New South Wales Court of Criminal Appeal CITATION : R v Centofanti & Schaeffer [2001] NSWCCA 107 FILE NUMBER(S) : CCA 60186/90 (Centofanti); 60190/00 (Schaeffer) HEARING DATE(S) : 26 March 2001 JUDGMENT DATE : 26 March 2001 PARTIES : Regina v Peter Karl Centofanti & Douglas Allen Schaeffer JUDGMENT OF : Greg James J at 42; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/71/0005 LOWER COURT JUDICIAL Freeman DCJ OFFICER : C Lyons (Centofanti) COUNSEL : R Burgess (Schaeffer) P Berman (Crown) D J Humphreys (Centofanti) SOLICITORS : David Giddy & Associates (Schaeffer) S E O'Connor (Crown) CATCHWORDS : Sentencing - armed robbery of the most serious kind - parity and the principle of totality LEGISLATION CITED : Nil CASES CITED: R v Henry (1998-9) 46 NSWLR 346 R v Itamua (2000) NSWCCA 502 DECISION : Schaeffer - Leave to appeal against sentence granted, appeal dismissed; Centofanti - Leave to appeal against sentence granted. Appeal allowed; sentence quashed. In lieu of the sentence imposed upon Centofanti he is sentenced to imprisonment for 6 years commencing 30 November 1999 with a non-parole period of 3 years commencing on that date and ending 29 November 2002. IN THE COURT OF CRIMINAL APPEAL 60186/00 60190/00 GREG JAMES J SMART AJ Monday, 26 March 2001 REGINA v PETER KARL CENTOFANTI REGINA v DOUGLAS ALLEN SCHAEFFER JUDGMENT 1 SMART AJ : Each of the applicants seeks leave to appeal against the severity of the sentences imposed upon him in the District Court consequent upon pleas of guilty. 2 Schaeffer was sentenced to a fixed term of two years and six months penal servitude for aggravated break and enter with intent being armed with an offensive weapon and a cumulative sentence of seven years comprising a minimum term of four years and an additional term of two years three months for aggravated robbery being armed and in company. 3 Centofanti was sentenced to a minimum term of three years nine months and an additional term of two years three months for aggravated robbery being armed and in company. 4 About 11.30pm on Sunday 12 September 1999 Schaeffer entered the premises at Coro Club, Griffith, by breaking a window at the front of the Club. Schaeffer was a member of the Club. He was dressed in overalls and wore a balaclava and gloves. He was armed with an offensive weapon, possibly a length of wood or pipe. There were no staff members on the Club premises and he was unable to open the safe. Having found no money, he left the premises. 5 Prior to 16 September 1999 Schaeffer had suggested to Centofanti that they rob the Club. Centofanti was initially reluctant. Both men needed money to finance their drug habits. During the evening of 16 September 2000 Schaeffer attended the Club, noting and confirming its features in his mind. He was there for some time and was noticed by E, the bar manager. Schaeffer returned to his caravan. At that time both men lived in caravans in a yard. Upon Schaeffer returning he met up with Centofanti and they agreed that they would rob the Club. Schaeffer gave Centofanti a 12 gauge shotgun, having a similar gun himself. Each gun was loaded. Each man was dressed in overalls and put on gloves and a balaclava. 6 Meanwhile, about 11pm or shortly afterwards, the Club's premises were locked up. Three members of the staff were on the premises. All cash takings had been placed on a trolley in the safe which was locked. About 11.20pm a security company was contacted (as per a standing contract) to send a guard to escort staff members to their vehicles. While the staff were waiting for the guard the applicants entered the premises by breaking a rear window. E was approached from the side and told by Schaeffer to get on the floor. Schaeffer was holding a shotgun (loaded) at shoulder level and aimed at E. Centofanti was present holding a shotgun. E put his hands up in the air. Schaeffer grabbed the back of E's shirt and E felt the muzzle of the firearm pushed against the back of his head behind his ear. Schaeffer demanded money and then frog marched E to the toilets. E was pushed to the floor in the men's toilet and struck the wall, hitting his head as he went to the ground. 7 The other two staff members, C and J, were approached. They were ordered onto the floor and then back up and into the men's toilet, where they were again ordered to the floor. 8 E was ordered up from the floor and grabbed by the shirt. Schaeffer placed the muzzle of the shotgun behind E's right ear and forced him out of the toilets. Centofanti was standing at the door to the toilet, holding a shotgun. E was forced to go to office and ordered to open the safe. E stated that he could not, as it was a combination lock and once the safe door was closed they could not open it. Schaefferdemanded the key to the tiny teller which contained some money, but E replied that he did not know where it was kept. Schaeffer pushed E into an adjoining office, but the key was not found. Schaeffer marched E across the foyer to the male toilet and told him to sit down and not move. Centofanti was standing at the toilet door. 9 C was ordered to his feet and told to open the safe and get the keys to open the tiny teller. C stated he did not have the keys, that he could not open the locked safe and that he was only on the door. He added that E was the bar manager, that E was new and did not know anything and that E was like him. Everything was locked up. Schaeffer's attitude changed and C was ordered to return to the toilets and did so. 10 C explained that Schaeffer controlled and dominated proceedings, that Centofanti said nothing to him and seemed apprehensive. 11 Schaeffer continued to search for money and located a cash register box. Schaeffer saw a security guard outside at the front of the Club. The guard was speaking on a mobile telephone. The applicants fled from the premises. $280 was stolen. 12 Schaeffer later placed the shotguns, one of the balaclavas, a pair of gloves and the security tape removed from the Club's video security camera into a wheat bag and threw it into the Murrumbidgee River. 13 On 3 November 1999 Schaeffer went to the Club. He was identified by E as the man who held him up. E reported this to the police. Schaeffer was also identified by C and J by reference to certain of his characteristics. 14 On 30 November 1999, about 7am, Schaeffer was arrested and cautioned. About 8.50am a search of the caravan occupied by him resulted in the police finding clothing and footwear, some of which was identical to that worn by Schaeffer during the armed robbery. Schaeffer was subsequently interviewed. Shortly after noon that day Centofanti was arrested and taken to Griffith Police Station. Upon arrival he was told that Schaeffer had been arrested and was going to be charged with the armed hold-up. He was told he fitted the description of the person with Schaeffer. 15 In his recorded interview Centofanti initially denied any involvement in the armed robbery. However, after he was told Schaeffer had been arrested, interviewed and charged with the armed robbery at the Coro Club which occurred on 16 September 1999 Centofanti admitted he was Schaeffer's accomplice in the armed robbery. He gave a brief summary of them breaking into the Club with guns, rounding up the staff putting them in the toilet and then searching for money. Centofanti said that he said nothing, but held the gun and made sure nobody tried anything silly. He made full admissions and co-operated with the police. 16 Schaeffer also initially denied any involvement on his arrest and when interviewed on 30 November 1999. However, on 1 December 1999 at his instigation he was further interviewed and made full admissions in respect of both offences, that is, those of 12 and 16 September 1999. Both men pleaded guilty at the first opportunity and were committed for sentence. Both expressed remorse and contrition. 17 The judge recorded that the early and complete co-operation of both men was taken as an earnest, so their pleas earnt them a benefit not only from the utilitarian point of view of avoiding a trial, but as an indicator of the contrition and remorse which they had both subsequently and movingly expressed. The judge accepted that they were regretful and stated that the men were obviously more balanced than they were when driven by their addiction to drugs in September 1999. 18 The judge commented: "They had inflicted the most extreme terror on their victim and the real tragedy is that... Schaeffer had led his trusting hero-worshipping nephew ... Centofanti, into this very serious criminal act". Schaeffer's personal circumstances. 19 Schaeffer was born on 11 August 1964. He has a long record extending back to 1980 for driving offences, street offences, dishonesty offences, assaults and drug offences. He was fined and placed on recognizances. In 1982 he was gaoled for six months on three charges of driving whilst disqualified. While there have been many offences they have been on the whole at the lower end of the criminal scale. There is nothing approaching the seriousness of the offences the subject of this application. There were breaks in his record from 1983 to 1986, 1988 to 1993 and from 1993 to 1996. 20 The judge accepted, as do I, that Schaeffer had an extremely destructive and destabilising childhood and adolescence and that the experiences which he had had can result in recourse to alcohol and drugs. Schaeffer had been on drugs in the early 1990's. For four and a half years prior to 1999 he had been off them. On his marriage breakdown in 1999 he broke down and started to use "speed" again. Since going into custody on 30 November 1999 he has undergone counselling and attended a number of courses to help him cope. He has also ceased taking "speed". 21 In his evidence Schaeffer accepted the gravity of his actions and responsibility for them. He explained that he had no intention of harming any of the staff. They were at the Club looking for money. Personal circumstances of Centofanti. 22 He was born on 3 July 1977 and was thus aged 22 at the time of the offence. His prior record was of little consequence. There was a minor stealing charge for which he received a bond in the Children's Court in 1994. In 1996 he was convicted of stealing from a dwelling, for which he was ordered to serve 150 hours community service, and of assault for which he received an eighteen month good behaviour bond. He was required to accept drug and alcohol counselling and treatment. It was a record which was not nearly as bad as that of Schaeffer. 23 Centofanti also had some potentially disabling experiences in his early life. The judge thought that Centofanti may well not yet have come to terms with the death of persons significant to him and that he had not yet coped fully with his own identity and place in the family. He became involved in alcohol at an early age; in his teens he became a heroin user and became unable to live in the family home. 24 He was rescued from his heroin situation by his adoptive father and his mother, who persuaded him to come back from Melbourne to Griffith. At this stage his uncle, Schaeffer, helped him to cease taking drugs. This is embedded in Centofanti's mind and either confirmed or entrenched Centofanti's hero worship of his uncle. Centofanti did not know that his uncle was sliding back into the grip of amphetamines. Centofanti was introduced to amphetamines by someone presently unknown and the substance quickly seized hold of him. 25 The judge accepted that Centofanti's role was much less in both planning and execution than that of Schaeffer and that Centofanti was led by the uncle on whom he relied so heavily. 26 The judge found both men required prolonged periods of supervision and rehabilitation. That feeling was correct. Each had ceased using drugs for a period. They needed to learn to stay off drugs permanently and not to revert to them when under pressure or for other reasons. They will need a lot of help on their release after serving lengthy sentences. 27 Despite the family's disapproval of Schaeffer leading Centofanti astray, Schaeffer still has a measure of support. Centofanti has a close and supportive family. He will need to learn that he has to use and rely on that support and not just for employment purposes. 28 It was the seriousness of offences which led the judge to impose the sentences which he did. Schaeffer 29 The judge stated that because the sentences imposed on Schaeffer were cumulative each was each less than the sentences that would have been imposed had they been dealt with as single offences. 30 Counsel for Schaeffer submitted that, given the accumulation, the sentences in relation to each offence was manifestly excessive, as was the total effective sentence. Counsel placed particular reliance on the submission that the sentence for the offence of 12 September 1999 was excessive. I am unable to agree that the sentences were excessive. The criminality was grave. I do not agree with the further submissions that the sentences do not give sufficient credit for the applicant's early plea of guilty or his co-operation. If there had been no plea of guilty the sentences would have been longer. I am also unable to agree that the Crown's case was not a reasonably strong one. Reliance was placed on R v Henry 46 NSWLR 346, but the circumstances of this case differ markedly from Henry. Indeed, Henry has only limited application to a case such as this. In R v Itamua [2000] NSWCCA 502 this Court took the view that armed robbery offences of a grave type required lengthy sentences. 31 The sentences imposed by the judge were individually and in their total result correct. They were well within the exercise of a sound sentencing discretion. Notwithstanding the early pleas and the subjective features the gravitty of the criminality compelled the sentences imposed. 32 The judge set an additional term of three years against an overall term of nine and a half years. While this does not make a large allowance for special circumstances, a period of three years is, in the case of Schaeffer, ample to allow for supervision and rehabilitation. 33 While I would grant leave to appeal against the sentence, I would dismiss Mr Schaeffer's appeal. Centofanti 34 Counsel for Centofanti submitted that his guilt was unlikely to be established without his confession and that the Crown case against Schaeffer and Centofanti was weak. I am unable to agree with these submissions. 35 Counsel also submitted that Centofanti was entitled to a discount for assistance. By the early morning of 30 November 1999 the police had obtained a search warrant and arrested Schaeffer. They had material that he was the armed robber. About midday the same day the police had also arrested Centofanti. 36 Centofanti made his admissions after he became aware that his uncle had been charged. He correctly realised that the game was up. The question of Centofanti giving evidence against his uncle did not arise and was not pursued. His record of interview was not admissible against his uncle. This is not a case which warranted a discount for assistance. 37 It was also submitted that a discount should be given based on Ellis (1986) 6 NSWLR 603. This applies where it is unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for the sentence. I do not think that this case is an Ellis case. 38 The real question which arises on this application is the length of the minimum term. for participation in this very serious armed robbery. The head sentence of six years is correct and could not be successfully challenged . However, a minimum term of three years nine months gives rise to questions, when compared with the minimum term of four years received by Schaeffer. 39 Schaeffer was the dominant armed robber and Centofanti was the acolyte, but a necessary one for the carrying out of the enterprise. Centofanti's criminality was significantly less than that of Schaeffer. Centofanti was led into the enterprise by the uncle upon whom he relied. Centofanti's record does not disentitle him to leniency. Comparatively, it is better than that of Schaeffer. Centofanti is a young man. Even allowing for the judge imposing lesser sentences on each charge on Schaeffer because of the principle of totality the minimum term imposed on Centofanti does not sufficiently reflect the differences between the two men and the respective criminality of each. This is the first time Centofanti has been in gaol. While there are good prospects of rehabilitation, provided he fully uses all his family support, Centofanti is likely to need prolonged supervision and support for a period of three years. Special circumstances exist. 40 For these latterly expressed reasons, I am persuaded that an error has been demonstrated and that this Court should intervene. 41 I propose the following orders: 1. Leave to appeal against the sentence imposed upon Centofanti granted. 2. Appeal allowed; sentence quashed. 3. In lieu of the sentence imposed on Centofanti he is sentenced to imprisonment for six years commencing 30 November 1999 with a non-parole period of three years commencing on that date and ending 29 November 2002. 42 GREG JAMES J : I agree. 43 The orders of the court will be as proposed by Justice Smart. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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