A former serviceman who initially avoided jail time for choking a woman to death during sex has been jailed, after the lawyers informed the judge the sentence he initially gave out was unlawful.
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Rian Toyer, now 33, pleaded guilty to manslaughter in September last year, after causing the death of 25-year-old Filipina woman Mhelody Bruno in Wagga Wagga.
Toyer was initially sentenced on March 19 to 22 months' imprisonment, with the sentence to be served in the community under an intensive correction order, including 500 hours of community service.
NSW District Court Judge Gordon Lerve found the offence was "towards the lower end" on the scale of seriousness for manslaughter.
But one week later lawyers brought it to the judge's attention that he was not able to sentence a manslaughter offender to such an order.
"Clearly ... I made an error," Judge Lerve said in a new judgment on Monday.
"That error was fundamental and significant and one of which I must take ownership."
Toyer will now serve at least 12 months in prison, with a full sentence of 22 months.
Despite acknowledging the mistake, the judge said the intensive correction order would be "the appropriate course" if it was legally available.
"It is a matter of considerable regret that I am unable to extend that disposition to this offender," he said.
Toyer met Ms Bruno, a transgender woman who was in Australia on a tourist visa, on Grindr and the two entered a three-week relationship until her death.
On the morning of September 21, 2019, while the two were having sex, Toyer put his right hand on Ms Bruno's throat and choked her.
When he realised she had lost consciousness, he performed CPR and then called triple zero. She died the following morning.
The former RAAF corporal told police it was common for him to choke Ms Bruno during sex. He admitted that she had never requested to be choked, but also said she never asked him to stop.
Usually if she wanted him to stop she tapped his arm, but she did not do so on that occasion. The two never discussed the boundaries of the choking, he said.
The judge found that Ms Bruno not only consented to the act of choking, but instigated it on the first occasion when they had sex.
Toyer did not think anything would go wrong, he told police.
The judge found that Toyer was remorseful and unlikely to re-offend.
He lost his job with the RAAF as a result of the charge and had an "excellent reputation" with people he worked with, had concern and compassion for others, and made a valuable contribution to the community.
In his second judgment on Monday, Judge Lerve stood by most of his earlier reasoning, despite public criticism.
He emphasised that his findings about the level of seriousness "were in the context of matters of manslaughter by dangerous and unlawful act."
The judge pointed out he could have imposed a community correction order, or good behaviour bond, a "far less severe penalty" than the initial sentence he chose. That seems "more than a little odd", he remarked.
Australian Associated Press
