How does the announcement that Julian McMahon has joined Erin Patterson's defence team, currently seeking leave to appeal, connect the case to the history of capital punishment?
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If Patterson had been convicted of murder prior to 1975, the year Victoria abolished the death penalty, she would have been sentenced to hang.
McMahon has first-hand experience of capital punishment, having defended Australians sentenced to death in countries that retain the death penalty.
Twenty years ago, he attended Singapore's Changi prison where Melbourne man, Van Tuong Nguyen, was hanged for smuggling a small amount of heroin.
Ten years ago, Andrew Chan and Myuran Sukumaran were executed by firing squad for drug offences in Indonesia. Again, McMahon was there when the punishment was carried out after his appeals and clemency bids on the men's behalf failed.
The act that abolished the death penalty in Victoria adopted "the term of his natural life" as the substitute for capital punishment.
Victoria later granted judges the right to set a term of imprisonment for murder.
Justice Christopher Beale exercised that right by sentencing Patterson to life, with a non-parole period of thirty-three years for crimes which he placed in the "worst category of offences".
What are the possible grounds for appeal in this case?
The defence has flagged its intention to appeal against the conviction, but appealing against the severity of the sentence could be a possible ground for appeal.
The most recent data from Victoria's Sentencing Advisory Council indicates the average sentence for murder is just under 22 years in prison, with a non-parole period of 16 years.
Patterson's case is anything but average, however, as the victim impact statements underscored. When Justice Beale delivered the sentence, he referred to 19 of the 29 statements submitted to the court.
Since 1991, Victoria has allowed the submission of statements on the impact of crimes, and since 2011 victims have been allowed to deliver their statements orrally.
The "sentencing court must have regard to the impact of the offence on any victim of the offence", according to Victoria's Sentencing Act.
In 2018, McMahon represented another Victorian woman convicted of multiple murders - Akon Guode - who pleaded guilty to one charge of infanticide, two of murder, and one of attempted murder.
McMahon's appeal against conviction failed in that instance. But Guode's original sentence (26 years imprisonment with a non-parole period of twenty years) was reduced on appeal to 18 years with a non-parole period of 14 years.
Justice Beale acknowledged the "harsher than usual conditions" of Patterson's imprisonment - fifteen months of solitary confinement prior to conviction, plus the "likely prospect of solitary confinement for the foreseeable future".
However, this factor is also the cornerstone of the prosecution's appeal, which will argue that Justice Beale gave the prison conditions undue weight, leading to a sentence that was "manifestly inadequate".
Under these circumstances, there is some ground to appeal against a sentence that is "manifestly excessive", since it contradicts the UN resolution on Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
Yet, the Mandela Rules define "prolonged solitary confinement" as "torture", and this might provide grounds for a cross-appeal by the defence.
The push for life without parole in the Patterson case is another reminder that abolishing the death penalty did not abolish cruel and inhuman punishment.
- Carolyn Strange is professor of history at ANU and an expert in the history of the death penalty, abolition, criminal justice, and gender.
