Mushroom killer Erin Patterson‘s courtroom plea for mercy is already being used as an excuse by other killers to try to get discounted sentences.
As Patterson celebrated her 51st birthday behind bars on Tuesday, it can be revealed her argument for a non-parole sentence is being used by Victorian barristers.
Justice Christopher Beale sentenced Patterson to life in prison on September 8, but set a non-parole period of 33 years.
Patterson was found guilty of the murders of Don and Gail Patterson, and Gail’s sister, Heather Wilkinson.
They died after consuming death cap mushrooms served in Beef Wellingtons during lunch at her Leongatha home on July 29, 2023.
Pastor Ian Wilkinson survived the lunch after being critically ill, with Patterson also convicted of his attempted murder.
Justice Beale granted the non-parole period after Patterson’s barrister Colin Mandy, SC convinced him she would face a harder time behind bars locked in a ‘management unit’ for the foreseeable future.
On Monday, it was an argument put forward by Melbourne barrister Michael McGrath, who recently helped defend former Jetstar pilot and convicted killer Greg Lynn.
Erin Patterson was able to get a discounted sentence after proving her jail conditions were rotten
Mr McGrath was defending killer Stephen Fleming, who pleaded guilty to the manslaughter of beloved school teacher Annette Brennan.
Fleming, 47, admitted the charge after accepting a deal that came with a sentence indication that will see him eligible for parole sometime over the next decade.
The sentence indication had been provided by Justice Beale, who has the power to sentence Fleming to an even lighter sentence than first indicated, but cannot go higher.
Mr McGrath reminded Justice Beale that Patterson’s defence had been allowed to provide an affidavit to the court outlining how poor her conditions were within the Gordon Unit of the Dame Phyllis Frost Centre.
There, prisoners are locked down as much as 23 hours a day, with limited access to a small, one-square-metre courtyard at the rear of their cells.
In coming to his decision, Justice Beale said Patterson had spent 15 months in isolation and would spend years further in solitary confinement.
Justice Beale said those harsh conditions needed to ‘count’ when it came to her sentence.
Mr McGrath said while his client was not being kept in a management unit, he was being caged within a ‘protection unit’, which comes with its own set of restrictions compared to an inmate kept in general population.
Stephen Fleming pleaded guilty to manslaughter
Annette Brennan’s body was crushed in the garbage truck
‘I don’t say that Mr Fleming’s in (Patterson’s) level. But when it comes to the condition of Mr Fleming … since in case law establishes that as a general rule, harsher than normal conditions of imprisonment will warrant mitigation of penalty,’ he said.
‘The evidence is limited to the fact that he’s a protection prisoner. We say that’s still of relevance because by its very nature, a person in protection is treated differently and is in a more restricted manner than a person in the general population.
‘And we say that it’s a matter that your honour can take into consideration in a broad sense. We don’t put it as high as that Patterson-type restrictions, but we say it’s a relevant consideration.’
Crown prosecutor David Glynn argued being in a protection unit ought not to make a difference to a sentence.
‘This is not a relevant sentencing consideration and hasn’t been for years now,’ he said.
‘We are living in this kind of zombie jurisprudence that dates back decades ago when protection prisoners were treated in a certain way. That’s no longer the case.’
Mr Glynn said 35 per cent of all Victorian prisoners were held in protection units.
Until Patterson, barristers had relied heavily on the little known case of Andrew Males to secure their clients’ softer sentences on the back of prison conditions.
Justice Christopher Beale sentenced Erin Patterson
The Dame Phyllis Frost Centre where Erin patterson will live out most of her life
In 2006, Males was sentenced to four-and-a-half years’ imprisonment, with a non-parole period of three years, after pleading guilty to one count of theft, one count of armed robbery and one count of recklessly engaging in conduct that placed other persons in danger of death.
Males appealed that decision on the basis the judge was not told he had been held, and was continuing to be held, in protective custody, which is a matter that must be taken into account upon sentence.
The Court of Appeal re-sentenced Males to three years and nine months with a non-parole period of two years and nine months.
Justice Beale remained guarded on whether he intended to provide Fleming with a discount based on comparisons to the Patterson case.
‘She was and is in a management unit, which involves more restrictions than for a prisoner who’s in a protection unit,’ he said.
Fleming’s guilty plea and sentence indication came after forensic experts were unable to conclude exactly how Ms Brennan was killed.
The court heard Ms Brennan’s body had been pulverised when it was crushed inside a garbage truck and then by other heavy machinery when her body arrived at the tip.
In harrowing evidence put to the court, Mr Glynn outlined the horrendous state of Ms Brennan’s body when it was found by traumatised tip staff.
Erin Patterson speaks to a detective during a search of her home
‘Due to extensive damage from the garbage truck’s machinery, the cause of death was unascertained,’ he said.
‘Injuries included fragmentation of the head and neck, skull fractures, neck bone fractures, fractured clavicles, ribs, vertebrae, pelvis, degloving injuries to the lower legs, and amputation of the right fibula and tibia.’
Fleming will be sentenced on October 29.
