Facts
4The offender lived in a modest bedsit-type flat in Fowler Street, Hamilton South. It was accommodation that seems to have been facilitated for him by the Wesley Mission. He was a man who was prone to drinking to excess and smoking cannabis. Some of the people in the complex of unit blocks in that area with whom he associated seemed to have had the same predilection. The evidence in the trial indicated that alcohol and drug abuse were quite a significant problem for him in that when he was interviewed by the police after having spent a month in custody he said that with enforced abstention his head was the clearest it had been for 10 years.
5The offender commenced drinking on 18 September 2013 at about lunchtime. By about midnight or 1am when he went to bed it seems that he had consumed a lot of alcohol and cannabis. He was, however, a person who had developed a tolerance to such substances and it is difficult to say with any certainty how badly he was affected. It seems safe to say, however, that he was significantly intoxicated, but not to the extent that he was incapable of forming the intention required to establish the charge of murder.
6Ms Wolfgram was socialising with others at the offender's flat on the evening of 18 September. It does not seem that they were all that well known to each other. There was certainly no suggestion of any animosity between them. When the offender retired to his bedroom to go to sleep, Ms Wolfgram was on the couch in the lounge room. She had been provided with a pillow and a blanket.
7The following morning the offender contacted a friend, Mr Christopher Little, at about 8.30am and said that he was in trouble and needed to talk. Mr Little went over to the offender's place and they went for a drive. The offender told him that he had killed a girl; he had "snapped" and hit her. He said that he had thought about ringing the police but could not because he did not want to go to gaol. He said he woke up in the morning thinking it was a dream but the girl was dead. He had put the bed over the body so that no one would see it. He intended to get rid of the body in the Belmont sand dunes.
8Mr Little was deeply troubled by this and contacted the police. Detective Sergeant Kelvin Wink and other police went to the offender's home in the mid to late afternoon of 19 September. The offender admitted that there was a dead body in his flat. He was arrested. The deceased's body was found naked, wrapped in a blanket underneath an upturned mattress in the offender's bedroom. Her clothing was in a garbage bag in his wardrobe. The scene was indicative of the fatal assault having occurred in the bedroom but that is not entirely clear.
9A post-mortem examination revealed that Ms Wolfgram had died of the effects of blunt force trauma. She had received a number of heavy blows to the head, primarily to the left side of her face.
10The offender agreed to be interviewed by police. He protested that he had been so intoxicated that he was unable to recall all that had happened. But he did give an account, in effect, that he had been woken by someone who he could not identify looming over his bed. This awakened in him thoughts of his uncle looming over him when he was in bed when he was a teenager. He had been a victim of sexual abuse by his uncle and this revived his fears of being sexually assaulted again. He told police that he had punched the person as hard as he could. His defence at trial was that he had responded in self-defence, genuinely believing that in order to defend himself it was necessary for him to take hold of the person by the throat and belt him or her to the head until the person was motionless. He told police in this interview that it was only when he awoke the following morning that he realised the person who he had struck out at was Ms Wolfgram.
11I should mention that Ms Wolfgram was a 55-year-old woman who was 5 feet 5 inches tall and very slight; she weighed some 43 kg.
12While the offender was still being held in custody at the Newcastle police station on 20 September he contacted the investigators and indicated that he was troubled by his inability to recall what had happened and that he was deeply remorseful. He also indicated a desire to make reparation to the deceased's family.
13About a month later, the offender made contact from Cessnock Correctional Centre with Detective Wink. He indicated that he had some further recollection of what had occurred. Arrangements were made for him to be brought to Newcastle police station and another interview was conducted. In this interview, the offender claimed that through a process of dreams, nightmares and flashbacks he had recalled that when he was woken in the early hours of 19 September he had thought that the person who was in his bedroom was a former girlfriend with whom he had had a falling out and who bore him animosity and had previously threatened him with knives.
14The Crown Prosecutor argued before the jury that given these inconsistent accounts, the offender's claim of having acted in self-defence was incredible. Further support for that proposition was derived from the evidence of Mr Little. He had said that during his conversation with the offender on the morning of 19 September he had suggested that the offender should go to the police and claim that he had been attacked and had responded in self-defence. Mr Little suggested this so as to curry favour, or not get off side with the offender. Mr Little's evidence was disputed. But the manner in which he gave it indicated to me that whilst he may have been mistaken about some aspects, he was genuinely doing his best to tell the truth. Demeanour is often a misleading thing in the assessment of the credibility of a witness, but in Mr Little's case I gained the distinct impression that he was a witness who did not want to give evidence against a friend but felt compelled to do what was right.
15I can well understand the jury's rejection beyond reasonable doubt of the offender's claim to have acted in self-defence. The offender's various explanations for what occurred included a number of inconsistencies and matters not supported by objective evidence that were identified in the written submissions of the Crown Prosecutor. It is difficult to be sure about the truth of any such matters.
16But that leaves the offender's actions in so savagely beating Ms Wolfgram difficult to understand. I do accept that his significant degree of intoxication had something to do with it. I accept the Crown's concession that he acted with an intention to inflict grievous bodily harm, rather than to kill. But there remain quite a number of matters that are unexplained. Why was Ms Wolfgram in the deceased's bedroom (assuming the assault occurred there, which is not completely certain)? What interaction was there between the pair before he initiated his murderous assault? How did her clothing come to be removed? Why was her body left bleeding on the offender's bed for a period of time before being wrapped in a blanket and then "hidden" under the upturned mattress?
17There is also a question as to whether the offender was serious when he spoke to Mr Little of intending to dispose of the body in the Belmont sand dunes. In relation to this, I accept Mr Little's evidence, particularly having regard to the fact that he reported soon after to Senior Constable Todd Clayton that the offender was going to dispose of the body. Further support derives from the unchallenged evidence of Ms Kim James. She said that on 19 September the offender had asked to borrow her car at 4.30am the next morning in order to go to Swansea.
18The best I can do is to conclude that the fatal assault was something that occurred on the spur of the moment. Something occurred between the pair that caused the offender to, as he put it, "snap". He continued striking Ms Wolfgram to the head until he realised that she was no longer moving. He thereafter made a rudimentary attempt to conceal her body with a view to a possibility of later disposing of it. I accept that intoxication influenced the offender's actions and thinking, although by no means should I be taken as suggesting that it provides any excuse.
19This was an unplanned spur of the moment killing where grievous bodily harm was intended. It was not a sustained attack, but it did not need to be to achieve the offender's purpose. It did not involve the use of any weapon but did involve heavy repeated blows with the offender's fists to a vulnerable part of his victim's body. It must have been an attack of considerably savagery. Mr Fitzgerald, counsel for the offender, submitted that the objective seriousness of the offender "falls to the lowest range in the spectrum for the crime of murder". The Crown Prosecutor submitted that it was below mid-range. I am prepared to accept the latter but am not prepared to accept that it is in the lowest range.