R v Carden-Soole

[2021] NZHC 65

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2020-019-000097

[2021] NZHC 65

THE QUEEN

v

ASHA CARDEN-SOOLE

Hearing:	3 February 2021
Appearances:	D J McWilliam for Crown S McColgan for Defendant
Date:	3 February 2021

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Tauranga Counsel:   S McColgan, Auckland

R v CARDEN-SOOLE [2021] NZHC 65 [3 February 2021]

[1]                 Asha Carden-Soole, you are for sentence by this Court having pleaded guilty to one charge of illegal possession of a firearm and one charge of manslaughter. The maximum penalty for the charge of manslaughter is life imprisonment.

[2]                 Before referring to the facts which I have to consider before sentencing you, I want to acknowledge Mr Copestake’s family and friends. The sentence I impose is mandated by legal principles and precedents. It is not intended to be and never could be a measurement of the loss that you have all suffered and will continue to suffer as a result of Joshua’s death. I also acknowledge the presence of your family in support of you, Mr Carden-Soole. You are fortunate to have that support.

[3]                 Mr Carden-Soole, on 4 January 2020, you and your partner had been with the victim, Joshua Copestake during the course of the day. You were the best of friends. You and he had been friends since childhood. That day you had been drinking at another friend’s place and then returned home to your address in Seaforth Road at Waihi Beach. You and your partner had a meal and about 9.15 pm went to bed. Then a female boarder arrived home from work and told you and your partner that Mr Copestake was coming around for some drinks. You got up and watched some television in the lounge. Mr Copestake arrived about 9.40 pm and he and the boarder then drove back to Waihi beach town, and got some food at a takeaway.

[4]                 Before leaving they told you they were going to get food. By that stage Mr Copestake had not come inside. They returned about 10 minutes later with the food and went straight into the shed to eat the meal and have a drink. I have heard the victim impact statement from a person who is referred to in the summary of facts as the boarder this morning. After about five minutes Mr Copestake left the shed and came up to the main house to use a tap on the outside wall of the house.

[5]                 At about that time you had left the lounge area, gone to your bedroom and retrieved the single barrel shotgun from the corner of your bedroom. You had previously illegally obtained that shotgun on or about 29 December 2019. You did not have a licence for the gun. You did not secure it or store it securely. You kept it in the lounge or in your bedroom, either under the bed or the corner of the bedroom. You also had obtained two shotgun cartridges.

[6]                 While you were in the bedroom, having retrieved the shotgun, you and Mr Copestake spoke to each other through the open bedroom window. You discussed another group of individuals in the town with whom you had recently had issues. You raised the shotgun, closed the breach and rested it on the window ledge. You said that if the group came to your house you had the means to see them off. For effect, you pulled the trigger, forgetting, and failing to check, if the shotgun was loaded.

[7]                 Mr Copestake was standing close to the window and was shot in the mouth from a distance of between 45 and 70 cm. The shot was fatal. He died instantly.

[8]                 Your immediate reaction was one of grief. You cried out or are reported as crying out: “I just shot my best friend” or words to that effect. When spoken to by the Police at the scene, you also admitted shooting your best friend, but later, on legal advice, you declined to be further interviewed formally. Subsequently, after a change in counsel, you were interviewed and provided a full explanation to the Police and accepted full responsibility for the shooting. You explained the circumstances as I have related them. You said you did not realise the shotgun was loaded. You did not check if it was loaded before pulling the trigger. The Crown then accepted the charge should be amended to manslaughter and you pleaded guilty as soon as possible.

[9]                 In sentencing you Mr Carden-Soole, the Court is required to take account of the purposes and principles of the Sentencing Act 2002. It is necessary to hold you accountable for the consequences of your stupid action, but in your case the particular relevant sentencing purposes are also to denounce conduct like yours, and to try as much as possible to deter others from such actions, particularly obtaining and keeping firearms without a licence, and also to take account of the effect of your actions on the victims of your offending. The effect of your offending on the victims in this case, particularly Mr Copestake’s whanau and friends, will be apparent to you. You have heard from the victim impact statements the impact of the death of Mr Copestake has had on the victims in this case, and the effect is profound on each and every one of them.

[10]             The Court must also take into account the gravity of your offending, your culpability, and the general desirability of consistency with appropriate sentencing levels, in other words, I have to have regard to other cases of similar offending.

[11]             Unfortunately, incidents such as this are not as uncommon as one might think. The use of an unlawful firearm in incidents where there is no intention to kill, but where stupid acts in relation to firearms have led to death, is not that uncommon. There are a number of cases that counsel have referred to.1 All are unnecessary deaths, but perhaps the most tragic is the killing by a father of his young three year old daughter. In that case the Court took a starting point of five years.2

[12]             On the basis of those cases, the Crown submit that a starting point of between four and a half years and five years’ imprisonment is warranted on the charge of manslaughter and Mr McWilliam has argued for the higher range.

[13]             Mr McColgan submits that a starting point of no more than four years, six months is appropriate referring to a case of similar circumstances, in his submission, to yours.3

[14]A combination of factors led to your offending in this case:

·The first was your acquiring a firearm and ammunition unlawfully.

·Next your failure to keep the firearm and ammunition secure.

·Then your stupidity in getting it out when you had been drinking.

·Next, your failure to be careful where you pointed it.

1      Moses v R [2020] NZCA 296; R v Adlam-Kiro [2020] NZHC 2679; R v Sutcliffe [2017] NZHC 2882; R v Sanft [2017] NZHC 2164; R v Gideon [2015] NZCA 2333; R v Fepuleai [2013] NZHC 2204; R v Williams [2013] NZHC 3173; and R v Goldestone HC Auckland CRI-2009-044-10031, 28 May 2010.

2      R v Sanft, above n 1.

3      R v Gideon, above n 1.

·And then there was your ultimate act of gross negligence in failing to check whether it was loaded before pulling the trigger in some sense of mistaken bravado.

[15]             Taking the manslaughter charge as the lead charge, but also taking account of your unlawful possession of the firearm, I take as a starting point four years, eight months’ imprisonment.

[16]             I then turn to your personal circumstances. There are no particularly aggravating personal circumstances. While you have previous convictions they are minor. They are irrelevant and unrelated. The reports before the Court confirm that you are at a very low risk of reoffending.

[17]             In terms of mitigating circumstances you accepted responsibility at a relatively early stage and as I have said you agreed to plead guilty once you had provided a narrative, which enabled the Crown to consider manslaughter as the appropriate charge. A reduction of 25 per cent is mandated by the Courts for that.

[18]             Next, you are still an immature and relatively young man. As Mr McColgan submits, neurological factors can lead to a reduction in culpability of young people which the Court has recognised.4 This does not mean you should not be held responsible for your actions, but it goes some way to explain why you might have acted in such a seemingly stupid and senseless way.

[19]Undoubtedly you are extremely remorseful. I accept that.

[20]             You also spent seven months on EM bail, which again the Courts have said supports a further modest reduction.

[21]             Overall a further reduction of 17.5 per cent is appropriate for your youth, remorse, personal circumstances and time spent on EM bail.

4      Churchward v R [2011] NZCA 531.

Result

[22]That leads to an end sentence of two years, eight months’ imprisonment.

[23]Mr Carden-Soole please stand.

[24]             On the charge of manslaughter you are convicted and sentenced to imprisonment for two years, eight months. On the charge of unlawful possession of a firearm you are sentenced to six months’ imprisonment. The sentences are concurrent. The effective term is two years, eight months’ imprisonment.

[25]There will be an order for the destruction of the firearm.

[26]             Mr Carden-Soole, I know that you are truly sorry for killing your friend, Joshua Copestake. There is nothing you can do to bring him back. You have to go to prison for the reasons I have explained. But you are a young man. You have the rest of your life ahead of you. What you can do to respect the memory of Joshua and the effect your actions have had on his family and friends is to lead a good and productive life on your release. That is your responsibility and I urge you to accept it and to do that.

[27]Stand down.

Venning J