R v Colvin
[2022] NZHC 468
•15 March 2022
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 for the purposes, and according to the principles, in ss 7 and 8 of the Sentencing Act 2002. The purposes that are particularly relevant here are: holding Ms Colvin accountable for the harm done to the victim and community; promoting in her a sense of responsibility for, and acknowledgement of, that harm; denouncing her conduct; and assisting in her rehabilitation and reintegration into society.
[7] In terms of the principles of sentencing, I have particular regard to: the gravity of the offending and Ms Colvin’s culpability; the seriousness of the offence compared with others; the need to ensure the sentence is consistent with sentences of similar offenders committing similar offences in similar circumstances; Ms Colvin’s particular circumstances, whānau and cultural background; and the legal requirement to impose the least restrictive outcome appropriate in the circumstances.
[8] In a sentencing, I first set a starting point reflecting the seriousness of the offending, and then make adjustments for personal circumstances and the guilty plea before standing back to check the overall sentence reflects the totality of the offending.
Starting point
[9] I considered the submissions of counsel regarding the starting point in giving my sentence indication, having regard to other similar cases.2
[10] Here, Ms Colvin’s belief that the shotgun had been used in a murder when she hid it aggravates the offending. Moving the weapon around three times and checking if it was cleaned involved some pre-meditation. It also demonstrates an intention to
2 R v Graham HC Chch CRI 2004-009-2224, 14 September 2004; R v Ovalau and Sheck HC Auckland CRI-2006-092-10484; R v Moala HC Auckland CRI-2006-092-461, 12 December 2007; R v Boskell [2015] NZHC 286.
destroy evidence. The impact of the murder on the victim’s family is obviously extremely serious. Consistent with my sentencing indication, I set 18 months’ imprisonment as an appropriate starting point.
Adjustments for personal circumstances
[11] Ms Colvin has no criminal history and is of previous good character. She did not participate in the murder itself. She acted out of intense family loyalty to a close friend who she had been brought up with and saw as her sister. She has lost her job. She is young, just 20 years old at the time of the alleged offending, with all the impulsiveness and capability of rehabilitation that goes with that. Ms Colvin has expressed her willingness to engage in restorative justice hui with Mr Tongia’s whanau which I encourage, if they are prepared to do that.
[12] In a high-quality report, the Department of Corrections assesses Ms Colvin’s offending as related to her previous lifestyle and attitude. It assesses her as at low risk of harm to others and low likelihood of re-offending. It says Ms Colvin is beginning to accept the support available to her – I urge her to do that, for the sake of her child as well as herself. She is not close to many members of her whānau and does not want her daughter to grow up with the sort of hard, drug-related upbringing she did, she said to Corrections. Since the offending, Ms Colvin has been bailed away from her previous environment. She gave birth to her first child in early January 2022. Ms Colvin has expressed to Corrections some empathy for Mr Tongia and feels bad about what happened to him.
[13] Consistent with my sentencing indication, I consider Ms Colvin should receive a 10 per cent discount for her previous good character, a 10 per cent discount for her youth, and a 25 per cent discount for her early guilty plea. That would take her end sentence to 10 months’ imprisonment. In giving my sentence indication I said further discounts below that are unlikely. I confirm that.
Home detention
[14] Imprisonment is likely to achieve nothing for Ms Colvin, her baby, or anyone else. Taking Ms Colvin’s personal circumstances into account, including her time in
custody and on bail with restrictions, I agree that the least restrictive sentence appropriate in the circumstances is an electronically monitored sentence, subject to the suitability of the address and occupants being confirmed. The address has been assessed as technically suitable.
[15] The occupants of the address understand their obligations. I previously expressed concern, in relation to a bail application, about the safety of the address now proposed for Ms Colvin’s home detention. It is the family home of the father of her child, including his parents Ms Mosen and Mr Poharama. I have better information about the address and occupants now. I have a report from the Department of Corrections which advises the address and occupants are suitable and supportive. In particular, Corrections is satisfied now about Mr Poharama’s mental health status. The Crown advises that the relevant Probation Officer says there are no immediate concerns, Oranga Tamariki do not note any current safety or welfare concerns, and neither did the Police.
[16] This morning, Ms De Silva for the Crown filed additional submissions with further information indicating that Mr Poharama faces an active charge of possession of cannabis for supply and with additional information about Oranga Tamariki’s historical concerns about alleged violence by Mr Poharama and Ms Mosen. Oranga Tamariki does not have current concerns. The Crown submits simply that I may wish to consider the information in determining whether the address is suitable.
[17] Ms Colvin has told Corrections that the occupants of the address have been her sole support since the birth of her child. She has told Corrections that she and her baby feel safe there. I have now heard directly from Ms Colvin, Mr Williams, Ms Mosen, and Mr Poharama. Ms Colvin tells me it is safe there. Ms Mosen is very aware of their history and understands the concerns but says they’ve come a long way in two years and they’ll do everything to keep the baby safe. She says they’ve made bad choices in the past but are a loving family. Mr Poharama says he loves the baby to bits and sees it as a second chance. Mr Williams says they’ve come a long away and Mr Poharama is now stable and all about his family now. Mr Poharama has offered to vacate the address if necessary. I do not consider that is necessary.
[18] I accept that the proposed address would be a more suitable environment for home detention than Ms Colvin’s current accommodation. While Mr Poharama has not been free from trouble in the past, I do not consider the additional information provided by the Crown should prevent Ms Colvin from being on home detention at this address, which is the one she identifies as safest for her and her pepe. I advise Ms Colvin that if she develops any concerns about safety of herself or her pepe, at the address, she should immediately advise Corrections.
[19] The Corrections report notes that a sentence of community detention and supervision would be an alternative to home detention. Mr Preston submits the Court may prefer that as a more appropriate sentence because of the pressures of home detention. The Crown does not support that. Neither do I, given the seriousness of the offending.
[20] Accordingly, I sentence Ms Colvin to home detention. But you cannot get parole for home detention, as you can half-way through a sentence of imprisonment. Accordingly, as I previously indicated, five months’ home detention would be appropriate.
[21] Mr Preston submits that the sentencing indication did not take into account Ms Colvin’s period on custodial remand in determining the length of home detention. Ms De Silva submits it should be taken into account. But as reflected in paragraph [7] of the sentencing indication, I explicitly took into account Ms Colvin’s time in custody in determining that home detention was the least restrictive outcome appropriate in the circumstances. And it was part of the information before me on the basis of which I set the five-month period. I am satisfied it was properly taken into account and no further discount is required.
Sentence
[22] Ms Colvin, please stand. I sentence you to five months’ home detention at the proposed address, starting tomorrow, on the conditions that you must:
(a)not possess, consume or use any alcohol or drugs not prescribed to you;
(b)submit to testing of alcohol and drugs at the request of Police or a Probation Officer;
(c)attend an assessment for a departmental programme as directed by a Probation Officer;
(d)attend and complete any counselling, treatment or programme, as determined by a Probation Officer, to the satisfaction of a Probation Officer; and
(e)not communicate in any way or associate with your co-defendants, without the prior written approval of a Probation Officer.
Palmer J