#JusticeforMhelody Bruno

Trans Community Call for DPP Appeal

This is a joint statement from peak bodies and advocates for the transgender community. This statement expresses our deep concern at the sentence handed down at the Wagga Wagga District Court’s for the 2019 killing of Mhelody Bruno, which does not achieve justice or ensure the safety of those in our community. We call for the Director of Public Prosecutions to review this case and launch an appeal on process and sentence.

The death of Mhelody Bruno is a tragedy. 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.

On 19 March 2021, Judge Verne sentenced Mr Toyer to a 22-month intensive correction order with conditions including 500 hours of community service for the crime of manslaughter. Shortly after, the matter was re-listed for correction of an error in sentencing. On 29 March 2021, Mr Toyer was resentenced to a custodial sentence of 22 months to be released after a 12-month non-parole period.

We believe justice has not been achieved in 5 related areas.

Recognition of Violence Against Trans Women

Trans women, particularly trans women of colour, experience violence and harassment at vastly disproportionate rates. A 2019 Australian study found 1 in 2 transgender people have experienced sexual assault in their lifetime, with most reporting multiple instances of abuse. A 2020 Australian study found trans women of colour were 20 per cent more likely to have experienced multiple instances of sexual harassment in their lifetime and two times more likely to experience multiple forms of sexual victimisation compared to cis-gender women. Poor experiences at the hands of the justice system are common for trans women, so much so that no trans women in the 2020 study nominated police as a source of support following victimisation. These findings are a dire indictment of the justice system’s treatment of violence against transgender women.

Sentencing Rationale

We are concerned that Judge Verne has determined that Ms Bruno gave ‘implied consent’ to being choked while recognising that Ms Bruno never gave explicit consent to this act. Ms Bruno is not alive to testify and the information relied upon is wholly the account of Mr Toyer after the fact. Breath-play (also known as ‘erotic asphyxiation’) is not an act that is engaged in lightly and is one that requires constant attention and care to ensure it is practised safely. It is not an act that can occur safely without explicit consent.

We are concerned about the apparent minimisation of material circumstances surrounding Ms Bruno’s killing: namely, Mr Toyer had argued with Ms Bruno before the killing; that argument was one of jealousy; Mr Toyer never asked or obtained consent for the use of choking; such choking has been portrayed as a ‘common practice’, an uncharacteristic description of a relationship lasting only 3 weeks while Ms Bruno was on holiday in Australia.

The combination of these factors do not indicate consensual sexual encounters and have left us questioning whether the court understands the complex experiences of violence for those within our community, including Ms Bruno’s vulnerabilities as a trans woman of colour, and the manifestations of transphobia, misogyny and racism within intimate relationships.

Judge Verne’s sentencing rationale references Ms Bruno’s transgender status and experience only in a graphic description of her genitals and the misattribution of her as a ‘male’ person ‘known as a female’. Ms Bruno was a woman. Gendered violence against women, particularly against women who are trans, is nuanced, pervasive and must be explicitly addressed.

Sentencing Process

We have serious concerns about the process in relation to Mr Toyer’s sentencing. We note that a judicial error in sentencing occurred, applying an outcome that was not possible for manslaughter. The error was only realised after the fact. We are concerned about what other legal errors have occurred.

We note that Judge Verne gave inadequate acknowledgement of the harm done to Ms Bruno’s family and inadequate recognition of the 6 victim impact statements supplied to the court.

We are concerned about the judicial determination that this case was on the ‘lower end of the scale of seriousness’. We are concerned that this finding sends a clear message that violence against transgender women, especially transgender women of colour, will not be taken seriously by the court.

Transparency and Public Accountability

Throughout proceedings, we have only able to access the determinations of the court through partial media reports. Community advocates have been denied entry to the court on the basis of COVID-19 prohibitions. Ms Bruno’s family were not able to listen to the outcome live due to technical errors in the broadcast. We request that provision is immediately made for Ms Bruno’s family and trans community peak bodies to access the coroner’s report, a statement of agreed facts and transcripts of proceedings as a minimum standard of public accountability.

Precedent Set

We want to be clear that we are not advocating for any particular sentence in this case. We are calling for parity in sentencing, acknowledgment of the harm and seriousness of the offence, and transparency and accountability of the criminal justice process. We advocate against the dangerous precedent set by the sentencing remarks and decision, which treats violence against transgender women with impunity and further entrenches discriminatory attitudes towards transgender women.

Call for DPP Appeal

We call for the DPP to lodge an appeal on these issues including; process, parity, lack of recognition of the seriousness of the offence, and lack of recognition of harm to Ms Bruno and her family.

Signatories: