The Victorian director of public prosecutions is appealing Erin Patterson's sentence because a judge erred in finding she was likely to spend "years to come" in solitary confinement when allowing for the possibility of parole.
According to the notice of appeal released by the supreme court on Thursday, the DPP is appealing Patterson's sentence of life imprisonment - due to the setting of a non-parole period of 33 years - because of findings Justice Christopher Beale made about her likely prison conditions.
Patterson was sentenced on 8 September over the murders of Don and Gail Patterson and Heather Wilkinson, and the attempted murder of the latter's husband, Ian Wilkinson. The Pattersons were the parents of her estranged husband, Simon Patterson. Heather Wilkinson was Gail's sister.
Diana Piekusis KC, the acting director of public prosecutions, signed the notice and declared she was satisfied that an appeal should be brought in the public interest.
"The sentencing judge erred in finding that there was a 'substantial chance' the respondent would be held in 'solitary confinement for years to come' when such a finding was not open on the evidence, and that finding infected his assessment of the respondent's likely future conditions in custody and his decision to fix a non-parole period," the notice said.
"The DPP argue that the sentence imposed on Patterson is manifestly inadequate, in that: a) it was inappropriate for the sentencing judge to fix a non-parole period; or b) the non-parole period of 33 years is manifestly inadequate."
Patterson has indicated she will appeal against her conviction, but her appeal is yet to be filed.
Prior to her sentencing, prosecutors had submitted that Patterson should never be released because of the horrendous nature of the crimes.
"Your counsel challenged this submission, relying principally on the harsher than usual conditions of your imprisonment which, both sides agree, are likely to continue for the foreseeable future," Beale said on 8 September.
"Whether or not to fix a non-parole period is the main dispute which I have to determine."
Beale found that Patterson had effectively been held in solitary confinement for the past 15 months and there was a substantial chance she would continue to be held in those condition for years to come for her own protection.
"The harsh prison conditions that you have experienced already and the likely prospect of solitary confinement for the foreseeable future are important and weighty considerations which should count for something in the sentencing exercise.
“In my view, the only scope for making them count is by the fixing of a non-parole period.”