,” which appeal’s nowhere in the statutory language, should not be grafted onto the statute by this court. The statute punishes caretakers who intentionally or knowingly place children in danger, and that is exactly what DePiano did.
The majority seems to suggest that sentencing under § 13-3623(B) should be based on some sliding scale of violence; if a person places a child in mortal danger without violence, she should receive a lesser punishment than one who otherwise places the child in the same mortal danger. We believe this conclusion, unsupported in the majority opinion by logic or precedent, is incorrect. A mother who cold-heartedly and with premeditation attempts to kill her children by asphyxiation, whether by suffocating them with a pillow, by poisoning them with car exhaust, or by putting them in a bag and dumping them in a public receptacle, is not, under the statute, less culpable than a mother who flies into a rage and beats her children. If there *34is a public policy favoring one or the other for sentencing purposes, it should be expressed by the legislature.
B. DePiano’s Depression and Despair
The majority, in deciding that this is not a “typical” case of child abuse, also concludes that what sets this case apart from “typical” cases is DePiano’s state of mind. See maj. op. at 31-32, 926 P.2d at 498-499. Though the majority acknowledges that “this court cannot engage in appellate sentencing,” it nevertheless does so.
The majority emphasizes that while “[n]either [DePiano’s] depression nor her despair excuse her guilt ... we believe it is so mitigating here that it sets this case apart from the norm.” Maj. op. at 32, 926 P.2d at 499. The majority makes this factual finding without having seen or heard DePiano’s testimony or that of the other "witnesses. It thereby overturns the sentencing decision made by the trial judge, who was in a far better position to make such a finding but did not. Because the majority reduced DePiano’s sentence based on its finding of depression and despair, we deal with that finding. This should not obscure the fact that it was inappropriate for the majority to make the finding in the first place.
The majority’s finding of “depression [and] despair” is erroneous for two reasons. First, depression and despair could be found by trial or appellate courts in most, if not all, child abuse cases, particularly those involving abuse of one’s own child. The very fact that a parent abuses his or her own child will nearly always raise a question of the emotional well-being of that parent. Surely, the legislature did not enact a legislative scheme with the intent that a mitigated sentence be the norm. As we explain shortly, we believe the majority’s conclusion that “depression [and] despair” motivated DePiano’s act is suspect based on this record. However, even if DePiano were depressed, the majority makes no effort to explain how this sets her apart from other child abusers, or why “depressed” or “despairing” child abusers should receive mitigated sentences.
Even assuming “depressed” child abusers should receive mitigated sentences, we disagree with the majority’s finding that DePiano was depressed, particularly when made, as it was here, as an initial matter on appeal. The majority uses DePiano’s suicide note, in which she directed a diatribe of blame and bitterness at those she felt were responsible for her misery, to show that this “sad incident” was “essentially a botched suicide” motivated by extreme “depression [and] despair.” See maj. op. at 31, 926 P.2d at 498. We disagree with this characterization. The letter reads, in part:
Your parents tell you your [sic] out of the house when your 18 — Your spouse leaves and believes he doesn’t need to pay child support____ To my Mom — You’ve instilled in me that raising children is a nightmare and all they do is grow up to resent you — That’s all the appreciation I get, huh, — a resentment — You don’t even call me! Boy that pisses me off — Jeff—I lived your life, your problems, your confusion — I loved you — what a waste — Jim—What a loser you are for not helping me with the boys ... you bastard____ They deserve more than what I can offer as a single income family.
The note, in our view, is at least as aggravating as it is mitigating. It shows that DePiano not only blames all those around her for her problems but that she was willing to kill her own children because of her financial woes and resentments.
Admittedly, the emergency room physician who saw DePiano described her as depressed. See state’s exhibit 26. The bare assertion that DePiano was acting depressed in the early morning hours following her suicide/infanticide attempt is hardly proof of her motivation before the attempt. It is not surprising or atypical that someone arrested for trying to murder her own children would act depressed. If we are to engage in fact-finding on appeal (an approach we wholeheartedly discourage), we need to look at all the evidence. When we do, it certainly does not show a dépressed mood either subjectively or objectively.
DePiano’s own testimony is that she felt fine during the period leading up to October 16, 1991. Her close friends did not report *35any moodiness but instead testified that she seemed “upbeat,” “normal,” and “fine.” Nor did DePiano withdraw from activity; she went out with her friends and co-workers the same night she attempted the killings. There is no evidence in the record of weight loss or gain, insomnia, psychomotor agitation, fatigue, or diminished ability to think which might support a finding of depression. Finally, DePiano’s note makes very clear that it was not she whom she considered worthless but everyone else; her mother, her ex-boyfriend, her ex-husband, and “the coldness and hate that goes on.” DePiano’s absurd defense only underlines her complete lack of remorse or understanding of the impact of her crime. This court should not engage in psychoanalytical guesswork to probe the minds of those who commit criminal acts in order to adjust, sua sponte, the sentences of someone whom this court now deems to show signs of “depression [and] despair.”
Nor should we follow a “no harm, no foul” approach to criminal law. Although the children suffered no immediate physical harm in this case, they would have been dead had DePiano’s plan been executed successfully. Criminal statutes contain many examples of crimes designed to deter conduct which may not result in physical injury but which, by their nature, expose citizens to unwarranted risk. Aggravated assault and armed robbery, just to name two examples, are crimes involving significant penalties even though a person convicted of those crimes might truthfully argue that no one suffered physical injury in the course of the offense. See A.R.S. §§ 13-1203 to -1204, § 13-1902. This court undercuts the policy of many criminal statutes by implying that sentences for crimes that do not result in immediate physical harm should be mitigated. Such an approach overlooks not only the express statutory language but the potentially devastating emotional impact such crimes may inflict on their traumatized victims. On this record, we know nothing of the non-physical damage to the children. We do know that it is only through the children’s good luck, the alertness of a neighbor, and the vigilance of the police that the children are alive today, whether emotionally scarred or not. Their survival owes nothing to their mother, the defendant.
2. Assuming the validity of the majority’s findings, is this court warranted in invoking its statutory power to reduce the sentence in this case?
It is evident that we disagree with the majority’s conclusion that DePiano’s crime was not of the “typical” sort envisaged by § 13 — 4037(13) and with the majority’s further conclusion that her presumptive sentence was inappropriate because she allegedly acted out of depression and despair. Even if the findings of the majority were correctly made at the appellate level, DePiano’s presumptive sentence should not be reduced under § 13-4037(B).
The majority concedes that we should use our power to reduce a sentence under A.R.S. § 13-4037(B) only with great caution. (Maj. op. at 31, 926 P.2d at 498, citing State v. Patton, 120 Ariz. 386, 388, 586 P.2d 635, 637 (1978); State v. Killian, 91 Ariz. 140, 142, 370 P.2d 287, 289 (1962)). The majority notes, “we will only reduce a sentence if it clearly appears to be too severe.” (Maj. op. at 31, 926 P.2d at 498, citing State v. Herrera, 121 Ariz. 12, 15, 588 P.2d 305, 308 (1978)). “The power of this court to modify sentences should further be tempered by the realization that a defendant appears in person before the trial judge, rendering that judge, in most instances, more able than ourselves to evaluate the defendant and his circumstances.” (See maj. op. at 31, 926 P.2d at 498, citing Patton, 120 Ariz. at 388, 586 P.2d at 637).
Having noted the limited scope of the statute, the majority states: “Such cases [warranting reduction] will be rare. Indeed, until today, we had not seen such a case in years.” Maj. op. at 31, 926 P.2d at 498. Perhaps this statement is intended to dissuade defendants from flooding Arizona appellate courts with requests for discretionary reduction of their sentences. A deluge of such requests is certainly otherwise readily foreseeable, for we can discern nothing concrete in the majority opinion that would distinguish this case from thousands of others in which severe sentences have been and are being imposed. *36Arizona admittedly has a stern and complex sentencing regime with many mandatory sentences, enhanced sentences, aggravated sentences, flat-time sentences, and hard-time sentences. The majority’s determination that statutorily authorized presumptive sentences are excessive because the crimes are not “typical” or because they were committed by depressed people offers no rational distinction between this case and many others. Thus, we may expect future claims for sentence reductions to be based on equally nebulous grounds.
Nor does the present ease fit the narrow band of cases in which this court has exercised its statutory discretion in the past to reduce a sentence under § 13-4037(B). The facts of those eases granting relief under A.R.S. § 13-4037(B) stand in marked contrast to this one. For example, we have reduced a sentence as excessive because it exceeded the applicable statutory limits. State v. Jennings, 104 Ariz. 159, 160, 449 P.2d 938, 939 (1969). We have reduced sentences in cases which involved juvenile or youthful offenders. State v. Telavera, 76 Ariz. 183, 186-87, 261 P.2d 997, 999-1000 (1953) (seventeen-year-old defendant); State v. Fierro, 101 Ariz. 118, 121, 416 P.2d 551, 554 (1966) (seventeen-year-old defendant); State v. Flores, 108 Ariz. 231, 232, 495 P.2d 461, 462 (1972) (eighteen-year-old'defendant); State v. Seelen, 107 Ariz. 256, 262, 485 P.2d 826, 832 (1971) (nineteen-year-old defendant). This court has also reduced sentences as excessive based on the errors and omissions of the sentencing court. State v. Killian, 91 Ariz. 140, 145, 370 P.2d 287, 292 (1962) (reducing a sentence for possession of marijuana largely because the trial court had been misled to believe that defendant was guilty of an unrelated rape); State v. Tuggle, 101 Ariz. 216, 219, 418 P.2d 372, 375 (1966) (remanding a case for resentencing because the sentencing court did not consider as mitigation defendant’s age at the time of the crime (eighteen), his rehabilitation, and his restitution to both the victims and the state).
All of the foregoing cases in which sentences were reduced arose during the time when Arizona had indeterminate sentencing and trial judges had almost unlimited discretion in imposing sentences. Since presumptive determinate sentencing went into effect with the 1978 code, there have been only three reductions of sentencing under § 13-4037(B). One sentence was reduced because it exceeded the statutorily authorized punishment, State v. Kerr, 142 Ariz. 426, 435, 690 P.2d 145, 154 (App.1984). One set aside a $137,000 fine imposed on a defendant who had been convicted of a theft of under $500. State v. Marquez-Sosa, 161 Ariz. 500, 504, 779 P.2d 815, 819 (App.1989). The third such case was a contempt case rather than a criminal prosecution. Hamilton v. Municipal Court, 163 Ariz. 374, 380, 788 P.2d 107, 113 (App.1990). In contempt cases, there are no statutory guidelines for sentencing, and the court of appeals concluded that 120 hours of incarceration for failure of a lawyer to make a court appearance was excessive under the facts. Id.
Cases in which sentences have been reduced are extremely rare and have involved youthful defendants, mistakes or omissions at the trial level, relatively minor or nonviolent offenses, sentences beyond the statutory range, or other extenuating circumstances which show an abuse of discretion or clear error at the trial level. In this case, defendant is not youthful, but is, instead, a mature adult. She was twenty-nine years old when she committed the instant offense. Her crime was a very serious one which threatened to end the lives of two small children. The sentence imposed was within the permissible range and was the presumptive sentence which the legislature has deemed appropriate for acts of child abuse. No appellate court in Arizona has ever reduced a sentence for child abuse under § 13-4037(B). We would not do so now.
Until today, this court has maintained an appropriately high level of restraint under § 13-4037(B), as demonstrated by the very few cases in which sentences have been reduced in the past. Today’s case stands as a disturbing anomaly amid that line of decisions and invites wholesale requests for appellate resentencing under the statute, assuming the statute survives.
*37For the foregoing reasons, we respectfully dissent from Part III of the majority opinion.
ROBERT J. CORCORAN, J. (Retired), concurs.