Let us return to the Zac Grieve case. I recap what it is about:
Four people, Grieve, Malyschko, Halfpenny and Buttery, planned the killing of a man in 2011. The body was transported to a campsite outside Katherine, where it was found the following day. Halfpenny pleaded guilty to murder and testified that Grieve, Malyschko and Buttery had all physically participated. On this basis, the Crown asked the jury to accept that Grieve was physically involved in the crime. This was despite the evidence of both Grieve and Malyschko that Grieve had not been present but had gone home because he “could not do it”. CCTV footage of his vehicle confirmed this. Grieve was at home asleep
when the murder was committed, but he was convicted of murder and sentenced to the mandatory minimum sentence of life imprisonment with a non-parole period of 20 years. This was the heaviest sentence of all those convicted, while he had been the only one of the four to abandon the murder plan.
The Northern Territory legislation describes one form of accessorial liability for minor offences and another for more serious offences. The liability for minor offences is nearly always on the table to be discussed and changed in the Northern Territory in 2022.
However, for more serious offences (which are not up for debate and change), the legislation requires reasonable steps to withdraw. 4 The question in the Grieve case was: did Grieve withdraw from the murder plan sufficiently?
The criteria for withdrawal and reasonable steps are not precise enough in the legislation. This lack of certainty is a considerable risk to equal justice.
During the trial where Zac Grieve was found guilty of murder, Justice Mildren said:
“I take no pleasure in this outcome. It is the fault of mandatory minimum sentencing provisions which inevitably bring about injustice.” “Legislation of this kind is unprincipled
and morally insensible; it cannot encompass the factual and moral distinctions between crimes essential to a just and rational sentencing policy.” “However, the prerogative of mercy which rests with the Crown can still be enlivened. ... I recommend to the Administrator that after you have served a minimum of 12 years of that sentence you be released on parole.”
Mandatory minimum sentences reduce judges to instruments of injustice. New Zealand has passed the Three Strikes Legislation Repeal Act 2022, which repeals the mandatory sentencing regime commonly known as the Three Strikes Law. The Northern Territory Law Reform Committee has recommended the abolition of mandatory minimum sentences, mandatory minimum parole periods and mandatory life sentences for murder. Hopefully this
is the beginning of the end of brutality in sentencing by governments far divorced from the reality of vulnerability in criminal justice systems.”
Not only serious crimes like murder attract mandatory sentencing. In 2000, Wurramarrba, a 15-year-old boy from Groote Eylandt, was sentenced to a mandatory 28 days’ detention for stealing some pencils. Wurramarrba was found hanged in his Darwin cell, causing national outrage. The background of the boy as described in the coroner’s report reminds us of the kids on the streets of Alice Springs:
"Although he was raised a close-knit Aboriginal community, with widespread family and clan ties, he was a lonely, neglected boy. He was an orphan. His mother died of natural causes in 1986 when he was not quite 2 years old. His father was killed in 1995, knocked down by a motor vehicle in Darwin."
"The evidence does not permit me any solid appreciation of what role the Deceased’s father had played in his upbringing till then, but the indications are: not much. Mr Mamarika, a family member, gave this account of the boy’s upbringing:
“Well he was look after by his grandmother when he was young, since his mother pass away, and his grandmother pass him to his auntie but his auntie pass away. So he was floating around the Community, and see he was looking around for a new family but couldn’t find any new family because family ..... auntie and tell him to find families. So he find this other family, outside family. So he was staying at Umbakumba and Angurugu. He was staying at Angurugu with is father’s family, and when he went back to Umbakumba he was staying there with another family, you know.[..]. Well, down there he was trouble like mess,
messing up the ......here.”
Mr Mamarika was aware that the boy was a cannabis smoker and a petrol sniffer. At the time of his death, Mr Mamarika was engaged, at the request of Don Dale staff, in finding a family with whom the boy could live after his release. Mr Mamarika knew that the boy did not want to return to Groote Eylandt because he was greatly attached to his grandmother, who was in Darwin to receive kidney dialysis treatment. The boy preferred to live with her and
wanted to help care for her – she is wheelchair-bound – but the placement was seen as impracticable.
Ms Hazel Lalara made the following statement to police:
“Yes, I helped brought that little boy up when his mother died, so I was a full grandmother acting like a full grandmother to him and when his other grandmother was sick she went out
and lived in Darwin and I have brought these children up, look after them and then his father die when his mother died, in a car accident in Darwin, happened in Parap. [10].
This may give the impression that Ms Lalara became the principal caregiver, but that impression is misleading. The boy also stayed with others: an auntie (unnamed because
she had died in, it seems, in 1999), one Lucy Bara, one Marianne Wurramarrba, of Angurugu (his aunt), one Mike Wurramarrba, of Umbakumba (his uncle), and
others.
Nobody had stood in loco parentis to the boy for some years, at least since his father was killed when the boy was nearly eleven. During the next few years, the boy lived in at least four communities, and also at the Don Dale Centre and the Wildman Wilderness Camp, being cared for, from time to time, by what seems to have been at least six households, probably more. As far as is known, during the boy’s lifetime, the Child Welfare authorities did not investigate his circumstances or report them.
“Angurugu and Umbakumba are settlements on Groote Eylandt in the Gulf of Carpentaria. Their populations and predominantly Aboriginal. They are “dry areas” under the Liquor Act. Housing and other material goods are sparse. Unemployment rates are high.
Social problems such as petrol sniffing, alcohol abuse, and domestic violence are rife. School attendance is low. Third-world health problems are common. Young Aboriginal
boys, adolescents and men from Umbakumba and Angurugu descended upon Alyangula and commit crimes there. From Umbakumba it is too far to walk: a vehicle must be stolen for the trip. Angurugu is within walking distance; however, a car will be stolen for that trip too,
either from Angurugu or from the mining complex or the airport car park. On arrival, they aim to break into the two licensed clubs. Alcohol, cigarettes and crisps are quickly stolen, and then the thieves scatter, drinking as they go, and looking for a vehicle to drive home. If they run out of liquor, they may enter a house or two in search of more.
Eventually, a car or cars are taken, and the offenders drive back to Angurugu or Umbakumba, drinking as they go.
When they arrive there they drive the car wildly around the community. Some of the original offenders will leave the vehicle and other previously uninvolved young males from the community will get in. The driving tends to go on until the car heads out onto bush tracks or until it crashes or runs out of fuel. This was the background of Wurramarrba. This is the background of many of the offenders in Alice Springs.
Wurramarrba left a note that said: “my Land”; “crys about”; “Families”; “my fauther and”; “Too of my aunties”; “sorry”; “I’m sorry”. “I didn’t want too die becaues I was too young. But now I’m growing up and I’ll come soon, meet my people in heaven. My land be there
anytime.”
Our governments can repeal and replace ineffective laws with evidence-based legislation. As noted, the Northern Territory government is currently reviewing its mandatory sentencing laws. Cases like those of Grieve and Wurramarrba may convince the government that
the current sentencing policy is ineffective, expensive, and inhuman. There are two questions the government should be looking at regarding mandatory sentencing: firstly, is
there evidence showing that mandatory sentencing reduces crimes and reoffending? Secondly, what are the costs, both financially and socially, of mandatory sentencing?
In October 2022, the government introduced much-publicised reforms to pare back mandatory sentencing after a report by the Law Reform Committee the previous
year recommending such reforms. Mandatory sentencing will remain for murder, sexual offences and assaulting police and emergency workers. For other offences, judges
will have the option to give offenders one of two forms of correction order: an enforced correction order, where offenders will be sentenced to engage in community work and government programs, or, for more serious offending, an enforced intensive correction order, which includes intensive supervision, curfews, electronic monitoring and participation in behaviour and other training programs.
A last word from Mildren J:
“Prescribed minimum mandatory sentencing provisions are the very antibook of just sentences. If a court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary. It, therefore, follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences than would be proper according to the justice of the case.”
Image: SSAA VIctoria
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