Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Grievous bodily harm with intent - Whether sentence of 17 years manifestly excessive - Worst category of offending - Turns on own facts

Criminal law - Sentencing - Scope, purpose and proof of victim impact statements - Challenge to statements in victim impact statement - Whether fresh evidence falsified challenged statements

Criminal Appeals Act 2004 (WA), s 31(4)(a)

Sentencing Act 1995 (WA), s 9AA, s 24, s 25, s 26

Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)

Leave to appeal granted on the first ground of appeal

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Eriha v The State of Western Australia [2011] WASCA 167

GHK v The State of Western Australia [2014] WASCA 19

Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264

Langridge v The Queen (1996) 17 WAR 346

Minhaj v The Queen [2000] WASCA 52

Mitchell v The Queen (1998) 20 WAR 257

Petrelis v The State of Western Australia [2012] WASCA 235

R v Dowlan [1998] 1 VR 123

R v Evans [2011] QCA 135

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Singh [2006] QCA 71

R v Swift [2007] VSCA 52; (2007) 15 VR 497

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

The State of Western Australia v Naumoski [2013] WASCA 215

Wheeler v The Queen [2010] WASCA 105

Zhang v The State of Western Australia [2013] WASCA 121

1 Ms Natalie Dimitrovska appeals against the sentence of 17 years imprisonment imposed following her conviction after trial by jury in the District Court of unlawfully doing grievous bodily harm to Ms Dana Vulin with intent to maim, disfigure, disable or do grievous bodily harm. There are two grounds of appeal. One ground of appeal asserts, in effect, that the sentence imposed by the trial judge should be set aside because that sentence was based upon erroneous findings of fact with respect to the effect which the injuries sustained by Ms Vulin had had upon her range of movement and the activities in which she could engage at the time of sentence. It is asserted that the erroneous findings of fact came about because the trial judge accepted everything which Ms Vulin asserted in a victim impact statement provided to the court when in fact, unbeknown to the parties or the court, those assertions were inconsistent with, or contradicted by, evidence drawn from video recordings made of Ms Vulin about the time sentence was passed for the purposes of a television programme. The other ground of appeal asserts that the sentence imposed was manifestly excessive. For the reasons which follow, both grounds of appeal, and the appeal itself, should be dismissed.

2 It is convenient to commence with a description of the circumstances of the offence committed by Ms Dimitrovska. As there is no challenge to the findings made by the trial judge with respect to the circumstances of the offence, the description which follows is taken from those findings.

3 Ms Dimitrovska separated from her husband. There was one child of the marriage. Ms Dimitrovska suspected that her husband was having an affair with Ms Vulin. During January and February of 2012 she made many telephone calls to Ms Vulin for the purpose of trying to find her husband. During the course of those many calls, she began making threats against Ms Vulin. Those threats included assertions such as, 'you're dead, bitch', 'I'll ruin your pretty little face', 'we're watching you', 'my brother will kill you', 'you're lying to me'. On one occasion when Ms Vulin was facing court charges, Ms Dimitrovska said to her that she hoped she would rot in her gaol cell and be raped, beaten and murdered.

4 On 26 January 2012, Ms Dimitrovska telephoned Ms Vulin and told her that she had reunited with her husband. Ms Vulin advised that she did not care and sent her a text message, wishing Ms Dimitrovska a good life and saying that she wanted nothing further to do with her and requesting that she not contact her. Nevertheless, Ms Dimitrovska kept contacting Ms Vulin.

5 On 5 February 2012, Ms Dimitrovska made further telephone calls to Ms Vulin looking for her husband. During the course of those calls Ms Dimitrovska called Ms Vulin a 'fucking slut' and a 'fucking bitch' and asked her where she was hiding Ms Dimitrovska's husband.

6 On 14 February 2012, a man telephoned Ms Vulin at Ms Dimitrovska's request. The man advised Ms Vulin that she was being watched. He referred again to Ms Vulin's 'pretty little face' being ruined, and said 'we're going to kill you'.

7 Later that day, Ms Dimitrovska managed to sneak into the block of apartments in which Ms Vulin was living and to gain access to Ms Vulin's unit. Ms Dimitrovska barged into Ms Vulin's unit after she opened the door and searched the unit for her husband, who was not there.

8 Later still that day, Ms Dimitrovska again telephoned Ms Vulin and called her a liar. In the course of an argument, Ms Dimitrovska stated to Ms Vulin, 'you're dead, bitch'.

9 The following day, Ms Dimitrovska was smoking amphetamines throughout the night and into the early hours of 16 February 2012. After sunrise she went to Ms Vulin's apartment in company with a man, arriving at about 6.00 am, gaining entry to Ms Vulin's apartment through the balcony. The trial judge found that she could not have expected to be a welcome visitor, given the animosity and threats expressed during the most recent telephone call she had made to Ms Vulin.

10 After she and her companion had gained entry to Ms Vulin's apartment, Ms Dimitrovska and Ms Vulin argued about Ms Dimitrovska's husband. Ms Dimitrovska again accused Ms Vulin of sleeping with her husband. Ms Vulin took from Ms Dimitrovska a methylamphetamine burner which she was holding, and which was alight. She told Ms Dimitrovska to leave the unit.

11 At that point, Ms Dimitrovska said, 'Just tell me where he is or I'm going to set you on fire'. Ms Dimitrovska then grabbed a bottle of methylated spirits, unscrewed the lid and doused Ms Vulin with the contents of the bottle which caused her to catch fire immediately, because she was holding the methylamphetamine burner which was alight.

12 Ms Dimitrovska then laughed at Ms Vulin. She made no attempt to douse the flames or assist Ms Vulin in any way. Nor did Ms Dimitrovska make any call to others who might have helped Ms Vulin. Rather, she quickly left the unit in order to make her escape. While leaving the scene in a motor vehicle, she told another person in the vehicle not to say anything about what had happened to anyone.

13 During the days which followed, police intercepted telephone calls made by Ms Dimitrovska. In the course of one of those calls she discussed changing the colour of her hair with her husband, although the trial judge did not consider that the sole reason for changing her hair colour was to avoid detection, given that she wished to reunite with her estranged husband.

14 However, when Ms Dimitrovska learnt that one of the persons who had accompanied her to Ms Vulin's unit had been arrested by police in relation to the attack upon Ms Vulin, within 45 minutes Ms Dimitrovska purchased an airline ticket for a flight leaving Perth later that day for an international destination. Because police were intercepting her telephone calls, Ms Dimitrovska was apprehended by police at the international airport terminal. The trial judge found that Ms Dimitrovska's unsuccessful attempt to flee Australia was borne of a consciousness of her guilt of the offence which she had committed.

15 Because of the ground of appeal relating to the findings of fact made by the trial judge with respect to the effect which her injuries had upon Ms Vulin's range of movements and activities, it is necessary to refer to the evidence given at trial on this topic and which would no doubt have been taken into account by the trial judge at the time he made findings of fact for the purposes of sentence.

16 In her evidence-in-chief, Ms Vulin stated that she was wearing pressure garments to help with flattening scars and to give her a normal human shape. Her evidence was that she had been told by doctors that she would be required to wear those garments for at least two years.[1] Ms Vulin gave evidence approximately 17 months after she suffered her injuries.

17 When asked about her medical treatment, Ms Vulin stated that she was getting medical treatment 'all the time'.[2] She expanded on that answer by saying that she went to the hospital all the time and was having physiotherapy nearly every day and required a nurse to come and shower and dress her.[3] She stated that she had not showered herself or changed herself in the period of nearly 18 months since the attack.[4] She also stated that she was undergoing occupational therapy all the time.[5]

18 Ms Vulin stated that she had undergone several operations and described the skin grafting which had taken place in detail, and which included skin grafts to the entire top half of her body. She also described the surgical releases which took place from time to time to enable the skin which had been grafted to grow back.

19 Ms Vulin gave evidence to the effect that initially she was unable to lift her hands more than 20 or 30 degrees from her body. However, at the time she gave evidence she was able to lift one arm to about shoulder height and the other arm to just below shoulder height.[6] Three releases on each armpit had been required in order to achieve that range of movement.

20 Ms Vulin stated that she would require more surgery in order to acquire greater functionality, but there was nothing that could be done in relation to the scarring which she had suffered. She stated that another consequence of her injuries had been to alter her posture, with the result that she did not stand as tall as she had prior to the attack.

21 Ms Vulin was not cross-examined with respect to the extent of her injuries or their consequences. However, she was asked further questions on those topics in re-examination, in order to explain the circumstances in which she had made a statement to police and upon which she had been cross-examined. In that context she stated that in the days following the attack, she was struggling to live, and in the weeks and months which followed, she underwent a number of surgical procedures, and was heavily medicated throughout that period. In that context she stated:

[B]eing burnt alive is probably one of the most excruciating pains you'll - ever feel, but the aftermath is millions worse. The flesh of your skin being exposed in the dressings, it's unimaginable, hell on earth. I would rather have been dead.[7]

22 In response to questions in re-examination with respect to her discussions with police, Ms Vulin stated that she had lost most of her ability to speak:

My mouth had shrunk down to almost a five-cent piece. It physically couldn't open any more. I had a tube in my throat and my nose pretty much the whole entire time.

23 Dr Linda Monshizadeh is one of the medical practitioners who was involved in Ms Vulin's treatment. Her evidence was to the effect that Ms Vulin had suffered significant burns to 60% of her body, being either deep, partial or full thickness burns which also threatened her airway. She had suffered circumferential burns to both arms requiring emergency escharotomies, in the course of which deep cuts were made through the full thickness of her skin from the top of each arm to the fingers to improve blood supply.[8]

24 A tube had to be inserted in Ms Vulin's airway to prevent it swelling shut from the burns. Ms Vulin had suffered burns on her torso, including the chest and back - basically all areas above the pubic region. She had also suffered burns to her face, scalp, neck and ears.[9] Photographs of portions of Ms Vulin's body that had been burnt were produced in evidence.

25 Dr Monshizadeh explained that following the urgent escharotomies, surgical debridement of the dead skin was required, followed by skin reconstruction using split thickness skin grafts taken from other areas of Ms Vulin's body, such as her thighs.[10]

26 In Dr Monshizadeh's view, if Ms Vulin had not received medical treatment she would have died either from airway obstruction, overwhelming infection or shock.[11]

27 Dr Monshizadeh's evidence concluded with the following interchange:

Now, in terms of long-term consequences as a result of these injuries, are you able to make any comment about the long-term consequences for Ms Vulin, given the injuries she had?---So in terms of burns, unfortunately there is - very long-term complications. So these complications will be something that patients will have to deal with for the rest of their lives, and that includes scarring, and it's - not only is it a cosmetic issue, but from a functional point of view it's also an issue where the scarring causes contractures and they have less range of movement, less ability to move - move as they would otherwise before the burn and function as - as ...

Things like lifting your arm, tightening your fingers, those - are they the sorts of things you're speaking about?---That's correct.

And that will be a life-long issue?---That's correct.

Because of the - the scarring causes this contraction. Is that right?---That's correct.

The evidence tendered at the sentence hearing The psychological report

29 At the sentence hearing, a psychological report prepared by Ms Helen Fowler was tendered in evidence. The report was based upon a number of interviews with Ms Dimitrovska, interviews with Ms Dimitrovska's mother and sister-in-law, psychometric testing, and information derived from the transcript of the proceedings at trial and Ms Dimitrovska's criminal record.

30 Ms Fowler noted that Ms Dimitrovska continued to reject the court's finding that she intended to cause harm to Ms Vulin. She further noted that during the interviews, Ms Dimitrovska tended to process events and consequences mostly in terms of their impact upon her.

31 Ms Fowler reported upon Ms Dimitrovska's social history, based on information provided by Ms Dimitrovska, her mother and sister-in-law. She reported that Ms Dimitrovska is the youngest child and only daughter of two children born to her parents. She spent some of her childhood in Australia before returning with her parents to live in Macedonia when she was approximately 4 years of age. She worked as a fashion model in Macedonia and Greece from the age of 16 years, and travelled back and forth between Macedonia and Australia in her later teenage years.

32 Ms Dimitrovska recalls being exposed to domestic violence during her childhood, and her parents' marriage had been turbulent.

33 Ms Dimitrovska was engaging in truancy from school from about the age of 15, and began using illicit substances, including cannabis. After ceasing work as a model, she returned to Macedonia and worked some nights at her mother's restaurant, although at this time her substance abuse extended to harder drugs including heroin. When this was discovered by her parents, she was sent to Melbourne to live with extended family in the hope that her separation from her drug-addicted boyfriend would improve her prospects of ceasing substance abuse. However, Ms Dimitrovska travelled to Perth where she recommenced substance abuse, using ecstasy, speed and cocaine. Ms Dimitrovska developed a relationship with a man in Perth who was also a drug user, and during this period she was charged and subsequently convicted of possessing drugs with intent to sell and supply.

34 Although there was a period of about six months when Ms Dimitrovska did not abuse substances, she reported to Ms Fowler that otherwise she had been continually dependent on illicit substances and has not been legally employed since the age of 25.

35 Ms Dimitrovska married a man in Macedonia, but the marriage quickly failed.

36 Ms Fowler reported that Ms Dimitrovska's engagement with the drug dealing subculture had seriously compromised her ability to evaluate her thoughts, feelings and actions in terms other than those applicable in that subculture, which assisted to explain 'her notably compromised ability for victim empathy'. Ms Fowler considered that this also explained Ms Dimitrovska's 'distorted perception that she is a victim too'. In Ms Fowler's view, Ms Dimitrovska failed to understand the disproportionate nature of the consequences for Ms Vulin as compared to the consequences for her.

37 Ms Fowler reported that Ms Dimitrovska's second marriage was characterised by drug use and escalating domestic violence. Because of her drug dependence, Ms Dimitrovska's mother had assumed the role of caring for Ms Dimitrovska's daughter prior to the attack upon Ms Vulin.

38 Ms Fowler summarised her conclusions in these terms:

Ms Dimitrovska has been using drugs and involved in the antisocial and drug subculture since adolescence. It is within the norms of this subculture that she has lived her life. She has a personality style which has features of impulsivity, rebelliousness against authority and poor emotional regulation lending towards being emotionally dramatic and self-absorbed.

Ms Dimitrovska's friends and acquaintances exist within an antisocial, drug using and drug dealing subculture within which she has operated since mid-adolescence. As a result she perceives the subculture's norms and expectations as 'accepted' and she evaluates her thoughts, feelings and actions accordingly. Therefore her ability to evaluate her thoughts, feelings and actions outside of these subculture's norms are seriously compromised. This, in combination with her personality style and her anger at her victim's involvement with her husband, in my opinion, assists to explain her significantly compromised ability for victim empathy and resulted in her committing the offence.

39 In addition to the photographs which had been tendered during the trial, a further set of photographs were tendered for the purposes of sentence. The photographs depict Ms Vulin's condition at differing points of time - namely, immediately after hospitalisation, approximately six months after hospitalisation, in November/December 2012, and in mid 2013 at approximately the time of trial and sentence. Out of respect for Ms Vulin, I will not describe what is depicted in those photographs in any detail. For present purposes it is sufficient to observe that the photographs depict burns over the entire torso, arms and much of the face which can only be described as horrendous in their extent and severity.

40 The victim impact statement (the VIS) prepared by Ms Vulin was also tendered during the sentencing hearing. As the terms of the statement were included within the observations made by the trial judge at the time of passing sentence, and which will be considered below, it is unnecessary to refer to the text of that statement now.

41 A letter from Ms Dimitrovska was produced to the judge during the course of the sentencing hearing. The letter includes an assertion of remorse for what Ms Dimitrovska had done to Ms Vulin, but, as the trial judge later observed, consistently with the observations made in the psychological report, much of the letter is concerned with the effect which the offence has had upon Ms Dimitrovska's future.

42 A number of character references provided by members of Ms Dimitrovska's family and friends were provided to the trial judge. In the context of an offence as serious as that committed by Ms Dimitrovska, obviously such references can have only very limited weight. As the references do not bear significantly upon either ground of appeal, it is unnecessary to refer to their terms in these reasons.

43 At an early point in the sentence hearing, the trial judge indicated to counsel that he proposed to read the VIS in its entirety in the course of his observations on sentence. Counsel for Ms Dimitrovska took no objection to that course. Further, counsel for Ms Dimitrovska expressly conceded that no issue was taken with the prosecutor's description of the nature of the injuries suffered by Ms Vulin, and the impact of those injuries upon her, save for an issue with respect to Ms Vulin's capacity to bear children in the future. Counsel for Ms Dimitrovska also accepted, both in written submissions provided to the hearing, and orally during the hearing, that for the purposes of sentence the case should be treated as one falling within the worst category of causing grievous bodily harm with intent, with the consequence that the principles enunciated in The State of Western Australia v BLM[12] applied.

44 The trial judge commenced his sentencing observations with the findings of fact which he made with respect to the circumstances of the offence, and which I have summarised above.

45 In that context he expressly found that there was no basis for Ms Dimitrovska's belief that Ms Vulin was involved with her husband. He also observed that the version of events given at trial by Ms Dimitrovska to the effect that she acted in self-defence of an imminent pepper spray attack from Ms Vulin did her no credit. The terms in which that observation is made do not suggest, nor does the appellant contend, that the trial judge took the view that the manner in which Ms Dimitrovska conducted her defence was an aggravating circumstance which increased the punishment which would otherwise have been imposed.[13] Rather, it seems clear that the observation was directed to the issue of remorse, and in particular, whether Ms Dimitrovska had demonstrated any empathy for her victim.

46 The trial judge then summarised the evidence given by Dr Monshizadeh at trial, and which I have set out above. He observed that at the time of sentence Ms Vulin would have to wear the pressure garments 23 hours a day for at least another four to five months. In that context the trial judge observed that the injuries sustained by Ms Vulin were life-threatening and would cause her permanent physical and psychological trauma, and that the challenges she faces will be life-long. He then cited the evidence given by Ms Vulin with respect to the pain she had experienced and which I have set out above.[14] The trial judge observed that Ms Dimitrovska had totally ruined Ms Vulin's life, and her prospects of being successful in her chosen field of employment or of marrying and raising a family. The trial judge noted the effect which this would have upon Ms Vulin's immediate family, and in that context noted also that Ms Vulin's mother and sister had been required to rearrange their lives in order to provide care for Ms Vulin.

47 In this context, the trial judge drew a contrast between the challenges which Ms Vulin would face for the rest of her life on the one hand, and on the other hand the fact that Ms Dimitrovska could expect to resume a normal life with her family, including her daughter, after completing her sentence.

48 The trial judge made no finding on the question of Ms Vulin's capacity to bear children in the future, observing that there was no medical evidence one way or the other on that topic. He did, however, observe that if Ms Vulin did have children, the prospect of those children seeing Ms Vulin's scarred condition might well cause her psychological stress.

49 As he had foreshadowed, the trial judge read the VIS in full. After reading the following passage in the VIS:

I had to learn to walk again, I still haven't even showered myself or dressed myself and it's been 19 months. I can't raise my hands in the air, they simply do not and cannot move that way.

And I suppose Ms Vulin cannot even brush her hair or put on some make-up.[15]

50 It will be appropriate to refer to the specific portions of the VIS which are said to be inconsistent with, or contradicted by, the video recordings tendered in evidence on the appeal in the context of that ground of appeal.

51 The trial judge then referred to Ms Dimitrovska's personal circumstances and family history, and the pertinent features of the psychological report to which I referred above. In that context he described Ms Dimitrovska as self-indulgent, impulsive, manipulative and self-absorbed.[16]

52 As it have already noted, the trial judge referred to the letter provided by Ms Dimitrovska, and in particular the fact that sorrow for Ms Vulin was expressed very shortly, and the bulk of the letter was concerned with the consequences of the offence upon Ms Dimitrovska, consistently with the psychologist's assessment of Ms Dimitrovska's personality.

53 The trial judge referred to the references which he had received, and noted that the referees generally spoke well of Ms Dimitrovska. He referred also to the lack of any reduction in sentence by reason of a plea of guilty.

54 Turning then to the general principles of sentencing, the trial judge suggested that the dominant considerations in the case before him were punishment, personal deterrence and general deterrence.

55 In relation to possible aggravating circumstances, the trial judge observed that the offence had not been planned, but there was some pre-meditation in the form of the many threats which preceded the attack, and which were consistent with Ms Dimitrovska's attack upon Ms Vulin. The trial judge also noted that the attack involved the use of fire, was unprovoked, and occurred in Ms Vulin's home - where she was entitled to feel safe and secure.

56 The trial judge expressed the view that there was brief pre-meditation preceding the act of dousing Ms Vulin with methylated spirits, and also observed that as Ms Dimitrovska was accompanied by a man, the two of them outnumbered Ms Vulin in her own home. He further observed that Ms Dimitrovska took advantage of Ms Vulin's vulnerability after she took the meth burner from her.

57 The trial judge also noted that Ms Dimitrovska laughed at Ms Vulin after setting her on fire and failed to render any assistance or to call for others to render assistance to Ms Vulin. The trial judge also noted Ms Dimitrovska's attempt to flee from police.

58 The trial judge observed that there was nothing substantial by way of mitigating circumstances. Ms Dimitrovska was 29 at the time of sentence, and could not be regarded as youthful. Although she did not have a significant record of prior offending, she had been convicted of a significant drug offence and some significant driving offences (from which it followed, of course, that Ms Dimitrovska could not be regarded as a person of previous good character). The trial judge did not accept that Ms Dimitrovska was genuinely remorseful but rather was feeling sorry for herself and the position in which she was as a consequence of her conviction.

59 After referring to a number of previous cases to which he had been referred by counsel, the trial judge expressed the view that the offence was in the worst category of cases of intentionally causing grievous bodily harm.

You intentionally caused her grievous bodily harm resulting in very serious physical and psychological injuries. These injuries impact on her every minute in her life in the manner she has described in the victim impact statement.

Her injuries will impact upon her every interaction she has with another human being for the rest of her life. Her immediate family and friends may well become used to her situation. They will have to provide around the clock care for her. But any other person she meets will, trying as best they can to not show some reaction, recoil in some way or have some reaction and Ms Vulin will feel that. She has no chance of ever leading a normal life again. This has to be a worst category case.[17]

61 After referring to a number of cases dealing with the approach appropriately taken to sentencing cases falling within the worst category, the trial judge observed that those principles enabled the imposition of the statutory maximum penalty or something approaching that maximum which, as he had earlier noted, was a term of imprisonment of 20 years. He then imposed a sentence of 17 years imprisonment backdated from the time Ms Dimitrovska was taken into custody on 24 February 2012. Ms Dimitrovska was made eligible for parole.

62 It is convenient to deal first with the ground of appeal which alleges express error before dealing with the ground of appeal which asserts implied error.

There has been a substantial miscarriage of justice, such that a different and lesser sentence should now be imposed upon the Appellant, by reason of the consequences and effects of the injuries sustained by the Victim being less serious than was disclosed by the material tendered by the State upon the plea.

64 Implicit in the ground is the assertion that the trial judge made erroneous findings of fact with respect to the effect of the injuries sustained by Ms Vulin by relying upon the materials tendered by the State during the sentencing hearing including the State's written submissions and, most particularly, the VIS. The ground was developed in this way in both written and oral submissions.

65 Because of the significance attached to the use which the trial judge made of the VIS in support of this ground of appeal, it is appropriate to commence with some general observations with respect to the approach properly taken to assertions contained within such statements in the course of the sentencing process.

66 In Western Australia, the tender and use of victim impact statements is governed by s 24 - s 26 of the Sentencing Act 1995 (WA), which provide:

(1) A victim, or a person who may do so under subsection (2), may give a victim impact statement to a court to assist the court in determining the proper sentence for the offender.

(2) If because of age, disability or any other reason a victim is personally incapable of giving a victim impact statement, another person may give it on the victim's behalf if the court is satisfied that it is appropriate for that other person to do so.

(1) A victim impact statement is a written or oral statement that -

(a) gives particulars of any injury, loss, or damage suffered by the victim as a direct result of the offence; and

(b) describes the effects on the victim of the commission of the offence.

(2) A victim impact statement is not to address the way in which or the extent to which the offender ought to be sentenced.

(3) A victim impact statement may be accompanied by a report by any person who has treated the victim in connection with the effects on the victim of the commission of the offence.

1. Victim impact statement, court's powers as to

(1) A court may make a written victim impact statement available to the prosecutor and to the offender, on such conditions as it thinks fit.

(2) A court may rule as inadmissible the whole or any part of a victim impact statement.

67 The appropriate use of a victim impact statement tendered to the court pursuant to these provisions was considered by the Court of Criminal Appeal in Mitchell v The Queen.[18] The court held that the statutory provisions did not modify the general principle that aggravating circumstances had to be proven beyond reasonable doubt.[19] However, the court also sanctioned the extension of the practice adopted in relation to factual assertions made by the prosecution at the time of sentence, and in particular, the practice which does not require those assertions to be proven unless challenged by the offender. Ipp J observed:

The Sentencing Act does not require a victim impact statement to be adduced under oath and the usual practice is that, after conviction and in the course of addressing the court on sentence, the prosecutor provides the defence with a copy of the victim impact statement which is tendered to the court. In my view, the same rule should obtain in regard to the admissibility of victim impact statements as applies to the statement of material facts made by Crown counsel. This rule was set out in R v Aloia [1983] WAR 133 (at 136) where Burt CJ (with whom Kennedy J agreed) said, when dealing with the material on which the court might act in determining issues concerning mitigation of sentence:

'It is a question which often arises on a plea of guilty, particularly on a hand-up brief. In such a case the sentencing judge can safely rely upon the statement of material facts made by Crown counsel unless as to facts extending beyond the elements of the offence they are challenged by the prisoner. If such facts, assuming them to be facts of aggravation, are so challenged they must be proved.'

See also R v Wong (1996) 16 WAR 219.

Of course the mere fact that victim impact statements are produced and not challenged does not make it obligatory for the trial judge to accept what is stated therein: cf Salisbury v The Queen (1994) 12 WAR 452 at 465 - 466. The use that the sentencing Judge makes of a victim impact statement is a matter within his or her discretion.[20]

68 In Mitchell, Kennedy J agreed with Ipp J, and also cited with approval the observation of Charles JA in R v Dowlan[21] in relation to comparable Victorian legislation:

The evident purpose of the 1994 legislation was to give victims of crime an opportunity to place before the courts their own statement of the impact a crime has had upon them and their families and in doing so both to involve victims in the workings of the criminal justice system and to ensure that judges are educated as to the consequences of the crimes with which they are concerned in sentencing. It would be quite destructive of the purpose of these statements if their reception in evidence were surrounded and confined by the sorts of procedural rules applicable to the treatment of witness statements in commercial cases. The reception of victim impact statements must, it seems to me, be approached by sentencing judges with a degree of flexibility; subject, of course, to the overriding concern that, in justice to the offender, the judge must be alert to avoid placing reliance on inadmissible matter. If objection is taken, on a matter of substance, to any part of the statement, the judge should either rule it inadmissible or make it clear, during the plea or in sentencing reasons, that no reliance would be, or was being, placed on that part of the statement.[22]

69 Those observations were endorsed by Steytler J in the later decision of Hooper v The Queen.[23]

70 More recently, in R v Swift,[24] the Victorian Court of Appeal considered a submission based on the implicit proposition that the prosecution was under a duty to only present a victim impact statement produced in admissible form. The court[25] dealt with that submission in these terms:

The appellant's argument implies that a victim impact statement is to be equated to Crown evidence and, consequently, that the Crown has a responsibility to put the statement in admissible form. That is not the case. The purpose of a victim impact statement is to give the victim of crime the opportunity to place before the court his or her own statement of the impact of the crime on him or her and his or her family and to ensure that the sentencing judge is informed of the victim's concerns. Moreover, since victims of crime are usually lay persons with little understanding of the rules of evidence, and who are likely to be emotional about the subject of their statements, it is to be expected that they may include inadmissible material. As Vincent JA observed in DPP v DJK:

'The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made.'

Hitherto, counsel appearing before sentencing judges have tended not to say a great deal about the admissibility of the contents of victim impact statements. In effect, they have left it to sentencing judges to work out which parts of a statement are admissible and may be relied upon. Such an approach is to some extent contrary to mainstream criminal practice, where the taking of objections tends to be punctilious. But it has considerable advantages, in the context of a plea, which are likely to appeal to both sides. It also accords with the observations of Charles JA in R v Dowlan and of Vincent JA in DPP v DJK that it would be destructive of the purpose of victim impact statements if their reception in evidence were surrounded and confined by the sorts of procedural rules which are applicable to the treatment of witness statements in commercial cases.

Of course, it remains incumbent on counsel for a prisoner on a plea to take objection to those parts of material known to be before the judge which counsel wishes to have treated as inadmissible against the prisoner. ...

As at present advised, I see no reason to alter the existing practice. It provides advantages and a degree of flexibility of which strict adherence to the rules of evidence would not permit. From the victim's perspective, it has the advantage of avoiding the need for a court appearance and, in favour of the offender, it allows the sentencing process to be completed more quickly and without the same degree of concentration on victim impact that the attendance of the victim may produce. Provided the judge makes plain his or her intention to make use of inadmissible material in the statement, the offender has the choice of either allowing the judge to adopt that course or alternatively of objecting to the use of the inadmissible material and requiring the victim to be called to give evidence of it. There is also the further protection, as the court has stated more than once before, that victim impact statements are not to be used to produce a sentence which is unfair; and articulate or emotional statements should not be used to justify a sentence which is not just in all the circumstances.[26] (footnotes omitted)

These observations are consistent with previous authority in Western Australia, and provide guidance with respect to the approach properly taken in this State.[27]

71 Consistently with the practice identified in these authorities, in this case when defence counsel took issue with an assertion in the VIS to the effect that Ms Vulin would be incapable of bearing children, the trial judge declined to accept that assertion in the absence of appropriate medical evidence. On the other hand, as no objection was taken to any other portion of the VIS, the trial judge was entitled to act upon the assertions contained within it, if, in the exercise of his discretion, he considered those assertions to be reliable, viewed in the context of the evidence given at trial.

72 This is not to say that this ground of appeal must fail because no objection was taken at the time of sentence to the portions of the VIS which have been put in contention by this ground of appeal. As neither Ms Dimitrovska nor her counsel had any reason to suspect that the evidence which has been tendered on appeal existed at the time of sentence, if that evidence leads to the conclusion that a miscarriage of justice has occurred, it would be the duty of this court to intervene and resentence Ms Dimitrovska on the basis of the true facts.

73 A number of related observations relevant to the ground of appeal in this case flow from the passages in the previous cases which I have set out above, and from the intrinsic nature and character of victim impact statements.

74 First, victim impact statements will necessarily be subjectively expressed. Indeed, that is a significant component of their intrinsic value. It is implicit in the statutory provisions that a significant part of their purpose is to provide the court with the victim's perspective of the offender's conduct and its consequences. A victim could not be expected to provide an objective and impartial account of the offence and its consequences in the statement provided to the court.

75 Second, given the inherent subjectivity of a victim impact statement, the assertions made within it will properly be used by the court for the purposes of findings made at a level of generality, rather than specificity. In the case of an offence causing personal injury, such as this, a victim impact statement will be used by the court to make findings with respect to the general effect which the injuries sustained by the victim have had upon his or her life, rather than for the purpose of a detailed and minute analysis of each and every precise effect occasioned by the injuries sustained. A detailed analysis of the latter kind is both inappropriate in the context of a subjective statement ordinarily prepared without legal assistance, and in any event unnecessary for the purposes of passing sentence. So in a case in which it is necessary to make a finding with respect to the victim's prognosis for the purposes of sentence, such a finding would ordinarily be made on the basis of evidence from an appropriately qualified expert such as, in this case, the evidence given by Dr Monshizadeh, rather than the assertions contained in a victim impact statement. In this case, the trial judge made findings at an appropriate level of generality with respect to the injuries suffered by Ms Vulin and their consequences. I have summarised those findings at [46] above.

76 Third, as the passages which I have cited above illustrate, victim impact statements would lose much of their force and benefit if expressed in language ordinarily used by lawyers rather than the language of the victim. It is therefore to be expected that the terminology used in victim impact statements will, on occasions, be ambiguous and imprecise. It is also to be expected that devices used in ordinary speech for the purposes of emphasis and effect will be utilised in victim impact statements. Those devices include exaggeration, metaphor and hyperbole. So, when the victim of an armed robbery asserts that he or she was 'scared to death', the expression is not intended to be read literally, and would not be understood in its literal sense by the judicial officer reading the victim impact statement. Similarly, the force of a statement by the secondary victim of a homicide to the effect that every aspect of their life has changed forever since the death of their family member is not diminished or contradicted by the observation that there will undoubtedly be a number of mundane aspects of daily life which have not changed. There is no reason to suppose that a judge or magistrate in any particular case would not be well aware of such linguistic devices, or that he or she would not bring that awareness to bear when construing the assertions made in the victim impact statement.

77 In this case, for the reasons which follow, when account is taken of the inherent subjectivity of the VIS and the generality of the findings that were made in reliance upon it for the purposes of sentence, and when the linguistic devices used within it are construed in accordance with ordinary idiom, this ground of appeal loses much of its force.

78 Counsel for Ms Dimitrovska confirmed that the supplementary written submissions filed on her behalf contained a comprehensive statement of the alleged errors of fact relied upon in support of this ground.[28] In those submissions, in addition to the specific passages in the VIS to which I will refer below, reference is also made to a portion of the State's written submissions presented to the court at the time of sentence in which it was asserted that:

The impact of this offending has also been severe and permanent and was described in her evidence at trial (t 95-97) and is further described in her Victim Impact Statement. Her way of life was destroyed. These consequences include the following:

(a) the loss of the ability to properly lift her arms, effectively depriving her of the proper use of her arms;

(b) loss of the capacity to perform ordinary personal care tasks.

79 The submission notes that these propositions were expressly accepted by counsel appearing on behalf of Ms Dimitrovska at the sentencing hearing. For the reasons which follow, the video recordings tendered in support of this ground of appeal do not sustain the conclusion that any aspect of these assertions is inaccurate or erroneous.

80 In the appellant's supplementary written submissions, reference is also made to a finding made by the trial judge at the time of sentence in the following terms:

She will require repeated surgery in coming years. She is required to wear a torso over her body and head, with only her eyes, mouth, ears and fingertips being exposed. She is required to wear this 23 hours a day and the only time she can take it off is when she is receiving her daily medical treatment. I understand this will go on for two years post the event. So she's still got another four or five months or thereabouts to go with respect to that.

81 That finding is entirely consistent with, and justified by, the evidence given at trial which I have set out above. There is nothing in any of the video recordings tendered in support of this ground of appeal which casts any doubt on that finding.

82 The supplementary written submissions also rely upon the statement which the trial judge interposed between reading portions of the VIS, when he stated, 'I suppose Ms Vulin cannot even brush her hair or put on some make-up'.

83 It is appropriate to digress at this point to say a little about the video recordings that were tendered in support of this ground. Following the sentencing of Ms Dimitrovska, a television programme was broadcast relating to Ms Vulin. The programme related the circumstances in which she sustained her injuries, and the steps which she had taken, and was taking, to recuperate from those injuries and expand the range of activities she was able to undertake. Following the broadcast of the programme, Ms Dimitrovska's legal representatives were given leave to issue a summons for the production of copies of all the video recordings which had been taken in the course of preparing the programme. After inspection of the video recordings produced in answer to the summons, a disk upon which the programme broadcast is recorded, and seven disks upon which recordings made for the purposes of that programme but not ultimately broadcast are recorded, were tendered in evidence. The tendered recordings of material that was not broadcast comprise only a portion of the material produced in answer to the summons. At the direction of the court, Ms Dimitrovska's representatives provided particulars of the specific portions of the tendered recorded material upon which reliance was placed in support of this ground of appeal.

84 Amongst those portions is a video recording which depicts Ms Vulin applying mascara to her eyelashes. Consistently with the evidence, at the time of applying the mascara, Ms Vulin is shown wearing what might best be described as a pressurised balaclava covering her entire head, with the exception of small apertures for her eyes, nostrils and mouth. The only portions of Ms Vulin's eyes not covered by the balaclava are the eyes themselves, the eyelids, and a small portion of skin immediately below each eye. The recording does not show Ms Vulin applying any make-up to any area of eyelid or skin adjacent to the eye, and it is difficult to tell from the recording whether any make-up has been applied to those areas.

85 The video recording establishes that Ms Dimitrovska was able to apply mascara to her eyelashes and to that extent the observation made by the trial judge might be viewed as incorrect. However, viewed as a matter of substance, the balaclava which Ms Vulin was required to wear for all but a small portion of the day entirely covered her face and scalp. In one of the video recordings Ms Vulin is heard to say that her hair had started to grow back, and photographs taken around the time of sentence suggest that she had some short hair at that time. However, it is clear that Ms Vulin would be unable to do any hair which had grown back, or apply make-up to her face, for so long as she was required to wear the pressurised balaclava which, on the evidence, was likely to be for a further period of five or six months after sentence. So, viewed as a matter of substance, the observation made by the trial judge was correct.

86 The observation made by the trial judge should not be construed as a finding that Ms Vulin was unable to raise her hands to her head. As I have noted, Ms Vulin gave evidence to the effect that she was able to lift one arm to about shoulder height and the other just below shoulder height, which would have enabled her to reach her head - especially if her head was lowered. Nor should the observation made by the trial judge be construed as a finding that Ms Vulin's range of movement would forever be restricted. As I have noted, the evidence at trial from each of Ms Vulin and Dr Monshizadeh was to the effect that Ms Vulin was part of the way through an ongoing process of treatment, which would include surgery from time to time undertaken for the purpose of improving her functionality and ranges of movement. The trial judge was well aware of that process at the time of passing sentence, not only because of the evidence which he had heard, but also because of his specific reference to Ms Vulin having been unable to undertake surgery that was proposed to take place on the day he originally proposed to sentence Ms Dimitrovska.[29]

87 The argument advanced in support of this ground of appeal proceeds on the implicit assumption that the recitation by the trial judge of the VIS in its entirety in the course of his observations at the time of passing sentence is to be equated with findings of fact made by him in the terms of the VIS. Given the observations which I have already made with respect to the nature of a victim impact statement, that assumption is open to doubt. In this case, that doubt is reinforced by the fact that the trial judge made express findings of fact with respect to the effect which Ms Vulin's injuries had had and would continue to have on her life, cast at an appropriate level of generality and which are quite separate from his recitation of the VIS. However, for the reasons which follow, in this case it is unnecessary to test the assumption which underpins this ground of appeal because even if it is assumed that the trial judge made findings of fact in terms of the VIS, this ground of appeal nevertheless fails.

88 The supplementary written submissions identify specific portions of the VIS which are said to have been adopted by the trial judge and which are asserted to be contrary to, or at least inconsistent with the actions of Ms Vulin depicted on the video recordings tendered in support of this ground. The first such passage from the VIS is:

I still haven't even showered myself or dressed myself and it's been 19 months ... imagine not being able to shower and dress yourself and having to ask for assistance for everything, imagine even the simplest of tasks, like not being able to reach up and grab a glass.

89 On behalf of Ms Dimitrovska it is asserted that these statements are inconsistent with the video recording which shows Ms Vulin participating in a boxing session, climbing into a children's bouncy castle and jumping around playing with the children, and singing and dancing with children at a children's party.

90 Before turning to the recordings of those events, it should first be noted that nothing on the video recordings contradicts the assertion that Ms Vulin was unable to shower or dress herself. To the contrary, the video recordings depict the provision of assistance to her in relation to the placement of her clothing and other similar tasks. Ms Vulin gave evidence at trial to the effect that she had been unable to wash or dress herself, and there is no evidence which casts any doubt upon those facts.

91 Ms Vulin's reference to 'having to ask for assistance for everything' is plainly a linguistic device intended to add emphasis to the extent of her disability and was neither intended nor likely to have been construed by the trial judge literally. It is, of course, to be remembered that he had seen Ms Vulin give evidence and would have had the capacity to observe her range of movements while moving to and from and within the witness box. Thus the only question arising in relation to this portion of the VIS concerns the question of whether Ms Vulin was capable of raising her hand above her head in order, for example, to reach a glass.

92 Dealing firstly with the video recordings in which Ms Vulin is depicted boxing, those recordings total approximately 38 minutes. However, the recordings are not continuous. The longest portion of continuous filming is around 12 minutes.[30] During the boxing session Ms Vulin is shown in a boxing ring wearing boxing gloves and punching glove pads held by an instructor who is slightly shorter than she is. The punches are delivered at varying heights from around a height level with Ms Vulin's chest up to a height approximately level with Ms Vulin's eyes. In some of the recordings Ms Vulin is depicted as punching hard and repeatedly over short periods.

93 However, the recordings do not show Ms Vulin exercising free and full movement of her arms. At no point in the recording are her arms seen raised above an angle of approximately 90 degrees to her chest. At no point are her arms fully extended. To the contrary, at one point in the recording the instructor requests her to punch longer, to which she responds, 'This arm can't make the distance - might need to get a bit closer' and shortly thereafter she is heard to say, 'My arm doesn't straighten, remember'.[31] Ms Vulin is also heard complaining that the extension of her arm is causing pain.

94 Several times in the course of the boxing recordings, Ms Vulin complains that her upper clothing is slipping down and the instructor provides assistance to restore that clothing to its position. At another point a member of the film crew notices that Ms Vulin's shoelace is undone, and the instructor bends down to tie it up for her. While it may be that each of these acts was undertaken because Ms Vulin's hands were encased in boxing gloves, it is to be noted that the instructor had to remove his gloves in order to undertake these tasks for her.

95 In summary, there is nothing in the recording of Ms Vulin's participation in the boxing session which contradicts the evidence which she gave at trial with respect to the range over which she could move her arms.

96 Turning now to the recording of Ms Vulin's participation at a children's party, she is depicted as crawling through a small entrance into a bouncy castle and then jumping around in the castle with up to six young children. She holds hands with some of the children and then appears to bend down to pick up one of the children, jumping around while holding that child for around 20 seconds. At other points she picks up other children and bounces with them.

97 In assessing this aspect of the recorded evidence it is significant to note that all of the children are quite small, and are being held by Ms Vulin in a soft and padded environment. Further, and most significantly, at no point in the course of the recording are Ms Vulin's hands seen above her head.

98 Turning now to the recording of Ms Vulin participating in a dance with children at the same party, Ms Vulin is depicted as participating in a dance as part of a circle of children while the Hokey Pokey song is played. The session lasts for about four and a half minutes. Ms Vulin is depicted largely standing on the spot or stepping backwards and forwards, clapping frequently. During the song she encourages the children to put different parts of their body 'in' and 'out' in accordance with the words of the song.

99 At several points during the dance, Ms Vulin raises her arms. On those occasions both upper arms are extended sideways away from her body at an angle no greater than 90 degrees. At no point are her arms seen completely straight - to the contrary, at almost all points during the song Ms Vulin's arms are seen bent. When Ms Vulin raises her hands close to her face, she is depicted leaning forward and bending her head at the neck, which creates the appearance of her hands being as high as her head. However, at no point are her hands seen to rise above what would be the height of her head were she standing upright. Similarly, at no point is a full range of movement of her arms and hands demonstrated.

100 The observations which I have drawn from the portions of the video recording to which I have referred are consistent with evidence tendered on the hearing of the appeal in the form of a medical report prepared by Professor Suzanne Rea. Professor Rea is a consultant burns surgeon at Royal Perth Hospital who has served as Ms Vulin's consultant from the time of her original admission, and who continues in that role. For the purposes of her report, Professor Rea was provided with the video recordings tendered in evidence on the appeal and the relevant portions of the supplementary written submissions prepared in support of the appeal.

101 Professor Rea reports that Ms Vulin does not have the range of movement in her arms which she enjoyed prior to her injury. Her range of movement has been measured and documented at intervals since her initial admission to hospital. At the time of her discharge from hospital in April 2012, Ms Vulin's flexion in her right shoulder (the amount she can move her arm from her body in a forward plane) was 20 degrees, and in her left shoulder, 10 degrees. By 13 November 2012, this range of flexion had improved to 50 degrees in Ms Vulin's right shoulder, and 60 degrees in her left shoulder. By 10 September 2013, which is the measurement closest to the date of the sentencing hearing, Ms Vulin's flexion in her left shoulder was 110 degrees, and in the right shoulder only 70 degrees. By contrast, the normal range of shoulder flexion is 180 degrees.

102 Professor Rea reports that Ms Vulin has adopted mechanisms to compensate for her restricted range of movements. For example, Ms Vulin compensates for her limited shoulder movement by forward flexing at her waist and moving her torso and head to her hands to facilitate the application of mascara, to wipe tears from her face and so on.

103 In relation to Ms Vulin's capacity to shower and dress, Professor Rea reports that Ms Vulin was discharged from hospital with full support, which included assistance with showering and dressing. Professor Rea further reports that it requires approximately 120 degrees of movement at the shoulder in order to dress oneself - that is to say, to raise one's arms above the head in order to put on a t-shirt, fasten a bra strap or wash one's own hair. Consistently with the measurements of flexion reported, Professor Rea notes that as at the time of the sentencing hearing, Ms Vulin had not achieved that range of movement.

104 Professor Rea further reports that Ms Vulin was unable to completely straighten or bend her arms at the elbow at the time of sentencing, and remains unable to do so.

105 After reviewing the recording of Ms Vulin's activities in the bouncy castle, Professor Rea observes that Ms Vulin is shown utilising adaptive behaviour in order to pick up children while kneeling down. She further notes that Ms Vulin is not shown holding any child above chest height.

106 In relation to the recording of Ms Vulin boxing, Professor Rea notes that early aerobic exercise is a key component of the treatment provided by the burns services unit at Royal Perth Hospital. The purpose of that exercise is to address muscle loss, decreased lung function and reduction in bone density which are all consequences of severe burns injury. Initially Ms Vulin was encouraged to participate in daily sessions in the gymnasium, with those sessions reducing in frequency over time.

107 Professor Rea notes that Ms Vulin is not seen extending her arms fully at any point in the boxing session, because she is unable to do so. Professor Rea also notes that the boxing instructor is shorter than Ms Vulin and the fact that the camera is placed low down tends to create an appearance of Ms Vulin's hands and arms raising higher than in fact is the case.

108 Professor Rea was not cross-examined on her report.

109 To summarise this aspect of the ground of appeal, the evidence does not establish that Ms Vulin was capable of showering and dressing herself at the time of the sentencing hearing, or was able to reach above her head. While it seems unlikely that she would have required 'assistance with everything', that portion of the VIS should not be construed literally, and was unlikely to have been taken literally by the trial judge.

110 The next portion of the VIS to which specific attention is drawn is:

I can't raise my hands in the air, they simply do not and cannot move that way. The hands are stuck down even after all the releases I have had on both arms ... Both my elbows don't bend properly or straighten.

111 Plainly, this portion of the VIS was not intended to suggest that Ms Vulin's hands were stuck by her side, and would not have been construed in this way by the trial judge. As I have noted, Ms Vulin gave evidence with respect to the range of movement in her arms and hands. Properly construed, this portion of the VIS involves an assertion that Ms Vulin was unable to raise her hands above her head, or to straighten her elbows.

112 In addition to the portions of the video-recorded evidence to which I have already referred, reliance is placed upon additional portions of that evidence in support of the proposition that this aspect of the VIS is incorrect.

113 The first such portion of the evidence shows Ms Vulin placing her hand above her left eye.[32] This recording was taken while Ms Vulin was in a seated position while being interviewed with the camera capturing her face and the top of her shoulders at close range. For most of the interview her arms are out of sight and only visible when her hands are moved above shoulder height. The camera appears to be lower than Ms Vulin's face and angled upwards, which makes it difficult at times to assess the precise height to which Ms Vulin's hands are raised. Nevertheless, it is clear that in the course of the interview Ms Vulin touches her forehead above her left eyebrow with her left hand, and on other occasions she wipes away tears from her left eye with her left hand, and from her right eye with either her left or right hand. However, it is significant that on each occasion upon which she touches her face, she leans her head forward to varying degrees. It is impossible to directly observe the angle of her elbows, or the angle of her arms from her shoulders due to the close range of the camera. The forward movement of Ms Vulin's head at the time she touches her face is consistent with Professor Rea's evidence with respect to the mechanisms which Ms Vulin has adopted in order to compensate for her restricted ranges of movement. This portion of the recording does not establish that Ms Vulin was able to raise her hands or arms above her head at the time of sentencing.

114 Reliance is also placed upon a portion of the recording which depicts Ms Vulin making a throwing motion with her right hand.[33] The recording of this motion was taken from the same camera angle as the recording to which I have just referred. At the time of the motion, Ms Vulin is describing the version of events given by Ms Dimitrovska at trial and enacting that version. However, at no point in the recording is Ms Vulin's arm seen to be fully extended, nor is there any point in the motion in which her hand is above her head, although at one point it appears close to her jaw. This portion of the recording does not demonstrate any capacity for Ms Vulin to raise either hand above her head, or to fully extend either arm.

115 Reliance is also placed upon another portion of the recording taken shortly thereafter in which it is asserted that Ms Vulin is seen to raise both hands above her head, or at least to the height of the top of her head.[34] In fact, the relevant portion of the recording shows Ms Vulin moving both hands adjacent to her ears and slightly in front of them, with the index finger of each hand pointing upwards. Those fingers almost touch her ears. She then moves her hands in an arc until the index fingers are pointing forward. Because the camera angle is the same as in the previous two portions of recording to which I have referred, it is not possible to assess the precise height to which Ms Vulin's hands are raised, or to observe the angle of her shoulders or elbows. However, it can be confidently inferred that Ms Vulin's arms are not fully extended, given that her hands are adjacent to her ears. Further, contrary to the submissions put on behalf of Ms Dimitrovska, there is no point at which Ms Vulin's hands are seen either above her head or at the top of her head.

116 Reliance is also placed upon another portion of the recording in which Ms Vulin is depicted driving a car by herself, singing and raising her arms in the air.[35] During this portion of the recording, Ms Vulin is depicted driving the car with confidence and without apparent difficulty. At one point she is seen to lean her head slightly forward and to raise her hands approximately level with her ears, with her fingers at or very slightly below the height of the top of her head. However, it is to be noted that her head has been moved forward at this point in the recording. At another point in the recording, Ms Vulin raises her hands to around the level of her eyes, but again her head is leaning forward at this point in the recording. These aspects of the recorded evidence are consistent with Professor Rea's evidence in relation to the mechanisms which Ms Vulin adopts in order to compensate for her restricted range of movements at times when she wishes to raise her hands to or level with her head. These recordings do not support the proposition that Ms Vulin is able to raise her hands above her head, or that the range of movement of her arms and hands is greater than that expressed in the evidence which she gave at trial, or in the statements made in the VIS.

117 Specific attention is drawn to another portion of the VIS in which Ms Vulin asserts, 'Both my elbows don't bend properly or straighten.'

118 Reliance is placed upon the portion of the video recordings relating to the boxing session and the children's party in support of the proposition that this assertion in the VIS is incorrect. For the reasons I have already given, the video recordings do not sustain that proposition.

119 Attention is also drawn to that portion of the VIS in which Ms Vulin asserts:

My skin can't and won't be able to breathe for the rest of my life which also means that I can't sweat for the rest of my life causing me to overheat constantly especially in summer. I have needed and will need to be in airconditioning or at least an airconditioned environment for the rest of my life as my body can't regulate properly. Essentially my body thermometer is broken.

120 Reliance is placed upon the portion of the video recording in which Ms Vulin is depicted boxing for a total period of almost 40 minutes in support of the proposition that this portion of the VIS is inaccurate. However, as I noted previously, the recording of the boxing is not taken in a single continuous recording. It is not possible to say how much time had elapsed between each separate recording. Initially Ms Vulin is shown boxing for about 30 seconds. After a cut away, Ms Vulin is again shown boxing for around 2 minutes and 30 seconds, during which she briefly stops boxing. The camera cuts again, and Ms Vulin is shown boxing for another period of around 5 minutes, again with a break in the middle of that session. At the end of that session the instructor is heard to comment, 'You look tired', with which Ms Vulin concurs. After another cut, Ms Vulin is shown boxing for about 3 minutes, again with a break, at the end of which she is heard to say, 'I'm fatiguing, I need a break - I may need some water'.[36] After a cut, the longest stretch of continuous boxing is depicted - for a period of around 12 minutes, although there are multiple breaks during that period. After that session, there are three more recorded segments of boxing, each of around 4 - 5 minutes duration.

121 There is no evidence as to the temperature inside the gym at the time the recording was taken.

122 Professor Rea reports that thermoregulatory function is significantly disrupted by major burns because the skin grafted areas are unable to sweat and as a direct result, patients find it hard to cool down. She observes that this phenomenon is well-recognised by medical and regulatory authorities with the result that Centrelink administers a grant to provide airconditioning to all patients who sustain full thickness burns over 20% of their total body surface area. After noting that the video recording does not establish over what total period the boxing took place, or the temperature in the room at the time the boxing occurred, Professor Rea expresses the conclusion that the video recording is not inconsistent with the assertions made in the VIS, both in respect of thermoregulatory function, and Ms Vulin's capacity for movement and function generally. As I have noted, that conclusion was not challenged in cross-examination.

123 The video-recorded evidence does not establish that the assertions made by Ms Vulin in the VIS with respect to the compromise of her thermoregulatory function, and which are supported by the evidence of Professor Rea, are incorrect.

124 Attention is also drawn to the following passage in the VIS:

I'm supposed to be in the prime of my life except I'm not. It is passing me by and I'm missing everything, every special event, engagements, birthdays and even funerals.

125 Reliance is placed upon the video recording of Ms Vulin participating in the children's birthday party to which I have already referred in support of the proposition that this portion of the VIS is incorrect. However, clearly this is one of those portions of the VIS in which the linguistic device of exaggeration has been utilised for emphasis. The assertion that Ms Vulin is 'missing everything' is not intended to be read literally, and would not have been construed literally by the trial judge. What is, however, clear is that Ms Vulin spent a considerable time in hospital after her admission until her discharge approximately two months later. It is also clear both from her evidence and the VIS that much of the time following her discharge and the date of sentence was spent in treatment and undergoing further surgery. No doubt Ms Vulin would have missed special events as a result of those commitments. Accordingly, this portion of the VIS might be said to be exaggerated, but is certainly not without substance. The essence of the assertion is that Ms Vulin is missing the prime of her life in the sense that she is unable to participate in the type of activities in which she engaged prior to her injuries. That assertion is plainly correct. Prior to her injuries, Ms Vulin enjoyed the type of full and active life that might be expected of a young woman her age. Following her injuries, the range of activities in which she could engage was very severely restricted.

126 Attention is also drawn to the following portion of the VIS:

My mum and sister have become my legs, my arms, my carers, my providers, my physios, my occupational therapists, my physical strength, my drivers, my groomers, my dressers, my nurses and I have become their life, living and breathing for my recovery, which is a full-time job for them both together.

127 In support of the proposition that this portion of the VIS is incorrect, reliance is placed upon the video recording to which I have already referred which shows Ms Vulin to be quite capable of driving a car on her own. However, the substance of this portion of the VIS is to emphasise the reliance which Ms Vulin has been required to place upon her mother and her sister during her recuperation. In that context, Professor Rea reports that Ms Vulin required the assessment and clearance of an occupational therapist before being able to drive herself, prior to which she was reliant upon others. So, plainly there would have been a period of time during which Ms Vulin was dependent upon her mother and her sister to drive her from place to place and, to that extent, the VIS is accurate. Her dependence upon her mother and sister for assistance with the other activities referred to in this portion of the VIS is not inconsistent with any aspect of the video-recorded activities and is in fact supported by portions of the recorded activities.

128 Reliance is also placed upon that portion of the recorded evidence which depicts Ms Vulin applying mascara to her eyelashes. However, as I have noted, that evidence falls well short of establishing that Ms Vulin had the full capacity to care for her personal needs, including the capacity to dress herself, especially in the light of Professor Rea's evidence.

129 Reliance is also placed upon a portion of the video recording which depicts Ms Vulin walking along the South Perth foreshore playing with her dog.

130 However, this portion of the recording does not support the appellant's case. The recording consists of seven different takes of Ms Vulin walking along the foreshore at South Perth with her dog. It is impossible to say how much time elapsed during the period over which the separate recordings were taken. While Ms Vulin is walking, her arms are shown hanging relaxed by her side, but her elbows remain bent, and her arms are not depicted fully straight at any time. Ms Vulin is then depicted playing with her dog on the ground. Initially she is shown kneeling and bending forward at the waist in order to pat the dog. She then sits on the ground with her legs forward and bends over again to pat the dog. Then she lies down on her side on the ground and brings the dog to her chest. At no point in the course of that activity are her arms or hands ever seen to go above the level of her head. Significantly, when the dog moves to a point where it is above her head as she is lying on the ground and slips out of her hands, she retrieves the dog using the leash which is level with her face rather than attempt to raise her hands above her head. This provides further evidence of the mechanisms to which Professor Rea referred and which Ms Vulin has adopted in order to compensate for her restricted range of movement.

131 The last portion of the VIS to which specific attention is drawn in support of this ground of appeal is the following:

Imagine supposedly being in the prime of your life and not going anywhere, not a single place.

132 As I have already observed, there is no doubt that Ms Vulin's injuries have had a profound impact upon her capacity to enjoy what she might reasonably have expected to have been the prime of her life. Her assertion that she is unable to go anywhere, not a single place, is obviously an exaggeration for the purposes of emphasis which was not intended to be read literally, nor would it have been construed literally by the trial judge who was obviously aware that she was able to attend and give evidence at the trial.

133 When the evidence relating to this ground of appeal is viewed in its entirety, and in the context of the evidence given at trial, it has not been established that any of the findings expressly made by the trial judge at the time of sentence, or any of the statements made in the VIS which the trial judge incorporated into his observations at the time of sentence are substantially incorrect. As might be expected, some portions of the statement which I have identified have clearly been exaggerated for the purposes of emphasis. However, that exaggeration is apparent to the reader from the terminology used. It is clear that those portions of the VIS were not intended by Ms Vulin to be read literally, nor is there any reason to suppose that the trial judge construed those portions in a literal sense. The sentencing process has not been vitiated by factual error. The question of leave to appeal on this ground was referred to the hearing of the appeal. I would grant leave to appeal on this ground, but for the reasons given would dismiss the ground.

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]

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.

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.

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;[41] Naumoski[42] 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.

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.

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.

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.

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:

(1) A victim impact statement is a written or oral statement that -

(a) gives particulars of any injury, loss, or damage suffered by the victim as a direct result of the offence; and

(b) describes the effects on the victim of the commission of the offence.

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] HCA 67; (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] WASCA 179; (2003) 27 WAR 264 [31]; R v Olbrich [1999] HCA 54; (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.

169 In order to succeed on ground 2, the appellant has to establish:

(1) that the sentencing judge accepted the accuracy of, and took into account in sentencing, the statements in the VIS under challenge (the challenged statements);

(2) the footage was taken at or around the time the VIS was prepared;

(3) the footage proves the falsity or inaccuracy of the challenged statements; and

(4) the footage, which is fresh evidence, could and should result in a different sentence: Wheeler v The Queen [2010] WASCA 105 [3], [53].

170 On my reading of the sentencing judge's reasons, he accepted the accuracy of, and took into account in sentencing, the VIS, including the challenged statements. He read the VIS in full into his reasons (ts 696 - 700) and accepted that the physical and psychological injuries suffered by the victim impacted 'on her every minute in her life in the manner she's described in the victim impact statement' (ts 706).

171 However, the sentencing judge and this court have a wider context which informs and shapes an understanding of the intended meaning of the VIS. That is because the nature, extent and consequences of the victim's injuries in this case was an element of the offence. In particular, the sentencing judge had the benefit of the unchallenged evidence at trial of Dr Linda Monshizadeh (ts 694) and of the victim on this subject as well as very graphic photographs of the victim's horrific physical injuries.

172 I also accept that the footage would have been taken around the time the victim was preparing the VIS. The footage shows the victim in her pressure suit participating in a boxing session; climbing into and jumping around a children's bouncy castle and picking up a young child; singing and dancing with children whilst dressed in a superhero costume; and singing whilst driving a car.

173 I turn now to the third matter. There was no challenge by the appellant at her sentencing to any aspect of the VIS. Accordingly, it was open to the sentencing judge to accept its accuracy and take it into account.

174 The footage is fresh evidence because, at the time of sentencing, it could not with reasonable diligence have been discovered by the appellant. It is for this court to assess whether the footage falsifies the challenged statements, which are as follows:

(1) I still haven't even showered myself or even dressed myself and [its] been 19 months.

(2) I can't raise my hands in the air, they simply do not and cannot move that way. They are stuck down, even after all the [releases] I've had on both arms.

(3) Both my elbows don't bend properly or straighten.

(4) My skin can't and won't be able to breathe for the rest of my life! Which also means I can't sweat for the rest of my life. Causing me to overheat constantly especially in summer. I have needed and will need to be in airconditioning or at least an air controlled environment for the rest of my life as my body can't regulate properly. Essentially my body thermometer is broken!

(5) I'm supposed to be in the prime of my life. Except I'm not. It's passing me by and I'm missing everything. Every special event, engagements, birthdays and even funerals.

(6) My mum and sister have become my legs, my arms, my carers, my providers, my physio's, my occupational therapists, my physical strength, my drivers, my groomers, my dressers, my nurses, and I have become [their] life, living and breathing for my recovery. Which is a full time job for them both, together.

(7) I can't tell you what it's like, even now 19 months later. Imagine not being able to shower and dress yourself and having to ask for assistance for everything. Imagine even the simplest of tasks like not being able to reach up and grab a glass. Imagine supposedly being in the prime of your life and not going anywhere, not a single place.

175 The State, the respondent in the appeal, relies on two affidavits of Professor Suzanne Rea sworn on 30 June 2014 and 12 September 2014. Professor Rea is a consultant burns surgeon at Royal Perth Hospital and has at all times been, and continues to be, the victim's treating specialist. Professor Rea's report annexed to her first affidavit addresses the footage aired by Channel 7. The report annexed to her second affidavit addresses the aired and unaired footage. Professor Rea focuses on the nature, extent and functional consequences of the victim's burn injuries inflicted by the appellant. In the later report she describes the victim's scarring as 'horrendous' and continues:

When assessed on the Vancouver Scar Scale, her scars are in the worst category in every component (height, pigment, vascularity and pliability). This level of scarring has an impact on quality of life, both physically and psychologically.

[M]y opinion remains that the victim impact statement accurately portrays the impact of the injuries on Ms Vulin from the time she has sustained them. Whilst Ms Vulin has adapted as well as she can to her limitations, those limitations remain. In summary ... the extracted portions of footage do not represent the extent and seriousness of her injuries as I have seen them since the time of her injury. They do not represent the degree of physical pain and limitation and the psychological trauma she has experienced and continues to experience since this attack. Ms Vulin is permanently and significantly disabled.

177 In my assessment, there is nothing in the footage that provides a foundation for an arguable challenge to the accuracy of any of statements 1, 3 and 4 and most parts of the remaining statements.

178 As to statement 2, it should not in context be understood literally. The victim had given evidence at trial that she could lift one arm to about shoulder height and the other just below shoulder height (ts 96). Professor Rea confirms that at the time of sentencing, and now, the victim remains unable to lift her arms as she did pre-injury and does not have full, pain free range of movement. She also confirms that the victim remains unable to completely straighten or bend her arms at the elbow.

179 As to statement 5, there can be no doubt the victim's injuries have indeed robbed her of the prime of her life. It is wrong to give a literal interpretation to 'missing everything'. Put yourself in the shoes of the victim. Mere physical presence completely misses the point.

180 As to statement 6, the fact that the victim is now able to drive a car does not falsify the sting of the statement as a whole.

181 Statement 7 overlaps with statements 1, 5 and 6. The additional aspect relates to her stated inability to perform simple tasks without assistance. Having regard to the victim's evidence at trial regarding her arm movements, she should be understood to mean many simple tasks (such as putting on a t-shirt or a bra), not all simple tasks.

182 The appellant also claims the victim exaggerated the psychological impact of her injuries, having regard to the positive emotions (joy, laughter) and singing displayed in the footage. I do not accept that

someone in the victim's position trying to project to a television audience a strong, positive attitude establishes the claim. I accept Professor Rea's assessment; the footage is not 'reality'.

183 In any event, the unchallenged parts of the lengthy VIS, in the broader context, confirm the accuracy of the picture conveyed by the VIS read as a whole. Any inaccuracy or exaggeration in the detail is of no moment.

184 The footage does not persuade me that a different sentence could and should have been imposed. I would dismiss ground 2.

185 HALL J: I agree that this appeal should be dismissed. I agree with the reasons of the Chief Justice in regards to ground 1 and the reasons of McLure P in regards to ground 2.

[12] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414.

[13] Which would have contravened well established principle - see Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656.

[18] Mitchell v The Queen (1998) 20 WAR 257.

[19] Langridge v The Queen (1996) 17 WAR 346.

[20] Mitchell (266) (Steytler J agreeing).

[21] R v Dowlan [1998] 1 VR 123.

[23] Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264.

[24] R v Swift [2007] VSCA 52; (2007) 15 VR 497.

[25] Nettle JA (Vincent JA & Habersberger AJA agreeing).

[27] By contrast, in R v Singh [2006] QCA 71, Fryberg J suggested that the court should not act upon assertions made in a victim impact statement which were neither self-evidently correct nor known by the accused to be correct unless proven by the prosecution, although this proposition has been doubted by the Queensland Court of Appeal - see R v Evans [2011] QCA 135.

[37] Criminal Appeals Act 2004 (WA), s 31(4)(a).

[38] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414; GHK v The State of Western Australia [2014] WASCA 19 [46] (Buss JA, Mazza JA agreeing).

[39] Minhaj v The Queen [2000] WASCA 52.

[40] Eriha v The State of Western Australia [2011] WASCA 167.

[41] Zhang v The State of Western Australia [2013] WASCA 121.

[42] The State of Western Australia v Naumoski [2013] WASCA 215.

[43] Petrelis v The State of Western Australia [2012] WASCA 235.