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Triple murderer Erin Patterson should have been given no possibility of ever being released from prison, or a non-parole period so lengthy that she was likely to die behind bars, Victoria’s highest court has heard.
Patterson, 51, is appealing against her convictions in the court of appeal, with the director of public prosecutions is also appealing against the sentence handed down to her, arguing it is “manifestly inadequate”.
In September, Patterson was sentenced to life imprisonment, with a non-parole period of 33 years, for the murders of her estranged husband’s parents, Don and Gail Patterson, and his aunt Heather Wilkinson.
She was also convicted of the attempted murder of Heather’s husband, Ian Wilkinson, who survived the lunch after spending weeks in hospital.
Brendan Kissane KC, the DPP, said that even though Patterson would be aged in her 80s by the time she was eligible for parole, the sentence was still too lenient.
He said the sentencing judge, Justice Christopher Beale, had erred in finding that Patterson would probably spend “years” in solitary confinement, making her imprisonment more onerous than it would be for other less notorious prisoners.
When asked by Justice Lesley Taylor whether a longer non-parole period would essentially damn Patterson to dying behind bars, and had “some artifice of it being life with life”, Kissane said: “it has its harsh aspect to it, of course, we accept that.
“But in our submission that is not a matter that is outweighed by the seriousness of the offending.”
The DPP appeal is for Patterson to be resentenced without a non-parole period, but if that fails they have asked the court of appeal to set a longer non-parole period.
“It was not open to his honour to fix a non parole period in this case, where it involved three murders, one attempted murder, and significant circumstances of aggravation,” Kissane said.
But Richard Edney, for Patterson, said she was effectively being held in solitary confinement, and had been for some time.
He said that Patterson spent 22 to 23 hours a day in a 4-metre by 2-metre cell, and that Beale had correctly identified the need to balance these conditions against the gravity of her offending.
“The reasons for sentence are impeccable,” Edney said.
“They’re a model of clarify and clear exposition of the reasoning process; what he’s done in our submission is balance in a sophisticated way the clear, competing considerations.
“The sentencing judge did everything right in this complex sentencing exercise.”
Earlier on Thursday, the court of appeal continued hearing arguments regarding Patterson’s bid to have her conviction overturned.
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Crown prosecutor Jeremy McWilliams told the court that all seven of Patterson’s grounds for appeal should fail.
“This was an overwhelming case and the court ought to conclude that convictions were inevitable based on the evidence,” he said.
The court heard on Wednesday that Patterson’s grounds of appeal included that the jury sequestering was irregular, that cell tower evidence and evidence of death cap mushroom sightings should not have been included at trial, that photos and videos related to foraged mushrooms should have been included, and that the cross-examination of Patterson and the prosecutor’s closing address were unfair.
Two related grounds of appeal were that evidence taken from Patterson’s conversations with Facebook friends had been used to imply there was a motive for the killings, despite the prosecution also telling the jury there was no motive.
But McWilliams completed the prosecution’s response to Patterson’s appeal on Thursday by saying many of the grounds lacked substance, and in some cases were not the subject of any concerns raised by Patterson’s lawyers at the time.
He said there was no evidence she had an “innocent” interest in foraging mushrooms, and that no other witness had given evidence she had this interest.
Of the criticism of Patterson’s cross-examination by Nanette Rogers SC, he said that it was conducted thoroughly and with a “duty of fairness”, and that trial judge Justice Christopher Beale had intervened when it appeared her lines of questioning had gone as far as possible.
He described ground six, which describes the miscarriage of justice which occurred because of Rogers’ closing address, as a “Frankenstein” of a ground, that “bundled up” a series of unrelated matters.
Ian Wilkinson, the only surviving lunch guest, was again in court on Thursday. Patterson watched on via a video link from Dame Phyllis Frost Centre, the state’s women’s prison.
Justices Lesley Taylor, Stephen McLeish and Peter Kidd reserved their decision on both appeals.
