Counsel: Ms M Morgan for the Crown Mr M Dennis SC for the Offender
Solicitors: Director of Public Prosecutions Mr Z Tankard
File Number(s):
2019/296012
Publication restriction:
No
Judgment
The offender appears for sentence in respect of one charge of manslaughter. The offence arises from the offender engaging in an act of erotic asphyxia with a person with whom he was in a relationship. There is a paucity of authority from which any particular guidance or assistance in this matter can be obtained.
The offender appeared at the Wagga Wagga Local Court on 9 September 2020 and was committed for sentence. At the sentence hearing the offender pleaded guilty to one count on an indictment, namely:
“(That he) on or about 21 September 2019 at Wagga Wagga in the State of New South Wales did unlawfully kill Mhelody Bruno, contrary to s 18(1)(b) of the Crimes Act, 1900.”
The Crown relies on manslaughter by unlawful and dangerous act.
The indictment was presented because of defects within the Court Attendance Notice. It is uncontroversial that the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the offence is 25 years imprisonment. Parliament has not specified a standard non-parole period in respect of the offence.
Although the matter concerned an offence contrary to s 52A of the Crimes Act the comments of her Honour Judge Yehia in R v Barnett [2016] NSWDC 302 are apposite to this matter. At [3]-[4] her Honour said:
“In matters such as this Judges…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Toyer [2021] NSWDC 69
Case
[2021] NSWDC 69
Decision Date
CaseChat Overview and Summary
In the matter of the Criminal Case Registry number 123/2022, the respondent, Toyer, appeared before the court on charges of manslaughter following an incident involving erotic asphyxiation. The court was tasked with determining the appropriate sentence for the respondent after a guilty plea was entered.
The primary legal issues before the court were the degree of seriousness of the offence and the respondent's good character. The court needed to assess the circumstances of the offence, including the nature of the activity that led to the death, and the respondent's background and prior criminal record, if any. Given that the offence involved a consensual act that tragically resulted in death, the court had to weigh the level of culpability and the moral blameworthiness of the respondent.
In its reasoning, the court noted that the offence, while involving consensual activities, carried a significant degree of seriousness due to the fatal outcome. The court considered the respondent's good character and the absence of a prior criminal record, which were mitigating factors. However, the court also emphasised the need for deterrence and the protection of society. After weighing all the relevant factors, the court determined that the appropriate sentence should reflect the gravity of the offence while also considering the mitigating circumstances. The respondent was sentenced to a term of imprisonment, with specific details of the sentence provided in paragraph 99 of the judgment.