Zak Grieve – Guilty but not Present

Zak Grieve – Guilty but not Present

In late October 2011 Northern Territory police discovered the battered body of a man near a road close to the outback town of Katherine. He had been bludgeoned to death and the investigation immediately turned to one of murder.

The victim was identified as Raymond Niceforo, a well-known local from Katherine with a history of violent behaviour, who was in conflict at the time with his de facto partner Bronwyn Buttery.

Niceforo had been allegedly terrorising Buttery for a prolonged period, subjecting her to physical assaults and abuse. Buttery’s 25 year-old son Christopher Malyschko decided that Nicefero had to be killed for the sake of the family, and with his mother, raised $15,000 to finance the operation.

He approached two others for help – 20 year-old indigenous man Zak Grieve and his friend Darren Halfpenny, both of who agreed to assist for a share of the money.

Soon after, Halfpenny and Malyschko broke into Niceforo’s house and bludgeoned him to death with a wrench, later dumping his body on the roadside. But Grieve was not present – he had pulled out of the operation at the last minute, deciding against participating in the crime.

The police had no problems in identifying the three, and all, together with Bronwyn Buttery, were arrested and put on trial before Justice Dean Mildren. Malyschko, Halfpenny and Grieve were convicted of murder – and Buttery of manslaughter. Then the sentences were handed down, as determined by the mandatory sentencing laws of the Northern Territory. These specified predetermined prison times for serious offenses – such as murder.

Buttery received eight years and Malychenko, Grieve and Halfpenny, life. Malychenko’s non-parole period was reduced to 18 years, but Halfpenny and Grieve both had non-parole periods of 20 years imposed.

The apparent injustice of this situation, in which Grieve, although not present at the crime scene, received an identical penalty to the actual perpetrators, led to widespread criticism of the mandatory sentencing laws. Indigenous Australians in the Northern Territory, people like Zak Grieve, were said to be particularly disadvantaged by the system.

Justice Mildren later remarked  “It is the fault of mandatory minimum sentencing provisions which inevitably bring about injustice.”