ABC Riverina: Isadora Bogle
)A former corporal in the Royal Australian Air Force (RAAF) has escaped jail time after being convicted for the manslaughter of a Filipina transgender woman in Wagga Wagga in 2019.
Rian Ross Toyer, 33, pleaded guilty in the Wagga Wagga District Court to unlawfully killing Mhelody Bruno, 25, on or about September 21, 2019 after engaging in an act of erotic asphyxia.
Toyer and Ms Bruno had been in a relationship for about three weeks before Ms Bruno's death.
The pair had met through the Grindr social media app.
On Friday September 20, 2019, the pair argued and then spent the night together at Toyer's Wagga Wagga unit.
Supplied: Facebook
)On waking the next morning, Toyer choked Ms Bruno by placing his hand over her throat while they had sex.
Toyer told police this was a common practice between the couple and while he conceded that Ms Bruno had never requested to be choked, he told police she had never asked for the practice to stop.
In his judgment Justice Gordon Lerve said he was "satisfied on balance" that Ms Bruno "not only consented to the act of choking but actually instigated it … [the first time the couple] had sex".
"The act occurred in the course of a relationship that had existed for three weeks," he said.
Ms Bruno fell unconscious as a result of the choking.
ABC Riverina: Isadora Bogle
)The court found it was not known how long she was unconscious before Toyer became aware of it.
When he identified Ms Bruno was unresponsive Toyer commenced CPR and called emergency services.
Ms Bruno died the next day after being taken to Wagga Wagga Base Hospital and placed into an induced coma.
'Matter at lower end on scale of seriousness'
Justice Lerve said the objective seriousness of the matter would "largely determine" the sentence given to Toyer.
He found there was "no issue or concern as far as public safety" and that Toyer was "unlikely to reoffend".
In assessing the seriousness of the offending, Justice Lerve found the application of force to Ms Bruno's throat to "significantly restrict" her ability to breathe was "inherently dangerous", which created the criminal liability for the offence of manslaughter.
However, he found the act was "committed in course of a consensual sexual act".
He said while the pair never verbally discussed it, there was an agreement as to "a method of communication whereby the deceased would tap on the offender's arm", which "tragically … did not work on this occasion".
"The offender reacted quickly when he realised there was a difficulty and commenced CPR and called triple-0," Justice Lerve said.
Toyer's employment with the RAAF was terminated because of the case.
Justice Lerve found the termination amounted to extra-curial punishment and took it into account in sentencing.
After receiving a 25 per cent discount for his guilty plea, Mr Toyer was sentenced to a 22-month Intensive Correction Order with conditions including 500 hours of community service.
