NUROVIC -v- NUROVIC [2019] WADC 28
On 1 April 2014 the appellant pleaded guilty to unlawfully assaulting the respondent on 27 December 2013 and thereby doing her bodily harm in circumstances of aggravation. The respondent subsequently lodged a claim for criminal compensation pursuant to the Criminal Injuries Compensation Act 2013 (WA) (the Act) and on 10 October 2018 was awarded $47,821.95 by the assessor.
The appellant appealed that decision on the grounds that:
- he only pleaded guilty as a result of incompetent legal advice;
- he did not break the respondent nose; and
- the respondent had a pre-existing medical condition.
In regard to the claim that the appellant received incompetent legal advice the court stated that “…if the appellant wished to dispute that he assaulted the respondent he should have pleaded not guilty and the matter would have gone to trial. In the four years since the plea he has not sought to appeal his guilty plea. He cannot now controvert his plea or the material facts that were read to the court upon sentencing”
In regard to the claim the appellant did not break the respondent’s nose the court stated that “…no challenge was made to that fact that the assault had caused the broken nose. The appellant cannot come to this court and say that his blow did not break her nose. If he wished to challenge the assertion which was clearly made at the court on both 1 April 2014 and 14 October 2014, he should have raised the issue then and there and it would have been dealt with by the magistrate. It cannot now be raised”
In relation to any pre-existing medical condition suffered by the respondent before the broken nose the court found “…there is absolutely no evidence that she had a pre-existing condition that would have meant her nose would have been broken in any event. Whilst any pre-existing nasal difficulty may have left her predisposed to a broken nose, the appellant simply takes his victim as he finds her”.
The respondent claimed additional loss of past and future earning capacity (the Court been allowed to received new and further evidence) and the Court stated that “…ultimately the respondent claim for past loss of earnings is really based on the fact that she had significantly more time off after the incident than she did prior to the incident and therefore she says she should be award compensation to reflect her loss of income”. However, the Court was not satisfied on the balance of probabilities that the respondent had made a case for loss of future earning capacity. Whilst it accepted that the respondent was fearful of losing her job because of the time she took off work and that the evidence established that she becomes withdrawn, the evidence also shows she was then working full-time and would be able to for the foreseeable future.
The court proceeded to increase the award and assessed it at $50,384.29 for injuries and losses in respect of the proved offence”
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