Director of Public Prosecutions v Shoebridge (Ruling No. 2)

[2022] VCC 2046

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-00876

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT SHOEBRIDGE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September and 24 October 2022
DATE OF RULING:	17 November 2022
CASE MAY BE CITED AS:	DPP v Shoebridge (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2022] VCC 2046

REASONS FOR RULING
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Subject:CRIMINAL LAW – Review of Non-Custodial Supervision Order

Catchwords:              Family Violence – Sexual Assault – Acquired Brain Injury – Unfit – Non-Custodial Supervision Order – Community Protection – Autonomy – Protective Factors – Moderate Risk – Low Risk – Revoke

Legislation Cited:      Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 39, 40, 41 and 47.

Ruling:  Non-Custodial Supervision Order is revoked.

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APPEARANCES:	Counsel	Solicitors
For the Attorney General	Ms J. Ryan	Victorian Government Solicitor’s Office
For the Secretary	Mr J. Teng	Department of Families, Fairness and Housing
For the Defendant	Mr R. Roos	Victorian Legal Aid

HIS HONOUR:

1On 21 October 2015, Robert Shoebridge was arrested and interviewed regarding allegations made of violence and sexual assault in the years 2011-14. He was charged in August 2016 and committed to stand trial in the County Court in October 2017. He denied all the allegations.

2Mr Shoebridge had sustained a serious head injury from a fall in 1996. He had a diagnosed Acquired Brain Injury (‘ABI’). During case management through 2017 and early 2018 it became evident that there was a real and substantial question as to Mr Shoebridge’s fitness to stand trial.

3On 1 November 2018, a jury found Mr Shoebridge unfit to stand trial. On 7 November 2018, a County Court judge declared Mr Shoebridge was unlikely to become fit to stand trial in the next twelve months. A special hearing pursuant to the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) was commenced on 8 November 2018. Mr Shoebridge faced seven charges on indictment G12856205.4. During the course of the evidence, an application to discharge the jury was made and granted. The special hearing was adjourned to 19 August 2019.

4The jury that heard the case in August 2019 returned a verdict that Mr Shoebridge committed charge 2 being a charge of recklessly cause injury. The jury could not agree on verdicts for charge 1, 3 – 7. The jury were discharged and a new special hearing listed for 10 February 2020. A new indictment was filed: G12856205.5.

5The jury that heard the case in February 2020, returned a verdict that Mr Shoebridge committed charge 2, again a charge of recklessly cause injury but a different incident. The jury could not agree on the verdict on the remaining charges so were discharged. On 8 April 2020, the OPP discontinued all remaining charges.

6On 20 November 2020, following the receipt of report pursuant to s 41(3) CMIA and a certificate of available services pursuant to s 47 of CMIA, as well as material from the victim and submissions from counsel, an order was made that Mr Shoebridge be the subject of the supervision. The form of the supervision was a Non-Custodial Supervision Order (‘NCSO’). The nominal period was 5 years. A court ordered review was fixed for 20 May 2022, being 18 months after the making of the NCSO.

7It should be noted that all parties were in agreement that a NCSO was the appropriate order and that a review after 18 months was likewise appropriate.

8The review pursuant to s 27(2) was fixed for 20 May 2022. Pursuant to s 41(3) CMIA, reports were filed – being the report of Ms Devine, Disability Justice Co-ordinator, dated 28 April 2022, and a risk assessment report by Dr Carolyne Thompson dated 22 March 2022. Both report writers gave oral evidence on 20 May 2022.

9Dr Thompson noted that Mr Shoebridge had not been involved in any concerning incidents in the period since the NCSO was imposed. She also noted the very significant protective factors of Mr Shoebridge’s stable supportive relationship, his employment, his social networks at the Mernda football club and his compliance with his medication. Those prosocial protective factors were all well entrenched. Dr Thompson noted, as do I, that Mr Shoebridge was receiving very professional, conscientious case management from Ms Devine. Initially, Mr Shoebridge was antagonistic towards the order and Ms Devine’s support. That changed over time. Dr Thompson wrote in her report of 22 March 2022 the following:

Overall, Mr Shoebridge appears to have adjusted to the conditions of his NCSO and demonstrated insight into understanding that the imposed restrictions were perhaps not as unfavourable as he initially believed they were. Further, he seems to now see the benefits of having a Justice Coordinator available to assist him as opposed to considering this resource a ‘punishment’.[1]

[1] Ibid [32].

10As to Mr Shoebridge’s medication, the risk assessment report of Dr Thompson noted:

The health summary provided by Mr Shoebridge’s General Medical Practitioner, Dr Mohammad Khan, lists Mr Shoebridge’s current mental health diagnoses as mixed anxiety and depression. For the management of symptoms related to anxiety and depression, Mr Shoebridge is currently prescribed 45mg Mirtazapine as well as an 100mg Seroquel at night as required. An additional 50mg Seroquel is also prescribed for daily use as required. Other medications include Colgout for treatment of gout and a calcium supplement.[2]

[2] Psychological Report of Dr Carolyne Thompson dated 22 March 2022, [23].

11Dr Thompson’s ultimate finding in her risk assessment, when utilising the appropriate testing tools, was moderate. This conclusion needs to be seen in the context of what she saw as Mr Shoebridge’s current stability. She wrote:

As Mr Shoebridge’s risk appears to be confined to the dissolution of intimate relationships and his lack of understanding of the dynamics involved, he is not believed to be of risk to the broader community. While his relationship remains stable and supportive, the triggers that have previously caused him to engage in violent behaviour have been absent.[3]

[3] Psychological Report of Dr Carolyne Thompson dated 22 March 2022, [66].

12Dr Thompson went on:

As much as Mr Shoebridge believes his current order is unjustified, he nonetheless has complied with the expectations, albeit after travelling interstate until understanding that permission was required. Given that he has several protective factors in his favour such as gainful employment, a pro-social network and pros-social recreational pursuits, confirming the NCSO is unlikely to provide any reduction in the current risk he poses either to himself or the community.

Similarly, revoking the NCSO is unlikely to impact on Mr Shoebridge’s behaviour, other than allowing him to travel interstate to visit friends and family, which he alluded to during his interview. In other words, revoking the NCSO is not considered to increase the risk that has historically been restricted to the dissolution of intimate relationships. However, as recommended in paragraph 64, using this extended period of relative calm to locate a counselling service would be beneficial for Mr Shoebridge to constructively discuss his tensions in a therapeutic environment before they become heightened and potentially dangerous.[4]

[4] Ibid, [68] and [69].

13As in her report and confirmed in her oral evidence, Dr Thompson was of the view that Mr Shoebridge may benefit from renewed efforts to have him undertake psychological counselling by an expert in the area of domestic violence. Dr Thompson considered that given Mr Shoebridge’s lack of insight counselling may assist. She also made the point that given Mr Shoebridge was stable and supported, it was the best environment to try to get him to understand the consequences of domestic violence, rather than the likely turbulence if there was any deterioration in his relationship or mental health.

14On the basis of Dr Thompson's report, I determined to urge Mr Shoebridge to try again at psychological treatment. With the assistance of Ms Devine, an appropriate clinician was located, a Ms Duckmanton. Mr Shoebridge attended for 3 sessions on 11 July, 5 and 22 August 2022. Ms Duckmanton reported as follows:

“We have had 3 sessions and I have concluded that it is unlikely we are going to get much change with emotional regulation. As noted in his neurological reports and based on my observations, Robert will struggle to learn new skills and his difficulty with executive functioning is permanent due to his injury.”[5]

[5] Addendum Report of Ms Devine dated 10 October 2022, [12].

15Ms Devine made the appropriate decision to advise Mr Shoebridge after three sessions that there was no requirement to continue to attend for counselling as part of his NCSO. It is noted that Ms Duckmanton wrote in a discharge letter the following:

“Mr Shoebridge attended all sessions with his partner who supported Mr Shoebridge in the initial session and waited in the wait-room for subsequent sessions... Mr Shoebridge was friendly and engaged well in all sessions but struggled to maintain eye contact. Mr Shoebridge often struggled with comprehension and thought form varied. At times, Mr Shoebridge’s thought form appeared circumstantial and would often involve unrelated content but after prompting, would eventually achieve conversational goals. At other times, Mr Shoebridge struggled to reach conversational goals and less often, displayed normal thinking. Mr Shoebridge’s struggle with speech and thought which made it very difficult to complete initial assessments and to obtain enough information to inform an accurate functional analysis. Mr Shoebridge acknowledged this barrier and, on many occasions, explained he struggled to express thoughts using words. 

Mr Shoebridge’s described his mood as euthymic which was congruent with affect. However, it was noted that Mr Shoebridge had restricted affect during session which was incongruent with self-described moods. 

Given the nature of Mr Shoebridge’s injuries and based on the outcome of the writer’s assessment of Mr Shoebridge’s suitability for treatment, it is unlikely at this time that Mr Shoebridge would be suitable for talk-based psychological intervention. Deficits in executive functioning, memory, cognition, and language as a result of the accident mean Mr Shoebridge would struggle to engage and participate in a talk-based therapy to achieve change.”[6]

[6] Ibid [14].

16The question of whether the NCSO should be confirmed or revoked was still a live consideration. The adjournment for the 5 months was to ascertain if any progress could be made with psychological counselling. As is clear, efforts on the part of Ms Devine and importantly Mr Shoebridge were made, but to no avail due to Mr Shoebridge’s ABI.

17The discharge letter was provided to Dr Thompson. On the basis of this report and updates from Ms Devine, Dr Thompson wrote that notwithstanding the inability of Mr Shoebridge to benefit from counselling, that in all the circumstances she was still supportive of the revocation of the NCSO. She wrote:

Nonetheless, given the ongoing absence of offending and the continuing stability of Mr Shoebridge’s lifestyle, my assessment of his potential risk of reoffending has not varied and I continue to be supportive of a revocation of the Non-Custodial Supervision Order.[7]      

[7] Letter Update from Dr Carolyne Thompson dated 27 October 2022.

18Counsel for the DFFH and Mr Shoebridge submitted that the NCSO could be safely revoked.

19Counsel for the Attorney General (‘AG’) submitted that given Mr Shoebridge’s lack of insight, the time had not yet come for the NCSO to be revoked. Counsel for the AG argued that, notwithstanding the expert opinions that the order lacked efficacy, it was still appropriate and required to ensure there was some ongoing oversight of Mr Shoebridge. It allowed for ongoing, albeit minimal, monitoring via Mr Shoebridge’s Disability Justice Co-ordinator. The order also was a guarantee that Mr Shoebridge was compliant with his medication, although there was to date no indication of any non-compliance.

20It is clear Mr Shoebridge lacks insight because of his ABI. However, he has not acted in any concerning way for a period of between 8 to 11 years. He is in a stable relationship. The only real risk is a reaction to his intimate relationship breaking down. His partner is well aware of all the issues that have been discussed by clinicians, including Mr Shoebridge’s lack of insight. As is well recognised by the clinicians, Mr Shoebridge’s partner is the central and most important protective factor.

21His current NCSO provides assistance to him and is minimally intrusive. However, it is a court order and he has obligations to comply. He has expressed frustrations in the past, though they have been sorted out. It is of note that Mr Shoebridge steadfastly resists engaging with the NDIS. That is his idiosyncratic choice not to get assistance he is entitled to. It bespeaks of Mr Shoebridge wanting to have no involvement of institutions in his life. His subjective view is relevant especially with regards to principles of minimum restrictions consistent with community safety.

22As noted, the question before me is down to whether I revoke the NCSO or confirm it with a review date. As I have mentioned above, I must apply the principle that restriction on Mr Shoebridge’s freedom and personal autonomy should be kept to a minimum, consistent with the safety of the community (s 39).

23I must also have regard to the factors set out in s 40(1). Some of those matters are not in the least bit controversial with regards to Mr Shoebridge.

24His disability is well understood. He has an ABI which is significant and permanent (s 40(1)(a)). His offending conduct which involved him being unable to control his anger and causing injury to his domestic partner with reckless intent, is conduct that on any analysis was related to his ABI. The relationship is causative in nature (s 40(1)(b)).

25The most important consideration is whether Mr Shoebridge would if released from NSCO, endanger another person or other people generally because of his ABI (s 40(1)(c)). I put completely out of consideration whether Mr Shoebridge would endanger himself. There is no basis whatsoever for concluding Mr Shoebridge would harm himself.

26The focus of the expert evidence as to Mr Shoebridge was on the level of risk he presents to his domestic partner, given his index offence and the nature of his ABI.

27In my view, the preponderance of evidence is clearly that Mr Shoebridge presents a low risk given the expert evidence of his moderate risk rating using the relevant tools, and the significant protective factors, along with the very long time since his last episode of violence. The question of course is whether, if released from the NCSO, Mr Shoebridge would endanger others. The evidence is all one way, that is being on or off the NCSO does not impact on his level of risk. If anything, it may make him more relaxed because he no longer has any court ordered restrictions on his autonomy or freedoms. Thus, in my view, having regards to s 40(1)(c), I am firmly of the view that Mr Shoebridge would not endanger anyone if the NCSO was revoked.

28Also pursuant to s 40(1)(d), I take into account the danger he presents. On any view, it is to his domestic partner in the context of the relationship failing. All the evidence is clear as to the strength of the relationship and the expansion of Mr Shoebridge’s social connections while in that relationship. Also, his partner is well aware of all aspects of Mr Shoebridge’s circumstances and can take appropriate steps if things become problematic. By that I mean the evidence shows his partner has engaged in Mr Shoebridge’s assessments including his recent NCSO ordered counselling. Mr Shoebridge’s continued compliance with his medication, while in the relationship also indicates the steady approach of both to key protective factors.

29Mr Shoebridge can receive appropriate help and support from the medical system via his GP and if he wants the NDIS. There are adequate resources without the need for a NCSO (s 40(1)(e)).

30Finally, I have considered what Mr Shoebridge’s victim wrote of his volatility. It is relevant, but does not tip me into considering that the NCSO must be continued (s 40(1)(f)).

31With the findings I have made as to Mr Shoebridge’s overall low risk as a result of clinical finding of moderate risk, but with many and entrenched protective factors – and then by applying the principle in s 39, the result is a conclusion that it is appropriate and time to revoke Mr Shoebridge’s NCSO. I make that order.