A man convicted of choking a woman to death inside a Wagga unit will have his sentence corrected after it was revealed the original penalty is not permissible by law.
Rian Ross Toyer was sentenced last Friday to a 22-month intensive corrections order (ICO) and ordered to complete 500 hours of community service. The 33-year-old had earlier pleaded guilty to the manslaughter of transgender Filipina woman Mhelody Bruno.
However, a spokeswoman for the Office of the Director of Public Prosecutions NSW said it was brought to Judge Gordon Lerve's attention that an ICO could not be imposed for a manslaughter charge.
"The matter is now listed for a s43 sentencing error correction on Monday," she said.
Section 43 of the Crimes (Sentencing Procedure) Act 1999 makes a provision for the court to reopen proceedings to correct errors.
Last Friday, Judge Lerve found that Toyer, aged 33, had performed "inherently dangerous" but "consensual" sexual acts with Ms Bruno, aged 25, that led to her "unlawful killing".
"I agree with [Toyer's defence] that the offence was at the bottom end of the range of seriousness for manslaughter," he said.
The District Court heard that in September 2019, Toyer met Ms Bruno through a dating app.
She had arrived in Australia in August on a tourist visa and was primarily living in Wagga. On September 21, the pair awoke and began having sexual intercourse during which Toyer began choking Ms Bruno.
Toyer described this in court as a "common practice they took part in". Due to the pressure, Ms Bruno lost consciousness.
IN OTHER NEWS:
When Toyer noticed she was unresponsive, he stopped, called triple zero and began CPR.
Prosecutors had argued that Toyer's offence was in the "mid-range of seriousness".
Court documents state that about 8am on September 21, 2019 emergency services were called to attend the unit after reports a woman had stopped breathing.
Medical assistance was rendered to Ms Bruno, resulting in her regaining a pulse.
She was intubated and upon arrival to Wagga Base Hospital was placed into an induced coma. The next day Ms Bruno's health deteriorated and she went into cardiac arrest and died.
Judge Lerve quoted from judgments in other manslaughter cases, which stated there was "no single correct sentence" for such complex matters and that any punishment imposed "does not and cannot measure the value of [the victim's] life".
In taking into account character references and psychological reports, Judge Lerve said he was "more than satisfied that the offender is remorseful" and he had "good prospects of rehabilitation" and was "unlikely to reoffend".
Judge Lerve relied on a Victorian Supreme Court case from 1999 when examining precedents for sentencing due to the rarity of similar prior manslaughter cases.
Christopher Gerard McIntosh was sentenced to a minimum of three years for the manslaughter of Raymond Wai Ming Lee from strangulation during "bondage type sex" in a flat in suburban Melbourne.
Judge Lerve said Toyer's offending was not as serious as McIntosh's because he tried to help Ms Bruno via performing CPR, he had been honest with police and he had not tried to flee the state.
Toyer will appear at Wagga District Court on Monday for resentencing.
Our journalists work hard to provide local, up-to-date news to the community. This is how you can continue to access our trusted content:
Sign up for our newsletter to stay up to date.