Zak Grieve involvement in killing of Ray Niceforo shines spotlight on Territory mandatory sentencing

ZAK Grieve had never set foot inside a courtroom before his own trial for murder. The “friendly and kind-hearted” stoner kid was 21 when he was sentenced to life for his role in the killing of Ray Niceforo

Zak Grieve was given life imprisonment for his role in the killing of Katherine man Ray Niceforo.

ZAK Grieve had never set foot inside a courtroom before his own trial for murder.

The “friendly and kind-hearted” stoner kid and part-time pizza delivery driver was 21 when he was sentenced to life imprisonment for his role in the killing of Katherine man Ray Niceforo, with no prospect of parole for 20 years.

The earliest Grieve will be released is October 2031. By then, he will be approaching middle age, having spent just one year of his adult life a free man.

What makes Grieve’s case curious is that, by the judge’s own findings, he wasn’t there the night Niceforo was bludgeoned to death with a wrench and his body dumped in a shallow ditch.

In all likelihood, Grieve was asleep in bed across town.

He had been involved in the planning of the killing, but lost his nerve and chickened out at the last minute.

But the Northern Territory’s mandatory sentencing laws mean there was no wriggle room to drop his sentence for his reduced culpability.

Of the four people convicted over the contract killing, Grieve received the equal longest sentence.

Now a new petition is calling for his release and an overhaul of the NT’s mandatory sentencing regime.

The small clearing off Gorge Rd is where the body of Ray Niceforo was found.

Ray Niceforo was a bastard and a bully by anyone’s measure.

He spent years brutalising his de facto partner Bronwyn Buttery. He choked her, burnt her with a cigarette, belittled her, abused her and bled her savings dry.

It was threats against her son’s life that pushed her to the edge.

In September 2011, a month before he would turn up in that shallow ditch, Niceforo sent Buttery a text that read: “You better realise your genetic code sitting beside you will disappear and there’s no turning back”.

Buttery interpreted that as a threat against her son, Christopher Malyschko, who had moved to Katherine from Adelaide to be closer to his mother — and help her leave her abusive partner — seven months before.

Ray Niceforo was murdered in Katherine

Niceforo was arrested by police and bailed following a monumental blow-up at Buttery’s laundromat in which the dead man again threatened Malyschko, calling him a “poof” and a “faggot”.

Soon after, Malyschko decided Niceforo had to die. He convinced his mum of this too and she came up with $15,000 to get the job done.

Malyschko got his mate Zak Grieve in on the plan, along with an acquaintance of Grieve’s, Darren Halfpenny.

Together, they planned the killing.

Grieve would use a steel pipe, Halfpenny a baseball bat and Malyschko a wrench. They would surprise Niceforo at home, late. They would overpower him, beat him to death and dump the body in a sinkhole out of town.

The young men spent three nights in a week in late October 2011 waiting for their opportunity.

On those nights, they did things young men do in country towns late at night with their mates. They sat around, played Xbox and watched anime.

But they also kept surveillance on Niceforo’s home, waiting for him to turn up so they could kill him.

The waiting gave Grieve time to change his mind.

On the third night, he, Malyschko and Halfpenny hung out, played video games and waited.

But when Niceforo arrived home and the plan started to unfold, Grieve pulled out.

He told his mate he couldn’t go through with it, and Malyschko likely drove him home.

Dylan Voller (centre) with supporters during a rally outside the Northern Territory juvenile justice royal commission in Alice Springs. PICTURE: Lucy Hughes Jones

The plan continued without him. Niceforo died that night.

The two remaining men entered his home and beat him. They tried to bind his wrists with rope, but there was too much blood.

Niceforo was left in a ditch on Gorge Road and Malyschko tried to clean up the scene of the crime. Halfpenny burnt the pair’s clothes in a backyard fire pit.

But they were no criminal masterminds. They left a long trail of evidence and police arrested all three men three days after Niceforo’s murder.

Eventually, they would all confess, as would Buttery.

Malyschko, Halfpenny and Grieve were all convicted of murder and given mandatory life sentences. Justice Dean Mildren was able to knock the non-parole period he gave Malyschko — the man who ended Niceforo’s life on the end of a wrench — down to 18 years because of the “exceptional circumstances” created by the dead man’s threats against his life.

Buttery, who arranged and paid for the murder, was convicted of manslaughter and sentenced to eight years imprisonment with a non-parole period of four years. She was paroled last March.

Halfpenny and Grieve got life, no parole for 20 years. While Grieve was in bed across town, Halfpenny had held Niceforo in a headlock while Malyschko smashed his head with a wrench.

The NT’s mandatory sentencing laws meant Justice Mildren did not have the power to lessen Grieve’s sentence. The conviction was murder and the sentence was life. In his remarks handed down at Grieve’s sentencing, Justice Mildren said Grieve’s degree of criminality was far lesser than that of his accomplices. “You were a follower, not a leader. You did participate in the planning, but it was not your plan,” he said.

“You did receive, as I have found, at least some of the money. Your presence and assistance encouraged the others to go ahead with the plan, although I note it did not discourage them when you pulled out. If I were free to do so, I would impose a lesser non-parole than 20 years.”

Justice Mildren said he accepted Grieve was a man of otherwise good character and was unlikely to reoffend, but without the power to lessen his sentence, could only recommend the Administrator exercise the prerogative of mercy to free him after a minimum of 12 years.

“I take no pleasure in this outcome,” Justice Mildren said of Grieve’s sentence.

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

Zak Grieve is led to the crime scene of Ray Niceforo’s death.

The spotlight on the Territory justice system has focused attention on Grieve’s case.

He has become the poster boy for the perceived injustice of the mandatory sentencing regime.

Teen criminal Dylan Voller, who befriended Grieve in prison, picketed Alice Springs hearings of the royal commission into youth justice, holding a placard reading “Free Zak Grieve”.

A petition to free him and abolish mandatory sentencing organised by Sydney’s Indigenous Social Justice Association has a few hundred signatures.

ISAJ secretary Raul Bassi said mandatory sentencing perpetuated injustice. He said he hoped the change of government would create some headway in the cause.

Last October, Labor Attorney-General Natasha Fyles said the government would review mandatory sentencing as part of a plan aimed at reducing indigenous incarceration rates. Ms Fyles failed to respond to questions regarding the progress of this review before print deadline.

NT Criminal Lawyers Association president Russell Goldflam said a lack of public sympathy for convicted murders meant there was little political will to abolish mandatory sentencing.

“There aren’t many people around who are lobbying on behalf of murderers. Murderers aren’t high on many people’s list of people they want to help,” he said.

But cases such as Grieve’s played an important role in getting the public on side.

“Every now and then, a case comes along with a sentence so obviously unfair, that people will question their assumptions,” he said. “The Zak Grieve case is a very good example of someone who has been given a radically unfair sentence. That can help to elicit public sympathy.”

Mr Goldflam said mandatory sentencing “cut to the core” of the principles of justice.

He said it would help if Grieve and his co-convicted were more sympathetic characters, with better connections.

“You can’t get away from the fact the four people sentenced to killing Mr Niceforo were all involved in terrible crimes,” he said.

“A lot of people will say ‘well they went off and killed someone, who cares what happens to them’.

“They were all people of no particular influence and importance in a small outback town of Katherine. They weren’t well connected; they had no friends in high places who could go in to bat for them.”