STATE OF TASMANIA v ANTHONY STEWART FORWARD 16 SEPTEMBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
You pleaded guilty at a very early time to one count of assault, contrary to the Criminal Code. The facts of the matter, as they have been put to me, are that after you and your wife had reconciled, and were in the bath together, you asked her if she trusted you. She replied that she did. You then grabbed her by the throat and pushed her head underwater, and held it there for a period of around 10 seconds. It is asserted by your lawyer without challenge that it was not long enough for her to be significantly physically distressed, and that when she tapped your hand, you released her immediately. She did not suffer any injury, and there was no other physical consequence. However, after that event, the relationship between you deteriorated and some 18 months later, you separated. It would seem the marriage is now over.
Your explanation for committing this crime seems to relate to difficulties in your relationship which included questions of trust. That is the explanation that has been put to me in court at least. You did not provide significant explanation to the police. On any view of it, I find your decision to commit an act like this completely bizarre. It is not suggested that it was something that you did out of anger or spite or with any intention to harm the complainant. You made a terrible and very arrogant decision that this was something that was going to benefit her psychologically and benefit your relationship. Well, that was a complete misjudgment and I hope, with the benefit of hindsight, you understand how arrogant and abusive this was. For someone to be held without their consent under water is not dissimilar to being smothered with a pillow or otherwise having an airway constricted. It would have been terrifying and potentially life threatening experience. You are not a doctor. You had no concept of the risk that an act like this could entail, particularly if she had, for example, breathed some water into her lungs or something of that nature. The consequences could have been far more serious.
The complainant was obviously psychologically impacted by your conduct. I have the victim impact statement. I have to observe that the complainant did continue to live with you without making complaint to police for another 18 months. Then there was a separation and complaint was made after the separation. The victim impact statement was written on 13 September 2019. I should treat that statement with circumspection. I would assume that not all of the consequences expressed in the statement have flowed from your commission of this crime. I suspect that it is a lot more complex than that. But, in any event, the commission of an assault like this could certainly impact on trust and on the psychological welfare of the victim. I will certainly take that into account.
I have been told that there were other acts of family violence alleged against you. One of those was dealt with in the Magistrates Court and I am told the matter was dismissed without recording a conviction. I gather that there has not been an ongoing pattern of family violence, and that this act was not committed in that context. I intend to proceed on that basis.
You have no prior convictions at all. It would seem that you are asserted to be, and there are some references which attest to this, a person of otherwise good character. I am told that you now have a reasonable relationship with the complainant. You have three children together, one of whom is 11 years of age, and you share the care of that child. You have been in employment. You are well regarded in that employment. Your coming before the Court in respect of this matter may impact on that employment, but really I am not in a position to determine the significance of this case to your employment. That is a matter for your employer, not for me. However, I think that having a conviction for a crime such as this recorded against you is likely to have adverse impact in a general sense. You are only 29 years of age, and the conviction of itself will constitute punishment.
I do intend to record a conviction. It seems to me that what ever the reasons for it were, this crime involved significant invasion of the physical integrity of the complainant. Further, as I have already said, the potential consequences of this arrogant act could have been far worse than they actually were. Despite that, I do not think this is a case where punishment beyond the recording of further conviction is necessary. What I intend to do is accept your undertaking to be of good behaviour for a period of two years and, on condition that you give that undertaking, and on recording a conviction, you will be discharged in respect of this case. I will also make an order declaring this to be a family violence offence under s13A of the Family Violence Act. Although the reasons for it are not the usual reasons and causes that underpin family violence, it was an act of family violence. The complainant was entitled to her integrity and entitled not to have her head pushed under the water because you arrogantly, unilaterally thought it would be a good idea.
So the way I intend to proceed is as I have indicated. I record a conviction for the crime. You will be released on your undertaking to be of good behaviour for a period of two years. I otherwise direct that this crime be recorded in your criminal record as a family violence offence.