A man guilty of choking a woman to death inside a Wagga unit will spend a year behind bars after a sentencing error was corrected.
Rian Ross Toyer was originally sentenced on March 19 to a 22-month intensive correction order and ordered to complete 500 hours of community service.
The 33-year-old had earlier pleaded guilty to the manslaughter of transgender Filipina woman Mhelody Bruno.
However, it was brought to the attention of Judge Gordon Lerve, by Toyer's solicitor Zac Tankard, that under law an ICO was not a permissible punishment for the charge.
On Monday, Toyer was resentenced, with Judge Lerve adding the "error" was his own. Judge Lerve said that the reasoning behind his sentencing still stood and it would just be how the penalty was to be served that would change.
"It seems more than a little odd that a community correction order is available whereas an intensive correction order, which is a more severe and onerous disposition for an offender, is not available," he said.
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Judge Lerve added that Toyer was an offender "more deserving" of an ICO and it was a "matter of considerable regret" that he could not apply it.
"I remain firmly of the opinion that if the law permitted the offender to serve the sentence by way of an intensive correction order it would be the appropriate course in this matter," he said.
On Monday, Judge Lerve sentenced Toyer to 22 months in jail, with a non-parole period of 12 months. He will be eligible for release in March 2022.
"I recommend that parole be subject to a condition that the offender accept the supervision of the Department of Community Corrections and obey all reasonable directions of that service relating to mental health issues," Judge Lerve said.
During submissions, defence barrister Mark Dennis asked for a finding of special circumstances due to Toyer's age, the fact it was his first time in custody and the need for support due to "chronic PTSD".
The District Court has earlier heard that in September 2019, Toyer met Ms Bruno through a dating app. She had arrived in Australia in August on a tourist visa and was living in Wagga.
On September 21, the pair awoke and started sexual intercourse, during which Toyer began choking Ms Bruno. Toyer described this in court as a "common practice they took part in".
Due to the pressure, Ms Bruno lost consciousness.
When Toyer noticed she was unresponsive, he stopped, called triple zero and began CPR. Speaking outside court, Mr Tankard said the resentencing was an unusual situation, but the judge was "well-considered".
"But, at the end of the day, somebody has died and somebody is now in custody," he said.
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