R v Colvin - [2022] NZHC 468

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-085-149

[2022] NZHC 468

THE QUEEN

v

PHOENIX CHARTAN KAHURANGI COLVIN

Hearing: 15 March 2022

Appearances:

R H De Silva for the Crown K F Preston for the Defendant

Date of sentence:

15 March 2022

SENTENCING BY PALMER J

Solicitors:
Luke Cunningham Clere, Wellington

R v COLVIN [2022] NZHC 468 [15 March 2022]

[1] Ms Phoenix Colvin, now aged 21, has pleaded guilty to, and been convicted of, being an accessory after the fact to murder, which carries a maximum sentence of seven years’ imprisonment.1 She has been convicted. I sentence her today.

What happened?

[2] Shortly after 2 am on 20 December 2020, Ms Colvin and two others went to an address in Wellington, to assist a close friend of hers who had been assaulted by the victim. The victim, Mr Rau Tongia, was struck in the head with a hammer during an altercation in the driveway. Ms Colvin, the two associates she arrived with, and the friend, then left the address. Ms Colvin drove them to Khandallah where the friend who had been assaulted obtained a shotgun. Between 4.30 am and 4.40 am the victim was killed with the shotgun. There is no suggestion Ms Colvin was there.

[3] Afterwards, the shotgun was taken to Ms Colvin’s house. At 9.06 am that day, she contacted an associate asking him to hold it. She then took it to a different address and tried to hide it. There is evidence she knew the gun had been used in the shooting and she was trying to hide the gun. On 4 January 2021, she arranged to get the gun and asked a co-defendant if he had cleaned it. She took it to someone else.

[4] Ms Colvin’s offending assisted in the murder of Mr Tongia afterwards. The victim impact statements make clear the impact of his death on his family. Members of the family are attending the sentencing today. His cousin describes Mr Tongia as cheeky and down to earth. His aunt describes trying to reach Mr Tongia when he did not show up to an early Christmas lunch on the day of his murder. His grand-uncle says this is the first homicide to ever happen in their family which has 97 grandchildren. Mr Tongia leaves behind three sons and a grieving family. His brother says Mr Tongia was a loving protective person who loved his family. Another sibling describes being numb and sad all the time, missing the backbone of the family. His father says Mr Tongia’s murder has ruined his whole life, every day he feels his loss, and his life is not the same.

1 Crimes Act 1961, s 176.

[5] On 19 November 2021, I gave a sentence indication to Ms Colvin. On 26 November 2021, she accepted the indication and pleaded guilty to being an accessory after the fact to murder.

Approach to sentencing

[6] Sentencing is conducted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Colvin

Details

AGLC: R v Colvin [2022] NZHC 468
Case: [2022] NZHC 468
Decision Date: 15 March 2022

CaseChat Overview and Summary

In the case of R v Colvin, Phoenix Charitan Kahurangi Colvin, a 21-year-old woman, was convicted of being an accessory after the fact to murder, an offence that carries a maximum penalty of seven years imprisonment. The facts of the case revolve around an incident on December 20, 2020, in Wellington, where Mr Rau Tongia was fatally shot by a shotgun, an event that occurred after he had been assaulted earlier that night. Colvin, along with two others, went to the address to assist a friend who had been assaulted by the victim. Although she was not present at the shooting, she played a role in the subsequent events by hiding the shotgun used in the crime and attempting to destroy evidence. The court was required to decide on the appropriate sentence for Colvin, taking into account various legal principles and factors.

The legal issues before the court included determining the appropriate starting point for the sentence, considering the aggravating and mitigating factors, and deciding on the least restrictive outcome appropriate for Colvin's circumstances. The court had to balance the need for accountability, denunciation, and rehabilitation against the personal circumstances of the offender, including her age, previous good character, and early guilty plea. The court also had to assess the suitability of the proposed address for home detention, given the potential safety concerns associated with the occupants.

The court, after considering the submissions of counsel and the evidence presented, set an 18-month imprisonment as the starting point, reflecting the seriousness of the offending. Colvin received various discounts for her previous good character, youth, and early guilty plea, resulting in a total sentence of 10 months imprisonment. However, given Colvin's personal circumstances, including her young age, recent birth of her child, and lack of criminal history, the court determined that an electronically monitored home detention sentence would be the least restrictive outcome appropriate in the circumstances. The court was satisfied that the proposed address for home detention was suitable and safe for Colvin and her child, despite some historical concerns about the occupants. Consequently, Colvin was sentenced to five months' home detention, subject to specific conditions, including abstaining from alcohol and drugs, submitting to testing, and not communicating with her co-defendants without prior approval.

Orders