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

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.”

Evidence of M

13. The appellant did not initially give evidence, but his current partner M was called on his behalf. On my prompting, he did later give evidence in these proceedings. M was aware of the charges and agreed that they were very serious. It was not clear to me just how much she knew of the timing and the details of the offences, in circumstances where the appellant was committing them whilst he had started his relationship with her and was apparently also trying to make good with XP.

14. As to M and the appellant, the two started talking in September 2023 and commenced their relationship in about November 2023, in the midst of this offending.

15. M is pregnant with their child, due in August 2024. They conceived their child almost immediately upon the relationship commencing and I understand the pregnancy was not planned. On his release, the two intend living together with her parents and to raise the baby. The appellant is likely to be able to obtain work, given his previous work history and, according to her at least, he intends to work to support them. She is, however, living with her parents and undoubtedly supported also by them. When she gave her evidence, she was very supportive of him.

16. M was recently aware that the offences were committed around October and November 2023. At the time she had no idea that the appellant was committing the offences against XP, mostly conducted on his phone. Indeed, even now the appellant has not spoken to her completely about the offences, some of which were committed whilst they were together.

Rehabilitation

17. The appellant, in my view, shows little motivation to do rehabilitation courses. He said and also told M that he was willing to do counselling in respect of anger management and domestic violence; counselling that, in my view, he absolutely needs. He has made no enquiries about that because he did not know when he could undertake them, given that he is still serving his term of imprisonment. I accept that it would be difficult to make plans from custody. I accept that he will undertake them if he is forced to do so.

18. However, this is not the first time that anger management and domestic violence counselling has been suggested. It did not occur to the appellant that he needed it, despite being guilty of a criminal charge in 2010 involving domestic violence against his then ex-partner. Such was the limited impact on the appellant that he now has no recall of it and blames drugs.

Domestic Violence History

19. In 2016, the appellant received prison terms for two separate common assaults and intimidating another ex-partner who may have been at that time his current partner. It also involved the destruction of property. The appellant described again that he had little memory of it and said simply that he pushed and shoved her around a bit. I have not seen the statement of facts and I am not entitled to take any more serious view of it, but it is noted that he received a six month and a twelve month term respectively for those matters. Again, he blamed his drug use. That, however, did not prompt him into counselling and did not prompt, in my view, any serious thought about his maltreatment of and his violence towards his intimate partners, despite the fact that in 2016 he was ordered by the Court into counselling.

20. In June 2023, the appellant assaulted his third intimate partner. He received a Community Correction Order. It involved him undertaking anger management counselling. He has not undertaken any counselling or courses prior to his release from supervision back in September 2023.

Evidence of Appellant

21. The appellant said that this latest round of offending occurred during the breakup with XP. It also occurred whilst the two were still at times together, given the intimate video that was made thereafter between the two.

22. The appellant was told previously that he needed to sign up for an anger management course. He did not do so. He said that he was also busy at work and so it did not happen. Instead of doing so, he committed further offences of violence against XP, for which he did seem to have the time.

23. The appellant was no longer using drugs when he committed those offences in June 2023 and indeed in respect of this offending. Accordingly, I find that drugs have almost nothing to do with the appellant’s propensity to commit violence against his intimate partners, especially when they are trying to leave him. It follows that I find that he has absolutely no insight into his offending back in 2010 and 2016.

24. The appellant’s evidence is that he is happy to undertake such courses to try to deal with his underlying attitudes to others and, he agreed to start one in custody on the advice of a caseworker. That is commendable and, as I say, he absolutely needs it.

25. I do not accept the appellant’s evidence that his offending occurred in the course of a breakup. It is clear that the relationship was well and truly over by October 2023. Indeed, the facts to which he pleaded guilty show that the two had separated about twelve months previously. It is more accurate to say that many months after the relationship ended, the appellant continued to harass, manipulate and assault XP, even whilst he commenced a new relationship with M.

26. It follows that I do not accept the appellant’s account given for the purposes of the sentencing assessment report and as recently as April this year about the context in which he posted the videos online. That offence occurred more than a month after XP had taken the last of her things from his house, where he took the opportunity to offend against her again, and where she had been trying to ignore his relentless contact. It was not until 2 December 2023 that he posted the revenge videos online. By that time, he was in a new relationship with M and it was more than twelve months after the breakup.

27. The appellant’s account to the author of the report this year, that the videos had been posted in the context of a messy breakup where they were both humiliating each other and that that was a part of it, was difficult to accept and indeed, I did not accept it. There is no evidence that XP was contacting him other than to tell him to leave her alone or to collect her possessions, where he was constantly calling her, was texting her, was harassing her, was stalking her and where he had threatened to kill her father. His text apology in respect of the video also rang hollow, followed as it was by the threat to shoot at her father’s house. One of the texts makes it clear that the appellant knew that he was breaching apprehended violence orders in order to do so.

Consideration

28. Just what the point of humiliating XP was at that time is not clear. The relationship was over and presumably the appellant had moved on. To say that it was designed to humiliate was an understatement. He sent the intimate images to her family, her friends, neighbours, ex-neighbours and indeed posted them to the world on TikTok. They were intimate videos which showed a stunning lack of regard for her privacy and it was disgraceful conduct. It and other conduct show that the appellant had no regard for her as a person. This was made clear by the fact that he created the videos in the first place, despite being in a relationship with her, without her knowledge, without her consent and did not delete them when the relationship ended.

29. This is consistent with the way the appellant has treated all three of his past intimate partners that I have been told about. He offends against women when he is in relationships. He offends against women even when he is engaging in highly intimate acts with them, presumably done as some act of love or at least affection. He offends against women when he does not get what he wants. He offends against women in order to humiliate, intimidate and embarrass them. He offends against women even when there are apprehended violence orders in place, designed to protect them and where he knows he is in breach.

30. The appellant’s attitude towards women is very concerning. It is the kind of attitude that is shown as a red flag for which apprehended violence orders are in place. Those apprehended violence orders will not protect any intimate partners where offenders have shown a willingness to breach them with further violence.

31. The appellant is less than enthusiastic about his need for counselling and reform, and neither his stopping drugs, his stable employment, his new partner, or the prospect of being a father has resulted in a change in behaviour. He is, in my view, at a very high risk of reoffending, given his history, given his total lack of regard for court orders that are designed to help him reform and to protect his victims, and given his lack of insight even now into his offending.

32. In my view, the sentence imposed in the Local Court was not only reasonable but the only sentence that could have been imposed, given the appellant’s history, the nature of the offending, the fact the offences were committed whilst the appellant was on a Community Correction Order for earlier violence against the same partner and given his lack of insight into his offending.

33. Any sentence needs to have regard not only to his rehabilitation but also to the risk he poses to the community and the particular risk he poses to XP and, in my view, given his long history of like behaviour and his current attitude, his risk to his current or any future partner. It is for that reason that I have published this judgement.

34. The appeal is dismissed.

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Decision last updated: 11 November 2024