By Paul Gregoire and Ugur Nedim
On the afternoon of 20 September 2019, 31-year-old RAAF corporal Rian Toyer became aware that Mhelody Bruno was continuing to use Grindr, despite the pair having met on the app three weeks prior and been in an intimate relationship ever since.
The pair argued. Toyer removed Bruno’s belongings from his Wagga Wagga apartment and locked her outside. He then went to a local bar. When he returned at 5 pm, Bruno was still there. Toyer felt sorry for her and let her back in. They went out drinking, returned home and eventually went to bed.
Mhelody was a 25-year-old Filipina transgender woman holidaying in Australia for a few months. Back in the Philippines, Bruno worked in a Manila call centre. And she was the main breadwinner for her family, who live in a poor southern province.
The pair awoke at 7 am the next morning. And as Toyer engaged Bruno in the act of anal sex, he also placed his right hand around her throat and choked her. He maintains this was their normal practice. This time, however, the act persisted to the point that it ultimately proved fatal.
Toyer is unsure how long Bruno was unconscious before he became aware of her condition. But, at that point, he stopped choking her, attempted resuscitation and called an ambulance.
As opposed to murder
Toyer appeared at Wagga Wagga Local Court on 9 September 2020, and pleaded guilty to manslaughter by unlawful and dangerous act, contrary to section 18 of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment.
The crime of manslaughter is contained in the same section of the Act that murder appears in. The offence of murder is to perpetrate acts or omissions that take the life of another with reckless indifference or intent to do so. Manslaughter is “every other punishable homicide” outside of this.
As the Judicial Commission of NSW explains on its website, “manslaughter by unlawful and dangerous act occurs where the accused causes the death of the deceased by a voluntary act that was unlawful and dangerous”.
A dangerous act is what a reasonable person would understand to be conduct risking serious injury.
At Wagga Wagga District Court on 12 March this year, Judge Gordon Lerve sentenced Toyer to a 22 month Intensive Correction Order (IC), which meant he was to be supervised whilst living under certain constraints within the community.
The judicial officer also stressed that he’d added a “substantial component of community service” with 500 hours applying.
Lerve found the crime on “the lower end on the scale of seriousness for matters of manslaughter”. He advised the appropriate sentence would have been 2 years and 6 months, but with a 25 percent discount applying due to the early guilty plea, the time of the order was reduced to 22 months.
It was also determined that Toyer having lost his RAAF employment over killing of Bruno was a form of extra curial punishment to be considered as a mitigating factor during the sentencing process.
The Australian Filipino community, the transgender community and justice advocates all cried foul over the judge permitting the convicted killer to walk free. The charge of systemic transphobia was raised against the outcome.
And there are a number of points in the judgement that seem to indicate this might be the case.
As he outlines the “agreed facts”, Judge Lerve insists they’re “beyond reasonable doubt”, and goes on to outline that Bruno “was a 25-year-old male Filipina national”, who “preferred to be known as ‘Mhelody’” and identified as a trans woman, so, from then on, he would refer to her as “female”.
“Grindr is apparently a social networking ‘app’ for gay, bi and transgender persons,” Lerve said. However, in having considered the facts beyond doubt, his use of the word “apparently” seems to be an attempt to distance himself from having any knowledge of LGBTIQ matters.
The judicial officer then sets out that when Toyer choked Bruno for an unknown period, the result was she “lapsed into an unconscious state”.
However, he then notes that on arrival, the paramedics assisted her in regaining a pulse, which would suggest her heart may have stopped. Bruno also had to be intubated to breathe and was placed in an induced coma once she reached Wagga Wagga Base Hospital.
Mhelody then suffered a cardiac arrest on the day after the incident.
The judge further explained that he was satisfied the deceased had consented to being choked over a three week period, although it was never discussed.
Indeed, he maintained that Mhelody initially instigated the practice by drawing Toyer’s hand to her throat, and that an understanding had developed between them that when she tapped his arm, the RAAF corporal would stop applying pressure.
Lerve also raises the point that under cross-examination it came to light that Toyer understood choking was a dangerous act, but “he did not think that anything would go wrong”.
“Considering the evidence of the offender and the agreed facts I am satisfied on balance that the deceased not only consented to the act of choking but actually instigated it on the first occasion on which they had sex,” Judge Lerve found.
Distinguished from McIntosh
In sentencing, the Wagga Wagga judge considered the 1999 Victorian Supreme Court case R versus McIntosh, which involved Christopher McIntosh pleading guilty to the 1998 manslaughter of Raymond Lee. The killer was sentenced to 5 years imprisonment with a non-parole period of 3 years.
In McIntosh, it was found that the offender had choked the deceased to death with a rope during an act of erotic asphyxia, within a setting where “bondage type sex” was taking place. The rope was pulled so tight that the “horns of the thyroid cartilage were fractured”.
Judge Lerve outlined that “the conduct of the offender in McIntosh was quite different to the conduct of the offender in the matter presently under consideration”, as McIntosh tried to cover up his crime, and in Bruno’s case, she had consented to, and even instigated, the act.
Although, this is despite the fact that in McIntosh, it was ruled “there was no evidence to suggest that the deceased did not consent to the rope”.
And due to the differences he found between the two cases, Judge Lerve determined the killing in McIntosh to be the “more violent” act. Yet, in the current judgement, the fact that the 1998 killing occurred in an obvious bondage setting was simply overlooked.
An error of judgement
After Toyer was permitted to walk free on an intensive correction order, the NSW DPP pointed out that under section 67(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an ICO is not available for a manslaughter conviction.
So, the case was reopened on 29 March for resentencing. This time Judge Lerve sentenced Toyer to 22 months imprisonment, with a non-parole period of 12 months.
This non-parole period represents 55 percent of the overall sentence, however the time usually spent in prison amounts to 75 percent of the total sentence.
Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) stipulates that a parole period must not exceed a third of the time an offender has to remain in prison, unless “special circumstances” are found.
In Toyer’s case, special circumstances were found in terms of the ex-corporal’s age, the fact that it will be his first time in custody, and that he would benefit from an “extended period of supervision” in the community, so he gets the counselling he needs.
Community groups are outraged by the second sentencing outcome as well.
ACON and other peak bodies have raised concerns over the precedent set by the sentence, the lack of consideration given to the impact this has had on the Bruno family, and that “implied consent” was found while the victim is deceased.
“We want to be clear that we are not advocating for any particular sentence in this case,” the joint statement reads. “We are calling for parity in sentencing, acknowledgment of the harm and seriousness of the offence, and transparency and accountability of the criminal justice process.
On resentencing Toyer to time in prison, Judge Lerve made clear that it was “a matter of considerable regret” that he was unable to permit Toyer to serve his time in the community under supervision.
Poster artwork of Mhelody by Lachlan Pham