Regina v Aaron John Sittczenko [2007] NSWDC 323

New South Wales District Court

CITATION: Regina v Aaron John Sittczenko [2007] NSWDC 323

HEARING DATE(S): 05/09/07

JUDGMENT DATE: 21 September 2007

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ at 1

DECISION: Overall sentence of 15 years with a non-parole period of 11 years

CATCHWORDS: Criminal law - Sentence - Aggravated sexual assault (x4) - Aggravated break and enter and commit serious indictable offence - Aggravated detain with intent to obtain advantage - Aggravated robbery - Standard non-parole periods - List of addition charges - Range of objective seriousness - Victim (1st) vulnerable - 52 year old widow living alone - Victim (2nd) under the age of 16 years - Entered guilty pleas at the earliest opportunity - Remorse was immediate and genuine - Good prospects of rehabilitation - First time in custody - Offender a victim of sexual assault himself - Sexual offender treatment program in custody - Protective custody - Addiction to alcohol and cannabis - Accumulation and concurrency of sentences - Each offence a separate violation/offence

s61J Crimes Act 1900 s112(2) Crimes Act 1900 s86(2) Crimes Act 1900 LEGISLATION CITED: s95(1) Crimes Act 1900 s148 Crimes Act 1900 s113(1) Crimes Act 1900 s32 Crimes (Sentencing Procedure) Act 1999

PARTIES: Regina Aaron John Sittczenko

FILE NUMBER(S): 07/21/1083; 07/21/1088

SOLICITORS: Mr Borosh for the NSW ODPP Mr Sandilands for the offender

JUDGMENT 1 I have to sentence Aaron Sittczenko for a pair of shocking sexual assaults and associated offences. Each of the two victims was sexually assaulted by him, more than once, on the same occasion. The two occasions were some two years apart, hence the two issues which were the main topics of submissions before me were the applicability of relevant standard non-parole periods and the extent to which the sentences should be concurrent or cumulative. 2 This is what happened on the first occasion. It was a Saturday evening, 13 March 2004. The victim, whom I will not name in these reasons, was a fifty-two year old widow, who was at home at North St Marys. She had been feeling ill and had been vomiting during the day. She was lying on her bed. 3 Mr Sittczenko knocked on the door and asked after her husband and obtained information from the victim to the effect that her husband was dead. He then opened the door and walked inside. He then proceeded, once he was inside, to expose his penis to the victim. The victim understandably began to fear for her safety and walked out of the lounge room, where they were at that stage, towards the front door, but Mr Sittczenko walked past her, closed the front door and did not allow her to leave. 4 The victim started screaming. Mr Sittczenko's response was to punch her in the face several times with both his clenched fists, causing her pain. I should add here that the victim was aged fifty-two. He then grabbed her by the arms and pushed her onto the floor in the hallway. He punched her in the nose, in the left eye and the forehead with both his fists. He then inserted his penis into her vagina and had sexual intercourse without her consent. This lasted for some fifteen minutes in the hallway. 5 After that he made her walk into a front bedroom and he pushed her onto a double mattress in that room ,so that she was lying face down on her stomach. Once again he inserted his penis into her vagina and had sexual intercourse with her, this time for some ten minutes. He withdrew his penis from her vagina and inserted it into her anus and had sexual intercourse with her, once again for about ten minutes. This caused her extreme pain in her anus. 6 After this series of sexual assaults the victim saw Mr Sittczenko raiding her drawers and wardrobe in her bedroom. He said that he was looking for money for drugs. He demanded money from her. In fear for her safety she retrieved eighty-five dollars in cash from her purse. The victim then saw Mr Sittczenko remove her radio and disc player from the lounge room and he left the house and ran away from the scene. 7 The victim was taken to the Nepean Hospital and treated for her injuries. Her injuries included bruising and swelling to her left eye and left cheek, bleeding and soreness to her mouth and nose, small scratches to her forehead, bruising to her left elbow and bruising and small tears to her vagina. 8 Arising from that sequence of events, Mr Sittczenko was charged with the following offences. He was charged with three aggravated sexual assault offences under s 61J(1) of the Crimes Act 1900. Each of those carried a maximum of twenty years imprisonment and each attracted a standard non-parole period of ten years. He was charged with aggravated break and enter and commit a serious indictable offence, contrary to s 112(2) of the Crimes Act. That carried a maximum of twenty years imprisonment and a standard non-parole period of five years. He was charged with detaining the victim with an intention to obtain an advantage and occasioning actual bodily harm. That is an offence contrary to s 86(2)(b) of the Crimes Act carrying a maximum of twenty years imprisonment. He was charged with aggravated robbery contrary to s 95(1) of the Crimes Act which carries a maximum of twenty years imprisonment. Finally he was charged with stealing property from a dwelling, contrary to s 148 of the Crimes Act, and that carries a maximum of seven years imprisonment. 9 One of the sexual assaults, namely the sexual assault perpetrated in the front bedroom, by Mr Sittczenko inserting his penis into the victim's vagina and the stealing from the dwelling house, were placed on a list of additional charges, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. 10 Turning to the second series of offences, these occurred on 20 May 2006. In this case the victim was a fifteen year old girl. It was just after midnight, once again on a Saturday night perhaps a Sunday morning and the victim was walking along Forrester Road, Tregear, near her home. Mr Sittczenko was on a pushbike. He greeted her and looked at her in an intimidating manner. She felt scared and began to run away. 11 Mr Sittczenko rode after her on his pushbike and caught up. When he caught up, he grabbed her and dragged her from the road into some long grass and bushes. He then forcibly removed all her clothing. The victim began screaming, but Mr Sittczenko's response to that was to punch her three times to the left side of her head, causing her bruising and immense pain. In addition he said, "Stop screaming or I'll hurt you real bad". He then forced her onto her back and inserted his penis into her vagina and had sexual intercourse with her. He removed his penis from her vagina and forced it into her mouth placing his hand on the back of her head at the same time. Once again he removed his penis from her mouth but inserted it into her vagina. He again inserted his penis into her mouth this time ejaculating into her mouth. Finally he inserted his penis into her vagina once again. 12 During the course of these events the victim's mobile phone had been taken by Mr Sittczenko. Despite her having the presence of mind to ask for it back, he refused and threw it away. The victim ran to a nearby railway station and reported the events to a man there and by coincidence saw her cousin and she reported the incident to him. She then went on to the police station. 13 Mr Sittczenko later admitted trying to break into, on the same occasion, a shop called Luxford Print in Forrester Road with a steel pole. His intention was to enter the shop and steal items of value. In addition he admitted to breaking and entering a café called First Choice Café in the same group of shops on Forrester Road. He smashed a glass panel, went into the shop and stole some coins. 14 As a result of the Forrester Road events, Mr Sittczenko was charged with aggravated sexual assault contrary to s 61J of the Crimes Act. I repeat that that carries a maximum of twenty years imprisonment and a standard non-parole period of ten years. He was charged with two offences under that section and an additional three offences were placed on the list of additional charges, pursuant to s 32 of the Crimes (Sentencing Procedure) Act. Those additional charges were an aggravated robbery, contrary to s 95(1) of the Crimes Act (that offence was committed by him stealing the victim's mobile phone in the course of attacking her). In addition he was charged with attempting to break into the shop called Luxford Print which is an offence contrary to s 113(1) of the Crimes Act, and the offence of breaking and entering the café called First Choice Café contrary to s 112(1) of the Crimes Act. 15 Mr Sittczenko was at large for two years after the first set of offences, which were committed in 2004. He was arrested on 9 June 2006, some weeks after the second series of offences on 20 May 2006. He had been the subject of investigation on the day of the 2006 offences but there was not sufficient evidence to charge him at that stage. When he was arrested on 9 June 2006 police detected a DNA match between him and some semen from the 2004 series of crimes, so that he was charged with the 2004 crimes at the same time. 16 I record here that the description of the offences, which I have just given, I have taken from exhibit C which includes a statement of facts in respect of each of the series of offences and I note that Mr Sittczenko told the probation and parole officer, who interviewed him for a report, that he agreed with the police facts unconditionally. 17 I should add for completeness that the statement of facts records that after he had been arrested and interviewed, he began to cry and the police facts note that he showed remorse for his actions and said that he did not initially admit the offences because he was too ashamed. He offered an apology to the victim during the police interview. 18 I turn first to the objective seriousness of the various offences. The offences committed on 13 March 2004 are the ones which I will examine first. Assessing the objective seriousness of the sexual assaults on the fifty-two year old victim, I take the following into account. The victim was a widow who was attacked in her own home whilst she was alone. As it happened she was ill and in bed and therefore additionally vulnerable. The sexual assault which occurred in the hallway lasted some fifteen minutes. The sexual assault comprising Mr Sittczenko inserting his penis into the victim's anus lasted some ten minutes as did the other sexual assault which occurred in the bedroom and which is on the form. The victim experienced extreme pain to her anus. 19 I regard all three of the sexual assaults perpetrated on that day against that victim, as being comfortably in the middle of the range of objective seriousness. Indeed I regard them as being towards the top of that range, because of the factors which I have mentioned. I have not taken into account factors which are part of the definition of the offences. I should note that I do not regard the sexual assaults as planned. They were, in my opinion, opportunistic offences committed by Mr Sittczenko when he entered the house in order to rob the house to obtain money. 20 The balance of the offences committed on 13 March 2004 I regard as objectively serious, but in each case the element of aggravation for the break enter and commit serious offence, the aggravated detention and the aggravated robbery, is an adequate measure of its seriousness. In fact these three crimes were committed in the context of the much more serious offences which were the sexual assaults. 21 Turing to the offences which occurred on 20 May 2006, I regard as adding to the objective seriousness of the two sexual assaults the fact that Mr Sittczenko pursued his victim and that she was alone and vulnerable at night in a suburban street, which I might add was not far from her home. The victim in this case was under sixteen years, which I do not take into account as an additional factor of aggravation, because it is part of the definition of the offence in this case. But I do take into account the violence which was perpetrated by Mr Sittczenko upon her and his threat which are additional factors of aggravation pursuant to s 61J(2)(a) and (b). Once again the aggravated robbery which was perpetrated by Mr Sittczenko taking the victim's mobile phone as well as the two break and enters, were offences committed in a context of much more serious crimes on the same occasion. 22 I turn now to the subjective matters. I have read Exhibit D which is the Pre-Sentence Report dated 5 September 2007 and exhibit 1, a report from a psychologist Misia Temler dated 31 August 2007. From those exhibits I take into the account the following subjective matters. I regard Mr Sittczenko's remorse as immediate and genuine. I regard his plea of guilty as having been entered at the earliest opportunity, that is a concession which was made by the representative of the Crown and, I might add, appropriately so. 23 I take into account a submission by Mr Sandilands that his client will be serving his sentence on protection. I do not give a great deal of weight to that factor but nevertheless, I take it into account. I do not give it a great deal of weight because I have no evidence before me of the impact of Mr Sittczenko serving his custody in protection. I take into account that he is presently aged twenty-four and that it is his first time in custody. I take into account a history recorded in both exhibits of domestic violence, to which Mr Sittczenko was exposed during his childhood, as well as a sexual assault which he was the victim of himself. 24 I regard to Mr Sittczenko's prospects of rehabilitation as good. Expanding a little on the prospects of rehabilitation, I regard them as good because of the fact that he has acknowledged and expressed his contrition for his crimes, early and genuinely, and because he has indicated that he is prepared to examine his behaviour and is prepared to undertake a custody based sex offender treatment program. 25 Other matters which I should note briefly from the two exhibits are that he was in a relationship for some six months, when he was aged nineteen. I add that his age was the subject of correction in proceedings before me. He has had intermittent employment. I note also the following subjective feature, although it does not bring with it mitigation of his sentence. He has a long history of abuse of cannabis and alcohol. That abuse provided the motivation for his offending behaviour in 2004 when he attached the victim in her home at North St Marys. He was in fact looking for money or goods which could assist him in financing his alcohol and cannabis dependency. 26 I note from the Pre-Sentence Report an item concerning possession of prohibited goods in custody, which was the subject of a reprimand on 9 April 2007. I do not regard that as serious. I accept the evidence of Mr Sittczenko which he gave before me on 5 September 2007 to the effect that it was the lid of a tuna can which he had left on a bench rather than disposing of. There was another occasion when he failed to provide a urine sample but I accept that he was in a position where he found he could not do so and I accept his evidence that he is prepared to undertake random testing. And he also told me in evidence that he would undertake the courses in custody which were recommended. He confirmed his remorse to me in evidence as well. 27 I make the finding regarding the sexual offences not being planned based upon Mr Sittczenko reporting to the psychologist that they were both spur of the moment decisions. 28 I turn now to consider the question of the standard non-parole periods and the question of accumulation or concurrency of the sentences which I need to impose given the findings I have made regarding the objective seriousness of the offending behaviour and Mr Sittczenko's subjective features. As I have said, I regard the first set of offences committed in 2004 as being well within the middle of the range of objective seriousness. Indeed, as I have said, I regard them as falling at the higher end of that range. However, I take into account as having some significance his plea of guilty at the earliest opportunity and his prospects of rehabilitation as well as his genuine remorse and the other factors which I have listed as subjective features. I accept that, because Mr Sittczenko has pleaded guilty, the standard non-parole period relevant to the two sexual assault offences in respect of which I am sentencing him which occurred in 2004 is not strictly applicable. It is nevertheless a benchmark or guideline which I take into account. Some attention was given to it in submissions, appropriately so in my opinion because of the seriousness of these offences. I do not propose to impose the standard non-parole period in respect of the two sexual assault offences committed in 2004. That is mainly because of a discount of twenty-five per cent which I propose to allow because Mr Sittczenko has pleased guilty at the earliest opportunity. In addition, in fixing sentences for those two sexual assaults I have taken into account and allowed a modest extra discount for the other subjective features. 29 So far as the 2006 offences are concerned, once again it is a plea of guilty, and so I make the same observation regarding the applicability of the standard non-parole period. The two sexual assaults inflicted on the fifteen year old girl were very serious. Compared however to the circumstances of the offences inflicted on the victim in her home in 2004, they are not as serious. They are at the lower end of the middle of the range of objective seriousness. I propose to allow in respect of sentencing for those offences a discount of twenty-five per cent on the sentence I would otherwise impose together with a modest additional discount to reflect Mr Sittczenko's subjective features. 30 So far as accumulation and concurrency are concerned, the sentences in respect of the aggravated break enter and steal, detention for advantage and robbery committed in 2004, I propose to make concurrent with the sentences I will impose in respect of the two sexual assaults. That is because they were three serious but incidental crimes committed in the context of two crimes of far greater seriousness. They were committed on the same occasion and within a short time of each other. However, I propose to accumulate by one year the sentences which I will impose in respect of the two sexual assault offences committed by Mr Sittczenko against the victim in 2004. I propose to accumulate them by one year because they were quite separate violations of the victim. Mr Sittczenko had an opportunity to choose not to sexually assault his victim more than once. He made that choice and, so far as I am sentencing in respect of two sexual assaults, he inflicted a second sexual assault upon her. The second one was an assault involving an intercourse which lasted some ten minutes and which caused the victim significant pain. I regard it as appropriate that he serve additional time in custody for one year in respect of the criminal behaviour involved in the second offence. 31 So far as the offences committed in 2006 are concerned, once again Mr Sittczenko chose to violate his victim, the fifteen year old girl, more than once. There is no evidence of how long each violation occurred, whereas with the first victim there is evidence of violations occurring over ten to fifteen minutes. The sexual assaults committed against the fifteen year old girl all occurred at the same place. Accordingly, I propose to accumulate the sentences in respect of the two sexual assaults by six months. 32 The other question of accumulation of course is between the two sets of offences. Mr Sittczenko committed sexual assaults against the first victim in 2004 and then two years later against the second victim in 2006. They were quite separate and very serious crimes. On one view there would be some justification for accumulating the sentences completely. I do not propose to do that because the result in my opinion would be a crushing sentence for a twenty-four year old young man. Nevertheless a significant degree of accumulation is required because of the quite distinct criminal behaviour perpetrated on each occasion. I propose to accumulate the sentences in respect of the 2006 offences by some three and a half years over the first series of offences committed in 2004. 33 I should add that in sentencing Mr Sittczenko in respect of the offence of aggravated break and enter and commit serious indictable offence on 13 March 2004, I take into account the offences which are listed on the list of additional charges pursuant to s 32 of the Crimes (Sentencing Procedures) Act. 34 Would you stand up Mr Sittczenko. I am going to sentence you now so would you take notes, I think I am right with my sums but I would like you to check these. Just so you know Mr Sittczenko I am going to sentence you to an overall sentence of imprisonment of fifteen years, the non-parole period which you have to serve from June last year will be eleven years. You will be in gaol for eleven years from 9 June 2006. 35 In respect of the aggravated sexual assault committed on 13 March 2004 at North St Marys, I fix and non-parole period of six years and six months to date from 9 June 2006 and to expire on 8 December 2012 and I fix a balance of the term as two years to commence on 9 December 2012 and to expire on 8 December 2014. 36 For the second sexual assault committed on 13 March 2004, I fix a non-parole period of six years and six months to commence on 9 June 2007 and to expire on 8 December 2013. I fix a balance of the term of two years to commence on 9 December 2013 and to expire on 8 December 2015. 37 In respect of the aggravated break and enter and commit serious indictable offence and taking into account the matters from the list of additional charges, I fix a non-parole period of three years and six months to date from 9 June 2006 and to expire on 8 December 2009 and a balance of the term of one year and six months to commence on 9 December 2009 and to expire on 8 June 2011. 38 In respect of the aggravated detaining for advantage, I fix a non-parole period of three years and six months to commence on 9 June 2006 and to expire on 8 December 2009 and I fix a balance of a term of one year and six months to commence on 9 December 2009 and to expire on 8 June 2011. 39 For the aggravated robbery on the same occasion, I fix a non-parole period of three years and six months to commence on 9 June 2006 and to expire on 8 December 2009, I fix a balance of the term of one year and six months to commence on 9 December 2009 and to expire 8 June 2011. 40 Turning now to the two sexual assaults committed on 20 May 2006 in Forrester Road against the fifteen year old victim, for the first sexual assault, I fix a non-parole period of five years and six months to commence on 9 June 2011 and to expire on 8 December 2016, and I fix a balance of the term of two years to commence on 9 December 2016 and to expire on 8 December 2018. 41 For the second sexual assault against the same victim on 20 May 2006, I fix a non-parole period of five years and six months to commence on 9 December 2011 and to expire on 8 June 2017 and a balance of two years to commence on 9 June 2017 and to expire on 8 June 2019. 42 So Mr Sittczenko your overall sentence is fifteen years from 9 June 2006 last year when you were arrested and it expires on 8 June 2019. Your non-parole period which you must serve also commences on 9 June 2006 and expires eleven years later on 8 June 2017. 43 Alright, we have got a mistake, I think. 44 Have a seat Mr Sittczenko. My intention is to sentence - and I will address this to Mr Sandilands and Ms Martin - Mr Sittczenko to fifteen years as a head sentence and eleven years as a non-parole period but my associate has drawn my attention to the fact that the overall sentence, the head sentence is thirteen years. I had better think about that for a moment. 45 I think I had better adjourn for a moment to see if I can work it out rather than keeping everyone here. As I said my intention is to sentence Mr Sittczenko to fifteen years with a non-parole period of eleven years--