R v Toby McVoy [2024] NSWDC 534

District Court New South Wales

Medium Neutral Citation: R v Toby McVoy [2024] NSWDC 534 Hearing dates: 26 June 2024 Decision date: 26 June 2024 Jurisdiction: Criminal Before: Wass SC DCJ Decision: See [34] Catchwords: CRIME — Severity appeal — Appeal dismissed — Ex tempore judgment — History of domestic violence — Apprehended violence orders — Intimate videos — TikTok — High risk to intimate partners Category: Principal judgment Parties: Toby McVoy (Appellant) Officer of the Director of Public Prosecutions (Respondent) Representation: Solicitors: Scott Mackenzie Lawyers (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2023/420662, 2023/459794, 2023/459910, 2023/459935 Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Date of Decision: 6 May 2024 Before: Hawkins LCM File Number(s): 2023/420662, 2023/459794, 2023/459910, 2023/459935

EX TEMPORE JUDGMENT 1. Mr McVoy appeals against the severity of his sentence imposed in the Taree Local Court for which he received an aggregate sentence of three years and two months imprisonment with a non-parole period of one year and nine months for a number of serious domestic violence offences. I regard that statutory ratio of somewhere in the order of 55% as being extremely generous for the reasons that I will come to.

Facts 1. On 18 November 2023, the appellant sent messages to an ex partner ('XP') indicating that he was still interested in checking in on what she was doing, asking her to apologise to him and telling her that she should never think of or contact him again. He referred to the fact that even at that time, XP kept getting scared and blocking him, to which he responded, "L O LLL", and the fact that she then kept unblocking him. XP informed him at that time that what he was doing was providing information that she would provide to the police. The appellant responded that he was not worried until he went to court and told her that he knew he was breaching orders that were put in place to protect her. 2. Some ten days later on 28 November 2023, having said that XP ought not contact him, the appellant sent twenty messages to her. She did not reply. 3. Between September and October 2023, the appellant and XP engaged in sexual intercourse and other sexual activities at their then place of residence in Tinonee. During those engagements, the appellant recorded the intimate encounters on his mobile phone. He did so without the knowledge or consent of XP. 4. On 20 November 2023, the appellant sent a number of those intimate videos and images to her brother, to a neighbour of the brother, to a friend and to an old neighbour from Tinonee. Such were the videos that XP immediately recognised herself, including by reference to a mole that was on her face and some tattoos. She also recognised the bedsheet from the residence. 5. XP and the appellant were in a relationship for two years before separating in approximately October 2022, some twelve months before the matters that are set out in the statement of facts. By the time of the first of the offending, they were living in separate residences. 6. On 27 October 2023, the appellant called XP multiple times from a private number. When she did not answer, he left her voice messages including ones that show that he was stalking her. He continued to call her from a private number over a period of three days and left over ten voice messages on her phone. She was understandably afraid, particularly where some of those messages said that he had been watching her. 7. On 13 November 2023, XP received over thirty-five missed calls, again from a private number. She eventually answered and had a conversation with the appellant. He told her that he needed her to collect some of her belongings or he would sell them. 8. With that in mind, XP went to the appellant's home where he was waiting on the driveway. He asked her for a hug. She said no, she just wanted to get her things. He ignored that and continued to try and hug her. She walked into the house to collect her belongings. The appellant approached her and said, "Let's sort stuff out. Just stay and let's sort things out." XP said, "No. Let me go. I just want to get my things and leave." The accused again said, "Just stay so we can sort things out." She said, "No. I want to get my things and go." She said, "That includes your phone because I'm paying for it." She then tried to grab the phone from the appellant. The appellant pulled his hand away as she tried to get it. He grabbed her with both hands on her upper arms and pushed her, causing her to fall to the ground, hitting her left elbow and shoulder blade on the ground. She felt instant pain to her elbow and shoulder. The appellant then stood over her and shoved the phone hard into her. He held the phone there for a few seconds, pushing the phone into her mouth. She felt instant pain on her gums and teeth as he did that. He then stood up and put the phone back in his pocket. XP suffered a graze to her left elbow and a bruise on her left shoulder blade. Shortly thereafter, she left. 9. Since that time, XP continued to receive phone calls from the appellant on a private number and he continued to leave her voicemails. On 15 November 2023, she called police and provided her account and provided the police with some evidence. 10. On 2 December 2023, XP was scrolling through TikTok and found the intimate video that the appellant had posted on the wall of his account of her engaging in a sexual act with him, which is described in the statement of facts, but which I will not repeat. The video is some 60 seconds in length. She is clearly identified by her hair and tattoos. As it was posted on the accused's wall, it was able to be viewed by any member of the public. She was immediately upset and contacted police. Police ascertained that the video had, as I have mentioned, been taken some two months earlier than 2 December 2023. On 19 December 2023, Police attended upon the appellant and he was arrested. 11. On 14 December 2023, after a period of not hearing from the appellant, XP received yet another message asking whether or not he could call her, promising that there would be, "No nasty shit. I just want to talk when you have five," and raising a number of other matters. Most relevantly, he said, "Sorry about the vids," and explained that he did it out of anger. XP asked him to do the right thing and hand himself in to police and to leave her alone. The appellant responded, most relevantly, as to him handing himself in: "I'm going to try and get Paddo(?) got before I go anywhere. Then I'll think about it. You're lucky I still have a heart still or your dad's place would've been riddled with bullets by now. Be nice or I might snap. See ya when I see ya. x I'll take everything down when I can."