Zak Grieve: even in law we need choices

A single word in the saga of convicted murderer Zak Grieve speaks both to the crime committed and the injustice that endures: choice. Grieve chose to involve himself in a conspiracy to murder Ray Niceforo in his Katherine home in October 2011. He also made the wise choice to pull out; not joining in the brutal killing of this apparently violent man, carried out for cash on behalf of Niceforo’s partner, Bronwyn. Crucially, in the eyes of the law, Grieve also chose not to try to prevent the murder. He simply went home, leaving his mates to their plan and Niceforo to his fate. For that reason, correctly under the law, the jury found him guilty of murder. Yet, apprised of all these facts, the judge had no choice when handing down a sentence. He had to impose a mandatory life sentence.

Of the three offenders found guilty of murder in this case, the man who wielded the large spanner used to bash Niceforo received the lightest sentence. Chris Malyschko — son of Niceforo’s de facto partner, Bronwyn — had two years trimmed from his non-parole period because Niceforo’s brutality towards him and his mother was seen as provocation. Bronwyn was convicted of manslaughter, sentenced to four years non-parole and is already free. Grieve was 19 at the time of the murder and is now 25, held in the Darwin Correction Centre, ineligible for parole until 2031.

Justice Dean Mildren, who accepts Malyschko’s evidence that Grieve was not present at the murder (there is no forensic evidence linking Grieve with the scene), has described the sentence he handed down as an “injustice” that is the fault of the minimum mandatory sentencing provisions. “I would have liked to have imposed a sentence, sentences that were just and fair,” he told The Weekend Australian’s crime reporter, Dan Box. “I was prevented from doing so.” There can and will be an argument about whether Grieve should have been charged with a lesser crime, as there will be about whether the Northern Territory law that saw him found guilty of murder puts too much of a burden on those aware of a planned crime to try to prevent it. Yet the law as it stands was correctly applied. The injustice stems from the lack of flexibility — choice — afforded to the sentencing judge by mandatory minimum sentencing laws.

We understand the frustrations that have led to these legislative responses and respect the right of parliaments to set the law. But wherever sentences are uniform, injustice can arise. Individual circumstances will demand different responses and there must be room for judicial discretion. Grieve might be free today if the judge’s consideration had been applied. Instead, the woman who instigated the killing is free; another man who allegedly knew of the plot, handled the money and had a chance to intervene was not called as a witness, let alone charged; the man who beat Niceforo to death received a discount on his sentence; and Grieve copped the mandatory 20 years non-parole, and has served less than a third of it.

The good news is that this injustice could be addressed soon. Chief Minister Michael Gunner and the NT Administrator will review the case and consider a mercy plea. This is the immediate action that could help Grieve. The case also has triggered a rethink by the Territory government and opposition on sentencing. Mr Gunner recognises that mandatory sentencing “can present anomalies” and Opposition Leader Gary Higgins wants to build “judicial discretion” into the law. This sounds like a reasonable response and we await more detailed consideration and proposals.

The complexities before our justice system always require scrutiny. This newspaper has been proud to play a role, through the exemplary reporting of Box in The Queen & Zak Grieve multimedia series, in shedding light on this case. The Grieve family, too, has shown strength and resilience. Yet we should not deny the horrible crime committed. We should not forget the primary moral choices we face in life; decisions about whether to harm others and whether to do what we reasonably can to prevent crimes being perpetrated against others.