Grieve v The Queen [2014] NTCCA 2

 

PARTIES:                                         GRIEVE, Zak

 

                                                         v

 

                                                         The Queen

 

TITLE OF COURT:                           COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                               CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          21136195

 

DELIVERED:                                   15 January 2014

 

HEARING DATES:                           23, 24 July 2013

 

JUDGMENT OF:                              Kelly, Blokland & Barr JJ

 

APPEAL FROM:                               Mildren J and a Jury of 12 in Proceedings 21136195

 

CATCHWORDS:

 

APPEAL – Criminal Law – Appeal Against Conviction – Whether direction on good character evidence required – Good character direction not requested at trial – No requirement in the circumstances for a good character direction as to either propensity or credibility – Evidence against appellant of such strength to limit the probative value of good character evidence – No error on part of trial judge – Appeal dismissed.

 

APPEAL – Sentencing –  Crown Appeal Against Sentence – Non-parole period – Whether standard non-parole period should have been fixed – Assessment as to objective and subjective seriousness of offending – No error by trial judge as to findings of fact – Findings of trial judge consistent with evidence and jury verdict – Finding of trial judge should not be disturbed – Appeal dismissed.

 

APPEAL – Sentencing – Appeal Against Sentence – Whether sentencing judge failed to apply s 53A of the Sentencing Act properly – “exceptional circumstances” do not apply  – Conduct of the deceased did not substantially mitigate the conduct of this particular appellant – Language of s 53A cannot be stretched to include conduct of deceased person which was largely unknown to appellant –  Appeal dismissed.

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                    J Tippett QC

    Respondent:                                 L Taylor SC with M Thomas

 

Solicitors:

    Appellant:                                    Maleys

    Respondent:                                 Office of the Director of Public Prosecutions

 

Judgment category classification:   A

Judgment ID Number:                      BLO1401

Number of pages:                            28


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Grieve v The Queen [2014] NTCCA 2

No. 21136195

 

 

                                                     BETWEEN:

 

                                                     ZAK GRIEVE

                                                         Appellant

 

                                                     AND:

 

                                                     THE QUEEN

                                                         Respondent

 

CORAM:    Court of Criminal Appeal

 

REASONS FOR JUDGMENT

 

(Delivered 15 January 2014)

 

The Court:

[1]       The appellant Zak Grieve appeals against both the conviction for murder and the sentence imposed by the learned trial judge.  The Crown also appeals against the sentence.

The Appeal against Conviction

[2]       Zak Grieve, along with Christopher Malyschko and Bronwyn Buttery were each charged with the murder of Raffaeli Niceforo on or about 24 October 2011.  Following a joint trial, a jury found Zak Grieve and Christopher Malyschko guilty of murder.  The jury found Bronwyn Buttery not guilty of murder but guilty of manslaughter.  Another participant, Darren Halfpenny pleaded guilty to murder at an earlier time and gave evidence for the Crown. 

[3]       Christopher Malyschko is Bronwyn Buttery’s son.  The learned trial judge assessed the level of provocation offered to Ms Buttery by the deceased as “severe and extreme”.[1]  The facts relevant to that finding are set out in the judgment of this Court dismissing the Crown appeal against sentence.[2]

[4]       The learned sentencing judge found Malyschko was “obviously aware” of the extent of the deceased’s bullying and intimidation of Bronwyn Buttery and of the deceased’s threatening conduct towards Malyschko.  The facts relevant to the deceased’s conduct towards Malyschko are summarised in this Court’s judgment dealing with the appeals against sentence by both the Crown and Christopher Malyschko.[3]  The facts of the killing are detailed in the same judgments and will be discussed only briefly here. 

[5]       The background to the appellant’s involvement is that on 20 September 2011 Christopher Malyschko decided that Niceforo had to die.  He approached his mother and asked her if she wanted the deceased killed.  She said yes and Malyschko approached the appellant to help him.  Malyschko told the appellant he wanted a third person to help and the appellant arranged to introduce Darren Halfpenny to Malyschko.  Although there were differing accounts as to the relevant financial arrangements, the sentencing judge found that Malyschko told his mother she needed to find $15,000 to have the deceased killed.

[6]       The appellant Grieve was convicted on the basis that he aided the offenders Halfpenny and Malyschko to murder the deceased. 

[7]       The Crown case against him was that he was present, holding the deceased down when Malyschko used a shifting spanner and rope and that he helped wrap and dump the body.  The relevant ground of appeal in respect of conviction is that the learned trial judge “failed to give a proper direction as to the use of good character”. 

[8]       To be liable for murder on the basis of aiding it was necessary for the Crown to prove that Grieve engaged in conduct which in fact aided Malyschko or Halfpenny to cause the death of the deceased; that Grieve intended, by his conduct, to aid in causing the death of the deceased; that Malyschko and Halfpenny did cause the death of the deceased; and that Grieve did not terminate his involvement in the offence, or if he did terminate his involvement, he did not take all reasonable steps to prevent the murder.[4] 

[9]       In terms of proof of intention to aid murder, it is not necessary for the Crown to prove intention at each point through to the moment of death; it is sufficient if the intent exists at some time prior to the death or, if relevant, prior to withdrawing from involvement.  The appellant’s argument concentrates on the relevance and importance of a good character direction in relation to the jury’s assessment of the element of intention in particular, as well as the issue of the likelihood of voluntary withdrawal from the planned crime and whether the appellant could have taken further steps to prevent the crime.  Had the jury been given an appropriate character direction, it is argued, the jury would have known good character evidence was relevant to their deliberations when assessing the likelihood of the appellant committing the offence.  In addition, the appellant argues a good character direction would have assisted the jury in the assessment of his credit. 

[10]    The Crown case against the appellant was that he was a full and willing participant in the murder; that he was involved from the start of the process; that he was present at the killing and an active participant in the killing inside the deceased’s flat.  For current purposes it is not necessary to repeat all of the facts comprising the killing.  The case against him included arranging the assistance of Halfpenny and spending time with the co-offenders, particularly from 18 October 2011, planning details of how to commit the murder.  It was alleged he went to the co-offender Malyschko’s flat twice in order to discuss the killing of the deceased; as well as participating in the relevant discussions, the Crown case was that he was involved in the disposal of the body and that he received $5,000 for his efforts.  The Crown alleged the original plan between the three was to enter the deceased’s unit, knock him out, tie him up and take him elsewhere to be killed in order to make the deceased’s disappearance appear consistent with being a missing person. 

[11]    In essence the defence case was:

(1)     that at no time did Grieve intend to be part of a plan to murder the deceased;

(2)     that he voluntarily withdrew from the commission of the crime in circumstances where there were no reasonable steps he could have taken to prevent the commission of the offence bearing in mind his knowledge and the circumstances as presented to him at the relevant time. 

His case was that he was not present at the home of the deceased when the murder was perpetrated.  Factors the jury were asked to bear in mind in relation to this appellant were that he was young, (19 years old at the time), naïve, foolish and did not know how to tell his best friend that he could not be part of the plan; that he did nothing more than go to Malyschko’s place and play X-box and “get stoned”.  His case was that in any event, he withdrew from the plan on either the night of Sunday 23 October or the morning of Monday 24 October while the Econovan, (used to drive to the deceased’s home) was being loaded up.  The appellant’s case was that he did not accept any money and he was driven home by Malyschko; and that he did not know whether the killing took place on the night when he terminated his involvement or the next night.  After terminating his involvement he went home and went to sleep.  The Crown case was that the appellant did not withdraw from the plan and that if he did, he did nothing to prevent the homicide from occurring, when there were reasonable steps he could have taken.

[12]    The Crown witness Darren Halfpenny, who pleaded guilty to murder and was sentenced by the learned trial judge at an earlier time, gave evidence implicating this appellant not only through his involvement in the planning process but also as an active participant in the act of killing.  Given the importance of the appellant’s credit when assessed against Halfpenny’s credit, (who the trial judge found to be unreliable),[5] it was submitted the appellant’s character was an important factor in the trial; and that the evidence of character was pivotal to the question of guilt. 

[13]    No character direction was sought at trial by senior counsel for the appellant, although unchallenged evidence which may have amounted to evidence of good character, (albeit somewhat qualified by other discreditable conduct), was given at trial.  Senior counsel who appeared at trial also appeared in this Court and explained that he had omitted to seek a character direction or re-direction; that this was not a forensic decision but rather, a matter of oversight; and that, until he read over the trial transcript he had not realised his own omission to request a character direction, or that his Honour gave no character direction. 

[14]    It was submitted the appellant’s good character was centrally important to his defence, notwithstanding the failure to seek a character direction.  The appellant’s counsel referred the Court to his address to the jury where he dealt with the accused’s activities selling marijuana around Katherine but where he also described other aspects of the appellant’s character: that the idea of killing someone was complete anathema to him; that killing was an idea which was never embraced by him; he never could hurt anybody and he has never hurt anybody; that he never intended the death of the deceased; nor that his conduct would cause or bring the death about.  In essence, the jury was told “you see he didn’t intend at any time to kill Mr Niceforo, it wasn’t his character and it wasn’t his actions”.[6] 

[15]    Evidence of good character drawn from various prosecution witnesses revealed that the appellant was popular, and both men and women visited him at his home and place of work;[7] he was a really nice or good bloke;[8] he was a happy-go-lucky person;[9] he worked six days a week and had two jobs; he was friendly, kind-hearted and generous.[10] 

[16]    The appellant gave evidence that he had never been in trouble with the police or been violent or been in a fight or hurt or hit anybody.  He had never been in a courtroom before.[11]  The appellant also told the jury that he sold cannabis as part of his income.  He would buy an ounce, split it into $50 bags and make a profit of about $1,000.  Evidence from other witnesses on this point was that he had been in the business of selling marijuana for some time;[12] and that he would get stoned.[13] 

[17]    While not challenged directly on his evidence relevant to character, the appellant was cross examined on other aspects of his conduct that potentially went to character.  For example, despite the appellant’s belief that his best friend, Malyschko, was going to kill a man, the appellant acknowledged when cross examined that this had no impact on his opinion of Malyschko’s character.[14]  He agreed he lied to police when he gave them a pre-arranged false alibi.[15]  In relation to the purchase of a mobile phone, he agreed he had tried to “milk as much money” out of his father “as possible”.[16] 

[18]    In the appeal against conviction we have had the benefit of the report[17] of the learned trial Judge.  In relation to not giving a character direction his Honour states as follows:

“I did not give any such direction, nor was I at any time asked to by senior counsel for the appellant.

I was well aware that I had a discretion whether or not to give such a direction: Melbourne v The Queen (1999) 198 CLR 1.  In this case whilst there was some evidence that the respondent was a person of good character, evidence was given by the respondent (and by another witness) that he had been selling marijuana for 12 months prior to his arrest.  The respondent’s evidence was that he had saved $2,500 from these sales.

No submission was made by the respondent’s counsel to the jury that he was a person of good character as a factor relevant to the assessment of his credibility as a witness (or for any other purpose).  I drew the inference that experienced counsel had consciously decided not to request such a direction. 

On sentencing the appellant it was submitted by his counsel that he was a person of “otherwise good character”, within the meaning of section 54A(7)(a)(i) of the Sentencing Act.  I accepted that submission because, in my opinion, this provision is remedial and should be given a broad construction.” 

[19]    As mentioned in [13] senior counsel for the appellant confirmed that the failure to seek a direction was not a forensic decision and that he had placed aspects of the appellant’s character (summarised above) before the jury.  

[20]    The giving of a good character direction is a discretionary matter for a trial judge.  The trial judge is not obliged to direct a jury about an accused’s good character, but has a discretion whether or not to do so after evaluating the probative significance of the evidence in relation to the accused’s propensity to commit the crime charged and the accused’s credibility.[18]  Good character evidence has recognised significance in criminal trials; it denotes a description of evidence in disproof of guilt which an accused may adduce, to show it unlikely that he committed the crime charged.[19] 

[21]    It is generally said to be desirable to give a character direction.  The majority in Melbourne v R[20] make it clear that there is no obligation to give particular directions other than those directions required to avoid the risk of a miscarriage of justice.  This requires close attention to the relevance of the evidence to the offence, and to the issue or issues to which the evidence relates.[21] 

[22]    The essential issue here is whether, in the circumstances of this case, the learned trial judge should have given a direction on character evidence relating to either or both propensity or credibility. 

[23]    The learned trial Judge heard all of the evidence in what was a lengthy trial.  As is implicit in his report, his Honour understood that if a direction as to character was to be given, all of the issues, good and bad in relation to character would need to be addressed.  It is not clear whether this would have been to the benefit of the appellant and may have been to his detriment. 

[24]    A number of the judgments in Melbourne acknowledge the different ‘shades’ inherent in “character”, and that in different contexts character  may refer to an intrinsic trait bearing on the nature of an individual; the sum of such traits, or the estimate put upon an individual as matter of repute.[22] 

[25]    While we would agree that the evidence of the appellant selling marijuana would not necessarily preclude the giving of a good character direction, when taken with other evidence, it tends to diminish the probative force of the good character evidence, especially in the face of a strong Crown case.  The trial was conducted under the common law, prior to the introduction of the Evidence (National Uniform Legislation) Act (NT).  Under that Act, evidence may be used to prove that the accused is of good character generally, or in a “particular respect” (s 110(3) Evidence (National Uniform Legislation) Act).  Although at common law character for some time was treated as indivisible, there are many examples of good character directions being given, notwithstanding an accused has a history, or that there are circumstances of other discreditable conduct.[23]  Essentially the content of any direction here would have been in terms that the jury need to consider the likelihood of the appellant agreeing to participate in a murder and intending to aid in that process when the character evidence is that he is a person who is not violent.  As we have already noted, all other relevant evidence bearing on character would also need to be drawn to the jury’s attention. 

[26]    Assuming an appropriate character direction acknowledging the mixed character could be tailored to the circumstances, in accordance with the standard good character direction, his Honour would have also been obliged to tell the jury that while they could take into account the appellant’s good character with other evidence when assessing whether he would have committed the crime, they would also need to consider that even people of good character commit crimes for the first time.  Given that aspect of the standard character direction coupled with the complication of mixed character, it is far from clear that a direction would have assisted the appellant. 

[27]    The Crown submitted that character could not have been regarded as pivotal at trial given senior counsel did not seek a good character direction or seek a re-direction.  We do not accept that submission.  Although the conduct of the trial by experienced trial counsel in many cases may present an obstacle, we accept senior counsel’s explanation that the omission on his part was not a forensic or tactical decision.

[28]    We are persuaded, however, that the evidence against the appellant was of such strength that the evidence of good character would have remained of limited probative force even if it had been supported by a good character direction.  As submitted on behalf of the Crown, the appellant made significant admissions in his evidence to the offending.  For example, he admitted his participation in planning to kill with Malyschko;[24] he gave evidence that he withdrew from the plan but then, on his own account, he went home and went to bed; he agreed he took no steps to stop the killing when he returned home.[25] 

[29]    A number of the appellant’s answers in cross-examination are in the nature of highly probative admissions, coupled only with general qualifications that he “couldn’t do it”; or that the plan was “Chris’s plan”.[26]  For example, when discussing the killing with Malyschko and Halfpenny he agreed that they had come up with a story of what they would tell police if they were asked about their whereabouts on the night in question.  The appellant said, “It was just a part of the plan. Let’s say we’re at Toms”.  He agreed with the proposition that he knew that this story was going to help with the plan to kill the deceased.  He agreed that he gave this same alibi to police.[27] 

[30]    The appellant agreed that the three of them discussed what resistance they were likely to meet when they entered the deceased’s flat, saying, “Yes, that may have come up.”  He disagreed that he offered suggestions about how to deal with the various problems that they may encounter during the offending, however, he said he told Malyschko, “I would help you Chris.”  He said Chris knew that he would help him.  He agreed he had already helped him by finding Mr Halfpenny to assist and agreed that he had said to the co-offenders he would help by going into the flat to help knock out the deceased, take him elsewhere, help while they killed the deceased and then help dump the body.  He qualified (or attempted to qualify) that evidence saying, “But I couldn’t do it.”  He agreed the planning was on the basis that he and Halfpenny would be there to help Malyschko.  When asked whether he was in on the plan at the stage when they discussed it at the laundromat, he said, “No.  I’d had doubts from the beginning when Chris asked me and then when we went to the laundromat I knew I couldn’t do it.”  He said he didn’t say so because Chris was his best friend and he was like family.[28]  The appellant agreed he was at least present for discussions or was aware of a number of the particulars of the planning; he said it was Chris’s plan but all along he knew he couldn’t do it.  In relation to his withdrawal from the plan, the appellant essentially agreed he took no steps at all to stop the killing after stating he just wanted to go home and sleep.[29] 

[31]    Aside from the evidence of certain admissions in evidence, there was evidence of conversations between the appellant and the witness Ashleigh Carroll about a newspaper article that reported a body being found at Gorge Road.  There was evidence that some of the discussion was about rumours on the same subject.  Although this and related evidence is discussed in a different context below with respect to the Crown appeal against sentence, it is also probative of the appellant’s involvement in aiding the murder.  Ms Carroll’s evidence was that the appellant asked how much someone might be paid for killing someone like that;[30] that the appellant told her that he had killed the deceased; or (as she qualified this answer), that he knew who killed the deceased; that she asked him if he had left any evidence and he said it was clean; and he said “We burnt everything”.  When he spoke of this she said he had a forced demeanour.[31]  Ms Carroll said she believed the appellant had said, in a further conversation, that he did it for $7000.00, and that after she asked him, he described how the deceased was killed.[32]  According to her evidence, the appellant had said it occurred on the Sunday night, and he made it clear that he did not act alone and that they had dumped the body. 

[32]    There was also evidence of Emma Lucchese that when she and her sister visited the appellant he spoke normally to them before asking if “They felt guilty if they killed someone”.[33]  There was also the evidence of the accomplice witness Halfpenny who clearly implicated the appellant.  His Honour gave the accomplice warning that it would be dangerous to convict on his evidence alone. 

[33]    In the light of the significant amount of evidence against the appellant we have come to the conclusion that the learned trial judge was not in error in determining not to give a good character direction.  In our opinion no miscarriage of justice has arisen by virtue of the absence of any direction as to character.  The jury were aware from the evidence that the appellant had no previous convictions and that he did not have a history of engaging in violence.  As has been observed in other cases, ordinarily, if left without guidance a jury would be inclined to use good character evidence in the way in which the High Court has said it is to be used.[34]  It may be noted this approach was approved in Melbourne.[35]  The evidence relevant to character was led and then summarised to the jury in the appellant’s counsel’s address.  There was nothing to suggest that the jury would not have understood the context of the evidence of character, both good and bad, and its relevance to their deliberations. 

[34]    In our opinion the case against the appellant in terms of aiding the murder was strong.  The learned trial judge considered the possibility of a character direction without the direction being sought by senior counsel but determined he would not give the direction.  The direction would not have assisted the appellant.  There was no miscarriage of justice.  The appeal against conviction will be dismissed. 

The Crown Appeal Against Sentence

[35]    Although both parties have appealed against the sentence imposed, it is convenient to deal with the Crown appeal first as the Crown alleges errors that go to the factual basis of sentencing.  Before dealing with Grieve’s appeal against sentence, it is necessary that we consider whether we should proceed on the same factual basis as was found by the learned sentencing judge. 

[36]    After conviction, the respondent Grieve was sentenced to imprisonment for life with a non-parole period of 20 years.  The learned sentencing judge also recommended that the Administrator of the Northern Territory exercise the prerogative of mercy as provided by s 115(1) of the Sentencing Act, so that, if Grieve is of good behaviour in prison, he be released on parole after serving 12 years imprisonment.  If is of course unknown and completely within the remit of the executive as to whether the prerogative of mercy is exercised in the way recommended by his Honour. 

[37]    His Honour had previously sentenced Mr Halfpenny, who pleaded guilty to murder and gave evidence for the Crown against both co-offenders, to life imprisonment with a non-parole period of 20 years and with a recommendation to the Administrator that he be released after 14 years in prison. 

[38]    The Crown’s first ground of appeal is that his Honour should not have fixed the standard non-parole period of 20 years provided in s 53A(1) of the Sentencing Act.  Section 53A(2) of the Sentencing Act states that the “standard non-parole period” of 20 years represents the non-parole period for an offence in the middle of the range of objective seriousness for offences to which the standard non parole period applies. 

[39]    Section 53A(4) of the Sentencing Act provides that a court may fix a non-parole period that is longer than the standard non-parole period if satisfied that, because of any objective or subjective factors affecting the relative seriousness the offence, a longer non-parole period is warranted.  The Crown submits that the respondent Grieve’s offending is more serious than the middle of the range of objective seriousness relevant to the crime of murder and that the objective and subjective circumstances applicable to his involvement in the murder are such that he ought to be sentenced to a non-parole period greater than the standard non-parole period of 20 years.  

[40]    The Crown’s argument with respect to this ground relies on this Court finding error with his Honour’s findings of fact.  Ground two asserts the learned sentencing judge erred in finding that (a) the respondent was not present at the scene of the killing and (b) the respondent did not participate in the killing of the deceased. 

[41]    During the course of lengthy and detailed sentencing remarks, in relation to the respondent Grieve, his Honour concluded that the jury verdict of guilty of murder was consistent with either the scenario that Grieve was involved in the planning and pulled out at the last minute but did not do anything to stop the others from killing the deceased, or that he was an active participant in the act of killing.  With respect, His Honour correctly observed that for sentencing purposes he needed to make a finding on that point.  The sentencing remarks read as follows:

“Clearly if you did fully participate your level of criminality is greater that (sic) what it would be for sentencing purposes, if you pulled out at the last minute.  The burden of proving an aggravating circumstance rests with the Crown beyond reasonable doubt.  I entertain a reasonable doubt that you were in fact involved further than the account given in evidence by you and Malyschko, because, there is evidence that you were troubled by being involved, and after the killing occurred, the discussion you had with Ashley Carroll, is consistent with the possibility that you told her that you knew who did the killing, that a figure of $7,000 was mentioned, and that the body had been found out on Florina Road, which was the original plan, but that plan did not eventuate.  Further, there is no forensic evidence that you were involved, (whereas there was forensic evidence connecting Malyschko and Halfpenny to the killing) the evidence of Halfpenny was unreliable, and there is no compelling evidence of a circumstantial nature which places you at the murder scene”. 

[42]    In our view his Honour has approached the process of determining the factual basis of sentencing in a completely orthodox manner.  For the learned sentencing judge to find the facts against the respondent that supported the Crown’s view of his involvement, his Honour would need to not only to prefer that version, but would need to conclude those facts were proven beyond a reasonable doubt.  The sentencing facts ultimately found by his Honour in respect of the respondent were well open on the evidence and were consistent with the jury’s verdict. 

[43]    On behalf of the appellant Crown it is submitted the conversations the respondent had with Ashley Carroll on 26 and 27 of October 2011 establish his greater involvement.  In his evidence the respondent agreed with some parts, but not all of the details of the conversations Ms Carroll said she had with him.  The conversations were in the days immediately following the discovery of the deceased body.  The Crown submitted Ms Carroll’s evidence was of a high quality as she demonstrated independence and clarity, and made appropriate concessions when she was unsure about propositions put to her.  That may be so, however, the genesis of the first conversation was that it was with others present and she agreed they were speaking of rumours.  Although the evidence implicates the respondent, and it may support strong suspicions that he was involved at a greater level; his Honour was not in error finding that on the total of the evidence there was a reasonable doubt about the greater involvement of the respondent.  As we have already noted at [31] and [32], this is clearly evidence the jury could have regard to as establishing guilt, however, it is not determinative of the respondent’s level of participation.

[44]    The first of the conversations was about the respondent asking how much someone might get paid for killing someone “like that”.[36]  Ms Carroll gave evidence of a later conversation in which the respondent had said he had killed the guy they found at Florina Road and when she asked if he had left any evidence the respondent said, “We burnt everything.”[37]  The respondent admitted most of this conversation but denied saying, “We burnt everything.”  When asked if the respondent had said words like, ‘I know who killed him,’ (rather than that he himself had killed him), Ms Carroll said, “Um, I don’t know. He could have, but I’m pretty sure he didn’t say.”  Ms Carroll believed that he said he would do something like that for $7,000, (his Honour noted this was not the correct amount).  She said he gave her some details such as they “broke in, pretty much broke his neck, bashed him, bashed his head in and then dumped the body” and that he told her this took place on Sunday night and that the body was dumped. 

[45]    The Crown says the respondent could have only known the fact of burning the clothes if he was present.  In evidence Grieve said that the burning was always part of the plan.  The Crown points out that Malyschko did not say that and it was submitted that there would be no reason for the burning to have always been part of the plan because the plan was to take the deceased’s body out of his house and kill him in the vicinity of Florina Road and dispose of his body down a sink hole.  All that shows is there was a conflict in the evidence as between Malyschko and Grieve.  Halfpenny seems to indicate there was some thought given to him burning the clothes, although on his evidence, all three of them were involved.  After getting back to 13 Donnagan St, Halfpenny said, “There was a – I was going to burn all the clothes.”[38]  When asked if it was “his job” to burn the clothes, he said, “It wasn’t my job. I just told them that I’d do that.”[39]  Similarly, the Crown submitted the respondent could have only known the detail of the murder occurring on the Sunday night by his presence.  Further, it submitted that there was no reason that Grieve would be able to describe the killing, “broke his neck, bashed his head”. 

[46]    The Crown acknowledges that the pathologist did not discover a broken neck but given the attack consisted in part by Halfpenny grabbing the deceased around the neck in a headlock meant that the respondent may well have thought that the co-offenders had “pretty much broke his neck”.  As the respondent disavowed speaking about the killing to Malyschko and Halfpenny after the murder; and the conversation took place before Mr Halfpenny’s confession, the Crown submitted the evidence strongly suggests Grieve was present at the time of the killing.  We observe that all of this is also consistent with the respondent being involved in the plan but not its execution. 

[47]    The Crown further pointed out that Ms Carroll relayed the conversation in relation to where the respondent said the body was found as follows: “He said....., you know that guy they found at (inaudible), I killed him”.[40]  The Crown has pointed out the “inaudible” in the transcript was Florina Road.  It argued that the respondent must have been speaking about the guy that was found at Florina Road, not that the killing had occurred there.  The body of the deceased had been found on the Gorge road; not Florina Road.  The Crown argues this does not support the inference his Honour drew that the evidence was consistent with the respondent speaking of the plan, rather than his full participation. 

[48]    We are unable to agree that the inference his Honour drew from the respondent stating Florina Road was without foundation or was otherwise an error.  It was pointed out that the original plan was for the killing to occur in the vicinity of Florina Road and for the body to be disposed of down a sink hole which was not in that area.  It was never part of the original plan of the killers for the body to be found in Florina Road.  In our view it was open for his Honour to find that the respondent was speaking of the plan according to his knowledge of it at the time of the conversations.  Overall, aside from finding the respondent had received money at least the initial $2,500 and “quite possibly more”, his Honour broadly accepted the respondent’s evidence as credible.  In those circumstances, it is difficult to suggest his Honour’s findings should be disturbed. 

[49]    Other conversations relied on by the Crown, such as the conversation with Emma Lucchese when the respondent asked her if they “felt guilty if they killed someone” does not lead to the inevitable conclusion that he was a full participant rather than one who was involved earlier and knew the details by virtue of his earlier involvement. 

[50]    The Crown is also critical of his Honour’s remarks in relation to the lack of any forensic evidence at the site to implicate Grieve at the scene.  The point is made that the absence of forensic evidence implicating Grieve should be no surprise because of the evidence that the clothes were burnt and the steps taken to conceal evidence.  His Honour’s comments should in our view, be seen in the context of the conclusion that without further evidence of that kind there was not sufficient evidence to implicate Grieve in the actual killing beyond a reasonable doubt; Malyschko’s DNA was found on two of the recovered gloves; forensic evidence also connected Halfpenny with the crime.  It remains the case that none of the items recovered connected the respondent to the scene. 

[51]    In terms of making findings for the factual basis for sentencing, his Honour took the view that the witness Mr Halfpenny was unreliable.  His Honour was entitled to take that view.  There were obvious problems with accepting his evidence without supportive evidence given his original lie, (albeit admitted by him), to police and given he was a witness in the circumstances of an accomplice, (although he had already been dealt with).  He was a witness his Honour was entitled to be treated with caution. 

[52]    His Honour found that the case against the respondent to the effect that he was a full participant was principally based on the evidence on Halfpenny.  His Honour described him as a “practiced liar and clearly an untrustworthy witness”.  His Honour heard all of the witnesses give evidence.  He carefully balanced and considered those parts of the evidence he was prepared to act on and other parts that he considered to be unreliable.  The respondent’s version was largely supported by Malyschko’s evidence.  His Honour found the respondent was a follower, not a leader.  For sentencing purposes he noted positive character.  He also accepted that the respondent gave truthful evidence in relation to selling marijuana and that he gave details as to the source of his supply and his evidence on that point was supported by others.  He did, however, find contrary to Grieve’s evidence, that he received $2,500, possibly more. 

[53]    The Crown submits the two facts his Honour found to be consistent with his conclusion were really neutral facts; they are the CCTV footage of an Econovan travelling in the direction of the respondent’s home at 11:44pm on Sunday 23 October and a missed telephone call from Malyschko’s phone to the respondent.  His Honour said this later phone call was ‘inexplicable’ if they were still together.  Even if these two factors were given more weight than the Crown submits they deserved, they do not support the conclusion the Crown agitates for. 

[54]    We agree with the Crown’s submission, as his Honour accepted, that this was a serious matter given the respondent agreed to murder a person for payment.  However, we are not prepared to disturb the factual findings made by his Honour that were open to him and were consistent with the jury verdict.  That being the case, there is no proper basis to disturb the sentence. 

The Appeal Against Sentence by Grieve

[55]    As previously indicated, we approach this appeal on the basis of the facts found by his Honour.  The appellant complains that the learned sentencing judge failed to properly apply the provisions of s 53A(6)(7)(a)(b) of the Sentencing Act.  This provision refers to the circumstances in which a court may fix a non-parole period that is shorter than the standard non parole period of 20 years if satisfied there are “exceptional circumstances”.  “Exceptional circumstances” has a particular meaning under this part of the Sentencing Act that applies only to sentencing for the crime of murder.  To find “exceptional circumstances” in s 53A the Court must be satisfied that the offender is otherwise a person of good character; and is unlikely to reoffend and that the “victim’s conduct, or conduct and condition, substantially mitigate the conduct of the offender”. 

[56]    In our view this section is capable of applying to any situation where the victim’s conduct substantially mitigates the offender’s conduct.  Although this provision was open to Malyschko, given the treatment which he and his mother suffered at the hands of the deceased, his Honour was unable to find that this appellant could rely on the same provision.  His Honour said: “As much as I would like to stretch the language of s 53A(7)(b) to cover this type of case, I think the problem is that whatever the deceased did was not a significant operating factor in your decision to become involved and therefore I cannot find that his conduct substantially mitigated your conduct”.[41] 

[57]    Senior counsel for the appellant argues that the provision does not require the offender to have personal knowledge of the victim’s conduct, nor does it require the offender to have been told of the conduct.  Mr Tippett submits that if the conduct of the victim is such that it contributes to the circumstances that result in the victim’s death, that conduct may be taken into account.  Mr Tippett urges the Court to construe the provision broadly, as to do otherwise would lead to disparity in sentencing between offenders. 

[58]    We note that while disparity is an undesirable outcome, productive of a sense of grievance and injustice, the capacity to adjust a sentence for reasons of disparity under the section are constrained.  The section does not permit regard to be had “to any other matters” in determining “exceptional circumstances”. 

[59]    It was submitted that whether the victim’s conduct substantially mitigates should be considered in a similar way as causation is considered generally in the criminal law.  We take that to mean direct or indirect causation.  Even if that is a correct way of considering the section (and we doubt it), it must be remembered the chain of causation may be broken by intervening acts; generally, substantial causation is required to establish the relevant connection.  One of the reasons this appellant became involved was because he was told there was a person stalking and bashing Malyschko’s mother.  That conduct, it was argued, caused Malyschko to decide to move against the deceased and, it is argued, that therefore this appellant became involved. 

[60]    There are a number of problems with the interpretation suggested.  Whatever the impact of the behaviour of the deceased on the behaviour of Buttery or Malyschko, that behaviour had no impact upon the appellant.  He did not know the name of the deceased.  At most he knew what Malyschko had told him.  As the Crown submits, the appellant was prepared to be a party, for money, in the killing of a person he did not know.  It is likely that his motivation was mixed, to help his friend and for the money. 

[61]    The conduct of the deceased did not substantially mitigate the conduct of this particular appellant. 

[62]    We agree with the learned sentencing judge that the language of s 53A(7)(b) cannot be stretched to cover the situation where the conduct of the deceased was largely unknown to the offender.  We agree with the submission of the Crown that such an interpretation could lead to every sentencing hearing for the crime of murder requiring an inquiry into the blameworthiness of the victim, irrespective of the existence of a relationship or connection between victim and offender. 

[63]    His Honour sentenced on the basis of the minimum that could be imposed at law. We would not interfere with the sentence. 

[64]    We dismiss the appeal against sentence.  

****************

 



[1] AB 2171. 

[2] The Queen v Bronwyn Buttery [2014] NTCCA 3. 

[3] Malyschko v The Queen [2014] NTCCA 1. 

[4] Criminal Code, s 43BG; Trial Judge’s Aide Memoir, AB 2139-40. 

[5] Discussed further under the heading ‘The Crown Appeal Against Sentence’; see also Sentencing Remarks at 9. 

[6] Defence Closing Address, AB Vol 3, T 1467, 1469, 1474, 1477, 1478. 

[7] Evidence of Halfpenny, AB Vol 1, T 231; Carroll, AB Vol 1, T 39. 

[8] Evidence of Bowmaker, AB Vol 1, T 323; Woods, AB Vol 1, T 370. 

[9] Evidence of Woods, AB Vol 1, T 371. 

[10] Evidence of Rollinson, AB Vol 2, T 640; Chetty, AB Vol 2, T 649. 

[11] Evidence of appellant, AB Vol 3, T 1296. 

[12] Evidence of Attwood, AB Vol 2, T 623-4. 

[13] Evidence of Smith, AB Vol 1, T 337; Carroll, AB Vol 1, T 391; Attwood, AB Vol 2, T 617. 

[14] Cross-examination of appellant, AB Vol 3, T 1307. 

[15] Cross-examination of appellant, AB Vol 3, T 1326. 

[16] Cross-examination, AB Vol 3, T 1332. 

[17] Pursuant to s 418 of the Criminal Code

[18] Melbourne v R (1999) 198 CLR 1 at [30]. 

[19] Attwood v The Queen (1960) 102 CLR 353 at 359. 

[20] (1999) 198 CLR 1. 

[21] Stanoevski v The Queen (2001) 202 CLR 115 at [21]. 

[22] Gummow J at 24; McHugh J at 15 discussing the relationship between character and reputation; Kirby J at 34 questioning whether good character and reputation are the same notion or whether good character refers to inner qualities of the accused that may or may not be reflected in public reputation. 

[23] Munday “What constitutes good character?” [1997] Crim. L.R at 246, especially “Good character, slightly flawed” at 248 – 252. 

[24] AB Vol 3, T 1309-1318. 

[25] AB Vol 3, T 1309-1318. 

[26] AB Vol 3, T 1308-1309. 

[27] AB Vol 3, T 1326. 

[28] AB Vol 3, T 1309-1310. 

[29] AB Vol 3, T 1306-7. 

[30] AB Vol 1, T 160. 

[31] AB Vol 1, T 160. 

[32] AB Vol 1, T 161. 

[33] AB Vol 2, T 822. 

[34] R v Schmal [1965] VR 745, Scholl J at 750; (1960) 102 CLR 353 at 359. 

[35] Melbourne v The Queen (1999) 198 CLR 1 at [76], per Gummow J. 

[36] AB Vol 1, T 155-172. 

[37] AB Vol 1, T 160. 

[38] AB Vol 1, T 183. 

[39] AB Vol 1, T 229 and 243. 

[40] AB Vol 1, T 160. 

[41] Sentencing remarks at 25.