134 I would also add, for the sake of completeness, that for the reasons which follow in relation to the other ground of appeal, in my view no different sentence should have been imposed upon Ms Dimitrovska in any event, with the consequence that even if I had considered that there was some substance in this ground, I would nevertheless have dismissed the appeal.37
Manifest excess
135 The other ground of appeal asserts that the sentence imposed upon Ms Dimitrovska was, in all the circumstances of the case, manifestly excessive. It is well established that this is an allegation of error to be implied from the sentence itself, rather than an allegation of express error of the kind asserted in the ground already considered. It is also well established that the question of whether the sentence imposed was manifestly excessive is to be assessed by this court having regard to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed in relation to such offences, the place which the criminal conduct occupies on a scale of seriousness and the personal circumstances of the offender.
136 However, since the implementation of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), the requirement that this court take account of standards of sentencing customarily observed prior to the implementation of that legislation has been modified in relation to cases falling within the worst category of cases, assessed on a scale of seriousness relating to that type of offence. In cases falling within that category, the sentencing judge may, subject to the proper exercise of his or her discretion, impose the maximum penalty available, or something approaching that penalty notwithstanding that such a sentence is outside any previously established sentencing range.38
137 The State has always contended, and counsel representing Ms Dimitrovska both before the trial judge and on appeal have always accepted, that this case is properly regarded as falling within the worst category of cases of causing grievous bodily harm with intent. The concession made on behalf of Ms Dimitrovska was properly made in light of the circumstances of the offence which I have set out above, the extent of the injuries caused to Ms Vulin, and the enduring consequences of those injuries. While the wit and ingenuity of humankind is such that it will usually be possible to imagine a hypothetical case which is worse than the case at hand, in this particular case, that task would not be without its difficulties. Perhaps the only aspect of the circumstances of the case which is less serious than might be imagined is the very limited premeditation of the particular offence, in that there is no evidence, nor did the trial judge find, that Ms Dimitrovska attended Ms Vulin's unit with the plan and intention of setting her on fire. However, as the trial judge noted, the significance of that aspect of the case is somewhat diminished by the repeated threats made by Ms Dimitrovska towards Ms Vulin over the months, weeks and days which preceded the attack. Those threats suggest that Ms Dimitrovska may have contemplated some form of attack upon Ms Vulin, without necessarily contemplating its precise form.
138 As I have noted, the trial judge found that there were no significant mitigating circumstances, and no challenge is made to that finding. Consistently with the opinion expressed by the psychologist, the trial judge found that the very limited expression of remorse contained with the letter from Ms Dimitrovska to the court is not to be explained by genuine remorse, but rather by Ms Dimitrovska feeling remorseful for the position in which she found herself as a consequence of the commission of the offence.
139 Further, although a number of references were provided which asserted Ms Dimitrovska to be a person of previous good character, those assertions were contradicted by the lifestyle in which she had engaged since adolescence, and her conviction for the position of illicit drugs with intent to sell and supply. Although Ms Dimitrovska had no prior convictions for violence, she cannot be said to be a person of good character.
140 Further, as Ms Dimitrovska contested her guilt, as she was, of course, entitled to do, she was not entitled to any discount for a plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA). Although Ms Dimitrovska was in her 20s at the time she committed the offence, she was not of an age which would entitle her to any discount for youthfulness. Further, although there seems little doubt that Ms Dimitrovska was affected by her use of methylamphetamines at the time she committed the offence, because her use of that substance was voluntary, she is not entitled to any reduction in sentence for that reason.
141 In summary, in this case which falls within the worst category of cases of causing grievous bodily harm with intent, there is very little that can be said to justify any reduction in sentence below the maximum prescribed by law. Perhaps the only matters of any significance are the limited period of premeditation to which I have referred, and the lack of any prior conviction for violence. Those matters in combination justify some small reduction from the maximum penalty available - in the order of the reduction given by the trial judge when he imposed the sentence of 17 years imprisonment.
142 For these reasons, the sentence imposed by the trial judge appears to me to have been entirely justified by the circumstances of the case, taking into account Ms Dimitrovska's personal circumstances, having regard to the principles which must be applied since the sentencing legislation was amended in 2008, being the principles enunciated in BLM.
143 However, in support of this ground of appeal reliance was placed on a number of previously decided cases which are said to sustain the conclusion that the sentence imposed in this case was manifestly excessive. Before turning to the cases upon which reliance was placed, it is necessary to reiterate that the fact that this case is a case falling within the worst category of case and which was committed after the 2008 amendments is of profound significance to the sentencing process. It follows that any case which does not have both of those characteristics is of limited significance.
Minhaj
144 In support of this ground of appeal, reliance was placed upon the decision of the Court of Criminal Appeal in Minhaj v The Queen.39 However, because this case was decided before the various changes in the sentencing regime which culminated in the 2008 amendments, it is necessarily of limited utility. The case is nevertheless relied upon because of some similarities in the circumstances of the offence. Those circumstances essentially lie in the fact that the offender set fire to the victim after dousing her with flammable liquid. There are, however, material differences in that in Minhaj, the offender immediately provided assistance to the victim and was himself burnt in the course of providing that assistance. Further, although this court does not have access to the photographs of the victim's injuries in that case, as best as might be assessed from the reasons of the court, the victim's injuries were not as extensive as those sustained by Ms Vulin. Further, in Minhaj, the offender's personal circumstances provided a degree of mitigation which is not available to Ms Dimitrovska.
145 In Minhaj, the court dismissed an appeal against the sentence of 12 years imprisonment which, under the arrangements for remission then in place, was the equivalent of a sentence of 8 years imprisonment under the current regime. Although the sentence imposed upon Ms Dimitrovska is undoubtedly significantly more severe, the differences in the circumstances of the two offences, the circumstances of each offender, and most pertinently, the applicable sentencing regime at the time the offences were committed necessarily means that any comparison between the two cases is of very limited utility. Further and in any event, it is trite to observe that the standards of sentencing customarily observed are not to be derived from one or two cases which will not ordinarily provide evidence of customary standards, and which might well be cases lying outside the range suggested by a broader sample of cases.
Eriha
146 In further support of this ground of appeal, reliance was placed upon the decision of this court in Eriha v The State of Western Australia.40 That case involved the commission of an offence committed after the 2008 amendments to the Sentencing Act, and was a case which was conceded to fall within the worst category of case of causing grievous bodily harm with intent. The case therefore has both of the characteristics required to enable meaningful comparison with this case. However, there are a number of differences in circumstances which reduce the utility of comparison. First, the appellant pleaded guilty to five separate counts on an indictment at an early stage in the proceedings brought against him, one of which counts was the count of causing grievous bodily harm with intent. So, the sentence imposed on that count was affected by two factors not present in this case - namely, the requirement to provide an appropriate discount for the early plea of guilty, and considerations of totality arising from the fact that the appellant was sentenced for each of the five counts at the same time.
147 The overall effect of the sentences imposed in Eriha was a term of 11 years imprisonment. Within that context, the appellant was sentenced to a term of 9 years imprisonment on the count of assault occasioning grievous bodily harm with intent. Because the sentences were all imposed prior to the amendment which introduced s 9AA of the Sentencing Act, it was not necessary for the sentencing judge to specify the precise discount allowed for the plea of guilty, and the extent of that discount does not appear from the reasons of this court. However, given practices prevalent at the time sentence was imposed, it is reasonable to infer that the appellant may well have been afforded the discount in the order of 30% for the early plea of guilty, which would equate to a total effective sentence of 15.7 years imprisonment prior to the discount. So, after adjustment for the likely effect of the early plea of guilty, it will immediately be noticed that the total effective sentence imposed in that case is not significantly different to the sentence imposed in this case.
148 The circumstances of the offences in Eriha were very different to the circumstances of this case. At the time of the offences the victim was a slightly built 17-year-old youth and the appellant was 22 years old. The appellant and others kidnapped the victim from a service station in Kalgoorlie and took him to premises in Kalgoorlie where the victim was assaulted by a number of men for a period of between 5 and 10 minutes. The victim was then taken to an isolated bush location outside Kalgoorlie where the victim was suspended upside down from a crane attached to the rear of a utility. He was again assaulted, after which he was lowered to the ground when a blunt blade was used to carve an initial into the victim's bare chest. The appellant then used a small claw hammer to strike the victim repeatedly on the back of each of his hands, causing intense pain and serious permanent injury, after which the appellant struck the victim repeatedly with a metal tyre lever to his legs.
149 Although the victim suffered extensive injuries inflicted in cruel and terrifying circumstances, as a result of surgical intervention the injuries healed relatively well, although leaving the victim with some permanent disability to his hands. In Eriha the enduring consequences of the injuries inflicted were not as significant as they are in this case.
150 Further, in Eriha the sentencing judge considered the appellant's youth to be a mitigating factor, albeit limited by his significant prior record and the serious nature of the offending. Mitigatory weight was also given to the remorse expressed by the appellant in that case, diminished by doubt as to the genuineness of that remorse. Further mitigation was allowed for steps which the appellant had taken towards his rehabilitation. None of those mitigating circumstances are present in this case.
151 When account is taken of the quite different circumstances of Eriha, and in particular, the quite different mitigating factors that were applicable to that case, including most significantly the reduction of sentence properly allowed for an early plea of guilty, the sentence imposed in Eriha and which was upheld by this court does not suggest that the sentence imposed upon Ms Dimitrovska was manifestly excessive. Further and in any event, I reiterate that one or two cases viewed in isolation are incapable of establishing a standard by which manifest access can be gauged.
152 During the course of argument, reference was also made to a number of other cases in which sentences were imposed for the offence of causing grievous bodily harm with intent, including Zhang;41Naumoski42 and Petrelis.43 I have reviewed those cases. It is unnecessary to consider them in any detail in these reasons because the circumstances of each of them are quite different to the circumstances of this case. Most pertinently, none of those cases were cases falling within the worst category of case, with the result that the principles in BLM, and which flow from the 2008 amendments to the Sentencing Act did not apply to the sentences imposed in those cases which are therefore of little comparative value.
Manifest excess - summary
153 For the reasons I have given, the application of the principles introduced by the 2008 amendments to the Sentencing Act, and which were enunciated by this court in BLM to the circumstances of this case sustain the conclusion that the trial judge was entirely justified in imposing a sentence of 17 years imprisonment. None of the previous cases to which reference was made in the course of argument detract from that conclusion. Although leave to appeal has been granted in respect of this ground of appeal, it should be dismissed.
Conclusion
154 Leave to appeal should be granted in respect of the second ground of appeal but both grounds of appeal, and the appeal itself, should be dismissed.
155 In this appeal, Ms Dimitrovska has, in effect, again unsuccessfully attacked Ms Vulin's credibility, just as she did at trial. She has also, in effect, extended Ms Vulin's victimisation by again putting her credibility in issue, and by advancing unsuccessfully a ground which has intruded very significantly upon Ms Vulin's privacy. If this court had been obliged to resentence Ms Dimitrovska and there had been any issue with respect to the extent of her remorse or her reported incapacity for victim empathy, there is no doubt that the manner in which Ms Dimitrovska has conducted this appeal could be taken into account. Because I consider that the sentence imposed by the trial judge remains the appropriate sentence irrespective of the manner in which this appeal was conducted, it is unnecessary to consider whether and, if so, in what circumstances the manner in which an appeal is conducted could justify the exercise of this court's power to increase the sentence imposed.
156 McLURE P: I agree with the orders proposed by the Chief Justice and his reasons for rejecting the appellant's claim that her sentence is manifestly excessive. However, I propose to state my own reasons on ground 2.
157 The appellant was convicted after trial of the offence that she, on 16 February 2012, with intent to maim, disfigure, disable or to do some grievous bodily harm to Dana Vulin, unlawfully did grievous bodily harm to Dana Vulin.
158 On 11 October 2013, Goetze DCJ, who had been the trial judge, sentenced the appellant to 17 years imprisonment. The victim of the offence suffered life-threatening burns to 60% of her body, the majority of which were above her waist. She was required to wear a pressure suit for two years, including over her face, to flatten and soften her scars.
159 Two days after the sentencing of the appellant, the victim was featured in a Channel 7 television programme entitled 'The Girl Behind the Mask'. The television programme detailed the circumstances, and consequences for the victim, of the offence committed by the appellant.
160 In her appeal against sentence, the appellant relies on aired and unaired Channel 7 footage of the victim (the footage) in support of a claim that specified parts of the victim's victim impact statement (VIS) are false or exaggerated.
Victim impact statements
161 Before going to the merits of ground 2, I wish to say something about the law relating to the scope, proof and use of information in a victim impact statement. Victim impact statements became part of the criminal justice system in this State under the Victims of Crime Act 1994 (WA) (the 1994 Act) which was replaced, in substantially the same terms, by s 13 and s 24 - s 26 of the Sentencing Act 1995 (WA). The second reading speech for the 1994 Act states:
Other than being called upon to give evidence in respect of the criminal acts alleged to have been committed against them … the victim has had little role to play in the [criminal justice] system. The Victims of Crime Bill is directed towards addressing the needs of victims and their perceived alienation from the criminal justice process.
162 The second reading speech goes on to say:
It has been found essential that the victim impact statement be that of the victim and not of the person assisting the victim in its preparation.
163 The objective that a victim speak in their own voice is reflected in s 24 of the Sentencing Act. Section 25 of the Sentencing Act deals with the permissible content of a victim impact statement. It relevantly provides: 164 The facts and circumstances of an offence will be determined by the evidence adduced at trial on which the jury has delivered its verdict: Cheung v The Queen (2001) 209 CLR 1 [4] - [5]. 165 The focus of a victim impact statement is on the consequences of the offence for the victim. The matters in s 25(1)(a) will, by and large, be matters of objective fact covering the nature and extent of any physical, psychiatric or financial damage suffered as a direct result of the offence. The law in this State relating to the proof of facts for sentencing purposes applies to material in a victim impact statement. See Mitchell v The Queen (1998) 20 WAR 257; Hooper v The Queen (2003) 27 WAR 264 [31]; R v Olbrich (1999) 199 CLR 270.
166 Section 25(1)(b) embraces the subjective effects of the commission of the offence. It is concerned with the effect the offence and any consequential physical or other damage under s 25(1)(a) have on the victim's capacity to live life to the full, physically, psychologically and emotionally. Functionality is not solely informed by physical capacity. The victim is asked to describe how they are and feel at a fixed point in time. Dispassionate objectivity is not the yardstick for this aspect of a victim impact statement.
167 The fact that victims are required to speak in their own voice and are permitted to describe how the offending has impacted on them is the basis for the adoption in this jurisdiction of the observations of Charles JA in R v Dowlan [1998] 1 VR 123, 140 (quoted in the Chief Justice's reasons).
168 As a practical matter, there will be limited scope to successfully challenge the accuracy of a victim's description under s 25(1)(b) of the effect on them of what they have been through.
Ground 2
169 In order to succeed on ground 2, the appellant has to establish: