Victorian prosecutors to cross-appeal Erin Patterson sentence as 'manifestly inadequate'

The Victorian Court of Appeal asked to make a ‘once in a decade’ decision to deny Erin Patterson parole.

The Director of Public Prosecutions in Victoria will appeal the decision of the Supreme Court’s decision to give Erin Patterson a life sentence with parole for the murder.

On 8 August, Patterson was convicted for the murder of three members of her estranged husband’s family, Don and Gail Patterson and Heather Wilkinson, and the attempted murder of Heather’s husband, Ian Wilkinson.

The maximum sentence for murder is life imprisonment, but under sections 11(1) and 11A(4)(a) of the Sentencing Act 1991 (Vic) the court must fix a non-parole period of at least 30 years, “unless it is not in the interests of justice to do so.”

The DPP will appeal Justice Beale’s decision to withhold the maximum sentence of ‘life without parole’ as being manifestly inadequate.

His Honour concluded that this case fell into the ‘worst category of offending,’ warranting a life sentence, but that her ‘harsher than usual’ terms of imprisonment, such as solitary confinement for her safety and limited contact with her young children, justified the option for parole after 33 years.

The DPP is focusing on His Honour’s finding that there was a “substantial chance” that Erin Patterson will have to be held in solitatory confinement in the Dame Phyllis Frost Centre for up to 22 hours per day for her own safety was not reasonable.

These mitigating factors led His Honour to reject the DPP’s reliance on R v Coulston [1997], where three ‘worst category’ murders resulted in life without parole.

In addition to considering the requirements for finding a sentence to be manifestly inadequate, it is also worthwhile to note an alternate ground of appeal that could be advanced by Patterson, namely that the 33-year period is ‘manifestly excessive’ and that it should only be 30 years.

Both parties must play by the rules established by the High Court in House v King (1936).

These rules state that the court will not reopen the case unless a party can prove, beyond all reasonable doubt, that there was a ‘specific error’ or that there was a ‘manifest error.’

This distinction means that a manifest error is only concerned with the ‘outcome’ or sentence, rather than a specific error in the reasoning behind the conviction.

There is a high standard of proof, as the manifest error must be because “the sentence imposed is out of the range of sentences that could have been imposed.”

As the Court of Appeal said in a rare 5-judge decision in Clarkson v The Queen (2011), “It must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion … if proper weight had been given to all relevant circumstances.”

This standard prevents an appellate court from interfering with the decision merely because it had a different opinion on what the sentence should have been.

To that end, Chief Justice Kourakis in Police v Chilton (2014) commented that judgments made in lower courts are still ‘final orders’ which “are not provisional opinions subject to the approval of this Court.”

Precedent cases are only of limited benefit in predicting the outcome of a manifest error appeal, both because it often depends on the facts of the case and because of the broad scope of a discretionary power.

Those factors must be considered in the context of the purposes of sentencing, in accordance with section 5 of the Sentencing Act 1991 (Vic):

1. Just punishment;

2. Specific and general deterrence;

3. Rehabilitation;

4. Denunciation; and

5. Protection of the community.

Under section 6D(a), the fifth purpose is the most important one for ‘serious offences,’ including murder. ‘Just punishment’ is also a relevant purpose here.

The DPP must demonstrate that those mitigating factors aren’t enough to prevent a life sentence without parole. That being said, the prosecution did accept that the conditions of the imprisonment were a relevant consideration.

In R v Finn (2023), Justice Applegarth of the Supreme Court of Queensland held that “how harsh and dangerous that [mandatory non-parole] period will be will enable me to arrive at a sentence that is a just punishment for his crimes in his circumstances.”

In that case, the offender had severe PTSD from his military service, and would not be able to properly continue his rehabilitation in the prison he was being held in. His Honour refused to “assume that he will be moved soon from [this prison] and be reclassified to get better access to treatment.”

Only once the court knows, “with some degree of certainty, how harsh the long period of custody will be” can it consider that factor. Therefore, he relied only on the circumstances at the time of sentencing.

In the present case, Justice Beale cited the Court of Appeal’s decision in Yat v The King [2024], where the confinement in a “small caged area around 12 square metres in size” was a ‘significant consideration.’

However, Finn involved drug-related offences and Yat was an assault of a prison guard. The DPP will likely argue that Yat is of little relevance as it does not have the same gravity as the three murders in Coulston.

Coulston itself acknowledged that murders by which are “very sickening and of the most extreme cruelty … are not so very rare” that the judges should be easily “impressed by the horrifying circumstances” of the deaths when sentencing.

But that doesn’t mean life without parole isn’t out of the picture. There, the three victims were bound and gagged before being shot in the back of the head, so life without parole was the appropriate sentence.

So, the question for the Court of Appeal is whether, in the words of Coulston, the mushroom murders are the “once in a decade” time that parole should be denied?