Supreme Court New South Wales Medium Neutral Citation: R v Lock, Thomas [2017] NSWSC 715 Hearing dates: 5 June 2017 Decision date: 05 June 2017 Jurisdiction: Common Law Before: Latham J Decision: 1 Sentenced to a term of imprisonment, comprising a non parole period of 27 years to date from 1 May 2014, expiring 30 April 2041, with a balance of term of 9 years, expiring 30 April 2050. Eligible for release to parole on 1 May 2041. 2 The charge set out in the s 166 certificate, tendered by the Crown on sentence, remitted to the Local Court for hearing. Catchwords: MURDER – sentence – guilty by jury verdict - where the victim is a child – where there is intention to cause grievous bodily harm – where tendency evidence found beyond reasonable doubt – no issue of principle Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Cases Cited: Baines v R [2016] NSWCCA 132 Ross v R [2016] NSWCCA 176 Category: Sentence Parties: The Crown (Crown) Thomas Lock (Defendant) Representation: Counsel: W Creasey SC (Crown) G Scragg (Defendant) Solicitors: Director of Public Prosecutions (NSW) (Crown) Jefferys Lawyers (Defendant) File Number(s): 14/131951 Publication restriction: NON-PUBLICATION ORDER RE IDENTITY OF DECEASED CHILD'S NAME TM, CHILD'S MOTHER MW AND NEPHEW DM AND NATURAL FATHER JM sentence 1. Thomas Lock was convicted by a jury on 19 May 2017 of the murder of TM on 21 April 2014. TM, who was the daughter of the prisoner's partner MW, was then two and a half years old. The prisoner and MW had resided in a de facto relationship, together with TM, for approximately three months at the time of TM's death. On occasions, another relative DM, stayed at the unit. 2. The offence carries a maximum penalty of life imprisonment and carries a standard non parole period of 25 years. The maximum penalty and the standard non parole period reflect the gravity with which the law regards the murder of a child of tender years. The standard non parole period applies to a notional offence which falls in the mid-range of objective gravity for offences of this kind. It falls to the court to assess the objective gravity of this offence, bearing in mind the operation of the standard non parole period and the maximum penalty as guideposts, before arriving at a sentence appropriate to the objective and subjective circumstances of the case. 3. Much of the evidence at trial was not in dispute. The single issue at trial was whether the Crown proved beyond reasonable doubt that the prisoner inflicted the blunt force trauma to the abdomen of TM that resulted in massive internal bleeding leading to her death. There was ultimately no dispute about the cause of death, nor about the events of that Easter Sunday, 20 April 2014, up until the child was put to bed at about 7:00pm. 4. The most contentious aspect of the trial was the tendency evidence which was admitted against the prisoner, on the basis that if the jury were satisfied beyond reasonable doubt that he had deliberately inflicted injuries to the child in the weeks preceding the child's death, it rendered it more likely that he had also inflicted the fatal injuries. For the purposes of sentence, I am satisfied beyond reasonable doubt that the prisoner was responsible for assaulting the child on the three occasions of which she complained, causing bruises to her arms, face and neck, and that the prisoner deliberately placed the child in scalding water, causing burns to her feet and buttocks. The Tendency Evidence Scalding Burns 1. On 10 April 2014, the prisoner was responsible for exposing the child to hot water resulting in burns to the sides of the child's feet and buttocks. The prisoner maintained that he was attempting to wash the child and change a dirty nappy. His accounts to police and to MW in relation to this event sought to explain the scalding burns by inattention on his part with respect to the temperature of the water in the base of the bath when he placed TM into the bath and sat her down. On the prisoner's accounts, TM simply commented that the water was hot yet made no attempt to remove herself from the water. The prisoner said he picked her up as soon as he became aware that the water was too hot. 2. To the extent that the prisoner relies upon the evidence of DM, who claimed to have heard the prisoner exclaim whilst half asleep on the couch in the living room at the other end of the house, in support of the prisoner's evidence that he was genuinely alarmed at the temperature of the water, that evidence does not accord with the prisoner's accounts to police or his evidence at trial. At no stage in his interviews or at trial did the prisoner say that he had cried out in alarm when he realised the temperature of the water. The evidence of DM with respect to the mechanism of the burns in fact derived from what he had been told by the prisoner later that day. 3. In his evidence at trial the prisoner departed from the account he had given in interview and maintained that the child had stepped into the bath and sat herself down before he lifted her out. Given the depth of the burns occasioned to the outer aspect of the child's right foot, the expert evidence of Dr Norrie established that if the child had stepped into the bath with her right foot, she would have withdrawn it very quickly, rather than also placing her left foot into the bath and sitting down. I reject the prisoner's accounts of these events. 4. Dr Norrie's evidence, that the injuries were forced immersion scald burns, was compelling. The burns had clear margins with upper limits and an absence of recognisable splash marks that would indicate that the child had tried to remove herself quickly from the bath. The burn to the right foot was a full thickness third degree burn rarely seen in cases of accidental immersion. The pattern of doughnut sparing to the buttocks is also indicative of non-accidental injury. 5. The prisoner further maintained that TM made no complaint about the burns after he removed her from the bath and that he changed her and left for work without incident. MW immediately noticed the scalding as soon as she changed TM later that morning. No medical attention was sought for the burns until four days later, during which MW had applied an antiseptic cream. The fact that the treating general practitioner on 14 April described the burns as first degree does not detract from my acceptance of the evidence of Dr Norrie. Bruising 1. In late March 2014, Ms Sipple, who provided child care to TM, noticed a bruise on TM's arm and on asking the child "What happened to your arm?", TM said "Tom did it. Tom hurt me." 2. TM disclosed to her maternal grandmother in the weeks prior to Easter that the prisoner had previously punched her in the face when she was "naughty". This complaint was dismissed by the prisoner as nothing more than pretend punching in the course of play. 3. TM complained to her mother on 10 April 2014 that the prisoner had "hurt her neck again" MW sent this complaint to the prisoner via text message at the same time that MW sought information from the prisoner about the burns to TM's feet and buttocks. The prisoner denied ever deliberately harming the child 4. On the basis of the combination of the evidence of direct complaints by TM to others of harm inflicted upon her by the prisoner, corresponding with the appearance of bruising to the child's arm, face and neck, I accept beyond reasonable doubt that the prisoner intentionally assaulted the child on those occasions. I accept that the child also bruised in the course of other activities not attributable to the prisoner but that does not detract from the reliability of the three spontaneous statements to which I have referred. 5. In summary, I find beyond reasonable doubt that the prisoner engaged in a deliberate course of conduct consisting of intentional assaults upon TM, culminating in the infliction of the fatal injuries on 20 April 2014. The commission of these previous assaults affects the assessment of the objective gravity of the offence of murder: Baines v R [2016] NSWCCA 132 at [6] per Basten JA, [127] and [129] per Fagan J; Ross v R [2016] NSWCCA 176. The Murder of TM 1. On the evening of 20 April 2014, the prisoner, MW, TM and DM were at home after a day of family visits and outings celebrating Easter. TM was put to bed in her own room at about 7:00pm in the clothes she had been given that day as a present. She had earlier consumed some party pies for dinner. It was common ground that when she was put to bed, MW and the prisoner were present and observed the child to be healthy and responsive. DM was absent for about half an hour shortly after 7:00pm whilst playing Play Station at a neighbour's home. 2. The prisoner and MW spoke briefly about their dinner arrangements on the concrete apron at the back of the unit after TM had gone to bed. They decided to purchase a take away meal. MW and DM left the unit at about 7:35pm and travelled a short distance to a KFC store where they bought the meal. 3. In the 15 minute or so interval between leaving the unit and their return, the prisoner struck TM in the abdomen with such force that the mesentery of the small intestine sustained a 12cm tear and tore the small intestine from the abdominal wall. The force of the blow was sufficient to expel the contents of the small intestine and rectum and cause bruising around the anus. Rapid and torrential bleeding ensued which would have immediately incapacitated the child. TM would have exhibited a pale and clammy pallor, vomiting and progressive loss of consciousness very soon after the infliction of the trauma. 4. I am unable to find beyond reasonable doubt that the prisoner inflicted more than one blow, but given the extensive and fatal nature of the injuries, that fact is of little consequence. I am satisfied beyond reasonable doubt that it would have been obvious to the prisoner that he had very seriously injured the child and that urgent medical attention was imperative. I am fortified in that view by the prisoner's account to MW when she returned to the unit and his evidence at trial. 5. On their return to the unit, MW and DM saw the prisoner coming from the direction of TM's bedroom. MW inquired after the child's welfare and was told by the prisoner that she was "okay". The prisoner said that TM had cried and had a little spew, but had wanted to go back to sleep. The reference to the child crying and the "little spew" is consistent with the injuries already having been inflicted at some time prior to the arrival of MW and DM at the unit. The prisoner's evidence at trial was that he saw the child vomit slightly on the first of two occasions that he went to check on her and that it was the second occasion as he was coming from her room that MW and DM returned. In his evidence at trial the prisoner said that on the second of these two occasions, he hardly went beyond the threshold of the room. The three of them sat down to eat the evening meal while TM, unbeknownst to her mother, lay gravely ill in an adjacent room. 6. The prisoner's representative submitted on sentence that "maybe the blow occurred at about the same time MW and DM returned" and that the circumstances are consistent with "momentary loss of self-control." The first of those submissions I reject for the reasons outlined above. The second is in the realm of speculation. In the absence of any evidence that would allow such an inference to be drawn, I am unable to make such a finding. The prisoner's evidence at trial and the submissions on sentence asserted that he was in a normal frame of mind that evening and had engaged in an exchange of text messages with his sister between 7:00pm and 7:20pm. 7. The prisoner, who is a well-built adult male, struck a defenceless and vulnerable child who was left in his care, and knowing that he must have inflicted very serious injuries upon her, chose to deflect MW from discovering the condition of the child. Any claims that the prisoner made to police and to the court that he regarded his relationship with the child as one of father and daughter are entirely worthless in the face of such conduct. 8. By the time MW looked at the child after finishing their meal, TM was semi-conscious, floppy and grey in colour. The prisoner professed ignorance of the cause of her condition to hospital personnel, and to police and continues to deny his responsibility for the child's death. His conduct represents a callous and selfish disregard for the welfare of the child of a significant order. The prisoner's display of emotion during the course of his interviews with police when discussing the events of that night were, in my view, prompted by a realisation of the dire consequences of his behaviour towards the child, rather than any genuine contrition or remorse. 9. The impact of this offence upon the child's mother and grandmother is unsurprisingly, devastating. Every birthday and every Easter that passes is a painful reminder of her absence. The unfulfilled potential of a life cut short is not just a loss to her family but to the whole of the community. I have taken the Victim Impact Statements into account on the basis that the harmful impact of the child's death on the members of her immediate family is an aspect of harm done to the community. 10. Given that the standard non parole period inherently reflects the objective gravity of this offence committed against a person under the age of 18 years, and children are regarded by the law as vulnerable persons, it is not appropriate to separately consider those factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that might otherwise aggravate the offence. However, the abuse of the position of trust held by the prisoner and the very young age of this child are nonetheless features of this offence that figure in the assessment of its objective gravity. The Crown conducted its case upon the premise that the prisoner intended at least to cause grievous bodily harm, rather than to kill. Taking those matters into account, I regard the objective gravity of the offence as more than moderately above mid range. 11. The prisoner is presently 27 years of age. He has a minor summary criminal history consisting of driving and property offences, which qualifies as a mitigating factor. The submission on sentence that the offence is out of character is accepted to the extent that there is nothing in the prisoner's history which suggests a propensity to violence. However, the findings I have made in relation to the tendency evidence do not allow me to conclude that the assault on 20 April 2014 was an isolated event. 12. Whether his prospects of rehabilitation are promising is doubtful, certainly as long as he refuses to acknowledge his guilt in the face of a very strong, albeit circumstantial Crown case. It is accepted that he enjoys the unqualified support of his family, as the 16 references from a number of family members attest. They describe the prisoner as a thoughtful, caring and attentive son, brother, and uncle, yet those traits are inconsistent with his treatment of TM. 13. It is also accepted that the prisoner is likely to serve part or all of his sentence in some form of protective custody, whether that is at his own request or by way of his custodial management. However, it is by no means clear what the nature of his custodial conditions will be. The extent of the evidence before me on this issue derives from an affidavit from the prisoner's solicitor which sets out the prisoner's understanding of the conditions attaching to his custody as a Protection Non Association inmate. The actual custodial conditions will be a function of his post sentence classification and the prison where he is directed to serve his sentence. 14. Taking all of these matters into account, the sentence I have determined to impose is the least that is capable of reflecting the prisoner's criminality, the need for general deterrence, and retribution, while paying due regard to the subjective factors. I decline to find special circumstances, given that the balance of term is sufficient to promote the prisoner's reintegration into the community. The charge of Possess Prohibited Drug on the s166 certificate is remitted to the Local Court for hearing. 15. Thomas Lock, I sentence you to a term of imprisonment, comprising a non parole period of 27 years to date from 1 May 2014, expiring 30 April 2041, with a balance of term of 9 years, expiring 30 April 2050. You are eligible for release to parole on 1 May 2041. Amendments 08 June 2017 - Typo corrected in para 24: "natters" now reads "matters" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2017