R v Stone [2018] NZHC 1340 (8 June 2018)

Last Updated: 8 October 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2010-288-000001 [2018] NZHC 1340

THE QUEEN

v

BERNADETTE MATEKINO STONE

Hearing:	8 June 2018
Counsel:	MB Smith for Crown LJ Postlewaight for Defendant
Judgment:	8 June 2018

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Whangarei. LJ Postlewaight, Whangarei.

R v STONE [2018] NZHC 1340 [8 June 2018]

The case

[1] These remarks will be brief because Ms Bernadette Stone is watching through closed circuit television and her attention span is short.

[2] On 31 December 2009, Ms Stone allegedly murdered her older sister, Petina, by stabbing her once to the chest with a knife. Their mother, Ms Watene, witnessed the event. Ms Stone was then only 14; Petina 30. The District Court concluded Ms Stone was unfit to stand trial.¹ On 21 December 2010, that Court ordered Ms Stone be detained as a special care recipient.²

[3] In 2016 the Attorney-General received advice Ms Stone was no longer unfit to be tried. He directed she again be placed before the Courts. On 12 April of this year, I concluded Ms Stone was still unfit to be tried.³ Which means the same issue arises as earlier: what happens to Ms Stone? She is now 23, albeit in many ways, more like a child.

[4] The Crown contends Ms Stone should again become a special care recipient, which would mean she would continue to live in a secure facility until her status changes.⁴ Mr Smith submits such an order is necessary because of the risk of harm Ms Stone poses primarily to others. Ms Postlewaight contends Ms Stone should be treated as a care recipient, albeit in a secure facility.⁵ Something more about the differences between these outcomes shortly.

Principle

[5] My decision must be made with reference to totality of circumstance and expert reports.⁶ A special care recipient order must be necessary in the interests of the public; person; or class of person affected by the decision. A higher Court has emphasised the test is a high one; mere expediency is insufficient.⁷

¹ R v BMS DC Whangarei CRI-2010-288-000001, 29 September 2010.

² R v BMS YC Whangarei CRI-2010-288-000001, 21 December 2010.

³ R v Stone [2018] NZHC 665.

⁴ Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(2)(b).

⁵ Sections 25(1)(b) and 26(2).

⁶ Section 24(1).

⁷ M v R [2012] NZCA 142, (2012) 28 FRNZ 774.

The experts

[6] Three experts have examined Ms Stone. I am grateful to them for their comprehensive reports:

(a) Ms Michelle Coutinho, a senior clinical psychologist at the Mason Clinic.

(b) Dr Valerie McGinn, a clinical neuropsychologist.

(c) Dr Andrew Immelman, a consultant psychiatrist.

[7] The experts agree Ms Stone suffers foetal alcohol spectrum disorder, and an intellectual disability. The latter is mild, stable, and unlikely to ever improve. Ms Stone has a host of difficulties including poor executive functioning. Executive functions are a set of thought processes that help control behaviour. Ms Stone also finds “emotional regulation” difficult. In short, she struggles to control herself. As observed, Ms Stone presents and behaves more like a child than a 23-year-old.

[8] Other matters enter the mix. Ms Stone has experienced neglect and abuse. She has experienced symptoms of Post-Traumatic Stress Disorder. She has been mentally unwell recently, most likely because of anxiety in relation to this case. For example, Ms Stone attempted to hurt herself with a razor blade on 4 April 2018. And on 24 April 2018 she swallowed part of a pen.

[9] The experts disagree on whether Ms Stone should again become a special care recipient, or instead, a care recipient. There are differences between the two, albeit these are not as great as might otherwise be the case, as everyone agrees Ms Stone should be detained in a secure facility.

[10] A special care recipient order may last for 10 years; a care recipient order only three. The other significant difference—given Ms Stone would be detained in each— concerns level of decision making. For example, only the Director-General of Health may approve unescorted leave of up to six nights by a special care recipient, whereas a local care manager may grant such leave for a care recipient. Other decisions in
relation to special care recipients “go through additional checks and balances by the Ministry of Health and Director-General of Health”. Consequently, Ms Coutinho observes special care recipients attract “longitudinal awareness of risk” because of the high level at which such decisions are made.

[11] Ms Coutinho considers a special care recipient order is necessary because of:

(a) The nature of the index offence, and related circumstance.

(b) Ms Stone’s “history of conduct disorder” since she was young, and her violence “from at least the age of nine”. For example, Ms Stone has threatened teachers and members of her family with knives.

(c) Multiple assaults by Ms Stone upon hospital and prison staff.

(d) Her “extensive history of self-harm”.

(e) Ms Stone’s risk of violent harm to others, which Ms Coutinho assesses as “high” using an actuarial instrument and clinical judgement.⁸

(f) The “high level of support and treatment” required by Ms Stone.

[12] Drs McGinn and Immelman consider a special care patient order unnecessary. Dr Immelman considers Ms Stone poses an “elevated” risk of violence to others; not a high one. He considers risk can be alleviated with “appropriate rehabilitative measures” in the context of secure care recipient status. And, Dr Immelman believes Ms Stone can be safely managed in a secure care environment.

[13] Dr McGinn shares these views. She notes Ms Stone suffers brain damage, not a personality disorder. Dr McGinn acknowledges Ms Stone poses risk, but says so do many with foetal alcohol spectrum disorder. Dr McGinn considers care recipient status in the context of secure care is sufficient to manage the risk posed by Ms Stone, and would be the best outcome for her—and the community.

⁸ Historical Clinical Risk Management-20, Version 3 (HCR-20v3).

Analysis

[14] The decision is difficult because of the competing opinions, and the circumstances of the case, which on any view are distressing. Ultimately, I am not satisfied a special care recipient order is necessary, the high test required by law. Four reasons unite this conclusion.

[15] First, Ms Coutinho acknowledges “there has been a decline in the frequency and severity of violence and self-harm over time suggesting that with further intervention [Ms Stone] may continue to reduce her risk of offending with therapeutic interventions suited for her cognitive abilities”. While this observation is appropriately guarded, it is also important.

[16] Second, the balance of expert opinion is to the effect secure care in the context of care recipient status will provide sufficient public protection. And, all experts agree secure care is necessary, and desirable.

[17] Third, Ms Stone has been detained in secure facilities for the last eight and half years, either as a special care recipient or as a remand prisoner. The maximum period of detention of a special care recipient is 10 years.⁹ But for Ms Stone’s return to Court for re-evaluation of trial fitness—which resulted in the same determination as earlier—Ms Stone would likely have commenced, or be about to commence, a transitional process to care recipient status. Ms Coutinho very properly acknowledged renewed special care recipient status in these circumstances could be seen as “unjust”. I agree.

[18] Fourth, a care recipient order—and associated secure care—can be extended three-yearly by the Family Court, a likely outcome given Ms Stone’s difficulties and associated risk.¹⁰

[19] In summary, an appropriate level of public protection is available through more proportionate means than a special care recipient order, in circumstances in which

⁹ Criminal Procedure (Mentally Impaired Persons) Act, s 30(1)(a).

¹⁰ Section 24(1).

Ms Stone would otherwise be moving, or about to move, to care recipient status. The same reasons foreshadow the appropriate outcome: care recipient status, albeit with associated detention in a secure facility.

Orders

[20] Ms Stone is made a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and is to be detained in a secure facility. These orders last three years, and are subject to likely extension by the Family Court.

[21] The charge of murder is stayed.

[22] The Registrar is to provide Ms Stone’s care coordinator with a copy of this judgment.

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Downs J