STATE OF TASMANIA v MICHAEL RICHARD FORSHAW 23 NOVEMBER 2021
COMMENTS ON PASSING SENTENCE PEARCE J
Michael Forshaw, you plead guilty to assault. At about 2.30 am on 22 March 2020 you went to a unit in the same complex that you lived in. The complainant, a male of about your age, lived in the same complex and was socialising in this unit with others including his partner. For various reasons there was considerable mutual animosity between you and the complainant which led to heated arguments in the days leading up to this incident. During the course of that evening you sent him provocative text messages, but then, after you had gone to bed, you heard him shouting abusive challenges to you from the unit in which he was drinking. It was that shouting which prompted you to go there and confront him.
When you arrived he was highly intoxicated. You were angry, also intoxicated, and you shaped up to him. He suggested that you take the fight outside where you pushed him over a low fence. After he fell to the ground below, you walked to him and punched him to the face several times. When the punches were thrown he had got himself to his feet, but there was no reason for you to conclude that he was any threat to you or that force was necessary to defend yourself. His partner called the police. His face became swollen and he was spitting blood. Although he initially did not wish to make a complaint, over the next few days he continued to experience pain and swelling. He went to the hospital and medical investigations revealed that he had a fractured jaw. Although there was little displacement, wires were inserted to stabilise the fracture. They were not removed until a month later, by which time he had developed an abscess in the soft tissue below the floor of his mouth which had to be incised and drained. It was not until the latter part of May that he reported the matter to the police.
You were interviewed on 3 June 2020 and largely admitted what you had done. The complainant’s victim impact statement indicates that his injuries were painful and incapacitating. He was confined to liquid food for two months. The abscess and its treatment were distressing. He was kept from his employment as a truck driver for nearly four months. The main ongoing impact is as a result of the loss of two teeth removed at the site of the broken jaw.
You are aged 44. It is in your favour that you pleaded guilty. It was not a particularly early plea. Although the complainant gave evidence at preliminary proceedings he did not have to give evidence at trial. By pleading guilty you facilitated justice and indicated an acceptance of responsibility. You have relevant prior convictions. In 2014 you were sentenced to community service and probation for an assault committed in 2008 along with other drug, bail, driving and anti-social offences. In 2016 that community service order was cancelled and you were fined. On 27 July 2018 you were sentenced to imprisonment for three months for driving offences related to the use of drugs, particularly methylamphetamine. That term was wholly suspended for two years. On 12 June 2019 you breached that suspended sentence by destroying property and by possessing cannabis. On 3 March 2020 a magistrate found the breach proved but made no order on the basis that it would have been unjust to activate the suspended term. However you remained subject to the suspended sentence and this crime was committed less than three weeks after that court appearance. Application is made by the State that I now activate that term, which I must do unless satisfied that it would be unjust.
Your personal circumstances are relevant to that question as well as to the sentence I am to impose for the assault. Your counsel submitted that you have taken steps since this crime to improve your life. For the last three years you have been in full time employment with a painting company. A reference from your employer indicates that you are a well-regarded and trustworthy employee with responsibility over others. Your landlord, a medical practitioner, describes you as helpful, responsible and a reliable tenant. Information from your doctor, confirmed by recent blood tests, indicates that you have overcome drug dependence and regular drug use. I considered making a home detention order. However you have been assessed as unsuitable because the demands of your employment, particularly location changes at short notice, make it impracticable to formulate the weekly planner requirements of such an order. However the report indicated that you presented as an amenable participant in the pre-sentence report process, confirms that you have made pro-social changes to your life in recent years and you agree to undertake interventional programs to reduce the chance that you will re-offend.
I am persuaded that it would be unjust to activate the suspended sentence. It was imposed for offences of a different nature, you have taken real steps to address the issues which led to that offending and there have been no further offences of that type. In very significant respects, it appears that the suspended sentence had the intended result. This crime was committed towards the end of the period of suspension. As a result I will make no order on the application. That is not to say that it is not an aggravating factor that you committed this crime while you were subject to that suspended sentence and I will take it into account in that respect. The State accepts that you did not intend or foresee serious injury to the complainant. However the impact of the assault is relevant to sentence, and to reflect the seriousness of the consequences to the complainant a sentence of imprisonment is required. However I think that the factors in your favour justify allowing an opportunity to you to avoid having to serve any of the term on condition that you submit to supervision. To add an additional punitive element I will also require the performance of community service.
On the application for breach of the suspended sentence imposed 27 July 2018 I make no order. On the indictment, you are convicted and sentenced to imprisonment for seven months, wholly suspended for two years from today on the following conditions:
- You are not to commit another offence punishable by imprisonment during that period. If you breach that condition you will be required to serve the term unless that is unjust.
- During the two years that the order is in force, commencing today, you will required to comply with the reasonable and lawful directions of a Community Corrections officer. The conditions referred to in s 24(5A) and (5B) of the Sentencing Act apply to this condition and will be set out in the order you will be given. These include that you must report to a Community Corrections officer in Burnie on or before 25 November 2021.
- There will also be the following special conditions that you must, while the order is in force:
- perform 70 hours of community service;
- submit to the supervision of a Community Corrections officer as required by that officer;
- attend educational and other programs as directed by the Court or a Community Corrections officer;
- undergo assessment and treatment for drug dependency as directed by a Community Corrections officer;
- submit to testing for drug use as directed by such an officer;
- submit to medical, psychological or psychiatric assessment or treatment as directed by a Community Corrections officer;
- attend, participate in and complete the EQUIPS aggression program as directed by a Community Corrections officer.