Citation: Regina v Aaron John Sittczenko [2007] NSWDC 323
Court: District Court of New South Wales
Date: 21 September 2007
Judge(s): Cogswell SC DCJ
Background
The offender was sentenced for two separate series of serious offences committed approximately two years apart. The first occurred in March 2004, when he broke into a home in North St Marys, subjected a 52-year-old widow to multiple sexual assaults involving considerable physical violence, detained her, and stole cash and property. The second occurred in May 2006, when he attacked a 15-year-old girl who was walking alone at night, dragged her into bushes, subjected her to multiple sexual assaults with accompanying violence, stole her mobile phone, and later broke into a nearby café.
The offender was arrested in June 2006, some weeks after the second series of offences, and entered guilty pleas at the earliest opportunity. He had no prior custodial history and presented with evidence of genuine remorse, as well as a personal history that included being a victim of sexual assault himself. He had a significant addiction to alcohol and cannabis.
The central sentencing issues before the court were the applicability of standard non-parole periods across multiple counts, and the degree to which sentences for the separate offences and separate occasions should run concurrently or be accumulated.
Legal Issues
- Whether the standard non-parole periods under the relevant provisions of the Crimes Act 1900 applied, and how to assess objective seriousness for each offence
- How to balance aggravating and mitigating factors, including the vulnerability of the two victims, the offender's early guilty pleas, his remorse, his personal history, and his prospects of rehabilitation
- The appropriate structure of the overall sentence, including the extent to which sentences for distinct offences on distinct occasions should be accumulated rather than run concurrently
- Whether each offence constituted a separate violation warranting distinct punishment
Decision
The court found that both series of offences were, objectively, very serious. The first victim's vulnerability as an older woman living alone was an aggravating feature, as was the sustained nature of the assaults, the significant physical violence inflicted, and the fact that the attacks occurred inside her own home. The second victim's age (under 16) was itself a statutory aggravating element, and the circumstances of that attack, including the targeting of a lone teenager at night, were also grave.
The court took into account a range of mitigating factors in the offender's favour. His guilty pleas were entered at the earliest opportunity, his remorse was assessed as immediate and genuine, and his prospects of rehabilitation were considered good. The court also noted that he was a first-time custodial offender, that he had himself been a victim of sexual assault, and that he would be required to serve his sentence in protective custody while undertaking a sexual offender treatment program.
On the question of accumulation versus concurrency, the court treated each offence as a separate violation deserving distinct recognition. The sentences for the two series of offences were structured with a degree of accumulation to reflect the fact that they were committed on entirely separate occasions against different victims two years apart. At the same time, the court applied the totality principle to ensure the overall sentence was not disproportionate.
The court arrived at an overall sentence of 15 years with a non-parole period of 11 years. The total term commences on 9 June 2006 and expires on 8 June 2021, with the non-parole period expiring on 8 June 2017, being the earliest date on which the offender would be eligible for consideration by the Parole Board.
Orders Made
- Total sentence of 15 years imprisonment, commencing 9 June 2006 and expiring 8 June 2021
- Non-parole period of 11 years, commencing 9 June 2006 and expiring 8 June 2017
- Eligible for Parole Board consideration from 8 June 2017
- Additional charges taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (Form 1)
Key Takeaways
- The District Court applied a structured accumulation of sentences across two discrete sets of offences committed two years apart against different victims, reflecting the principle that each offence constitutes a separate violation warranting distinct punishment.
- Where an offender faces multiple counts of aggravated sexual assault with associated offences across separate incidents, the totality principle operates alongside accumulation to produce a sentence that is just in its overall effect, rather than simply aggregating maximum terms.
- Significant mitigating weight was given to the combination of an early guilty plea, genuine and immediate remorse, good rehabilitation prospects, first-time custody, and the offender's own history as a victim of sexual assault, even in the context of very serious offending.
- The vulnerability of each victim, assessed by reference to age and personal circumstances, was treated as a discrete aggravating feature relevant to objective seriousness on each occasion.
- Standard non-parole periods under the Crimes Act 1900 for aggravated sexual assault (10 years) and aggravated break and enter (5 years) formed a reference point in the sentencing exercise, with the court required to assess whether the objective seriousness of each offence fell above, at, or below the mid-range contemplated by those periods.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 61J (aggravated sexual assault), 86(2) (detaining with intent to obtain advantage), 95(1) (aggravated robbery), 112(1) and 112(2) (aggravated break and enter), 113(1) (attempted break and enter), 148 (stealing from dwelling)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 32 (additional charges, Form 1)
Cases: No cases were cited in the portions of the judgment provided.