Transgender organisations and advocates have called for a legal review and appeal in the case of Filipina trans woman Mhelody Bruno’s death in New South Wales.
The 25-year-old died in September 2019 after Wagga Wagga man Rian Ross Toyer choked her to death during what the court found was a consensual sex act.
Warning: distressing content
On Monday, Wagga Wagga District Court judge Gordon Lerve jailed Toyer for 22 months with a non-parole period of 12 months after he plead guilty to manslaughter.
However days earlier, Justice Gorden Lerve admitted he’d made a “significant” legal error in initial sentencing.
Judge Lerve initially sentenced Toyer to an Intensive Corrections Order and 500 hours of community service for the crime.
But such a punishment is not legally permissible for a manslaughter. Justice Lerve amended the decision on Monday, sentencing Toyer to prison.
He said although he acknowledged the error, he maintained the Intensive Corrections Order was “the appropriate course” if legally allowed.
However the Gender Centre, ACON, just.equal and others have co-signed a statement challenging “concerning” aspects of the case.
They want the New South Wales Director of Public Prosecutions to intervene to “review the case and launch an appeal on process and sentence.”
“The death of Mhelody Bruno is a tragedy,” the signatories wrote.
“Ms Bruno worked in a call centre in the Philippines and financially supported her extended family.
“Her death, a result of being choked by Mr Rian Ross Toyer, has been framed as ‘rough sex’ gone wrong.
“We fear that stereotypes and structural bias against Ms Bruno, as a Filipina transgender woman, has led to outcomes that are not reflective of the seriousness of the crime.”
Transgender women, particularly trans women of colour, experience disproportionately higher rates of violence, harassment and sexual victimisation, they wrote.
Australian trans women also report poor experiences with both police and the justice system.
Court found Mhelody Bruno gave ‘implied consent’
Rian Toyer met Mhelody Bruno, who was in Australia on a tourist visa, on Grindr. The pair shared a three-week relationship before her death, he told the court.
Ms Bruno lost consciousness after Mr Toyer put his hand on Ms Bruno’s throat and choked her during consensual sex.
After he realised she lost consciousness, he then performed CPR and called triple zero. Ms Bruno died the next day.
Mr Toyer told the court the choking, known as erotic asphyxiation, was “common practice” between the pair.
The judge ultimately found Ms Bruno gave “implied consent” to the act, while acknowledging she never gave explicit consent.
However in their statement, the trans advocates express concerns about this determination and other aspects of the sentencing rationale.
The judge’s determination the case was on the “lower end of the scale of seriousness” for manslaughter was also alarming, they said.
“We’re concerned this finding sends a clear message that violence against transgender women, especially transgender women of colour, won’t be taken seriously by the court,” they write.
Sentencing remarks ‘set dangerous precedent’
The trans advocates also raise concerns of “transparency and public accountability of the criminal justice process” in the case.
Due to COVID-19 restrictions, community advocates couldn’t attend the court hearings. Mhelody Bruno’s family also couldn’t listen to the outcome live due to technical problems with the court’s broadcast.
The signatories make clear they “are not advocating for any particular sentence in this case”.
However they claim the sentencing remarks and decision “treats violence against transgender women with impunity” and sets a “dangerous” precedent.
“We call for the DPP to lodge an appeal on these issues, including process, parity [in sentencing], lack of recognition of the seriousness of the offence, and lack of recognition of harm to Mhelody Bruno and her family,” they write.