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. Still, 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 on the table to be discussed and changed in the Northern Territory.
However, for more serious offences (which are not up for debate and change), the legislation requires reasonable steps to withdraw.
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.” (quoting Professor Norval Morris)
“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.”
The prerogative of mercy was indeed used and Grieve was released recently. A book has been released about the case: The Man Who Wasn't There by Dan Box.
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