R v Smith [2016] NZHC 2380 (6 October 2016)

Last Updated: 20 October 2016

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-087-304 [2016] NZHC 2380

THE QUEEN

v

_{WYJUANA SMITH}

Hearing:	13 and 14 September 2016
Counsel:	A J Pollett for Crown G R Tomlinson for Defendant
Judgment:	6 October 2016

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 6 October 2016 at 2:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Hollister-Jones Lellman (Tauranga) for Crown

Gowing & Co (Whakatane) for Defendant

R v SMITH [2016] NZHC 2380 [6 October 2016]

Introduction

[1] Mr Wyjuana Smith has pleaded guilty to the murder of Mr Todd Branch. It is accepted that on 1 March 2016, Mr Smith entered Mr Branch’s house during the night and killed Mr Branch with a hammer which he brought to the house with him. Mr Smith struck Mr Branch many times with the hammer, mostly while Mr Branch was helpless on the floor. The Crown’s summary reads:

In total the number of strikes identifiable from the pathology were 24 blows to the face, head and body, some of which left circular indentations in the skull and face of the deceased.

[2] The account which Mr Smith gave to the Police as to the circumstances leading to his attack on Mr Branch is not accepted by the Crown. The difference between the Crown and the Defence would, as I indicated,¹ affect my assessment of the appropriate minimum period of imprisonment. Accordingly, I have presided at a disputed facts hearing during which the Crown called its relevant evidence and witnesses were cross-examined on behalf of Mr Smith.

[3] This Judgment sets out the relevant facts as I find them to be.

Background

[4] In late 2015, Mr Branch, Mr Smith and others were living as flatmates at

36 Hall Street, Rotorua. They were all young people. They were all aimless and

unemployed. The house belonged to Mr Branch’s mother.

[5] On 21 February 2016 (Mr Smith had had his 18^th birthday the previous month), Mrs Branch evicted Mr Smith and the other flatmates. She was upset with the way the house was being treated. There were holes in the interior walls, for example, some of which were caused by Mr Smith. It seems he was prone to fits of anger during which he would strike surfaces such as walls.

[6] Mr Branch remained at the house. At the date of the evictions, his relationship with Mr Smith was volatile. There had been some conflict between

¹ R v Smith HC Rotorua CRI-2016-087-304, 27 July 2016 (Minute).

them over a number of issues and on one occasion Mr Branch pushed Mr Smith while in the passage of the house, an incident to which Mr Smith did not respond physically. Nevertheless, according to Mrs Branch, Mr Branch begged her not to evict Mr Smith as he had nowhere to go. Mrs Branch did not relent.

[7] Mr Smith and the other evicted flatmates went to live at 15 Whittaker Street, Kawerau. This property is about 1.6 km from 36 Hall Street, a walking time of about 19 minutes.

[8] On the night following the evictions, Mr Smith, accompanied by another of the evictees, returned to 36 Hall Street and stole two cannabis plants belonging to Mr Branch which were growing in a shed on the property. This made Mr Branch angry, and he was said to have threatened to kill Mr Smith. At least, Mr Smith was told that.

[9] On the evening of 1 March 2016, Mr Smith was in the garage at 15 Whittaker Street with some of the other evictees. He noticed a red hoodie which he associated with Mr Branch and which was in the possession of one of the others. The sight of the red hoodie caused him to express anger at Mr Branch. One cause of his anger was his belief that Mr Branch was spreading damaging rumours about him. He asked whether he could do something to Mr Branch but was told that it was not worth it. He seemed to calm down.

[10] At around 10:30 pm, Mr Smith said he was going for a walk. He said he was going to Mr Branch’s. One of the others present thought he was going out to steal. When he left he was carrying a black sports-type bag which one of the witnesses thought was partly full and another thought was largely empty. He was away for a period which the witnesses estimate as one-and-a-half hours or two hours. When he returned he had blood on him. He said he had done something stupid. He opened the black bag and the witnesses saw it contained a pillow and a bloodied hammer wrapped in a red bandana. His mood was described as “amped up” and he repeated that he had done something stupid.

[11] Mr Smith changed his clothes and washed himself. He went to a place outside and burned his clothes, the bag and its contents. These included the hammer.

[12] Mr Branch’s body was found the next morning by a neighbour. It is clear that the assault on him took place just inside the doorway of the bedroom immediately adjacent to the kitchen.

The disputed facts

Mr Smith’s account

[13] Mr Smith was interviewed by the Police on 3 March 2016. He said:

(a) He had known Mr Branch for seven months. They were like brothers. (b) Mr Smith and Mr Branch were alright “until we starting hearing

things like from them”.² The things were “lying, just ... talking shit”. When Mr Branch heard what was being said he felt “broken”. The things reported as having been said were “hurtful” and made him feel “hurt”.

(c) Mr Smith stole Mr Branch’s marijuana plants “just to get back at him”

because he was hurt and angry with him at the time.

(d) However, he “kind a felt guilty ... so I went back that night to apologise and take some of it [the cannabis] back”.

[14] The next part of the interview is crucial, so I set it out in full:

H What happened when you went back? S He wasn’t happy to see me.

H Yup.

S (Inaudible) until ... yeah. Just lost it.

8. You’ve just lost it? So ... explain to me like when you say he wasn’t happy to see ya ... what was happening?

2. My translation of this is: “until my group of friends and I started hearing reports from others of things being said by Mr Branch”.

S He invited me inside.

H Yup.

S So I ... yeah ... walked behind him. Just walking up the hallway.

H Yup.

S Kept looking back ... and he was gonna do something. Had my hand

on the hammer.

H Yup.

19. He spun around and tried to hook me. I guarded and hit him [in] the face with the hammer.

H Yup.

S He dropped for pretty long. He started getting back up ...

H Yup.

S So I hit him again ... and again ...

H And each time you hit him ... what you hitting him with?

S The head of the hammer.

H Yup.

S There was no lights. So just keep hitting him.

H What ... how many times do you think that would have happened?

S Too many.

H And was the state of him when you’ve left?

S Turned on the light ... he was still ... there; turned off the light and

left.

8. The ... the hammer that we’re talking about ... where have you taken that from? Like where did you get that from?

S I can’t really remember.

H Did you take it from the address you were staying at? S I think so.

8. Yup. How ... d... do you remember how you’ve carried that around like when you’ve gone to...

S When I went to Todd’s?

H Yeah.

S. Had it in my pants.

[15] Later in the interview, there was the following exchange:

8. Yup. When Todd’s invited you into his house ... whereabouts at the house like ... how did that come to be? Did you ... you ...?

S I went to the front door.

H Yup.

S And knocked on the front door. He came to the door. Stood back when he saw me.

H Yup ... what did he ... was there any talk between you guys then?

S S ... he just ... started walking to the kitchen. So I followed him.

H So ... so did you take from that that you were invited in? S Yeah.

H So ... you’re talking up the hallway ... towards the kitchen. What, what made you think he wasn’t happy to see you?

S It was the look in his ...

H Just the look in his eyes? But he’s invited you into his house...

S But it’s ... just ... how he was acting. Don’t know ... (inaudible

sound).

H Just for anyone listening to this like ... they’ll be trying to understand what’s was going on in your head at the time ... like someone’s invited you into their house. Had you ... apart from the hammer ... had you taken anything else with you to Todd’s house?

S Nah. Just his ... weed.

H Yup. So when you say weed, you’re referring to ... cannabis?

S Yeah.

H How much of that did you have? S Probably ... a pound.

H So you had about a pound of cannabis with you. You um ... he’s walked up the hallway, he’s looked back at you ... so when you’ve struck him that first time ... where’s ... is he facing away from you?

S No.

H He’s facing ...

S Side on.

[16] Later in the interview, the police officer asked about friction between Mr Branch and his then flatmates at 36 Hall Street over Mr Branch spending rent money on cannabis instead of food:

H So those people ... Mahana, Whareake, Sam ... were they all pretty annoyed about that too? Or was that just your thing you were upset about or did ... was other people upset about that too?

S Everyone had their own issues with him.

H Yup.

S We were the only ones that hated him.

H Yup.

S Didn’t hate him ... just ... hated him being ...

[17] To summarise, Mr Smith’s version of events was that he went to Mr Branch’s house in a spirit of reconciliation. He brought along some cannabis to give to Mr Branch and he also had a hammer with him for some reason he does not address. Mr Smith knocked at the front door and Mr Branch let him in and they walked down the passage towards the kitchen. Mr Smith put his hand on the hammer which was in the waistband of his trousers because he became apprehensive due to the way Mr Branch was looking at him. Without warning, Mr Branch turned and struck out at Mr Smith. Mr Smith guarded the blow and retaliated with the hammer. Mr Branch was knocked to the ground and stayed there for a time before attempting to rise. That is when Mr Smith struck Mr Branch repeatedly with the hammer, killing him.

The Crown’s position

[18] The Crown’s position is set out in the summary of facts. Relevantly:

(a) Mr Smith was angry at Mr Branch and Mr Branch was fearful of Mr Smith. A week prior to his death, Mr Branch acquired an extra dog to provide additional security because his own dogs knew Mr Smith and the other evictees.

(b) Shortly before Mr Smith left 15 Whittaker Street to walk to Mr Branch’s house, he was expressing hostility towards Mr Branch. He told the others who were there that he wanted to do something to Mr Branch and that he wanted to make him suffer.

(c) Prior to leaving 15 Whittaker Street, Mr Smith armed himself with a hammer.

(d) Mr Branch had spent the evening at his neighbour’s house. He returned to his home around 10:30 pm. When Mr Branch was at his neighbour’s he was sober and relaxed.

(e) Mr Smith was not invited into 36 Hall Street by Mr Branch. Instead, he entered the dwelling through the unlocked back door and hid in the

kitchen for around one hour. During this time Mr Branch was watching television. The attack on Mr Branch occurred when he came to the kitchen to turn off the kitchen light.

[19] In summary, the Crown’s position is that Mr Smith went to Mr Branch’s house intending to assault him. He was angry with Mr Branch, particularly over the rumours that apparently were circulating. He took the hammer with him to use as a weapon. When he got to Mr Branch’s address he entered the house and lay in wait in the kitchen for Mr Branch. When Mr Branch appeared, Mr Smith assaulted him and killed him.

Analysis

[20] The onus is on the Crown to prove beyond a reasonable doubt the existence of the disputed aggravating facts, and the Crown must negate beyond a reasonable doubt the disputed mitigating facts raised by the Defence.³

[21] The disputes in this case relate essentially to the inferences which can be drawn from the background evidence of the relationship between Mr Smith and Mr Branch, and the evidence which bears on Mr Smith’s state of mind prior to leaving 15 Whittaker Street to walk to 36 Hall Street, and his actions at that address.

[22] It is quite clear that there had been friction between Mr Branch and Mr Smith prior to Mr Smith and the others being evicted. I accept that Mr Smith could fly into fits of rage during which he would punch surfaces such as walls. I also accept that at the point of eviction, Mr Branch did not consider that there was an irreparable breakdown of his relationship with Mr Smith. In this regard, I accept the evidence of Mrs Branch that her son begged her to allow Mr Smith to stay because he had nowhere to go.

[23] It is clear, however, on the evidence that Mr Smith had a continuing hostility for Mr Branch. From the interview he gave to the Police, and from the comments of

_{the other witnesses, I find that the rumours he thought Mr Branch was circulating}

3. Section 24 of the Sentencing Act 2002 deals with proof of facts, including defining “aggravating fact” and “mitigating fact”.

were of particular and ongoing annoyance. On the night of the eviction, he and another evictee returned to 36 Hall Street and stole Mr Branch’s cannabis plants. Mr Smith told the Police that that was to get back at him. This marked the end of any friendly relationship between the two men.

[24] It is clear also that before Mr Smith left 15 Whittaker Street to walk to

Mr Branch’s house, he was expressing hostility towards Mr Branch.

[25] Ms Paul, another evictee, was at 15 Whittaker Street the night that Mr Smith killed Mr Branch. Her evidence as to Mr Smith’s attitude to Mr Branch at that time is:⁴

17. And Wyjuana. And was there discussion about a hoodie that Todd used to wear?

A. Yes.

Q. Tell us about that?

1. I had a red hoodie that I owned and Todd used to wear it every day and Wy had seen it hanging up in my room and it made him mad.

Q. When it made him mad what did he say? A. “Can I do something to Todd?”

Q. What did you say? A. “No, just leave it.”

Q. Was anyone else saying, “Just leave it?”

A. Mahana and Sam.

Q. How was Wyjuana when you were saying –

A. Pissed off.

Q. When you’re saying he was mad, was there anything you saw about

his facial features that made you think that? A. His jaw clenching together.

Q. What else did Wyjuana say?

A. “I just wanna make him suffer.”

Q. Did you say something to him in response to that? A. Can’t remember.

Q. Did you tell him again just to leave it and not to touch him? A. Yes.

⁴ Notes of evidence taken before the Hon Justice Brewer on 13 September 2016, at 87-88.

THE COURT:

Q. Ms Paul can you help me with this, I’m – what I don’t understand is that Wyjuana has already got the cannabis plants, he’s no longer at Hall Street, he’s now at Whitaker Street, what’s Todd done that Wyjuana wants to make him suffer?

A. The rumours that he heard around and the stuff that he was saying

about Wyjuana wasn’t true.

Q. Okay. What sort of stuff, what were the rumours? A. I never got told them.

Q. So how do you know there were rumours?

A. 'Cos Wyjuana kept coming back telling us that he had heard Todd say stuff about him.

Q. Okay. And he didn’t say what sort of stuff?

A. No.

[26] Ms Paul described Mr Smith’s state and actions when he returned. I have summarised them above. But she also reported him saying, “He didn’t deserve it”, and then gave the following evidence:⁵

Q. What did he say when he came in the room after everything?

A. He had washed his hands 'cos I didn’t see blood and then he said, “I

can still smell blood on my hands.”

Q. Did he say anything about Todd?

A. He just said when he seen him he just lashed out.

Q. What else did he say? A. When?

Q. Well when he said when he saw Todd he just lashed out, what else did he say to you?

A. I can’t remember.

Q. Do you remember him saying, “I couldn’t stop?”

A. Yes.

[27] In cross-examination, Ms Paul accepted that there was a gap in time between Mr Smith getting angry at the sight of the hoodie and him leaving the address. In that gap, Mr Smith had calmed down. However, in re-examination, Ms Paul clarified the period of the gap in time:⁶

Q. So what was the time period when all of that happened before he left?

⁵ _{At 90-91.}

⁶ At 99.

A. Ten, 10.30, 'cos he left about 11.

Q. Did all of these things, so seeing the hoodie, saying he wanted to do something to Todd, wanting to make him suffer, and leaving, saying he was going for a walk, did that all happen at the same time or at different times?

A. All at the same time when we’re having dinner.

[28] Mr Rio, who was living at 15 Whittaker Street at the time, and who was one of the evictees, gave evidence that when Mr Smith left that night he said he was going to Mr Branch’s, but did not say why. He said Mr Smith was away for about two hours or so, and he described Mr Smith’s state and actions when he returned.

[29] Mr Rio’s evidence was that the next day he had a conversation with Mr Smith as they were walking to the Probation Office:⁷

Q. Did you have a discussion with Wy on the walk to Probation? A. Yeah, yep.

Q. And he said that he had hammered him in the kitchen or something like that?

A. Yeah.

Q. Did he tell you that he flicked on the light, looked at him for a split second, flicked the light off, then got out of there?

A. Yeah.

Q. Did he say he had hammered Todd in the head about 50 times? A. Yeah.

Q. Did Wy tell you that he went to Todd’s house and sat in there for about an hour with Todd home and that Todd was watching Grown Ups on TV?

A. Yeah, yeah.

Q. When you had been there previously to take the plants had the dogs barked at you?

A. No, they knew us, yeah.

Q. Did Wy tell you that Todd came out to the kitchen to turn the light off and Wy said that he hammered him then?

A. Yep.

Q. Did he say that he had hammered him, seen his teeth fall out and that

Todd fell to the ground and that he kept hammering Todd’s head?

_{A. (no audible answer)}

7. At 63-64. I had given counsel leave to put the contents of his statement to the Police to him directly.

Q. You need to give an audible answer. You need to say it out loud. A. Oh, yeah, yep.

Q. Yes?

A. Yeah, yep.

Q. Did he say that after the last hit it was hard to pull out the hammer

and you took that to mean the hammer was stuck in Todd’s head?

A. Mmm.

Q. Yes? A. Yeah.

Q. He told you this on the walk to Probation, is that right? A. Yep.

Q. And did he tell you that he was going to hand himself in? A. Yeah, no matter what.

Q. How was he when he was telling you this? A. Calm.

Q. Pardon? A. Calm.

[30] Mr Rio softened his evidence in cross-examination:⁸

Q. When you’re walking down town, walking to Probation, how long

does that walk take? A. About 20 minutes.

Q. And you felt that Wy just trying to unburden himself, wasn’t he?

A. Yep.

17. And he said after it he flicked on a light and then flicked it off again, is that right?

A. Yeah.

Q. Yeah. And then got out of there? A. Yeah, got out.

Q. He told you he went to Todd’s house, that's right? A. Yep.

Q. And he told you that he waited there for about an hour? A. Yeah.

17. But he didn’t say to you that he waited inside, did he? He just said he waited there, that’s right, isn't it?

A. Yeah.

_{Q. You assumed inside but he never said inside, did he?}

⁸ At 75-77.

A. Well 'cos he said he was watching TV so.

Q. He said Todd was watching TV, didn’t he?

A. Yeah.

Q. Yeah. And from outside the house TV in that front lounge you can

see if someone’s watching TV at night, can’t you?

A. I’m not too sure, never tried.

Q. Because what Wy actually said to you was he went to Todd’s house, waited for about an hour outside, isn’t it?

A. I can’t remember.

Q. And that Todd was watching TV, yeah? A. All right.

Q. You remember that? A. Yep.

Q. And that he told you, didn’t he, that he knocked on the door and

Todd answered? A. Eh?

Q. That he knocked on the door and that Todd answered the door. He

told you that, didn’t he?

A. Probably.

Q. Probably? A. Yeah.

Q. You remember him saying he’d knocked on the door, don’t you?

A. Oh, I just remember the clear parts.

Q. The clear parts?

A. Yeah, not that part.

Q. So do you agree it’s possible that he told you that and you’re not too

sure about the detail? A. Possibly.

Q. What you remember is the really, the really horrible stuff though,

isn’t it? A. Yeah.

Q. The talk about the teeth and the hitting to the head? A. Yep.

Q. And that’s the stuff that really hovers in your mind because that was

really horrible, yeah? A. Yeah.

Q. Yeah. He told you that Todd opened the door and that two of them walked down the hallway. If you think back to that conversation can you see that in your mind, them walking down the hallway and

talking about walking down the hallway together towards the kitchen, do you remember him saying that to you?

A. Oh, I just remember him saying that he was walking to the kitchen.

Q. Walking to the kitchen, yeah.

A. And he went to go switch off the light and then, yeah, whack, yeah. Q. Just wait there two seconds. And when he was telling you all this –

THE COURT ADDRESSES MR TOMLINSON – MICROPHONE MOVED CLOSER

Q. Mr Rio, when he was telling you all this Wy was shaking and quiet,

wasn’t he?

A. Yeah.

Q. Yep? A. Yep.

Q. And it was quite hard for you to hear everything that he was saying because he was so quiet and clearly upset by what he was trying to tell you?

A. Yeah, just getting it off his chest, yeah.

Q. And he kept looking down at the ground and I think you said, “Like he could picture it in his eyes,” is that right?

A. Yeah, he could see it, yeah.

Q. And he was pretty upset about it from what you could observe,

wasn’t he?

A. Yeah, hard to tell.

[31] In re-examination, Mr Rio said:⁹

Q. When you talked to the police about what Wyjuana had told you on the way to Probation that morning you said that he had seen Todd was watching Grown Ups on TV?

A. Yeah.

Q. He didn’t say if Todd knew he was there or not?

A. Yeah.

Q. But you said you got the impression Todd didn’t know Wy was there

and that Wy was hiding from him? A. Yeah.

Q. What gave you that impression?

A. I’m not too sure. I don’t know it’s not my feelings, my emotions,

yeah.

Q. Well did –

_{A. I don’t know how he feels, yeah.}

⁹ At 80.

Q. No, but what did he say –

A. Oh –

Q. – about where he was - A. Oh –

Q. – when Todd came down to the kitchen? A. In the kitchen? (inaudible), yeah.

Analysis

[32] There is no doubt that Mr Smith attacked and killed Mr Branch with a hammer in the area of the door to the bedroom adjacent to the kitchen. There is no doubt that there was a frenzy of many blows. The issues go to the circumstances that led to that attack.

[33] I start with the issue of why Mr Smith had the hammer with him in the first place. According to Mr Rio and Ms Paul, he did not habitually carry a hammer. But when he left 15 Whittaker Street to walk to Mr Branch’s house he had the hammer with him. When he went into Mr Branch’s house he had it in the waistband of his trousers. There is no innocent explanation for him having it and, against the background of his relationship with Mr Branch, I conclude that he had it with him as a weapon.

[34] As to their relationship, I accept generally that it was volatile and characterised by periods when they were friends and periods when they fell out with each other. But there was no friendly contact between them after Mrs Branch evicted Mr Smith and the others. To the contrary, Mr Smith, helped by Mr Rio, returned on the night of the eviction and stole Mr Branch’s cannabis plants. This made Mr Branch very angry. He said he wanted to kill Mr Smith, and this threat was related to Mr Smith by others – although he probably did not take it seriously. There is also evidence that Mr Branch was scared of a repeat visit. I accept that he borrowed a dog for use as a guard dog because he was apprehensive and his own dogs were accustomed to Mr Smith and the other evictees.

[35] I conclude also that Mr Smith was hostile to Mr Branch on the night he killed him. The evidence of Ms Paul as to his anger flaring at the sight of the red hoodie is clear. And, the reason for Mr Smith’s ongoing hostility is the rumours he thought

Mr Branch was spreading. That is apparent from the evidence I heard and from what

Mr Smith told the Police.

[36] I am sure that when Mr Smith left 15 Whittaker Street that night he was feeling hostile to Mr Branch, he took the hammer with him as a weapon and he intended to assault Mr Branch. I do not find there to be a reasonable possibility that he went to Mr Branch’s house in a spirit of reconciliation taking cannabis as a gift. Such a possibility is not reasonably available when considered against his actions and attitudes since being evicted, his expressed hostility a short time before he left

15 Whittaker Street, and his possession of the hammer. I acknowledge that Mr Rio accepted in cross-examination the proposition that Mr Smith had mentioned wanting to make it up with Mr Branch, but there is no indication that that was what he wanted to do on this night.

[37] As to what happened at Mr Branch’s house, I rely primarily on the evidence of Mr Rio as to what Mr Smith told him the next day as they were walking to the Probation Office.

[38] First, my impression of Mr Rio as a witness is not a favourable one. He is one of the lost generation of youths which presents such numbers to the Courts. I rely on him because he was in a relatively neutral position. When he was first interviewed by the Police he deflected questions about whether Mr Smith had left

15 Whittaker Street that night and did not mention the conversation on the way to the Probation Office. That is typical behaviour for Mr Rio’s societal group. It was at an interview one or two days later, after Police had a better idea of what had happened, that he told the Police what he knew. The evidence he gave before me was largely confirmatory of what he told the Police three or four days after the homicide.

[39] I accept Mr Rio’s evidence that Mr Smith told him that he had waited about an hour before attacking Mr Branch. He told Mr Rio that Mr Branch was watching television, and named the programme. I infer that Mr Smith was waiting in the kitchen and his moment came when Mr Branch came to the kitchen for some purpose.

[40] I reject as a reasonable possibility that Mr Smith knocked on the front door, was let in by Mr Branch, followed him down towards the kitchen and attacked him only when Mr Branch became aggressive:

(a) That is inconsistent with Mr Branch’s reported anger towards Mr Smith over the theft of his cannabis plants only about a week before.

(b) It is inconsistent with his expressed fear, which resulted in him borrowing a guard dog.

(c) It is inconsistent with Mr Smith’s expressed hostility to Mr Branch earlier that night.

(d) It is inconsistent with Mr Smith carrying the hammer as a weapon.

(e) It is inconsistent with Mr Smith’s report to Mr Rio that he waited about an hour while Mr Branch watched television.

(f) It is inconsistent with Mr Smith’s account to Mr Rio as to how the attack was initiated.

(g) It is inconsistent with Ms Paul’s evidence that when he returned to

15 Whittaker Street, Mr Smith told her that when he saw Mr Branch

he “just lashed out”.

[41] I find that Mr Smith could have gained access to the kitchen through the back door. I do not accept the submission that it must have been locked. Nor do I put weight on the neighbour who discovered the body finding the front door unlocked. Doors are locked and unlocked according to time and circumstance, and the evidence did not satisfy me that Mr Branch had unvarying habits in this regard. Of course, it was possible that the back door might have been locked when Mr Smith arrived. But it was not. His being in the kitchen is consistent with what he told Mr Rio, with him waiting an hour and with the position of the attack.

[42] I note that his waiting an hour before the attack is consistent with the period in which Mr Rio and Ms Paul said he was absent from 15 Whittaker Street – one- and-a-half hours or two hours. It takes about 19 minutes to walk between the two addresses – say, 40 minutes for the round trip. Add the estimate of an hour which Mr Smith gave to Mr Rio, and the period is one hour and 40 minutes. That is, of course, an estimate, but it fits.

Conclusion

[43] I will sentence Mr Smith on the facts as I have found them. But I add this: I am not sure that when Mr Smith left 15 Whittaker Street to go to Mr Branch’s house he did so with murderous intent. I am sure that he intended to assault Mr Branch with the hammer.

[44] I think that there is a reasonable possibility that as he waited in Mr Branch’s kitchen for that hour, Mr Smith’s intention did not change. At the date of the attack, Mr Smith was 18 years old. He had a volatile temper. He wanted to do something to Mr Branch and to make him suffer. When Mr Branch came to the kitchen he confronted him and hit him in the head with the hammer knocking him to the ground (as he later told the Police). There can be no doubt that when he struck that blow with the hammer he intended to at least cause really serious harm.

[45] I think that the rest of Mr Smith’s account to the Police is also reasonably possible. That Mr Branch stayed down for a period and then tried to get up. That is when Mr Smith’s tendency to sudden rage asserted itself. He rained blows on his

_{victim’s head. There can be no doubt of murderous intent at that point.}

Brewer J