Director of Public Prosecutions v Atalay
[2024] VCC 2100
•18 December 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01755
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AHMET ATALAY |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 July to 9 August (Trial) and 11 December 2024 (Plea) |
| DATE OF SENTENCE: | 18 December 2024 |
| CASE MAY BE CITED AS: | DPP v Atalay |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 2100 |
REASONS FOR SENTENCE
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Subject: Rape - 49 years of age as at sentence, no relevant criminal history - Trial verdict -Rape of sex worker by secretly removing condom and engaging in unprotected sex to ejaculation - No remorse - Vulnerable victim. Limb 5 - R v Verdins [2007] VSCA 102 - test results and opinion - low risk of future sexual offending.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Fisher (at Trial and Plea) Ms G. Ong (at Sentence) | Office of Public Prosecutions |
| For the Accused | Mr G Chisolm Ms B. Westgarth | Slades and Parsons |
HIS HONOUR:
1Ahmet Atalay, following a 2 week trial, on 9 August, a jury found you guilty of one charge of rape.
2The plea was adjourned on your counsel’s application to late October and then further administratively adjourned to 11 December so that an expert report could be prepared.
3Having heard the plea last week, I continued your remand until today’s date.
4Rape is punishable by a 25-year maximum term of imprisonment. It is a
Category 1 offence. It is also subject to the standard sentence scheme set out within the Sentencing Act. The standard sentence for rape is 10 years.5Prison is unavoidable here as was conceded by your counsel. The only question is the length of the sentence imposed as well as the length of the non-parole period.
6You are 49 years of age with no convictions or findings of guilt for any related past offending.
7As this sentencing task follows a trial verdict, I do not have an agreed factual summary as I would if you had, for instance, pleaded guilty.
8I must sentence in accordance with, and consistently with, the jury verdict. For any matter of aggravation, I must be satisfied of it beyond reasonable doubt. This issue was discussed in the recent Court of Appeal decision of Berry v The King[1].
[1] [2024] VSCA 274 (“Berry”).
9Plainly enough the jury accepted that the principal witness, your victim, Evie Rickards[2], was a truthful and reliable witness. I am not surprised. She was an excellent witness.
[2] A pseudonym.
10At the time of the offending back in February 2023, she was a 33-year-old artist but she also worked three or so times a week as a sex worker. She was not working off the streets as a sex worker. She advertised her services to provide what was described as a ‘deluxe girlfriend experience’. She was a well-spoken, well presented and obviously highly intelligent woman and those features well suited her role as an escort and one who tried to make the experience more than just a sexual one. She described how that category of sex work provided social, conversational and nurturing experiences in addition to the agreed sexual services. Indeed, that was on display in her texts to you and the assistance she provided on business matters in the lead in to the offending.
11She very plainly advertised what sexual services she would provide and those which were off limits. She did not provide ‘natural sex’, that is to say, penile vaginal penetrative sex without a condom.
12I will not descend to the detail of the communications between you on the day and night in question. Exhibit A was the advertisement and Exhibit B has the various texts but there were also phone calls. You saw her advertisement and you booked her services. There was no room for any doubt in your mind as to what services she said she would provide and would not provide. Her advertisement indicated ‘no natural’. You knew what that meant. Her phone conversation with you made that very clear as well. She said that she had a, as she described it, ‘spiel’ which she ran through, much in the fashion really of a flight attendant pre-take off safety announcement, which she had in fact been in years gone by.
13She offered the deluxe girlfriend experience and she told you she was open to discussions about what you are into as long as it did not include anal, natural or violent or rough sex. She told you those things were not up for discussion. That natural sex, that is penile/vaginal sex without a condom was non-negotiable for her. She made that crystal clear to you. She came to your workplace close to midnight. I suppose it is possible that you hoped to persuade her to vary her practice.
14There was some consensual sexual activity in the kitchen area. She went to get a condom from her bag when things moved in that direction. You had kept on asking if she would have unprotected sex, saying to her that you would get her back all the time. She kept saying no. You asked her if she would pretend that she would and she told the jury that she was at that point required to step out of character or 'break from character' is I think the way she described it, and say ‘that is never happening, absolutely not, and you need to understand that’. She then put a condom on you and there was then some protected penile/vaginal sex in the kitchen area. That act was broken off at your suggestion, and that was to move to the rear room. You mentioned there was that more private area out the back. The two of you then went to a back room.
15You told her you needed to turn the security cameras off, which you did. You went to speak to someone at the front door and what is clear is that you have deliberately removed your condom prior to entering the back room. You knew she was not consenting to penetration without one. It was your desire to have unprotected sex. That much is very easy to ascertain from the number of times you requested it or tried to persuade her to offer it. Each occasion was met with a firm and clear rebuff, 'No'.
16Penetration resumed in the back room. It was quite dark. She told the jury how she went to ground. You had not told her that you had removed the condom. She did not know. You knew she did not know. You knew she was not consenting. You just did not care. You continued the act and you ejaculated within her. In the moments after, you were crying. There had been some earlier talk about the death of your son. She sought to comfort you and started to pat your shoulders. She thought the condom was on but realized within moments that you had ejaculated inside her, seemingly without protection. She told the jury she had not felt that sensation for many years. She reached down fearing that there may have been a leakage or accident of some description, and recognising that these things can sometimes happen, but had that occurred, there would have been no malice on your part. She asked what had happened and you told her words to the effect ‘[it had] fallen off’ referring to the condom. It had not. There was no condom inside her vagina or anywhere near her. It had not fallen off. You had deliberately removed it and you were lying about that. She was understandably very upset with you and hurriedly left the room and the building.
17She was worried about pregnancy and disease and within moments of leaving that building, she was complaining to you of rape. See Exhibit B on the trial, the text messages. There were also ramifications that she told the jury about, in that as she had no contraception, she would need to take the morning after pill, which she said would bring on bleeding and impact upon her capacity to continue working. That thought was not uppermost in her mind. She was just dismayed that you had used her in this way and she was conveying that very directly to you in those texts.
18There were endeavours in your interview with police and at trial to convert those protests by her into some calculated ‘demand for money’. That was to ignore entirely what she said and the sequence of those texts. The texts really spoke for themselves. So too the advertisement, her ‘briefing’ to you, her telling you repeatedly that natural sex was not happening, her putting on the condom in the face of your protests in the kitchen or galley and her searching for a condom within moments of your ejaculation. It was not being suggested she had made that up as some fact to support her account. You had admitted that it took place. That is, searching for a condom that you would assert she knew was not there. Likewise, her being upset in that room within moments of the act finishing was not in any way in dispute.
19It was suggested to her by your counsel, Mr Chisholm, that she was using this situation to profit from you. She said of the motive to lie that had been put to her: “that is so offensive. I disagree”. See trial transcript at 399. On another occasion, she said what was being put to her was obscene. See trial transcript at 372.
20She was challenged by Mr Chisholm and it was plainly being put to her that she had modified her advertisement after the event to then and only then include that she did not offer natural sex. That was not what happened at all, as you well know. In fact, Mr Chisolm, abandoned that suggestion in his closing address made to the jury, shrugging it off as though it had not been a matter that had been focussed on at all in the trial, and saying to the Jury ‘it is not being suggested that there has been any modification and it was not being suggested that the actual advertisement is not what he saw’. Plainly that was the whole thrust of what had been suggested in about 30 minutes of cross examination of the bewildered complainant and other witnesses. Quite plainly, it had been suggested to her in the presence of the jury that she had altered the text to fit her false complaint. Mr Chisolm concluded that topic in his closing address by saying that the notation of a modification might raise ‘a question mark’ in the jury’s mind. So it was still somehow being raised as a credit attack upon the witness. A kind of tactical abandonment of a point that Mr Chisholm knew had been well and truly lost before the jury but still somehow seeking to deploy it against the victim in some vague fashion.
21The fact is, her advertisement had not been modified in any way to alter that text. You saw the advertisement in the terms that she described. Your own account in the interview described her saying to you that natural sex was off limits which made this whole point very strange indeed in the running of the case. Your own account in the interview described how she was upset moments after the act finished and that she was reaching down to her vagina looking for the condom after you had ejaculated. An emotional state and a physical action hardly hinting at her having any knowledge of, or consent to that unprotected act. Of course you were stuck with your police interview account, one that had some very inconvenient statements which scarcely fitted the defence scenario that was being placed before the jury.
22As she said at one point in cross examination and in the texts themselves, she had no rate for natural sex. It was not a service she offered at all for the many reasons that she set out, all of them easily understandable.
23She went to the hospital and then to the police on that very morning. There was a swift complaint but of course there had been a complaint earlier still directly to you about having been raped by you.
24It was put to your victim that she saw you remove the condom after the consensual sex in the kitchen area. That she saw that condom thrown in the bin and knew you did not have a condom in the back office and that she did not ask for you to put one on. It was put that she knew you did not have a condom on as she had performed unprotected oral sex on you in the back room before the penile/vaginal penetration. That is not what happened at all. I specifically directed the jury about the need to acquit if they thought it a reasonable possibility that she saw the condom removed and then gave oral sex in the back room without a condom moving on to the penile vaginal penetration knowing there was no condom. That if that was a reasonable possibility, they could not be satisfied beyond reasonable doubt as to the absence of consent. Each of those matters were rejected directly by the witness, and by the jury given the verdict that they have returned. I am satisfied beyond reasonable doubt that is not what occurred at all. There was no such oral/penile act in the back room. The witness was clear on that topic and had the jury believed it took place or even thought it a reasonable possibility that such an act had taken place, with penile/vaginal sex taking place a moment later, you would most certainly have been acquitted.
25I am satisfied beyond reasonable doubt that was a cynical invention created by you to try to fix the victim with knowledge of your unprotected status. A state of affairs she had no idea about as you well know now and knew at the time of the act and at the time of the police interview. It was suggested by Mr Chisolm that she knew you were not wearing a condom prior to penile vaginal penetration and that she would have felt that anyway in the course of the act as well. Well, those propositions again were directly rejected by the victim and of course by the jury, given the verdict. There were some questions posed to her about whether she had sought payments from the Victims of Crime scheme. She had not, but she told the jury what she wanted to access was counselling.
26So really what was being put was that she had manipulated the situation in that she had encouraged you to have unprotected sex and then swooped in and demanded money from you, you the poor hapless victim in this calculated scheme. That she had then lied to the police, altered her advertisement to lend weight to her false claim of not offering natural sex and then maintained this false account to get money from you and also from the Victims of Crime scheme. None of that happened. There was only one victim, and it was her. In fact, you were the person manipulating this situation, taking advantage of her vulnerability to do what you did and then lying to the police. The suggestion of her ‘demanding money’ was a nonsense given the tone and the content of her texts.
27Not only did you not have a reasonable belief that she was consenting to unprotected sex. You did not even have an unreasonable belief. Nor was it a situation where you gave no thought to that topic at all. Each of those states would by the way, satisfy the mental element for the crime of rape. You did not just believe, you knew at the time that she was not consenting and you took advantage of the situation. I am satisfied of that beyond reasonable doubt. You took what you wanted and you took it from someone who you thought was ripe for the taking. Someone you could just take from because of the setting. Someone who, by virtue of the vulnerability of their occupation, you probably thought was unlikely to complain or be believed if she did, or at least she might be a person whom you might be able to talk or pay or lie your way out of trouble.
28Well, you chose the wrong woman, that much is very clear. A strong, intelligent woman of principle who spelt out to you what was ‘not on’, saw you agree to that and then who correctly did not accept your pathetic excuses and offers, but who instead immediately reported your serious criminal conduct and here you are now falling to be sentenced for a crime with a 25 year maximum penalty.
29So much then for my brief summary of the factual basis of sentencing. This was really serious offending. I would have hardly needed an impact statement from your victim to gauge the impact upon her. Her texts spelt out the immediate impact. She was very evidently a broken and damaged person when giving evidence before me years later. Still deeply upset, shocked and dismayed by your conduct. She described how she felt. She described how she stopped this work as a result of your conduct.
Impact
30She provided a very short sharp impact statement and she read it on the day of the plea. It speaks of what you took from her: Her humanity. She said your wilful inability to see the person in her does not mean it is not there. No doubt she could have filled pages with the impact of your crime. Her deep sense of outrage at what you took and how you treated her shines through in that document, as it does in the texts she sent you and the evidence given before me. Part of her motivation in reporting your conduct was to protect others in the future. She will never forget the serious crime you committed upon her. It will be with her always. I take into account the impact in this case. It is large indeed.
In mitigation
31Mr Chisolm, who appeared for you at trial and on the plea, relied upon written plea submissions dated 11 December, which was the date of the plea.
32He filed a psychiatric report from Associate Professor Darjee as well as some brief reports from Dr Ranaweera and Ms Ozturk. There were also three references as well as some course certificates, course results and a remand history. One of those three references was from your girlfriend Ms Levi. She was not present at court for the plea and by email on 18 December, I was advised by the defence that she wished to withdraw her letter of support. That has been confirmed this morning by Ms Westgarth. It is no longer relied upon. I do not really know what that is all about and I do not need to. I will simply put aside her reference. So be it.
33Mr Chislom called Associate Professor Darjee to give evidence on the plea.
34Mr Chisolm provided either in his written or oral submissions or in the other filed written materials, details of your family, educational, relationship and employment history. He made some submissions as to your risks of reoffence and prospects of rehabilitation. He also made submissions as to the objective seriousness of this instance of rape and the operation of the standard sentence scheme.
35In the plea conducted on your behalf, he relied chiefly upon the following matters in mitigation:
·The 5th and 6th limbs from the well know decision of Verdins; [3]
·The absence of any relevant history before the courts and low risk of reoffending
[3] R v Verdins [2007] VSCA 102 (‘Verdins’).
36He conceded the inevitability of a prison term here, one of a dimension where I would be required to fix a non-parole period.
Prosecution
37The prosecutor Mr Fisher made a number of submissions as to sentence. He had provided a written set of submissions dated 10 December. They were quite detailed and many of the submissions were not at all controversial. He made some submissions as to the level of seriousness of this instance of rape. There was a disagreement between the parties in that respect. So too as to whether limbs 5 and 6 of Verdins would apply here. The prosecutor specifically challenged the contention pressed by Mr Chisolm that ejaculation and the unprotected nature of the act was not a matter increasing the seriousness of this instance of rape. He also challenged the contention raised by Mr Chisolm that this act of rape was less serious as the victim had consented to an act of penetration. The prosecutor argued that simply could not be right. The act she had consented to in that room was protected penile/vaginal penetration. That was not the act which took place. That act concluded with ejaculation within the victim with all the risks involved in the act, the very risks that had caused her not to consent to such an act. In the pizza shop and even before arrival, the Prosecutor argued, there was much discussion about this prohibition. The prosecutor argued that it was not something occurring in a fluid social or romantic setting where there might have been some issue raised about use of a condom and then a hasty decision to proceed without. She, the victim, set out this condition directly and explicitly on many occasions and that was the background to this act of rape: a decision taken by you to just ignore those repeated statements. Not just statements but the act of actually putting a condom on you in the kitchen area. The Crown argued that you did what you did to satisfy your own selfish desires, removing the condom and penetrating her in that fashion and ejaculating. Her consent to the other act being the penetrative act with a condom in no way lessened the seriousness of this crime. Indeed, the Crown argued there was a level of calculation and premeditation disclosed here. It did not reduce the impact upon her that she was prepared to consent to a protected act. The unprotected act is what took place with all the evils that she feared.
38It was here that the Crown relied to some extent on some of the principles set out in Clarke’s[4] case. Principles, not the sentencing outcome. The matters of aggravation or absence thereof which were mentioned in para 29 of that decision. That case is not a sentencing precedent. In fact, there is no such thing as a sentencing precedent. It was not being put forward as a comparable case and plainly it is not. Neither the sentence imposed at first instance or for that matter the appeal sentence can cast any light at all on the sentence required in this case. They are totally different crimes with a large range of different features and considerations.
[4] Clarke v The Queen [2022] VSCA 89.
39The Crown took some issue with some of the views of the expert called on the plea in relation to the risk assessment and the statement from the Associate Professor, in particular as to denial having no role to play in increased risk and yet lack of insight and self-awareness being matters that were to some extent relevant to risk. The Crown pointed to the blaming by you of the victim. They argued that your attitude to the offending was something that could be taken into account in my role as a judge in making the determinations I had to make as to risk, specific deterrence, rehabilitation and community protection. That the Associate Professor was approaching his task on a clinical level but that the Court was not in that way limited. That assessments as to risk made by an expert, including opinions, were not the ‘be all and the end all’. Mr Chisolm had made it clear that the assessments and the opinion of risk advanced by the expert did not as he put it, ‘trump all other considerations.’ He is right. They do not. I have accepted risk assessments in the past. I have also found risks to fall at higher levels than disclosed by past assessments and at lower levels in some other instances. My task is not driven by statistics or clinical data. There is far more to it than that. I am exercising a sentencing discretion in this case. He, Associate Professor Darjee, is not.
Background
40Before dealing with these various matters, I will turn firstly to your background. I see no need to set those details out fully in my reasons. With one exception I accept the personal and family background that has been placed before me. The background is referred to in the written outline as well as in the report of Associate Professor Darjee.
41You were born in June 1975; you are now 49 years of age.
42You were born in Australia and were one of three children. Your two siblings have each written references. They were also in Court as well as some other family members. You were raised by your parents in Brunswick and Broadmeadows. You have recently made some complaint of some sexual abuse when you were a child. It really is impossible for me to know whether that took place or not. Even if it did, it was not being raised as being of any importance to my sentencing task.
43You were educated to year 11. You moved to Turkey when 17 and there you met your wife to be. You married and lived there for two years before returning to Australia with her. You had four children together and you worked for Ford and Dulux as a driver. You had some serious issues with drugs and gambling.
44Tragically your oldest son died in June 2022 and that put a strain on you and the marriage. You started to use drugs again and separated from your wife. I understand that you have subsequently divorced.
45You have used the services of sex workers for over 20 years.
46There have been in the past some mental health issues as the other two reports make clear. You have been diagnosed in the past with drug induced psychosis but also depression and anxiety. Associate Professor Darjee disputed the diagnosis of the earlier psychiatrist. He said he did not do so ‘lightly’. There was a strange aspect to this in that Associate Professor Darjee has seen you once by a two hour prison audio visual link in late October 2024 and took from you your account in 2024 of certain events in your life and your then account of your symptoms now and previously. So your description of what you felt and thought from over 10 years ago. The former psychiatrist was a treater, one who saw you at the time, saw you on a number of occasions from 2013, observed you at the time and took from you a contemporaneous account of your then symptoms including paranoid thoughts of being followed, delusions of reference and thought broadcasting. It seems a very strange thing for Associate Professor Darjee to simply discount that diagnosis on the strength of your present account offered up in 2024 as to the intensity of those symptoms a decade removed from them. Nothing at all hangs on this but I cannot say I was impressed by that stance at all. I do not accept Associate Professor Darjee’s opinion in that regard at all. I will come back to the expert evidence in some detail. I was not that impressed either by his failure to ask anything about the prior arson convictions. He told me that he should have paid more attention to that. He should have. I know nothing about that and nor does he. I am not impressed by his failure to ask for the transcript of the police interview. He has seen only some excerpts of it as contained in the written summary. Surely it would be a sensible thing for him to understand exactly what you had told the police. It was a lengthy and detailed account and it is a reasonable to think he would be familiar with it. Finally, and this was not his fault at all, until the morning of the plea, he had not the slightest idea from you or from anyone else that you had been charged with other sexual offences and had been on bail for them at the time of the commission of this crime. That you were acquitted earlier this year was not really the point. As he told me, some of these matters were still germane to the risk assessments and the point score for instance on the Static 99 which would still include a matter irrespective of acquittal. I will come back to that later.
47Back then to your background. As to drugs, they were a serious issue about
12 years ago with virtually daily injections of ice. You stopped in 2014 with no gambling or drug use until 2022. After you son’s death, you started smoking and injecting ice. You also used cannabis. They have nothing to do with this offending. After separating from your wife, you spent time working in the pizza shop. You have done courses and programs in custody. You are working there as well.48You have two past court appearances, one for two charges of arson dealt with in 1995 and a far more recent driving matter in 2016. As I said a moment ago, I still know nothing at all about the arson convictions. However, that offending is old and unrelated and for that reason it assumes no significance to my task.
49I have mentioned that you were awaiting trial for a variety of sex crimes including charges of rape when you committed this offence of rape. You were acquitted of those matters. Of course, you get the full benefit of the acquittal but it is still slightly troubling that this was the setting for the commission of this offence. That is, you have committed what I find to be a quite deliberate and calculated act of rape whilst you were subject to that bail undertaking.
50I will turn then to the matters that have been raised in mitigation on your behalf.
The report and evidence of Associate Professor Darjee
51I have mentioned already the report of Associate Professor Darjee and some of the evidence he gave. In a way this matter took on a life of its own on the plea. It was something of a distraction and perhaps I added to it by posing some questions of the witness myself. I just wanted to understand what he was saying and why and some of it seemed quite counterintuitive. I do not suggest that the risk assessment tools such as the Static 99 or the RSVP v2 are of no use. Of course they have a role. He was well familiar with each tool, indeed he was the co-author of the RSVP v2. He was not suggesting it is an easy business predicting future risk. Of course it is not, for him or for a court but we are approaching it from differing directions. He is looking at actuarial and clinical issues. He is then giving an opinion that it is very unlikely you will commit a further sexual offence. I am exercising a sentencing discretion. He appeared to say that denial or remorse or lack of empathy or the attitude to the victim are irrelevant to risk and that may well all be true in terms of a clinical risk assessment or these tools and what they record, but from a sentencing perspective, remorse is something that may well play into the extent to which specific deterrence and community protection are reflected. It may well play into a view taken as to enhanced prospects of rehabilitative.
52It is notoriously difficult to predict future events including risk of reoffence. No doubt the various character referees would have said you, Mr Atalay, posed no risk of committing the crime of rape and yet you did and in what I find to be a highly culpable fashion. What risk do you pose in the future? Associate Professor Darjee. described a flip of the coin as being 50 percent, well that is easy to understand. The tests he said have a moderate to high predictive value and they are a good deal better than a flip of the coin at between 70-75 per cent on the Static 99. He confirmed they are far from perfect. The Static 99 gives one a ‘starting point’ or ‘ballpark figure’. Of course, as he says, someone rated at a low risk level can offend and someone rated at a high risk level may not.
53His opinions as to likelihood of sexual reoffending are based to a large extent on the risk levels disclosed by those tests.
54They are not the only thing coming into play when I make judgments as to risk. I am entitled to look at the individual features of the crime and the offender. What explanation exists for the crime? What disinhibitions may have arisen? What state of mind existed? What was your level of culpability? Why did you do what you did? To what extent was there premeditation or calculation? What is your attitude to the offending and the victim? Do you have and express a genuine appreciation of the serious wrongfulness of your act? These things amongst many others are of course relevant to my sentencing task irrespective of whether he thinks they are relevant or should be relevant.
55I see no need to set out slabs of that report or his evidence in my reasons. He received an account from you and it is plain that you still strongly resist that you have done anything wrong. You blame others including the victim. See paragraphs 28, 30 and 38. Associate Professor Darjee seemed quite comfortable with your present state of denial and it likely being related to lack of
self-awareness. See para 38. I am less comfortable with that position, I must say. You know exactly what you did. You are lying about it. I do not know what this says about your future risk. He says denial is not a significant risk factor but went on though to say that lack of awareness and insight can be factors linked to recidivism. No doubt though he would have factored those things into the risk assessments he conducted and his ultimate opinion.56I have mentioned already the incomplete materials provided to him and his learning on the day of the plea of the existence of those earlier charges and being on bail. He made it clear that would have been factored into the Static 99 irrespective of the acquittal, and whether it was or was not included in the RSVP result would depend on the assessment called for. There could be two reports of risk, one with the assumption that the other crimes the subject of the acquittal actually occurred and the second that they did not. The former would have you score at a higher level on the RSVP and increase your risk to a moderate risk level. If factoring in the crimes as not having occurred, the risk would be as reported in his report, that is low. Whatever stance he took in the input of the acquittal in the RSVP, plainly I could not factor in the happening of these crimes and in that manner accept an increase in your risk level flowing from that input. To do so would not give you the full benefit of the acquittal. However, he made it clear that the Static‑99 required that input. In a break in the proceedings, he looked at the impact of that input to see if it would alter the rating and told me that it did not raise your score by more than a single point and did not therefore increase the risk level on that test from moderate-low.
57So I have an expert who has conducted a risk assessment, one who says your risk is low, falling at a level less likely than the average sex offender to reoffend. He explained what that meant in actuarial terms. These tests are not perfect but as he said, they are the best we have and better than judgements made uninformed by the use of such tools. He then provided his opinion at para 44 of the report.
58Yet you have been using sex workers for 20 years and quite deliberately offended against this one. Plainly you wanted unprotected sex.
59There was no disinhibition. There was no mistaken belief. There was a calculated act. You then lied about it. You still blame your victim. True it is the other charges were the subject of acquittal and you must and do get the full benefit of that acquittal but this serious offence I am dealing with was committed by a man awaiting trial in this court for other sex offences. That is slightly worrying.
60There was an aspect of definitive statement by Associate Professor Darjee that seemed almost to permit no role for discretion being exercised by a court. Perhaps I misunderstood him, I do not believe I did; or perhaps he mis-spoke but at one point he said words to the effect ‘I am the expert in terms of risk and rehabilitation’. Well, he provides an opinion, an opinion no doubt informed by the tools employed and by clinical judgment. One that plainly must be factored into my ultimate determination. It does not bind me. He said in his evidence that denial plays no role in risk, but that lack of insight may. You do not just have a lack of insight. You know exactly what you have done. You are still blaming the victim years after the event for your criminal act.
61I look at the position of someone in the dock. Sometimes it is occupied by a person who is genuinely remorseful if not deeply remorseful. Sometimes as in this case, there is someone who has no remorse. None. Remorse has a mitigatory value whatever Associate Professor Darjee's views are as to it playing no role in terms of risk, if indeed that was his end position, which I believe it was. Its presence may lead in some cases to a view being taken as to the existence of enhanced prospects of rehabilitation. There can be some reduction in the weight given to specific deterrence and community protection. A person can genuinely recognise the serious wrongfulness of their act which may impact upon the likelihood of repetition of such conduct. The absence of remorse is not aggravating but it may have a role to play in these assessments. That is the role of a sentencing judge and these tasks are not driven purely by the results in a risk assessment instrument or tool, or the opinion offered up by an expert.
62I really do not mean to be overly critical of him. I do not doubt that he administered the risk assessment tools appropriately, and they provided the results he reported on in his report. I do not ignore those results. Indeed, independently of them, I would have reached a similar finding in the circumstances of this case. That is why I say the evidence of Associate Professor Darjee and his report perhaps assumed an importance or focus on the plea that perhaps was not warranted.
63After all, I have no reason to doubt the diagnoses he speaks of, being a major depressive disorder, but your counsel was not suggesting any realistic connection or causal link between any of the conditions and the offending. That is because it was not supported by the expert. So Mr Chisolm was not relying on the first limb of Verdins. Nor the second through to the fourth limbs. He explicitly disavowed any reliance on those matters and that concession was well made given the lack of evidentiary support in the materials.
64He did maintain that the 5th limb from that case was enlivened, and so too the 6th. He accepted there was a qualitative difference in the evidence as between the 5th and 6th limb, with the 6th limb being more speculative.
65There is then in this case no Verdins basis to reduce your culpability or to moderate general or specific deterrence.
66The Crown I believe challenged the application of limbs 5 and 6 but also submitted that if made out, they were but modest matters.
67Neither the report, nor the evidence placed before me, suggests to me that there is any large increase in your custodial burden arising from your major depressive disorder. You were received in custody and had and have the major depressive disorder. You have the symptoms that he described initially at a moderate level then at a milder level. There have been some improvements since going into custody. There may be a worsening of your mental health provoked by the size of sentence imposed and your attitude to your guilt and caution understandably needs to be taken at that time. That is hardly unusual. Reactions to going into custody for the first time or to a sizable sentence being imposed are surely to be expected. He conceded the difficulties in expressing any certainty at all as to the duration of your symptoms, the extent of any impact and the level of risk of deterioration. As to the increased burden, he said prison is harder for one with a major depressive disorder as matters of stress and loss are more likely to impact you. Someone with your condition is more pessimistic in their outlook so it is harder to cope than for a prisoner without that condition. He said it was impossible to quantify and difficult to express any certainty as to the duration of the condition.
68I am prepared to accept that the 5th limb is engaged and I will give it some modest weight. I did not at the time of the plea believe the 6th limb was enlivened. It did not seem to me that the report or the evidence rose to that level. That is to say - a serious risk that prison would have a significant adverse impact on your mental health. There is a risk of deterioration, he made that clear. He said it was a realistic risk, though it was hard to quantify, and this was on the assumption that you would not get appropriate psychological treatment as many prisoners do not, though he said that would to a degree be dependent upon which prison you were in.
Mr Chisolm accepted there was a level of speculation as to the 6th limb but he urged me to give it some weight, just a lesser weight than given to the 5th limb, owing to the speculative nature of the opinion. I have considered the matter afresh since the plea. That submission as to why less weight would be given to the 6th limb rather spells out to me the inherent weakness of that 6th limb argument. It is speculative to the extent that I should give it less weight. Well if it is that speculative, and I believe that it is, it is then a question as to whether the serious risk is made out on the balance of probabilities. I am not satisfied that it is and that is my conclusion on the 6th limb. That the 6th limb is not enlivened here.69I have spent far too long on the evidence and report of Associate Professor Darjee. Yes, there is an increased burden. A relatively modest one. You seem to be coping well enough given the courses engaged in and the fact you are working and there have been improvements as you adjust to this new life.
70Yes, there is always a risk of future offending. What is that risk? That is much harder to assess than just looking at the number on the risk assessment tool or the rating of that risk or the clinical opinion of Associate Professor Darjee.
71As I said, this offending was very deliberate. Very calculated and not in any way arising in a setting where there was any disinhibition brought about by drug or alcohol use or anything else, not that drug or alcohol use would be mitigatory. That sort of thing might at least explain your conduct. The fact is though you did what you did as you thought you could get away with it. I have no doubt about that at all and that is worrying. Your ejaculation was not something that was just going to go unnoticed.
72There is no reduction in your culpability. You present a risk of future offending and I presently find it hard to quantify but I cannot ignore the risk assessment results or the opinion offered up from Associate Professor Darjee, no more than I can ignore the setting of this crime. The use of a sex worker, your complete justification of the act and the fact that you have used sex workers for over 20 years and may well again at some time in the future. Those sorts of things, they may not score in the tests administered but they are plainly matters that I must have some regard to.
Rehabilitation
73I turn then to your prospects of rehabilitation. You are 49 years of age and with no relevant prior history. You call in aid your past good behaviour and I do not ignore that at all. You have a decent employment record. You have some family support. I have those two references from your siblings who speak of your qualities. I take them into account. So too your efforts in custody. You have had some of the issues that afflict so many of those who sit in the dock, things that tend to impede rehabilitation, such as in your case, serious enough issues with illegal drugs over the years and some mental health conditions. I have the risk assessment and of course I do not ignore it, but it does not provide the complete answer to your future prospects and future actual risk. You have however not been a regular before the Courts, far from it of course, and you have maintained in the past a decent work record. There is that family support.
74You have already spent time in prison and there will be much more of that time ahead and that will play a role in deterring you from future offending.
75Against that, I do have the undoubted seriousness of the offence that you have committed and your attitude to it. Your crime was driven by pure selfishness and a complete lack of concern for your victim and her rights. She was vulnerable. She was providing sexual services to you and you just took what you thought you could take. You have no remorse at all. There was nothing reducing your culpability, culpability that I judge to be high indeed. It is a bit hard not to be slightly guarded as to your future prospects. I am prepared though to find that you have relatively favourable prospects of rehabilitation. There is a risk of future sexual offending and I take the view presently that it is relatively low.
The Offence
76I need say little more about the offence. I have already summarised the factual basis of sentencing here and my findings. This was really serious offending. The seriousness of it is completely lost on you. You are remorseless. Your victim was in a position of real vulnerability working in the field she worked in. That occupation brought her into your company for sexual services. Just two of you in a room. She was not however consenting to any act that you wanted to perform and she made that abundantly clear to you. This was not some misjudgement by you made in the heat of the moment or some belief unreasonably held by you as to her consent. You knew positively that she was not consenting to unprotected sex and you tricked her. You removed the condom and you penetrated her and you knew this was conduct which was explicitly ruled out by her repeatedly. You just ignored her rights completely. You engaged in unprotected sex and ejaculated within her exposing her to risk of disease and pregnancy. She had conveyed very directly to you her complete lack of consent to any such act.
77You then tried to placate her and put her off in the text messages and then you lied to the police. Those steps do not aggravate the crime. Nor the running of the trial and the manner in which your defence was conducted. It was your right to go to trial. It was your right to have put whatever you wanted put to the victim. It is just that I do not have the sizable matters in mitigation which might arise in a case of someone for instance making full admissions and expressing remorse and pleading guilty at the earliest stage. Those things are worth a great deal and they are absent here.
78Rape is a crime of violence. It involves by necessity physical invasion. Sometimes of course there can be violence over and above the actual physical act. This crime was not accompanied by threats or any violence over and above the inherent violence of the non-consensual penetrative act. There was no use of a weapon. It was not a matter of you waving away a victim’s protests in the midst of an act and continuing with the act. That was not the nature of this offence. Had those things been present, no doubt they would simply be different features of aggravation for a different crime. The absence of those features does not alter the aggravating features that do exist here. 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.
79She was treated as no more than an object. She had no rights or say. You did as you pleased and she is left feeling greatly dehumanised.
80One can always imagine or construct a worse example of any crime, badging up some hypothetical crime with almost every imaginable aggravating feature. But doing that says nothing at all about the level of seriousness of the offence actually before the court.
81There was obviously some premeditation here. You removed the condom prior to going into that back room. I am satisfied beyond reasonable doubt you had determined by then to have unprotected sex without her knowledge.
82I reject your counsel's submission that your moral culpability was, as he put it, ‘middling’. It was not at all. It was a crime of high moral culpability. You knew exactly what you were doing. You knew her attitude to what you planned to do, and what you did do. You knew why it was so wrong. She could not have been more explicit.
83I also reject your counsel's submission that objectively viewed this crime falls below mid-level. It does not at all.
84Your deliberate removal of the condom in the face of her clear prohibition and your then penetrating her and ejaculating within her places this instance of rape comfortably above the mid-level of objective seriousness, in my view.
85There was a bit of a distraction in the course of the plea as to whether the unprotected nature of the penetration could or should be treated as an 'aggravating feature' given that the unprotected nature of the act gave rise to the absence of consent. I say it was a distraction, for if it is not to be treated as a matter of aggravation, it would just be an inherent component of this instance of rape , a fact which would go to make it a serious example of rape by virtue of the unprotected status. It is a bit of a distraction getting caught up in this sort of terminology. The fact is of course, you ejaculated within her. The crime would have been constituted by even the most minimal unprotected penetration, so penetration to any extent and for any duration. The crime did not require ejaculation. You chose to conclude the act and that was your decision taken for your own pleasure. That exposed her to the increased risk of disease and pregnancy and the inability to work. However it is viewed, the unprotected nature of the act and your decision to ejaculate within her elevates the seriousness of the crime either inherently or by being treated as an aggravating feature. It matters not one jot which.
86I also reject your counsel's strange submission as to this instance of rape being less serious because your victim was prepared to consent to an act of sexual penetration. That there was accordingly a more limited form of violation. She was not consenting to this act and she had made that crystal clear to you. The clear and explicit precondition to penile/vaginal penetration was the wearing of a condom by you. You understood that. I wonder whether such a submission would have been made in a setting not involving a sex worker. Imagine submitting in a different setting that because a person was consenting to say oral sex, that this somehow made a non-consensual anal rape less serious. Would that submission ever be made I wonder? I doubt it, but who knows? Her occupation as a sex worker provided the setting where there was very direct and frank discussion about what acts were open and what were not. A frankness and setting of firm boundaries that might not exist in a social setting. Her preparedness to engage in some sexual acts, even penile/vaginal penetration with a condom, has no role to play in lessening the gravity of the crime that you chose to commit or the impact of that crime for that matter. None. The submission really should not have been made.
87All her work did was provide the context for the meeting. She spelt out very directly to you what she would not permit, what she would not consent to.
88Your victim who no doubt has seen a lot in her work as a sex worker and elsewhere was left completely mortified and degraded by your crime.
Purposes
89I have to consider a number of purposes of sentencing.
90I must pay regard to your prospects of rehabilitation. You have relatively favourable prospects of rehabilitation. That is but one of the purposes of sentencing of course.
91I am required to punish you for your crimes, justly and proportionately. Punishment is an important purpose of sentencing in this case.
92I must also denounce your conduct. This was terrible conduct to treat this woman in this way. I must strongly denounce it. I do. You should be ashamed of yourself and yet you feel no shame at all. None. Quite the opposite. You still blame her for your crime.
93I must give some weight to specific deterrence. That concept relates to the need to deter or dissuade you from offending in the future. Serious offending sexual or otherwise has never been an issue for you. I put aside, as I must, the matters for which you were acquitted. Specific deterrence is still of some importance in my task notwithstanding your past good conduct and the risk assessment and opinion placed before me. You have no remorse. You must understand that you must never act in this way ever again. I do accept that specific deterrence will in part be achieved by the lengthy sentence I will soon impose. Plainly greater weight would be given to this concept if you had a relevant criminal history but you do not.
94Community protection is of some importance given the nature of the offending. It must be given appropriate weight. Plainly it too would be given more weight if you had relevant criminal history. So there can be some moderation of the weight given to specific deterrence and community protection but neither of those purposes can be ignored.
95General deterrence is in a different position. There is no basis to moderate the weight given to that purpose. It is an important purpose of sentencing in this case. I am dealing with a case where you have deliberately offended against a sex worker. It is a risky occupation at the best of times. As I said earlier, a sex worker comes into the company of the customer. Often the customer is a stranger. It is two people in a room and the vulnerability created by that setting is pretty obvious. There will very often be a desire from the customer to engage in unprotected sex. You spoke of that preference in the police interview. I am required to deter others from doing what you have done; from taking advantage of a situation that presents itself to sexually offend against a vulnerable person. The message must be sent loud and clear that this sort of conduct will not be tolerated. The Courts will not devalue the gravity of the offence by reference to your victim's occupation and/or her preparedness to consent to other acts. I am quite confident that is the very mindset that made you think you could take whatever you wanted from her with impunity. So I will send a message to future likeminded persons that those who take advantage of a vulnerable person in the way that you did will be met with a sizeable prison term.
96I am required to take into account the maximum penalties. I do. Rape is punishable by a 25-year maximum prison term.
Standard sentence scheme
97I must also pay regard to the standard sentence.
98The effect of that scheme has been discussed in a number of cases including Brown,[5] Victorsen[6] and Quah[7]. It is also discussed in that case of Clarke to which I have been referred.
[5] Brown v The Queen [2019] VSCA 286.
[6] Victorsen v The Queen [2020] VSCA 248.
[7] Quah v The Queen [2021] VSCA 164; 290 A Crim R 136.
99The standard sentence for the offence of rape is 10 years. That period is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. See s5A(1)(b). That is done without reference to purely personal matters. See s5A(3)(a).
100Rape is an inherently serious crime. Viewed objectively, this is, in my view, a serious example of the offence of rape. Your knowledge from the outset that she was not consenting to an unprotected penile/vaginal act, her repeated statements on that same topic made in the face of your efforts to obtain that very act, her statements backed up by her placing a condom on you and your level of premeditation in acting as you did and removing the condom and tricking her and then ejaculating within her all go into the mix. It is my view that this instance of rape falls comfortably above the mid-range, taking into account only those objective factors affecting the seriousness of the offence.
101The standard sentence is only one of a number of matters that I am required to take into account.
102It does not have primacy over other factors which have to be taken into account. It introduces an additional factor in the form of this legislative guidepost.
103The scheme was not intended to interfere with intuitive synthesis which is at the heart of sentencing in this State and it does not.
104It was never intended to bring about two-stage sentencing and that approach is of course prohibited.
105The specified standard sentence does not represent some starting point from which the sentence is to be fashioned or structured, with a series of additions or subtractions made along the way. That would involve two-stage sentencing.
106There is no starting point.
107Nor does the scheme otherwise affect the matters that a court must take into account.
108It does not alter the requirement that exists here for me to assess the seriousness of the offence or the manner of assessing the seriousness of the offence.
109The scheme does impact upon the consideration of past sentencing practices. When considering sentencing practices or looking at so called comparable cases, I can only have regard to sentences imposed for the offence of rape where it was being dealt with by a court as a standard sentence offence.
110Accordingly, sentences which were imposed for instances of rape which had been committed prior to the scheme coming into force are not to be taken into account.
111The standard sentencing regime also has some ramifications for the ratio of the non-parole period to the head sentence. See the relevant provisions at s11A(4).
112I have mentioned the need to pay regard to current sentencing practice. I do.
113I have said it is not a controlling factor. It is not.
114The Sentencing Advisory Council online data gives the Court the capacity to look at the statistics held only in relation to past sentences for the crime of rape that were covered by the standard sentence scheme. That is a useful feature. There is a very large spread of sentences as is to be expected. Of the 179 charges that received prison terms, the shortest prison sentence was just over 1 ½ years, the longest was 15 years, and the median was 6 ½ years, meaning that half of the prison sentences were below 6 ½ years and half were above.
115Statistics have inherent limitations. They say nothing at all about the individual features of the crime or the offender. They say nothing about matters that exist in aggravation or mitigation. All the things which would explain why a sentence has been imposed are omitted. A large number of sentences reflected in the data would follow a guilty plea with the very sizeable allowances made for the fact of a guilty plea and the presence of remorse. Those things are completely absent here.
116I have looked at overviews of sentences from the Judicial College of Victoria Sentencing Manual. It is virtually impossible to find a case on all fours and even if I could, that would not dictate the actual sentence to be imposed in this case. There is no such thing as a single correct sentence. Other cases are not precedents. The case of Clarke was not being put forward as a comparable case. It plainly was not comparable. Mr Chisolm argued that this instance of rape was less serious than that referred to in Clarke. It was not at all and the sentence as ultimately imposed by the Court of Appeal in Clarke assumes no importance to my task. That outcome, whether I agree or disagree with it, says nothing at all about the sentence required in this case. There is simply no relationship between the two cases. They are not comparable.
117No amount of looking at other cases or reviewing the statistics or the trends disclosed can ever provide the answer to my sentencing task in this case, your case. My task is not statistical or mathematical. I am exercising a sentencing discretion in your case taking into account your background, and the matters in mitigation and aggravation in this case.
118I have only a single offence so there are no issues in terms of me weighing up the extent of cumulation and totality of sentence in that way. I have still of course engaged in a careful consideration of my single sentence to satisfy myself that the effect of it is commensurate with your overall criminality and is not crushing upon you.
119Your criminality was actually high here.
120Prison is a disposition of last resort.
121There is obviously no alternative but to impose a substantial prison term upon you.
I will have you remain seated in the circumstances, just bear with me.
Sentence
122On the single charge of rape, Charge 1 on the indictment, I convict and sentence you to 10 ½ years' imprisonment. Therefore that is the total effective sentence.
Non-parole period
123Unless I am satisfied it is in the interests of justice to do otherwise, I am required to fix a non-parole period of at least 60 per cent of the relevant sentence, which is the sentence I have just pronounced. I am not so satisfied that it is appropriate to fix a lesser ratio in this case. Indeed, the ratio will be higher.
124I am required by law to fix a non-parole period. Whether you are released before the expiry of the head sentence is not a matter that I am allowed to take into account at all. That style of speculation is prohibited. Whether you are released on parole or not will be a matter determined by the Adult Parole Board. It will really be between you and them. They will make the decision. It has nothing to do with me. I must however fix a non-parole period.
125I fix a period of 7 ½ years during which you will not be eligible for release on parole.
Pre-sentence detention
126You have served a total of 234 days by way of pre-sentence detention and that declaration is entered into the records of the court.
Statement as to standard sentence.
127I must also make a statement pursuant to s5B(4) and (5) of the Sentencing Act. Section 5B(4) requires a court sentencing an offender for a standard sentence offence, as I am here, to state the reasons for imposing that sentence.
Section 5B(5) requires me to refer to the standard sentence for the offence of rape and explain how the sentence I have imposed on you relates to the standard sentence. I know that some of my brother and sister judges in relation to that provision believe that they can simply say that the sentence is either less or more than the standard sentence. I do not believe that sort of mathematically correct statement is what is contemplated by that provision.128I am required to identify the facts, matters and the circumstances which bear upon the judgment I have reached as to the appropriate sentence for this crime.
129My sentencing reasons to this point will explain the reasons why the sentence imposed sits above the specified standard sentence. I regard this instance of rape as being a serious example of rape, one falling above the mid-range looked at purely objectively in terms of its seriousness.
130Of course, my sentencing task is not limited to an examination of the objective seriousness of the offence. There are subjective matters, including subjective matters in mitigation, which have to be factored into by task.
131By the process of instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentence, taking into account all the matters I am required to take into account, including the existence of the standard sentence scheme. It is, as I have already said, only one of many of the factors that I must have regard to.
132Let me just see if there is anything I have overlooked. Any other matters from either of you or not?
133COUNSEL: No, Your Honour.
134HIS HONOUR: No? You will be arranging some form of conference with your client, Ms Westgarth, I am assuming?
135MS WESTGARTH: Yes, Your Honour.
136HIS HONOUR: Will that be you or be counsel?
137MS WESTGARTH: It will be myself and counsel.
138HIS HONOUR: All right, well you have heard that, Mr Atalay. I have passed that sentence upon you. We have got the link for another few minutes if you wanted to use it, Ms Westgarth, you may not want to though and what's your preference?
139MS WESTGARTH: If I could, Your Honour, I'd be grateful.
140HIS HONOUR: Okay.
141MS WESTGARTH: Thank you, Your Honour.
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