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District Court 12 March 2021

R v TOYER

[2021] NSWDC 69

Homicide
CRIME MANSLAUGHTER EROTIC ASPHYXIATION SENTENCING GOOD CHARACTER DEGREE OF SERIOUSNESS

Citation: R v Toyer [2021] NSWDC 69
Court: District Court of New South Wales
Date: 12 March 2021 (amended 29 March 2021)
Judge(s): Lerve DCJ

Background

The offender, a 33-year-old member of the Royal Australian Air Force stationed in Wagga Wagga, pleaded guilty to one count of manslaughter following the death of his partner, Mhelody Bruno. The deceased was a 25-year-old transgender woman from the Philippines who was in Australia on a tourist visa. The two had met through an online dating application approximately three weeks before the fatal incident.

On the morning of 21 September 2019, during sexual intercourse, the offender applied pressure to the deceased's throat as part of a practice of erotic asphyxiation that had occurred in their relationship previously. The deceased became unresponsive. The offender ceased the choking, began CPR, and called triple-0. Emergency services attended and the deceased was transported to hospital, but she died the following day at 10:20am after suffering cardiac arrest.

The Crown proceeded on the basis of manslaughter by unlawful and dangerous act. The offender was committed for sentence from the Wagga Wagga Local Court and pleaded guilty at the sentence hearing, attracting the full 25 percent utilitarian discount.

  • What was the objective seriousness of the offending, given the context of a consensual sexual practice gone fatally wrong?
  • What weight should be given to the offender's good character, genuine remorse, and low risk of reoffending?
  • Whether the sentence should be served as an Intensive Correction Order (ICO) rather than full-time custody, having regard to the provisions of s 66 of the Crimes (Sentencing Procedure) Act 1999.
  • What total sentence was appropriate, given the maximum penalty of 25 years imprisonment and the absence of a standard non-parole period for manslaughter?

Decision

Lerve DCJ noted at the outset that there is a significant lack of comparable authority in cases involving erotic asphyxiation and manslaughter, describing the area as having a "paucity of authority." The court drew on sentencing principles from analogous manslaughter cases and applied general sentencing principles, including punishment, deterrence, denunciation, and rehabilitation.

On objective seriousness, the court found that while a human life had been lost and the act of choking carried obvious danger, the circumstances were not at the highest end of the range for manslaughter. The offender had not intended harm, the practice had an apparently consensual basis within the relationship, and the deceased had previously used a physical signal to indicate discomfort. Those features reduced, though did not eliminate, the offender's moral culpability.

The court accepted that the offender was of good character, had no prior criminal record, had shown genuine remorse, and was unlikely to reoffend. Psychological evidence was considered, although parts of the psychologist's report were the subject of Crown objection. The offender gave evidence at the sentence hearing. The court found him to be a credible witness on the relevant matters.

Applying s 66 of the Crimes (Sentencing Procedure) Act 1999, the court was satisfied there was no public safety concern and that the offender was unlikely to reoffend. The court concluded an ICO with a substantial community service component was appropriate. However, the judgment was amended on 29 March 2021 (to be read in conjunction with R v Toyer (No 2) [2021] NSWDC 92), which noted it had been an error to order the sentence be served by ICO. With no available alternative to full-time custody, the offender was re-sentenced to a non-parole period of 12 months with a balance of term of 10 months.

Orders Made

  • The offender was convicted of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900.
  • Sentenced to imprisonment for 22 months, initially directed to be served by way of Intensive Correction Order with 500 hours of community service.
  • Following amendment on 29 March 2021 (R v Toyer (No 2) [2021] NSWDC 92): the 22-month sentence was confirmed, but the ICO was set aside as it had been made in error.
  • The offender was re-sentenced to a non-parole period of 12 months, with a balance of term of 10 months, commencing 29 March 2021.

Key Takeaways

  • The District Court confirmed that manslaughter arising from erotic asphyxiation is a recognised but sparsely litigated area of criminal law in NSW, with limited comparable sentencing authority available to guide the exercise of the sentencing discretion.
  • Objective seriousness in manslaughter cases involving consensual sexual practices is assessed on the full range of circumstances, including the apparent consent to the activity and the nature of any communication between the parties about stopping, though the fatal outcome necessarily engages principles of denunciation and deterrence.
  • Good character, genuine remorse, absence of prior criminal history, and a low risk of reoffending are significant mitigating factors in manslaughter sentencing, capable of influencing both the head sentence and the mode of serving it.
  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999, a court must be satisfied that an ICO is appropriate having regard to public safety and likelihood of reoffending before that sentencing pathway is available; where it is not legally available, full-time custody remains the default.
  • The amendment in R v Toyer (No 2) illustrates that an ICO made in error will be corrected on resentencing, with the total term confirmed but the non-parole period fixed separately from the date of resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 66

Cases:
- Brown v R [2014] NSWCCA 215
- Casella v R [2019] NSWCCA 201
- Cross v R [2019] NSWCCA 280
- Elphick v R [2021] NSWDC 1
- Fangaloka [2020] HCASL 12
- Hili & Jones v The Queen [2010] HCA 45
- Karout v R [2019] NSWCCA 253; [2020] HCASL 56
- Neal v R (2011) 32 VR 454
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- R v Barnett [2016] NSWDC 302
- R v Brown & Ors [1993] 2 All ER 75
- R v Cahill & Byrne [2020] NSWDC 224
- R v Daetz; R v Wilson [2003] NSWCCA 216
- R v Dica [2004] QB 1257; [2004] EWCA Crim 1103
- R v Fangaloka [2019] NSWCCA 173
- R v HA [2008] NSWSC 1368
- R v Magro [2019] NSWSC 343
- R v McIntosh [1999] VSC 358
- R v MD, BM, NA, JT [2005] NSWCCA 342
- R v Toyer (No 2) [2021] NSWDC 92