Atalay v The King

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 was ‘clean’ and would become a regular client. In evidence at the trial the complainant said she stepped out of character from the ‘girlfriend experience’ and told the applicant ‘that is never happening, absolutely not, and you need to understand that’.[2]
[2]DPP v Atalay [2024] VCC 2100 (‘Reasons’).
The complainant produced a condom and placed it on the applicant’s penis. He then penetrated her vagina with his penis before suggesting they move to a separate office area. They did so. The applicant then said that he needed to turn off security cameras. He did. He also went to speak to someone at the front door. Before returning to the office area the applicant removed the condom. The applicant then immediately penetrated the complainant’s vagina with his penis and ejaculated inside her.
Shortly thereafter the complainant asked the applicant what had happened to the condom. He replied that it had ‘fallen off’ and pretended to assist her to look for it. The complainant expressed anger and readied to leave. The applicant offered her money for the morning-after pill. She accepted $30.
The complainant went to a nearby 7-Eleven store. She sent the applicant a text, stating ‘What you just did was rape’. The applicant replied that the condom had come off and offered additional compensation. They met again shortly afterwards and the applicant paid the complainant a further $100.
The complainant travelled directly to the Royal Women’s Hospital and subsequently attended a police station to report the offending.
On 4 February the applicant participated in a record of interview (‘ROI’) with police. He said the complainant had not verbally refused ‘natural’ sex and had seen him remove the condom before they moved to the office area. The applicant said that once there the complainant performed oral sex on him in an unprotected state and then said ‘start fuckin’ me’, which he understood to be an invitation to penile-vaginal penetration without a condom. He said that the complainant ‘threw a bit of a tantrum’ after he had ejaculated and asked for more money for ‘an extra service’.

Sentencing reasons

In his comprehensive sentencing remarks the judge made a number of factual findings that fell from the jury verdict. Having done so, the judge was satisfied beyond reasonable doubt that the applicant knew at the time of the penetration that the complainant was not consenting; it was not a situation in which the applicant did not reasonably believe in consent to ‘natural sex’ or in which he gave no thought to the issue. [3]
[3]Reasons, [27].
The judge termed the offending ‘really serious’.[4] The following matters were noted to contribute to that assessment:
(a)First, the complainant’s position of ‘real vulnerability’[5] given the field in which she worked.
(b)Second, the knowing, deliberate and deceitful nature of the applicant’s conduct which exhibited ‘some premeditation’.[6] The judge said
…She had set up the complete and absolute impediment to that unprotected act repeatedly in advance. She did not know that you had removed your condom. You did. You tricked her. Had she known, no doubt the protests would have rained down. This was a rape by stealth and a nasty one in my view as you pretended to comply with her request.[7]
(c)Third, the complainant was exposed to the risk of disease and pregnancy.[8]
[4]Reasons, [29], [76].
[5]Reasons, [76].
[6]Reasons, [81].
[7]Reasons, [78] (emphasis in original).
[8]Reasons, [76].
The applicant’s submissions that the objective gravity of the offending fell below

mid-level and his moral culpability was ‘middling’ were both rejected. The judge found the applicant to have high moral culpability for an offence that sat ‘comfortably above’ the mid-level of objective seriousness.[9] In forming that assessment the judge said that it was immaterial whether the unprotected nature of the penetration was treated as an aggravating feature of the rape or an inherent component of the particular instance of rape, as either way the unprotected nature of the penetration and the applicant’s decision to ejaculate within the complainant elevated the seriousness of his crime.[10] The judge also rejected the applicant’s submission that the offence was less serious because the complainant was prepared to consent to an act of sexual penetration.[11]
[9]Reasons, [82]–[84], [100].
[10]Reasons, [85].
[11]Reasons, [86].
The judge noted the significant impact of the offending upon the complainant, stating that she had been left completely mortified and degraded.[12]
[12]Reasons, [88].
The following matters personal to the applicant were considered by the judge.[13] The applicant, 49 years of age at the time of sentence, was born in Australia of Turkish background. He was educated to Year 11. At the age of 17 the applicant moved to Turkey. There he met and married his wife. They returned to Melbourne two years later. Four children were born to the marriage. The applicant worked as a driver. He had serious issues with drugs and gambling. He had been treated by a psychiatrist and psychologist for drug-induced psychosis, depression and anxiety. In 2022 the applicant’s eldest son died unexpectedly. The applicant relapsed into drug use and his marriage ended. The applicant has used the services of sex workers for over 20 years.
[13]Reasons, [41]–[45].
The matters pressed in mitigation of penalty by the applicant were the applicability of limbs 5 and 6 of Verdins,[14] the lack of any relevant prior criminal history and his low risk of reoffending.[15] A forensic psychiatric report by Associate Professor Rajan Darjee and reports by Dr Lal Ranaweera, a treating psychiatrist, and Ms Serpil Ozturk, a treating psychologist, were tendered. Character references and certificates evidencing completion of a number of courses by the applicant during his period of remand were also tendered.
[14]R v Verdins (2007) 16 VR 269 ; [2007] VSCA 102 (‘Verdins’).
[15]Reasons, [35].
Associate Professor Darjee gave evidence at the plea. His opinion was that the applicant had suffered from major depressive disorder of fluctuating severity since 2012. At the time of the assessment in October 2024 the disorder was of mild to moderate severity. The applicant was additionally diagnosed with substance misuse disorder. Associate Professor Darjee did not consider either diagnosis to have had a material connection to the offending. Based upon clinical risk assessment tools, Associate Professor Darjee opined that the applicant posed a low risk of future sexual reoffending. Associate Professor Darjee also stated that the applicant’s major depressive disorder would increase the subjective burden of imprisonment for the applicant.
Although the judge was critical of aspects of Associate Professor Darjee’s evidence, the judge accepted that the applicant’s diagnosis of major depressive disorder would make his experience of gaol more burdensome and gave ‘some modest weight’ to limb 5 of Verdins.[16] The judge rejected the submission that limb 6 of Verdins also had work to do.[17] The judge found the applicant to have ‘relatively favourable’ prospects of rehabilitation and that he presented with a ‘relatively low’ risk of future sexual offending.[18]
[16]Reasons, [68].
[17]Reasons, [68]; No complaint is now made as to that finding.
[18]Reasons, [75].
The judge found the applicant to lack remorse for his offending. His actions in attempting to placate the complainant in its aftermath, his lies to police and the manner in which he ran his trial were relevant to that finding.[19] The judge found beyond reasonable doubt that the applicant’s case before the jury — that the complainant knew the condom had been removed, the second act of penetration was consensual and the complaint of rape was made to extract money from the applicant — was a ‘cynical invention’.[20]
[19]Reasons, [77].
[20]Reasons, [25]–[26].
The judge also noted that the applicant was subject to a bail undertaking in respect of sex crimes (of which he was ultimately acquitted) at the time of the offending.[21]
[21]Reasons, [49].
Just punishment and denunciation were emphasised in the sentencing synthesis.[22] The need for specific deterrence and community protection was moderated by the applicant’s lack of relevant criminal history.[23] The judge found general deterrence to be important to deter others from sexually offending against a vulnerable person.[24]
[22]Reasons, [91]–[92].
[23]Reasons [93]–[94].
[24]Reasons, [95].
The maximum penalty,[25] standard sentencing scheme,[26] current sentencing practices[27] and parsimony[28] were also considered by the judge.
[25]Reasons, [96].
[26]Reasons, [97]–[111].
[27]Reasons, [112].
[28]Reasons, [120].

Applicant’s contentions

The applicant’s contention that the total effective sentence and non-parole period imposed are manifestly excessive centres upon what is argued to be the objective gravity of this particular example of the offence of rape. Although no specific error by the sentencing judge is alleged, the applicant argues that the judge was wrong to characterise his offending as ‘comfortably above the mid-level of objective seriousness’. The respondent argues instead that his offending is significantly below the mid-point of objective seriousness.
To this end the applicant refers to the matters identified in Jurj v The Queen[29] as indicia relevant to the objective gravity of the crime of rape.[30] The applicant submits that he acted alone, the premeditation involved in removing the condom was of short duration and his actions did not involve any threat, use of force or degradation. Further, the complainant’s vulnerability was situational. It did not arise from mental capacity, intoxication or a subordinate relationship. The applicant argues there to be similarities between the situation where the removal of a condom vitiated consent and that where an offender continues an act of sexual penetration after a complainant withdraws consent.
[29][2016] VSCA 57 (‘Jurj’).
[30]Ibid [80].
Additionally the applicant points to a number of matters upon which he could rely in mitigation of penalty including:
(a)His major depressive disorder and the operation of limb 5 of Verdins.
(b)His ‘favourable’ prospects of rehabilitation and ‘relatively low’ risk of future sexual offending.
(c)
His lack of prior convictions for sexual offending against a background of a

20-year history of using the services of sex workers.
(d)His respectable work history, including within the prison system.
Finally the applicant argues, by reference to three cases,[31] that current sentencing practices indicate the sentence is excessive.
[31]The applicant referred to Lockyer (a pseudonym) v The Queen [2020] VSCA 321; DPP v Beck [2021] VSCA 88 and DPP v Frank (a pseudonym) [2021] VSCA 163.

Respondent’s contentions

The respondent contends that the judge’s characterisation of the offence as sitting comfortably above the mid-level of objective seriousness was correct. It was based on three findings: the applicant’s knowledge of non-consent from the outset, the premeditated nature of the offending and the unprotected ejaculation. It is further argued that the applicant being on bail for sexual offending at the time of the offence was a further matter of aggravation. The Jurj factors are argued to be descriptive rather than prescriptive[32] and, in any event, that the offence was one of ‘trickery’ necessarily renders a number of them otiose. General deterrence is argued to be of particular importance.
[32]Jurj [2016] VSCA 57, [81].
The respondent argues that the offending is different in nature from ‘failure to withdraw’ cases as the act of penetration was not initially consensual. Further, it is argued that the previous, consensual act of penetration with a condom (and other sexual activity) arguably increased the gravity of the offending conduct because it was in breach of the specific and clear rules set by the complainant.
Current sentencing practice is noted by the respondent to be but one factor in the sentencing exercise. The respondent further disputes that the cases identified by the applicant are truly comparable.
The respondent argues that the judge took the applicant’s personal circumstances into account but there was nothing in them that explained his conduct or reduced his ‘very high’ moral culpability. Further, the applicant lacked remorse and insight.

Discussion and analysis

The question on this application for leave to appeal is whether it is reasonably arguable that the total effective sentence and non-parole period are manifestly excessive.
I am not persuaded by the applicant’s argument that his offending is analogous with a situation in which an act of sexual penetration, initially consensual, is persisted in after consent is withdrawn. The judge was correct to observe that the penetration was non-consensual from the outset. Further, in a situation in which two persons engage in sexual activity as a result of mutual desire, consent to one sexual act with a person is not consent to any further act with that person.[33] Nonetheless previous contemporaneous consensual sexual activity may, depending on the circumstances, be relevant to the existence and reasonableness of a person’s belief in consent in to any further act.[34] In contradistinction this case concerns acts of penetration that were part of a commercial transaction between the applicant and complainant, the terms of which were integral to the complainant’s consent to each and every penetrative act and known in advance by the applicant.
[33]Crimes Act, s 36(3).
[34]Crimes Act, s 36A(1).
That said I am of the view it is reasonably arguable that the sentence is manifestly excessive. It does not follow that the appeal will be successful, but the assessment of the objective gravity of the applicant’s offending warrants consideration after full argument on appeal. In particular I note the following.
First, the intentional removal of, tampering with or non-use of a condom in circumstances where another person engages in sexual activity on the basis that a condom is used[35] — a behaviour commonly known as ‘stealthing’ — was specifically criminalised on 30 July 2023.[36] In her second reading speech the Minister for Corrections, Youth Justice and Victim Support said
The [Victorian Law Reform Commission] noted that this conduct is mostly perpetrated by men against women, as well as by men who have sex with men. There is limited research about how prevalent this behaviour is, but one study concluded at the Melbourne Sexual Health Clinic in 2018 found that nearly one in three women and one in five men who have had sex with men reported having experienced non-consensual condom removal. The study also found that women who were subjected to this behaviour were more likely to be a sex worker.
It is clear that this conduct can cause significant harm and trauma, including sexually transmitted diseases, unplanned pregnancy and psychological distress or fear. But more than this, the non-use, removal or tampering of a condom without consent is a violation of bodily and sexual autonomy. It is a violation of consent, as the act has changed without the person’s free and voluntary agreement.[37]
[35]Crimes Act, s 36AA(1) (examples para (o)).
[36]The Justice Legislation and Amendment (Sexual Offences and Other Matters) Act 2022 came into effect on this date. Although the date of the applicant’s offence was 4 February 2023, this Court in DPP v Yeong (a pseudonym) (‘Yeong’) held that the then-definition of consent in s 34C of the Crimes Act as ‘free agreement’ was broad enough to encompass lack of consent because of deliberate removal of a condom; Yeong (2022) 301 A Crim R 312, [90] (Niall and T Forrest JJA, Macaulay JA dissenting at [159]); [2022] VSCA 179.
[37]Victoria, Parliamentary Debates, Legislative Assembly, 4 August 2022, 2903 (Sonya Kilkenny).
This Court has not, since the legislative amendment, considered the sentencing implications of a charge of rape where there was an absence of consent because of the intentional non-use or misuse of a condom.[38]
[38]DPP v Ivanovksi [2025] ACTSC 237 (Burns AJ) is a sentence imposed in the ACT for a charge of sexual intercourse without consent in circumstances where the offender removed a condom during a paid sexual service. The factors relevant to objective seriousness of the offence were identified at [15].

Secondly and relatedly, the judge found it ‘a bit of a distraction’[39] as to whether the unprotected nature of the act of penetration could or should be treated as an aggravating feature given that the unprotected nature of the act of penetration gave rise to the absence of consent. The judge concluded that the characterisation was immaterial as if the unprotected nature of the penetration was not an aggravating feature then it was an inherent component of the subject instance of rape which rendered it serious by virtue of being unprotected.[40]
[39]Reasons, [85].
[40]Reasons, [85]–[86].
In Yeong Niall and T Forrest JJA observed that it is erroneous to isolate a physical act of penetration from the circumstances in which consent to that act is given.[41] Their Honours held that ‘free agreement’ included the freedom to choose the manner in which physical penetration was to occur[42] and further observed:
A condom acts as a physical barrier between the two participants. It may guard against the transmission of disease and is a prophylactic against pregnancy in the case of heterosexual intercourse. The use of a condom is not only concerned with the consequences of the act of intercourse but also how the act is to be performed and the nature of the physical connection between the participants.[43]
[41]Yeong (2022) 301 A Crim R 312, [90] (Niall and T Forrest JJA, Macaulay JA dissenting at [159]); [2022] VSCA 179.
[42]Ibid [92] (Niall and T Forrest JJA, Macaulay JA dissenting at [159]); [2022] VSCA 179. As noted above, this was prior to the inclusion of s 36AA(1) (examples para (o)) in the Crimes Act.
[43]Yeong (2022) 301 A Crim R 312, [93] (Niall and T Forrest JJA); [2022] VSCA 179.
That is, whether or not a condom is used forms part of the ‘nature and character’[44] of the penetrative act.[45]
[44]Ibid [95] (Niall and T Forrest JJA).
[45]In the sense explained in Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249.
That being so, a question might arise as to whether the ‘descriptive’ factors identified in Jurj as relevant to the assessment of the gravity of a particular instance of rape[46] are wholly relevant to, or ‘cover the field’ in respect of, an offence where the nature and character of the actus reus is the absence or misuse of a condom. Jurj was decided in 2016, well prior to the specific criminalisation of ‘stealthing’. The identified factors, which include whether the offender used a condom, acted alone or in company, used a weapon or threatened or inflicted additional violence, are premised on there being no consent to any act of penetration. In a situation where a person consents to an act of penetration, but only one of a different nature and character (that is, with a condom), the absence of these factors might, in many circumstances, say little about the objective seriousness of the offence. In other words, is there, or should there be, a distinction as to how the objective gravity of an instance of rape is assessed as between a situation in which there was no consent to any act of penetration as opposed to one in which there was consent to an act of penetration, but only of a different nature and character.
[46]Jurj [2016] VSCA 57, [80].

Conclusion

The application for leave to appeal against sentence is granted.

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[2025] VSCA 200

29 August 2025