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Supreme Court 13 February 2017

R v Xie

[2017] NSWSC 63

Homicide
SENTENCE FIVE COUNTS OF MURDER WORST CASE CATEGORY LIFE IMPRISONMENT

Citation: R v Xie [2017] NSWSC 63
Court: Supreme Court of New South Wales
Date: 13 February 2017
Judge: Fullerton J

Background

In the early hours of 18 July 2009, five members of a North Epping family were killed in their home at 55A Boundary Road. The victims were Min Lin (45), his wife Lily Lin (44), her sister Irene Lin (39), and two children, Henry Lin (12) and Terry Lin (9). Each was attacked with a hammer-like weapon in their bedrooms; four also suffered asphyxial injuries. The murders were carried out sequentially, beginning with the adults and ending with the children.

The offender, Lian Bin (Robert) Xie, was the brother-in-law of Min and Lily Lin and lived approximately 300 metres from the victims' home. He was arrested in May 2011 following a lengthy police investigation. A small blood transfer stain found in his garage during a 2010 search warrant was alleged by the Crown to have been deposited by the offender after the killings.

After a six-month trial, a jury returned majority guilty verdicts on all five counts of murder on 12 January 2017. Fullerton J then proceeded to sentence.

  • Whether the level of culpability was so extreme that the community's interest in retribution, punishment, community protection, and deterrence could only be met by life imprisonment under s 61(1) of the Crimes (Sentencing) Procedure Act 1999 (NSW)
  • Whether any subjective circumstances existed under s 21(1) of that Act that justified the court exercising its discretion to impose a lesser, determinate sentence
  • Whether the harm suffered by the surviving family member (Ms AB, the Lins' 15-year-old daughter who was overseas at the time) could be taken into account in sentencing under s 28(4) of the Act

Decision

Fullerton J found that the offending fell squarely within the worst category of murder cases. The attack involved meticulous planning: the offender used a key to enter the locked premises, disabled the electricity at the main switchboard, and moved systematically through three bedrooms. Each victim was attacked while asleep or being roused, with sustained and severe blunt force. The bodies of the adults were moved after death, indicating deliberate control throughout.

The court was satisfied beyond reasonable doubt that no subjective circumstances existed to justify departing from a life sentence under s 21(1). The offender showed no remorse and the nature, scale, and premeditation of the offending were assessed as placing the culpability at the extreme end of the spectrum. The community interests of retribution, punishment, community protection, and deterrence could not, in the court's view, be met by any lesser sentence.

Fullerton J also considered the victim impact statement of Ms AB, the Lins' surviving daughter. While the law does not permit additional punishment solely because a victim's family member has suffered, the court found that the lasting and immeasurable harm to Ms AB represented harm to the broader community, and took that into account under s 28(4) of the Sentencing Act.

Orders Made

  • Lian Bin (Robert) Xie was convicted on counts 1 to 5 of the murder of Min (Norman) Lin, Yun Li (Lily) Lin, Yun Bin (Irene) Lin, Henry Lin, and Terry Lin
  • On each count, sentenced to imprisonment for life, commencing 25 May 2012

Key Takeaways

  • Under s 61(1) of the Crimes (Sentencing) Procedure Act 1999 (NSW), a court must impose a life sentence for murder where the level of culpability is so extreme that the combined community interests in retribution, punishment, protection, and deterrence cannot be met by any lesser sentence. The Crown bears the burden of establishing this to the criminal standard.
  • Where the s 61(1) threshold is met, the court retains a discretion under s 21(1) to impose a determinate sentence if the offender's subjective circumstances justify it. Here, no such circumstances were found.
  • The Supreme Court confirmed that the harm caused to a surviving family member cannot by itself attract additional punishment, but may be taken into account as harm to the community under s 28(4) of the Sentencing Act.
  • Five concurrent life sentences were imposed, all commencing from a backdated date that accounted for periods of pre-trial custody, in accordance with the court's obligation to accurately reflect time already served.
  • Premeditation, intimate knowledge of the victims' home, the sequential and systematic nature of the attack, the extreme severity of injuries inflicted on five victims including two children, and the absence of any remorse collectively placed this offending in the worst case category.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A(1) and (2)
- Crimes (Sentencing) Procedure Act 1999 (NSW), ss 21(1), 28(4), 61(1)

Cases:
- R v Baker (Court of Criminal Appeal (NSW), 20 September 1995, unrep)
- R v Dean [2013] NSWSC 1027
- R v Merritt (2004) 146 A Crim R 309; [2004] NSWCCA 19
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Villa [2005] NSWCCA 4