AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 6 August 2025

R v XE

[2025] NSWSC 877

Homicide
SENTENCING M URDER A PPLICATION OF THE CEILING PRINCIPLE O BJECTIVE SERIOUSNESS OF OFFENDING

Citation: R v XE [2025] NSWSC 877
Court: Supreme Court of NSW
Date: 6 August 2025
Judge: Weinstein J

Background

The offender, identified only as XE due to a statutory publication prohibition, was born in 1999 and was 17 years old at the time of the offending. On 3 July 2017 at Wyong, XE was present in a vehicle from which her older brother fired a shotgun at a Toyota Kluger carrying six people. The shot struck 19-year-old Jesse Thompson, who died minutes later. Thompson left behind a partner and two young daughters.

The killing arose from a sequence of events sparked by XE's brother discovering his partner had been unfaithful. After the brother assaulted the other man involved, a series of confrontations escalated through the morning of 3 July 2017. XE played an active role in those events: she contacted the other party to arrange a meeting, directed participants away from public areas, and was present when a shotgun was produced and brandished at witnesses. The shooting occurred during a running vehicle pursuit through suburban Wyong streets.

XE was originally convicted of murder by jury in January 2021 and sentenced to 17 years imprisonment with a non-parole period of 10 years and 6 months. Her conviction was quashed by the Court of Criminal Appeal in May 2025 and a retrial ordered. Before the retrial commenced, XE pleaded guilty to murder on 29 May 2025. Her co-offenders, tried separately before Weinstein J, were found guilty by jury on 23 July 2025.

  • What sentence was appropriate given that XE had previously been sentenced for the same offence, requiring application of the "ceiling principle" (which provides that a sentence on a retrial should not exceed the original sentence)?
  • What discount, if any, was warranted for the utilitarian value of XE's guilty plea, given the plea came after a prior conviction and sentence?
  • How should the court assess the objective seriousness of the offending in the context of a joint criminal enterprise?
  • To what extent did XE's youth at the time of the offence and background of disadvantage reduce her moral culpability?
  • What weight should be given to XE's progress toward rehabilitation during her period in custody?

Decision

Weinstein J applied the ceiling principle, which required that the new sentence not exceed the sentence previously imposed by Ierace J. The original head sentence was 17 years. Before applying any guilty plea discount, the court assessed the appropriate sentence at 16 years and 6 months, keeping it below the prior ceiling.

The court then considered the discount for the guilty plea. Although XE had previously been convicted and sentenced for the same offence, Weinstein J accepted that the plea still carried utilitarian value: it avoided the cost and inconvenience of a retrial. However, the discount was limited to 10 percent (rather than the 25 percent that may apply to early pleas) because the plea was entered only after the conviction was quashed and a retrial ordered, and because the strength of the prosecution case was apparent. This produced a final head sentence of 14 years and 10 months.

On objective seriousness, the court treated the offending as above the midrange, given the premeditated and organised nature of the confrontation, the use of a firearm, and the death of an entirely innocent young man who had no prior involvement in the conflict. XE's role in a joint criminal enterprise was found to be significant: she organised the encounter, directed participants, and was present when the weapon was used.

Weinstein J accepted that XE's youth and background of disadvantage reduced her moral culpability to a meaningful degree, consistent with the principles in Bugmy v The Queen. The court also acknowledged genuine progress toward rehabilitation during her years in custody. These subjective factors were taken into account in reaching the sentence below the ceiling, alongside the plea discount.

Orders Made

  • XE convicted of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).
  • Sentenced to imprisonment for 14 years and 10 months (reflecting a 10% guilty plea discount from a pre-discount sentence of 16 years and 6 months).
  • Non-parole period of 9 years and 3 months imposed.
  • Sentence backdated to commence on 4 July 2017; head sentence to expire on 3 May 2032; eligible for release to parole on 3 October 2026.
  • XE advised of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to s 25C(1), with legal representatives directed to advise her of its implications.
  • Publication of XE's name or any identifying information prohibited pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Key Takeaways

  • The ceiling principle operates to prevent a sentence on retrial from exceeding the sentence originally imposed, even where the offender has subsequently pleaded guilty rather than been convicted at trial. Weinstein J assessed the pre-discount sentence at 16 years and 6 months, keeping it beneath the prior 17-year ceiling.

  • A guilty plea entered only after a conviction is quashed and a retrial ordered attracts a reduced utilitarian discount. The court allowed 10 percent rather than the maximum available, reflecting the limited practical benefit of the late plea and the strength of the prosecution case.

  • Under the principles confirmed in Bugmy v The Queen, youth and a background of disadvantage can reduce moral culpability even in cases of serious and premeditated violence. Those factors do not excuse the conduct but bear on the weight of personal deterrence and the harshness of imprisonment for a young person.

  • Active participation in organising a confrontation, directing its location, and being present during the use of a firearm can establish a significant role in a joint criminal enterprise for sentencing purposes, even where the offender did not personally discharge the weapon.

  • Rehabilitation progress made during an extended period of pre-sentence custody is a relevant mitigating consideration, capable of influencing the sentence ultimately imposed alongside other subjective factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 54D
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- BP v R [2010] NSWCCA 159
- DH v R [2022] NSWCCA 200
- KT v R [2008] NSWCCA 51
- R v Gilmore (1979) 1 A Crim R 416
- R v Lane (No 4) [2018] NSWSC 1898
- R v Millwood [2012] NSWCCA 2
- R v White [2023] NSWSC 611