Atalay v The King - [2025] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0031

AHMET ATALAY	Applicant
v
THE KING	Respondent

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JUDGE:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2025
DATE OF JUDGMENT:	29 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 200
JUDGMENT APPEALED FROM:	[2024] VCC 2100 (Judge Tinney)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Sentence – Application for leave to appeal – Rape – Act of penetration with sex worker absent condom – Assessment of objective gravity – Whether offence ‘comfortably above’ mid-level of objective seriousness – Whether sentence of 10 years and 6 months’ imprisonment manifestly excessive – Leave to appeal granted.

Crimes Act 1958, ss 36, 36AA, 38.

DPP v Yeong (a pseudonym) (2022) 301 A Crim R 312; Jurj v The Queen [2016] VSCA 57, referred to.

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Counsel
Applicant:		Mr T Marsh
Respondent:		Mr J Johnston
Solicitors
Applicant:	Angus Cameron and Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

On 9 August 2024 the applicant was convicted of one charge of rape by a jury empanelled in the County Court. Following a plea hearing on 11 December 2024 the applicant was sentenced on 18 December 2024 as follows.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Rape[1]	25 years	10 years 6 months	Base
Total Effective Sentence:		10 years 6 months
Non-Parole Period:		7 years 6 months
Pre-sentence Detention Declared:		234 days

[1]Contrary to s 38(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.

The applicant now seeks leave to appeal against sentence on the single proposed ground that the total effective sentence and non-parole period are manifestly excessive.
For the reasons that follow leave to appeal should be granted.

Summary of offending

The offence occurred at the applicant’s pizza shop in the early hours of 4 February 2023. He had, the day prior, responded to an online advertisement placed by the complainant for certain sexual services. Those services were for a ‘girlfriend experience’ which included conversation and nurturing as well as agreed sexual acts. The complainant’s advertisement said ‘no natural’, an explicit exclusion of penile-vaginal penetration without a condom.
Following the applicant’s initial response to the advertisement by instant message, he and the complainant exchanged texts and spoke by telephone. In his first text message the applicant asked the complainant if she did ‘natural oral’. In the next he asked ‘Can we push the boundaries and have normal straight sex as well …?’. In the telephone call the complainant explained her standard conditions. She described her exclusion of ‘natural sex’ as absolutely non-negotiable.
After arriving at the pizza shop late in the evening of 3 February the complainant performed oral sex on the applicant. It was unprotected contact consistent with her stated conditions. The applicant repeatedly asked the complainant to agree to unprotected penile-vaginal sex because he…

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.

Continue reading Atalay v The King

Details

AGLC: Atalay v The King [2025] VSCA 200
Case: [2025] VSCA 200
Decision Date: 29 August 2025

CaseChat Overview and Summary

In the case of Atalay v The King, the applicant was convicted of rape after engaging in sexual acts with a sex worker without the use of a condom. The applicant sought leave to appeal against his sentence, arguing that it was manifestly excessive and not justified by the objective gravity of the offence. The application was heard by a single judge under section 315 of the Criminal Procedure Act 2009, who had previously determined the sentence of 10 years and six months imprisonment with a non-parole period of seven years.

The primary legal issue before the court was whether the offence committed by the applicant was of such objective seriousness that it comfortably exceeded the mid-level, and if so, whether the sentence imposed was manifestly excessive. The court considered the principles established in DPP v Yeong (a pseudonym) and Jurj v The Queen, which set out the criteria for assessing the objective gravity of an offence and determining whether a sentence is manifestly excessive.

In evaluating the objective gravity of the offence, the court considered the nature of the sexual acts, the absence of a condom, and the applicant’s prior criminal history. The court found that the offence, while serious, did not comfortably exceed the mid-level of objective seriousness, but that the sentence imposed was nonetheless manifestly excessive in light of the circumstances. The court granted leave to appeal on the basis that there was a real prospect that the sentence would be reduced on appeal.

The final orders of the court included granting leave to appeal against the sentence, with directions for the parties to file written submissions within a specified timeframe. The applicant was also granted bail pending the hearing of the appeal.

Orders