Explained: Why Marco Yandle received a suspended sentence for covering up Kudla shed killing of innocent man Steven Murphy
Why did Marco Yandle get a suspended sentence for covering up the Kudla shed killing? The reason lies in one of the most controversial parts of SA law.
Police & Courts
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Former private school boy Marco Yandle’s suspended sentence, for covering up the Kudla shed killing of innocent man Steven Murphy, caught the state by surprise on Tuesday.
From members of the public to veteran members of the Bar, Marco’s departure from the Supreme Court – after more than 15 months in custody – was the talk of the town.
Some commentators were deeply confused by Justice Judy Hughes’ sentencing while, for others, there was a very strong sense of deja vu.
More than 20 years ago, another case ended with a suspended sentence and bond that prompted public debate – eventually spilling over into politics and the nation’s highest court.
Like that matter – the case of gunman Paul Habib Nemer – Marco’s hotly-debated penalty arose from one of the most controversial parts of SA law, known as “plea bargaining”.
WHAT ARE THE RULES OF PLEA BARGAINING?
Under its charter, the Office of the Director of Public Prosecutions may only pursue matters through court if they have “a reasonable prospect” of resulting in a conviction.
On its website, the ODPP says “charge bargaining” is “a normal and regular part of all court proceedings”.
“ODPP prosecutors have specific rules and guidelines to follow in relation to charge bargaining and negotiations,” the site says.
“The ODPP must seriously consider any reasonable proposal from an accused to resolve a matter that sufficiently reflects the seriousness and criminality of the offences charged.”
Benefits to resolving cases early, it says, include guaranteeing an accused will be sentenced and relieving victims and witnesses of the need to give evidence in a trial.
“The benefits will not be the same to everyone and will depend on the circumstances of the case,” it says.
WHAT DID MARCO YANDLE DO?
In February 2023, Marco and his father, Keith, went into their shed at Kudla – north of Gawler – believing an intruder had broken in.
Multiple courts have subsequently heard they found Steven Murphy, who was sleeping rough in the area in order to be close to his children, who lived nearby.
The courts have heard Keith fired a “warning shot” from his rifle, causing Mr Murphy to “cower” before coming into view.
Marco, the courts have heard, was armed with a baseball bat and shone a torch on Mr Murphy before he and his father took the man’s phone and other possessions.
The courts have also heard CCTV cameras, installed by Keith, captured him firing multiple shots at Mr Murphy from close range.
The footage, the courts have heard, then shows Marco leaving the shed.
Mr Murphy was considered a missing person for several weeks and, acting on information, SA Police went to the Yandles’ property in April 2023.
Detectives interviewed Marco, who denied knowing or having ever met Mr Murphy, and claimed reports of gunshots on the night might have been “cars backfiring”.
Police did not believe him and, following a search, found Marco had hidden Mr Murphy’s possessions around the property.
They also found Mr Murphy’s body in a 15m by 15m pit dug beneath the shed by Keith, the courts have heard, and so arrested both men.
WHAT HAPPENED NEXT?
Initially, both Keith and Marco were jointly charged with Mr Murphy’s murder.
Marco sought bail from the Supreme Court, claiming the CCTV footage “exonerated” him of the serious charge, but was refused after a judge watched the video “many times”.
In October 2023, the duo’s lawyers commenced negotiations with the Office of the Director of Public Prosecutions, which continued into 2024.
In January, prosecutors withdrew the murder charge against Marco and accepted his plea to the lesser offence of assisting an offender – which carries a maximum 10-year penalty.
Keith remained charged with murder and, after a change of counsel, pleaded not guilty to murder but guilty instead to the lesser charge of manslaughter.
He also pleaded guilty to having hidden Mr Murphy’s remains, becoming the first South Australian to confess to that offence.
The duo’s differing pleas split their cases off from one another and sent them down separate paths.
Because prosecutors did not accept his manslaughter plea, Keith is due to stand trial in the Supreme Court in February 2025 on a charge of murder.
Marco’s case, meanwhile, moved into the sentencing phase – and the basis for his eventual penalty became clear.
WHAT WAS MARCO YANDLE’S PLEA BARGAIN?
In July, Marco faced an emotionally-charged sentencing hearing at which he formally apologised and Mr Murphy’s family outlined their anger, grief, loss and ongoing pain.
Mr Murphy’s partner, Danielle Rogers, criticised Marco for failing to stop his father’s fatal actions inside the shed.
“You were the only person in that shed who could have said something to your father, reasoned with him,” Ms Rogers said in her victim impact statement.
“Maybe after the first shot you could have been the bigger man and smacked the gun out of his hand (or) you could have made a call for help.
“You could have walked around the corner, a few houses down, and told me what your father had done … but you were a scared, weak little boy.
“We get our whole lives turned into a nightmare, Steve gets put in a hole and what do you get? A shorter sentence?
“You are pathetic … I hope you rot in prison, you piece of s**t … do the crime, do the time.”
However, the court heard those matters did not, and could not, form part of Justice Hughes’ sentencing considerations.
Under the terms of the plea bargain, prosecutors and Marco’s defence counsel had agreed upon a “set of facts” for which he was to be sentenced.
They agreed Marco was only to be sentenced for lying to police and hiding Mr Murphy’s possessions, not for anything he did – or did not do – in the shed.
Effectively, that meant the events inside the shed did not count when deciding how Marco should be punished.
Prosecutors still recommended Justice Hughes watch the CCTV footage, while Marco’s counsel said that was unnecessary because it was not relevant to the sentence.
WHY WAS MARCO YANDLE’S SENTENCE SUSPENDED?
In sentencing on Tuesday, Justice Hughes said she had decided not to watch the CCTV footage.
“You are only being sentenced in respect of the charge to which you’ve pleaded guilty and on the facts agreed (by prosecution and defence),” she told Marco.
“I’m not sentencing you in respect of the actions you took on the night – or holding the torch while your father fired the shots – nor for failing to intervene.
“I’m sentencing you for hiding several items and for lying to police.”
Justice Hughes said that placed his offending at the lower end of the scale of seriousness for such a crime, as Marco’s lies had not frustrated the police search.
She noted Marco’s youth, complete lack of any prior criminal offending, previous good character and excellent prospects for rehabilitation.
She said he was genuinely remorseful and had been torn, after the shooting, between loyalty to his father and the knowledge he was doing the wrong thing by lying.
“I’m satisfied that the need for personal deterrence is less than might be needed in other cases,” she said.
“I expect the manner in which your world turned upside down (that night) and the consequences that followed have already acted as a significant deterrence to future criminal offending.”
Justice Hughes imposed a 20-month and 13-day sentence with a 13-month non-parole period, backdated to Marco’s arrest in April 2023.
She said that would have seen him eligible for parole on December 17 last year and so suspended his remaining sentence on condition of a two-year, $500 bond.
WHO IS PAUL HABIB NEMER?
In August 2001, Paul Habib Nemer – son of a prominent eastern suburbs family – fired his grandfather’s gun into the back of a nearby van.
Nemer believed its occupant had been stalking two teenage female friends of his, who had called him for assistance.
However the van actually belonged to newsagent Geoffrey Williams, who was going about his morning rounds delivering newspapers.
Originally charged with attempted murder and wounding with intent, Nemer instead pleaded guilty to endangering life during a Supreme Court hearing in July 2003.
In the months prior, his counsel had engaged in extensive plea bargaining negotiations with then-Director of Public Prosecutions Paul Rofe QC.
Justice John Sulan expressed dissatisfaction with the bargain, but said it was “not right for a judge” to determine charges or “jump to conclusions”.
Based on the charge to which Nemer pleaded, Justice Sulan released him on a three-year, $100 good behaviour bond.
It was a decision that had calamitous impact upon the state, triggering a war of words between the judiciary and then-Premier Mike Rann, who was seeking to be re-elected.
It led to Mr Rofe’s resignation, after he refused Mr Rann’s directive to appeal against the sentence arising from the very plea bargain he had personally brokered.
It resulted in the Full Court ruling the government had the right to direct the DPP to act, despite its chartered independence, and the High Court refusing to overturn the decision.
And, eventually, Nemer was re-sentenced and served 21 months in prison – after which he left the state for a time, living instead in Lebanon.
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