Under Australian law, you can be convicted of murder for being aware of a plot to murder and not alerting authorities, or even if you’re in the vicinity of a murder, aware of what’s happening, and do nothing to stop it.

I’m not a lawyer by any stretch, but I’ll give you an example of such a conviction for murder that I know of first hand, for just being there and watching events unfold.

A chap I attended secondary school with was convicted of murder at the turn of the century in the Supreme Court of Victoria, and later in 2002, had his conviction for murder upheld upon appeal to the Supreme Court of Victoria Court of Appeal.

I won’t name him or his co-offenders as he’s now done his time and just wants to move on with his life.

I’ve ran into that school friend since his release from prison, bumping into him at the Geelong Hospital during one of my many outpatient visits after the home invasion that came crashing in on myself on Australia Day of 2014.

I too was almost killed that day…

If it wasn’t for my neighbour who interrupted the offenders, this article might never have been written and I could have been another statistic of homicide.

My school friend played no part in inflicting any fatal blows upon the deceased.

He did enter the premises of the deceased forcibly and illegally, was close enough to the violence to become injured himself, and further, held down the victim’s girlfriend on her bed, restraining her from placing a call to police for help.

I’ve read all about my school friends case via publicly available court transcripts, so I know the facts of the case for myself rather than rely on whichever version offenders sometimes put forth to explain events.

What I’ve told you above is a brief version of what the court was told and what the jury had to decide upon.

My school friend and another acquaintance who actually struck the blows were found guilty of murder by a jury and my friend served a brick and a half in prison (which is 15 years, a ‘brick‘ being the term for 10 years in prison lingo…).

The other, who I don’t know so well, served a bit longer inside for his direct involvement in ending another persons life.

My school friend isn’t bitter… he accepts he did wrong and accepts he played a significant role in the murder of the deceased

He did his time, most of it in maximum security at Barwon Prison at Lara on the outskirts of Geelong.

He’s a free man now who learned a lesson in life the hard way – by doing hard time, for the ultimate crime.

Meanwhile, in the Northern Territory, a young man sits in prison, found guilty of murder, and he wasn’t even at the scene of the crime!

The law is in ass – and thanks to the Northern Territory’s mandatory sentencing laws, which even judges criticise, justice in this case went kinda loopy, but that’s the law in the Northern Territory.

A young man who evidence shows wasn’t at the scene of the crime ends up doing more time than the chap who actually struck the fatal blows.

The murder of Ray Niceforo

On Sunday, October 23, 2011, in the town of Katherine, about three hours drive south-east of Darwin in the Northern Territory, a shifter spanner weighing about 2kg came crashing down on the head of a troubled man named Ray Niceforo – eight times, killing him.

His body was found several days later on a road heading out of Katherine towards Katherine Gorge, dumped in bushes in a clearing beside the road.

The story begins in Adelaide four years earlier, when Ray Niceforo met a supermarket worker named Bronwyn Buttery during the course of his job delivering stock where she worked.

The pair struck up a relationship.

Ray Niceforo was from the Northern Territory, and wanting to pursue the relationship, Bronwyn Buttery decided to pack up her life in Adelaide and move up north to begin a new life with the new object of her desires.

And that’s when things went pear-shaped.

Ray Niceforo worked in Darwin, and would return home every two weeks to the home he shared with Bronwyn Buttery.

Ray Niceforo, a man with a known bad temper, had earlier avoided prison for shooting a bloke in the main street of Katherine.

In June of 2011, Bronwyn Buttery had obtained a domestic violence order against Ray Niceforo.

She claimed Ray Niceforo had “choked her, burnt her with a cigarette, pointed a gun at her, pinned her to a wall with a shopping trolley, forced himself upon her sexually and threatened her with a hammer“.

Rather than return to Adelaide like Ray Niceforo had angrily told her to do many times previously, Bronwyn Buttery instead arranged a loan and purchased the Waterworks Laundry, a local laundromat, from the brother of Ray Niceforo,

Probably not her smartest move.

Ray Niceforo began working at the laundromat as well, until the domestic violence order gained by Bronwyn Buttery stopped him from being anywhere near her.

Left unemployed, Ray Niceforo began sending a series of threatening text messages to Bronwyn Buttery…

“You better realise your genetic code sitting beside you will disappear and there’s no turning back… You had better think about – you are doing real quick today could be the day you lose someone close to you.”

That message above refers to a gay best friend of Bronwyn Buttery, a chap by the name of Trevor Tydd, who folks called ‘Nipper‘.

Trevor Tydd lived just a few doors down from Ray Niceforo who had by now moved into a unit alone.

The plot to murder

Chris Malyschko was the son of Bronwyn Buttery.

Recently engaged, he’d moved from Adelaide to Katherine in the Northern Territory during March of 2011 because he needed money.

Chris Malyschko moved in with Trevor Tydd, just a few doors down from Ray Niceforo.

Informed by Trevor Tydd of the ongoing abuse inflicted upon his mother, Chris Malyschko approached his mother about what could be done, and from that point plotted to seriously harm, or kill Ray Niceforo.

Chris Malyschko told his mother he needed $15,000 to arrange a hit on her abusive partner, and also decided he needed some muscle to carry out his plan.

Darren Halfpenny was a young bloke who left school at 15 to work on a cattle station in the Northern Territory.

After a fall from a fence that left him with a brain injury, Darren Halfpenny was unable to drive or ride a horse, and was therefore unsuitable for work on cattle stations after his unfortunate accident.

Depression set in and Darren Halfpenny spent his days drinking alcohol heavily and smoking a heap of cannabis instead.

Known to be strong and somewhat easily led, Darren Halfpenny was enlisted to assist in the plan to harm Ray Niceforo.

Zak Grieve – the murderer who wasn’t at the scene!

Chris Malyschko had known Zak Grieve for just a few months prior to the night where Ray Niceforo lost his life

Zak Grieve is a young indigenous man, also from Katherine, aged just 19 at the time of the murder of Ray Niceforo.

His family owned and operated a store selling sunglasses in the Katherine mall.

He got by working at his parents sunglasses store, and sold a bit of weed on the side.

Zak Grieve began to hang out with Chris Malyschko and Darren Halfpenny, often joining the pair in frequent evenings of bong smoking and video games on the X-Box.

In the nights prior to the murder, Ray Niceforo was away from home in Darwin, frustrating the trio playing video games and smoking bongs just up the road who were attempting to keep him under surveillance so they could carry out their plan.

Three nights passed before Ray Niceforo arrived home, and the group decided it was time to bring the plan to harm Ray Niceforo into action.

It was during this time that Zak Grieve realised Chris Malyschko and Darren Halfpenny were no longer interested in causing harm to Ray Niceforo, but that the plan had escalated to murder instead.

He decided to back out of the plan.

Zak Grieve asked Chris Malyschko to take him home rather than participate in the murder that was soon to be undertaken.

On the night of the murder of Ray Niceforo, footage taken just before midnight shows a white van driven by Chris Malyschko heading in the direction of the home where Zak Grieve lived.

A few minutes later footage was also captured of the white van returning towards the home of Chris Malyschko.

Just after midnight, Chris Malyschko attempted to call Zak Grieve on his mobile phone, but the call wasn’t answered.

Police found no forensic evidence whatsoever to link Zak Grieve to the scene of the murder, no DNA, nothing!

Had Zak Grieve been at the scene of the crime, Chris Malyschko would have had no need whatsoever to call him… a fact that the sentencing judge also mentioned.

By this time, Ray Niceforo lay dead on the floor, struck to the head eight times by a spanner at the hands of Chris Malyschko, who admitted striking the fatal blows.

The verdict

Introduced in 2004, the Northern Territory has mandatory sentencing for those convicted of murder, meaning life in prison, with a minimum 20 year non-parole period.

During the trial that lasted six weeks, Bronwyn Buttery admitted paying her son, Chris Malyschko, the sum of $15,000 to carry out the murder of Ray Niceforo.

Darren Halfpenny testified that the $15,000 was split three ways between the three men, being himself, Chris Malyschko and Zak Grieve, the sum of $5,000 each.

Justice Mildren warned the jury it would be dangerous to convict Zak Grieve on the evidence of Darren Halfpenny alone, after Darren Halfpenny was shown in court to be someone capable of lying as he had done so previously to police investigating the crime.

Darren Halfpenny was already serving a term of life imprisonment after pleading guilty and will be eligible for parole after 20 years, turning crown witness and giving evidence against the others at their trial.

Bronwyn Buttery pleaded guilty to manslaughter and was sentenced to 8 years imprisonment, with a non-parole period of 4 years.

Chris Malyschko and Zak Grieve were found guilty of murder by the jury.

Chris Malyschko was sentenced to life imprisonment, with a non parole period of 18 years.

Zak Grieve was sentenced to life imprisonment, with a non parole period of 20 years, a longer sentence than Chris Malyschko who inflicted the fatal blows.

Chris Malyschko relied on “exceptional circumstances” and had his non parole period reduced under section 53A(7) of the Sentencing Act.

Although it was Chris Malyschko who struck the fatal blows upon Ray Niceforo, the judge took previous threats from the deceased towards Chris Malyschko into account as reason to reduce his culpability for the crime.

But for Zak Grieve, there was nothing in law he could rely upon and the judges hands were tied and he received the mandatory sentence for murder as the law prescribed.

Criticism of the case

The mother of Zak Grieve, Glenice Grieve has stated since the trial that she believes racism may have played a part in convicting her son, but that’s something we may never know.

Zak Grieve was the only indigenous person to face trial for the murder of Ray Niceforo.

Glenice Grieve was also critical of three jurors, saying,

“They were toying with us … They went to sleep during the days of the trial. It was like it didn’t matter, they didn’t care. I thought that was blatantly disgusting because there was people’s lives at stake here and they didn’t care…”

Jury deliberations are not something that are aired outside of the jury room, and however juries come to form their opinions and verdicts is something that only juries will ever know for themselves.

A petition has been created to request the Northern Territory government pardon Zak Grieve.

Even the sentencing judge, who has since retired, said of the case surrounding Zak Grieve,

“This was the only bloke I’ve ever had convicted of murder where he wasn’t even there…” –  Justice Mildren

And that’s just one reason why mandatory sentencing sucks big time… because a one size fits all type law didn’t quite fit this time around, and I’m sure there’s plenty of other examples sitting in cells in the Northern Territory that we’ll possibly never hear about either.

Bronwyn Buttery has since been released from prison after serving her term.., refusing to discuss why she decided her ex-partner had to die… while 3 men she dragged into her murder plot sit in cells because of poor decisions she (and they) made.