R v XE

[2025] NSWSC 877

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v XE [2025] NSWSC 877

Hearing dates:

31 July 2025

Date of orders:

6 August 2025

Decision date:

06 August 2025

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

The offender is sentenced to a term of imprisonment of 14 years and 10 months. The Court imposes a non-parole period of 9 years and 3 months.

The sentence is to be backdated to commence on 4 July 2017. The head sentence will expire on 3 May 2032. The offender will be eligible for release to parole on 3 October 2026.

Catchwords:

SENTENCING – murder – where offender previously found guilty by a jury and sentenced for murder – where offender successfully appealed against the conviction – where offender pleaded guilty to murder before retrial – application of the ceiling principle – discount to reflect utilitarian value of plea – objective seriousness of offending – where moral culpability reduced by reason of youth and background of disadvantage – where offender has made progress toward rehabilitation in custody

Legislation Cited:

Children’s (Criminal Proceedings) Act 1987 (NSW) s 15A

Crimes Act 1900 (NSW) s 18(1)(a)

Crimes (High Risk Offenders) Act 2006 (NSW) s 25C(1)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 54D

Cases Cited:

BP v R [2010] NSWCCA 159

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

DH v R [2022] NSWCCA 200

KT v R [2008] NSWCCA 51

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

Muldrock vThe Queen (2011) 244 CLR 120; [2011] HCA 39

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

Category:

Principal judgment

Parties:

Rex (Crown)
XE (Offender)

Representation:

Counsel:
D Hannan (Crown)
D Carroll (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2017/202637

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) there is to be no publication of the name of the offender or any material that tends to identify her.

JUDGMENT

Introduction

1. The offender XE, born in 1999, is before the court to be sentenced for the murder of Jesse Thompson (“the deceased”) on 3 July 2017 at Wyong, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty is life imprisonment. There is no standard non-parole period, as XE was under the age of 18 years at the time of the offending: s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”).

Procedural history

2. The deceased died on 3 July 2017. The offender was originally tried for the deceased’s murder in a joint trial with her father and her older brother before Ierace J and a jury in the Supreme Court commencing on 13 November 2020.

3. The offender and her co-offenders were found guilty of murder on 19 January 2021. She was sentenced by Ierace J on 22 July 2021 to 17 years imprisonment with a non-parole period of 10 years and 6 months expiring on 3 January 2028.

4. The offender appealed the severity of her sentence. On 24 April 2023, the Court of Criminal Appeal dismissed the offender’s appeal and affirmed her sentence.

5. On 19 December 2024, a majority of the Court of Criminal Appeal allowed conviction appeals brought by her co-offenders and remitted their matters to the Supreme Court for trial.

6. The offender subsequently appealed her conviction. On 23 May 2025 the Court of Criminal Appeal upheld the offender’s appeal, quashed her conviction and sentence and ordered a retrial. Reasons for that decision were handed down on 13 June 2025.

7. On 29 May 2025 the offender entered a plea of guilty to the charge of murder on the current indictment. Her sentence was stood over until the resolution of the proceedings concerning her co-offenders. On 2 June 2025, a trial of her co-offenders commenced before me. On 23 July 2025, her co-offenders were both found guilty of murder.

Agreed Facts

8. The offender is to be sentenced on the following agreed facts.

Overview of offending

9. At about 12.20pm on 3 July 2017, the offender’s older brother fired a shotgun from within a Mitsubishi Triton ute. The shotgun was directed towards the rear of a Toyota Kluger in which Jesse Thompson sat with 5 of his friends. Jesse Thompson was struck by the bullet and died minutes later.

10. At the time of his death Jesse Thompson was 19 years old. He had a partner of five years with whom he had two young daughters aged three years and one year.

11. The offender, aged 17 at the time, was seated in the back of the Mitsubishi Triton when the shotgun was fired. The Triton was owned and driven by her father.

Background

12. In approximately 2010, the offender’s brother commenced a relationship with Christine. The couple lived together from that time at 26 Jilliby Street Wyee with the offender’s father and, from time to time, with the offender. In February 2017 the offender’s brother discovered that Christine had been having sexual relations with Jayke Rodgers. The offender’s brother was angry about Christine’s infidelity and he decided to seek revenge upon Jayke Rodgers.

13. On 1 July 2017 the offender’s brother told Christine that he wanted Rodgers to come over to their home. The offender’s brother used Christine’s Facebook account to message Rodgers. While posing as Christine, the offender’s brother told Rodgers that he would be in Nelson Bay for the weekend, and invited Rodgers to come to their house to meet Christine.

14. At approximately 1.30am on Sunday 2 July 2017, Rodgers attended 26 Jilliby Street intending to meet with Christine. He was immediately struck with a hard object by at least one person who appeared from the darkness. Rodgers was hit with the object several times before he managed to jump over the fence towards the street. He was then assaulted by at least 2 people, including the offender’s brother, before he crawled away and sought help from a neighbouring house.

15. Whilst paramedics were in attendance, the offender walked up to Rodgers, handed him his mobile phone, and said “Fuck. Stop thinking with your dick”. Rodgers was hospitalised and released early on 2 July 2017. He told a number of his friends about the assault, including Levi Dean, Shane Weir and Billy Thompson. Rodgers was re-admitted to hospital later that day and spent that Sunday night at hospital. Whilst in hospital, Rodgers sent a number of messages to the offender’s brother threatening revenge.

16. At about 11.35am on Monday 3 July 2017, Levi Dean and Shane Weir attended the offender’s house in Jilliby Street, Wyee in the Toyota Kluger. They confronted the offender’s brother and the offender, remonstrating with them about Rodgers having been assaulted by the offender’s brother in a cowardly manner. The offender approached the front door from within the house and yelled out to Levi Dean and Shane Weir, “It was one-on-one. He deserves what he gets”.

17. Before Levi Dean and Shane Weir left, one of them picked up a spirit level that was on the grass and threw it at the front glass sliding door. The level shattered the entire glass pane and caused superficial grazing and bleeding to the offender. This caused her distress.

18. The offender immediately rang her father and reported the confrontation to him. As a result, the offender’s father immediately returned home. CCTV footage from the nearby Wyee Bakery captured the offender’s father returning home in his woodchipper truck and then leaving in the Triton ute two minutes and 22 seconds later, with the offender’s brother in the passenger seat and the offender in the rear seat. One of them took a 12-gauge shotgun with ammunition.

19. At about the same time, Luke Hill, Jesse Thompson and Daniel Hill attended the home of Billy Thompson in Woodward Avenue, Wyong. About a half hour later, the three decided to leave. They walked out the front of Billy Thompson’s home when the offender and her family pulled up outside the house in the Triton ute. The offender asked Luke Hill, “Where's big fella and Rodgers?” When Hill indicated that he did not know, she replied, “Don't fucken lie to me Hilly, I know he just come here, cause they just left my house”. Luke Hill replied “I don't know. Well, he's not here”.

20. Either the offender’s brother or the offender’s father then raised his right arm and presented a single-barrel shotgun saying, “Look cunt, I'm not fucking around, where is he?”. Luke Hill replied, “I don't know, it's got nothing to do with us”. The Triton ute then drove down Woodward Avenue and the offender yelled out, “I'll kill your fucken missus Hilly”.

21. Rodgers was picked up from Wyong Hospital at midday by Shane Weir and Levi Dean in the Toyota Kluger. He learned of their recent visit to the offender’s home. After they drove away from the hospital, Billy Thompson rang Levi Dean and told him the of the recent visit from the offender’s family outside his home. Rodgers then rang the offender via Facebook Messenger. It was arranged that they all would meet at Baker Park in Wyong. The offender was heard telling Rodgers, “Fuck you. We'll meet up at Baker Park. You shouldn't have fucked Christine”.

22. The three men in the Toyota Kluger immediately made their way to Billy Thompson's house in Woodward Avenue, where they learned more about what had just transpired. Rodgers, Dean, Luke Hill, Weir, Jesse Thompson and Billy Thompson then armed themselves with weapons, including a wooden log/stick, a metal pole and knives/blades, and piled into the Toyota Kluger. They intended to meet with and confront the offender’s family at Baker Park.

23. Both the Triton ute and the Toyota Kluger attended Baker Park at different times from about 12.13pm. Both cars continued to drive around the area. The offender used Facebook Messenger to tell Rodgers to meet where there were no “workers”. The Toyota Kluger, driven by Shane Weir, then travelled towards Baker Park along Ithome Street where they saw the Triton ute stopped. The offender’s brother was hanging out the front passenger window and the offender was in a rear seat.

24. The Toyota Kluger came to a stop behind the Triton ute. Rodgers, Hill, Dean, Jesse Thompson and Billy Thompson got out of the Toyota Kluger. The offender’s brother then discharged the single-barrel shotgun from the open passenger window. Everyone except Dean and Billy Thompson managed to jump back into the Toyota Kluger. Weir reversed the Toyota Kluger away from the Triton ute which was also reversing. Dean and Billy Thompson ran and attempted to hide behind a bush. They then ran into Ithome Street as the Triton ute followed them. They managed to jump into the Toyota Kluger as it briefly stopped to pick them up on Ithome Street.

25. The Toyota Kluger then drove from that location with the Triton ute speeding after it. The Toyota Kluger travelled along a number of streets in Wyong with the Triton ute in close pursuit. CCTV from Wyong Railway Station showed part of the pursuit. Numerous civilian witnesses described both vehicles as driving aggressively, at times on the wrong side of the road and at high speed, with their wheels spinning and screeching as they navigated around corners.

26. As the Toyota Kluger reached the intersection of Byron Street and Panonia Road it attempted to make a right turn onto Panonia Road. The Triton ute then crossed to the incorrect side of the road and overtook the Toyota Kluger, cutting it off and blocking its path, forcing both cars to come to a standstill.

27. The offender’s brother pointed the single barrel shotgun out the front passenger window and directed it towards the driver's window of the Toyota Kluger. From the rear drivers' side seat of the Kluger, Dean threw a small metal pole at the Triton ute. The offender’s brother moved the gun so that it was pointing towards the rear of the Toyota Kluger and discharged it, causing a fatal gunshot wound to Jesse Thompson who was seated second from the left. The Triton ute then drove west along Panonia Road with the offender raising her left arm out the window at a 90-degree-angle and holding her middle finger up before it made its way back to the offender’s home in Jilliby Street Wyee at about 12.35pm.

28. At 12.23pm, NSW Ambulance officers attended Warner Avenue where the Toyota Kluger occupants had stopped to seek help for Jesse Thompson. Paramedics rendered medical assistance to Jesse Thompson. He was unable to be revived and was declared deceased at 12.53pm.

Post-offence conduct

29. At 12.51pm on 3 July 2017 the following telephone call was lawfully recorded between the offender and her boyfriend, who at that time was incarcerated at Bathurst Correctional Centre:-

…

XE      What am I doing? Just bleeding

BOYFRIEND   Why?

XE      Oh, 'cos Dick thinks he's a mad cunt coming to my house and throwing a fucking beam at me

BOYFRIEND   What? Who?

XE      Dick

BOYFRIEND   What they do?

XE      Fucked my whole front door. I was standing there, and just a beam, boom straight for me. Glass everywhere. I'm bleeding, all foot open. But I'm not saying anything over the phone. Don't worry, like my Dad's has it over here. Call them and see what happened, and then.

BOYFRIEND   What happened?

XE      Nah, I'm not saying nothin'. Call them and see.

BOYFRIEND   I'm not going to waste money on the phone. Why'd they come to your house? Why, why you bleedin'?

XE      Well, 'cos Rodgers. 'Cos he hit me with a beam.

BOYFRIEND   Who?

XE      Dick.

BOYFRIEND   Hit you?

XE      I promise man. Promise ya'. A wood beam just went bang. Hit my whole front door man.

BOYFRIEND   Are you serious?

XE      Don't worry about it. Yeah, I'm serious. I'm deadly. Him and everyone came here.

BOYFRIEND   Who?

XE      Oh, like Levi, everyone.

BOYFRIEND   Yeah, who?

XE      I don't know who else. Rodgers, Levi, him, Grant and someone else.

BOYFRIEND   Who's Grant?

XE      I dunno'. That cunt, that's like, um I don't know.

…

XE      I'm dead, I'm deadest. It's funny but don't worry 'Cos like, they're fucked.

BOYFRIEND   Why? What happened?

XE      I'm not saying anything 'cos just in case, 'cos I reckon they'll go to the cops.

BOYFRIEND   They're not going to go to the cops.

XE      Oh, I don't know

BOYFRIEND   I'm telling ya'. What happened?

XE      I'm not. No way.

BOYFRIEND   Oh fuck. Why fuckin', oohh. Are you fucking serious?

XE      Mmmh.

BOYFRIEND   So you're not going to tell me?

XE      Nah. I had a dream that they got shot.

BOYFRIEND   Who?

XE      Dick, Rodgers. All of them.

BOYFRIEND   They all did?

XE      Yeah.

…

XE      (Laughs) And then like, he comes to the door and said Fuck off cunt. And he was about to come in and I said don't. And I went to walk forward, with my Dad's samurai sword, and like, I dunno', I'm just going to slice him. He fuckin' kicked a beam, and it hit my front door and hit me. I'm fully bruised, cut, bleeding.

BOYFRIEND   Where, where's your Dad?

XE      Where was my Dad? He was out, like I, but I called him and he got back here. And then, yeah (indiscernible).

…

BOYFRIEND   Don't leave me.

XE      Why the fuck would I leave you silly.

BOYFRIEND   'Cos they're my, they were my mates.

XE      I don't give a fuck. Fuckin' dead mates now.

30. At 1.50pm a further telephone call was lawfully recorded between the offender and her boyfriend:-

…

BOYFRIEND   Are you sure you're alright?

XE      Yeah, I'm fine. The girls and shit are here now, cos' they had, they watched the house while my Dad was chasing old mate.

BOYFRIEND   Your what?

XE      They were watching the house while my Dad was chasing old mate.

BOYFRIEND   Oh yeah.

XE      Yeah.

BOYFRIEND   And what happened?

XE      Nothin'.

BOYFRIEND   Where were you?

XE      In the back of the car.

BOYFRIEND   Oh.

XE      With my Dad.

BOYFRIEND   Oh yeah.

XE      Laughin' at them all.

BOYFRIEND   Where were they goin'? Where'd they end up going?

XE      Dunno'. Like my Dad went into like Billy's (indiscernible) and (indiscernible) was there all shaking.

…

BOYFRIEND   And what happened?

XE      Dad was just lookin' for him. Like, where the fuck, where, where is he? Mmmh. And they were like, oh my God shakin' 'cos my Dad had a gun in their face and shit.

…

BOYFRIEND   Fuck man.

XE      Hectic aye?

BOYFRIEND   Yeah. What'd you do. Were you in the car or were, when your Dad was?

XE      Yeah.

BOYFRIEND   So you stayed in the car?

XE      I watched the whole thing. It was hectic.

BOYFRIEND   Like, but did you go down the steps or not?

XE      What do you mean down the steps?

BOYFRIEND   At Billy's.

XE      Oh no. My Dad just pulled out, out the front, and (indiscernible) them. (indiscernible) same story they were all in the car.

BOYFRIEND   Who was in the car?

XE      Me, (indiscernible) and [my brother]. I mean me and (indiscernible).

BOYFRIEND   Nah, yeah, but who was out the front of Billy's?

XE      Hilly, Jesse, like, all of them.

Arrest and interview

31. The offender was arrested by police at a roadblock in Wyee on 4 July 2017. Police found her crouched in the front footwell of a car driven by a female good Samaritan who had been assisting after the offender told her that she was being chased.

32. The offender declined to be interviewed.

Basis of liability for murder

33. At the time of the shooting the offender was part of a joint criminal enterprise with her brother and her father that her brother would kill one or more of the occupants of the Toyota Kluger. Her participation included advising and assisting to locate the men from the Toyota Kluger soon after the offender’s family left their home in Wyee, implicitly threatening Daniel Hill and Luke Hill outside Billy Thompson's house at Woodward Avenue and willingly being the communication point between the two groups before they met up at Baker Park.

Evidence

34. The Crown relied on the following material contained within the Crown bundle, which was marked as exhibit 1:-

1. The indictment;

2. Agreed Facts (as set out above);

3. The offender’s New South Wales criminal history;

4. A Queensland warrant report;

5. The offender’s custodial history;

6. Agreed Facts in relation to a charge of reckless wounding H63216537;

7. Sentencing Remarks of the Children’s Court in relation to H63216537;

8. Police Facts in relation to charges of assault occasioning actual bodily harm and larceny (value less than $2000) H6933170; and

9. A Youth Justice Report dated 19 March 2021.

35. Four victim impact statements were tendered as exhibit 2 and read out in court. On the application of the Crown, and with the consent of the offender, I considered it appropriate to take them into account on the basis that the harmful impact of Jesse Thompson’s death on the members of his immediate family is an aspect of harm done to the community pursuant to the former s 28(4) of the Sentencing Act, which was in force at the relevant time (and which now appears as s 30E of that Act).

36. The offender relied on the following material contained within the defence bundle which was marked as exhibit 3:-

1. The Youth Justice report dated 19 March 2021 (also tendered by the Crown);

2. A report of Adrian Gillespie, psychologist, dated 11 March 2021;

3. A report of Brittany Phillips, provisional psychologist, dated 5 July 2019;

4. A report of Lauren Adams, psychologist, dated 27 July 2020;

5. A report of Dr John Kasinathan, psychiatrist, dated 27 April 2021;

6. A letter from the offender dated 18 February 2021;

7. Dorchester Education and Training Unit reports dated 27 April 2020 and 10 February 2021;

8. Slattery Unit Personalised Transition Plan, undated;

9. Letter from Laura Alford, transition advisor, Dorchester Education and Training Unit, dated 19 February 2021;

10. Letter from Courtney Stewart, youth officer at Reiby Youth Justice Centre, dated 12 March 2021;

11. Letter from Brittney Phillips, custodial psychologist at Reiby Youth Justice Centre, dated 19 February 2021;

12. Undated letter from Joshua Kallu, youth officer at Reiby Youth Justice Centre;

13. Undated letter from Dani Conway, mentor at Shine for Kids;

14. Letter from Brooke Barclay, youth officer at Reiby Youth Justice Centre, dated 2 March 2021;

15. Undated letter from Telesia Ahovelo, youth officer at Reiby Youth Justice Centre;

1. Undated letter from Ally Colquitt, program facilitator at Women’s Justice Network;

2. Letter from Lee Bromley, chaplain at Reiby Youth Justice Centre, dated 22 March 2021;

3. Undated letter from Shaylee Matthews, Assistant Project Officer, Aboriginal Strategic Coordination Unit, Youth Justice NSW;

4. Undated letter from the offender (which post-dates her letter of 18 February 2021);

5. Letter of Offer from the University of New England dated 3 February 2021;

6. Confirmation of enrolment from the University of New England dated 19 February 2021;

7. Email correspondence from Clarence Correctional Centre dated 26 March 2021 concerning the inability to study online at that facility;

8. Undated letter from Daniel Saliba, chaplain at Reiby Youth Justice Centre; and

9. Photographs of the offender engaging in activities at Reiby Youth Justice Centre, including photographs of her artwork.

37. The offender also read two affidavits. The first is an affidavit of the offender’s solicitor Karen Psaltis affirmed on 23 July 2025. The second is an affidavit affirmed by the offender on 30 July 2025 which outlines her progress from May 2021 after her entry into adult custody from a Youth Justice Centre. Neither Ms Psaltis nor XE were cross-examined.

38. I will now summarise some of the documents which are before me.

Criminal and custodial history

39. The offender has a criminal history that includes offences of larceny, assault, reckless wounding, detain for advantage and various driving-related offences.

40. The Crown bundle contains the agreed fact sheet and remarks on sentence in relation to the reckless wounding and detain for advantage charges. The fact sheet discloses that in February 2017, the offender attended a house in Watanobbi in the early hours of the morning. In the context of some ongoing dispute between them, the offender stabbed the first victim in the back, causing significant blood loss and a traumatic renal injury. The offender fled the location after the stabbing and approached the second victim, who the offender forced to drive to Wyong train station (giving rise to the charge of detain for advantage). The Children’s Court imposed a control order in respect of each offence.

41. The Crown bundle also includes the police fact sheet in relation to an assault and larceny. The police fact sheet alleges that in April 2017 the offender, together with two associates, attended her aunt’s address in Bateau Bay, assaulted her aunt, and stole her Suboxone strips. The offender received a 12-month bond in respect of both charges.

42. The offender was on bail for both matters at the time of the present offence.

43. Also included in the Crown bundle is an outstanding warrant issued by the Queensland Police Service in relation to some minor alleged offending in Queensland in 2016.

44. The Crown also tendered the offender’s custodial history. In each year since entering adult custody in 2021, the offender has been cited on several occasions for various infractions including disobey direction, drug possession, failed drug test, fighting, damaging property and unlawful use of phones.

Victim impact statements

45. Four victim impact statements were read out in Court. They included statements from the deceased’s partner, the sister of the deceased’s partner and the parents of the deceased’s partner, who are the grandparents of the deceased’s young children.

46. The statements of the victims describe Jesse Thompson’s kindness, his warmth, his empathy, his friendship, his love and perhaps most importantly, his promise. Jesse Thompson was at the start of his life, and was senselessly murdered before his potential could be realised. That is the tragedy of this terrible event. A young life was extinguished before he could make his mark on the world in which he participated with so much enthusiasm. Jesse Thompson’s death left two very small children without the father who adored them. They will have no memory of him.

47. Each victim detailed the anguish and heartache which they experienced when they learned of Jesse Thompson’s death. They each described their continuing pain and sorrow, and their loss of faith in the criminal justice system.

48. The Court acknowledges the continuing pain and grief suffered by the victims. The Court expresses its gratitude to the victims for courageously providing their statements which shed light on the deceased’s life, his kindness and good nature and his love for his family. That the death of the deceased is a catastrophe for his family goes without saying. It is also a tragedy for the community, which has lost one of its contributing members when a long and fulfilling life awaited him. We are less of a community because of the loss of Jesse Thompson. On behalf of the community, the Court acknowledges the pain and suffering of the victims and expresses its condolences to all who loved and have lost Jesse Thompson.

Youth Justice Report

49. Both parties relied on a Youth Justice Report dated 19 March 2021 authored by Karen Lee, a caseworker with Youth Justice NSW. I observe that this report is now over four years old and was prepared for the previous sentencing proceedings.

50. Ms Lee reported that the offender initially had trouble adjusting when she first entered custody in 2017. She was reportedly argumentative and manipulative, had a lack of respect for authority and rigid anti-social and pro-criminal thinking patterns, and demonstrated limited insight into and responsibility for her behaviour.

51. Ms Lee reported a significant improvement in the offender’s behaviour by the date of the report. The offender had reportedly progressed to the highest stage of the Juvenile Justice Incentive Scheme and had demonstrated the ability to adhere to the rules and expectations of the juvenile justice centre and consider the consequences of her actions before responding. Ms Lee reviewed the offender’s recent misbehaviour reports and noted that they all tended to relate to things like swearing, lying or the unauthorised use of equipment, as opposed to violence or subversive behaviour.

52. Ms Lee also reported that the offender had been reclassified for custodial classification purposes in 2019, which had allowed her to access a wider range of programs in custody. Due to XE’s positive behaviour, Ms Lee reported that she was able to participate in more pro-social activities, which had in turn fostered her protective factors and minimised her risk factors for re-offending.

53. Ms Lee described the offender’s family and living circumstances as follows. At the date of the report, the offender was 21 years old. She is of Aboriginal descent and the only child of her father and her mother. Prior to entering custody, she had lived with her father and paternal half-brother on the Central Coast, with her father having full custody due to her mother’s issues with substance abuse and periods of incarceration. The offender reported that her father was not supportive of her having contact with her mother for these reasons, and that her mother’s absence from her life affected the bond and attachment to her.

54. The offender expressed admiration of and gratitude to her father. She reported that he had provided for her during her formative years and had prioritised her primary needs. She reported that, although he was not emotionally expressive, he had always been there for her. She described him as a strict disciplinarian and accepted that some of his values were not pro-social. She reported that he placed importance on family loyalty, revenge and retribution, and that he had taught her to use violence to solve interpersonal conflicts.

55. The offender reported having difficulty when her father remarried. When she was 15 years old, her father sent her to live with aunts in Maitland and then in Queensland, in an effort to address her increasing risk-taking behaviour and disengagement at school. The offender expressed gratitude to her family for their support but reported that she had not had the mindset necessary for positive change. The offender reported that at the time of the offending, she had recently returned from Queensland and that her father had been disappointed in her for not taking advantage of the opportunity to live with her aunts. The offender reported that he had ceased placing parental boundaries around her and that her risk-taking behaviours and substance abuse had correspondingly escalated.

56. The offender’s father and brother were incarcerated at the time of the report. Ms Lee reported that the offender was in written communication with them and had received approval for inter-gaol phone contact with her father, although these calls occurred infrequently.

57. Ms Lee reported that the offender had regular contact and strong support from her aunt and uncle, who had agreed that the offender could live with them upon her release. Her aunt and uncle lived in Queensland but had advised Youth Justice that they would relocate to NSW to facilitate the offender’s release from custody.

58. Ms Lee described the offender’s employment and education as follows. The offender had attended several different schools but was ultimately expelled in 2016 for fighting and drug use. She attended TAFE whilst living in Queensland, but she did not resume her studies when she returned to NSW, instead working casually at Coles and assisting her father with his business. Prior to entering custody, she had obtained her White Card and had been due to start working as a traffic controller.

59. Since entering custody, XE had completed year 11, three year 12 ATAR subjects and a pre-tertiary psychology bridging course. At the date of the report, she had recently commenced studying a Bachelor of Psychological Science through the University of New England, by distance as a mature age student.

60. Ms Lee reported that the offender did not have difficulty initiating friendships and that she had a wide and varied peer group. At the time of her offending, XE reported a friendship group that was generally older and involved in substance misuse and anti-social behaviours. Ms Lee reported that, since entering custody, the offender had distanced herself from anti-social, pro-criminal associates and had become a role model to younger detainees within the juvenile justice centre. The offender reportedly realised the importance of maintaining pro-social friendships to avoid further offending.

61. Ms Lee described the offender’s history of substance abuse. The offender had reportedly used cannabis and ecstasy periodically prior to a knee injury in 2016, which had terminated her sporting ambitions. Following her injury, the offender’s substance abuse escalated, culminating in the daily use of methamphetamine by December of that year. The offender reported daily poly-substance abuse at the date of the current offending. Ms Lee reported that since entering custody, the offender had participated in drug and alcohol educational programs and had displayed a motivation to abstain from all drug use upon release, having recognised that her substance abuse was a risk factor with respect to further offending.

62. Ms Lee described the offender as a strong and intelligent young woman with a complex childhood history. An atmosphere of violence had prevented her from developing non-violent problem-solving skills. Ms Lee observed that the offender was engaged with both regular and criminogenic-focussed counselling services in custody, and noted the report of Ms Phillips (to which see below) which records the offender as displaying significant changes in her empathy and in her critical and moral reasoning skills. Ms Lee described the offender’s willingness to engage in offence focussed interventions to be a protective factor against further offending.

63. The offender had reportedly embraced her Aboriginal culture in custody. She was said to have taken a lead role in cultural programs and events and engaged positively with mentors and elders. She also regularly participated in the chaplaincy’s bible study program, various mentoring programs, and other self-development and education programs.

64. Ms Lee reported that the offender had demonstrated a commitment to addressing the factors which had contributed to her offending behaviour. Ms Lee noted that Corrective Services staff had reported a significant change in her attitudes and belief system. Ms Lee acknowledged the serious nature of the offence and the fact that it occurred while on bail for other serious offences, but she also emphasised the age of the offender at the time of the offending and her demonstrated history of good behaviour whilst in a custodial environment.

65. Ms Lee reported that the offender had displayed insight into her various risk factors, including her anti-social peer group, substance abuse issues, disconnection from culture and her experience of past trauma. The offender also recognised the role played by her father’s emphasis on family loyalty, revenge and retribution, and the use of violence to solve interpersonal problems. The offender reportedly advised Ms Lee that while family loyalty remained important to her, she now placed it in the context of clear boundaries and her development of alternative conflict resolution and coping strategies. The offender reportedly maintained some negative attitudes towards the police, although Ms Lee noted the offender’s participation in police outreach programs while custody.

66. Due to the serious and violent nature of the offending, a psychological assessment of XE’s (then) current risk of violence was obtained from Adrian Gillespie. His conclusions are set out in further detail below.

67. Ms Lee summarised her assessment as follows:-

“In summary, during [XE]’s early years she had exposure to domestic violence, a break in her maternal attachment and paternal role modelling of pro-violence and anti-social behaviours. It appears that these factors have contributed to [XE]’s formation of values and beliefs that supported the use of violence. [XE]’s self reported tendency towards risk taking behaviours in her early adolescence then led to her alignment with an older and entrenched offending peer group that likely further normalised the use of violence, her anti-authoritarian attitudes and drug use. After sustaining a knee injury that prevented her from playing football [XE] reported an increase in drug use and at the time these offences occurred [XE] reportedly was using methamphetamine on a daily basis.

[XE] reports that while in custody her exposure to pro-social adults, engagement in therapeutic services and connection to culture has challenged some of her previously held values and morals. Although there has been significant progress made over the past 4 years, [XE] will require continual intensive support particularly focused on her reintegration into the community. It is thought important that her integration plan focuses on strengthening her protective factors, namely, her commitment to education, connection to culture and spirituality, and pro-social supports. Assessment also highlights the need for continual mental health and offence focused interventions.”

68. Ms Lee observed that the offender was ineligible to de dealt with pursuant to the Children’s (Criminal Proceedings) Act 1987 (NSW) and that, upon sentencing, she would be transferred to an adult correctional centre because of her age.

Psychological and psychiatric evidence

Report of Brittany Phillips

69. Britanny Phillips, provisional psychologist at Reiby Youth Justice Centre, reported on 5 July 2019.

70. Ms Phillips obtained a history from the offender which was largely consistent with the history provided to Ms Lee, described above. Ms Phillips reported that whilst in custody, the offender had been diagnosed with anxiety and mood related disorders, for which she had been receiving treatment from a Justice Health psychiatrist. The offender had reportedly experienced a reduction in symptoms as a result of ongoing intervention.

Report of Lauren Adams

71. Lauren Adams, psychologist at Reiby Juvenile Justice Centre, reported on 27 July 2020, for the purpose of preparing for the offender’s transition from Youth Justice to Community Corrections.

72. Ms Adams confirmed that the offender had made considerable improvement managing her behaviour and conduct and had set goals targeting her education and academic performance. Ms Adams also confirmed XE’s interest in several activities and her insight into her past experiences, behaviours and habits which had been problematic and anti-social.

Report of Adrian Gillespie

73. Adrian Gillespie, psychologist at Reiby Youth Justice Centre, reported on 11 March 2021 at the request of Ms Lee for the purpose of assessing the offender’s risk of violence.

74. Mr Gillespie assessed the offender’s risk of violence using the Historical Clinical and Risk Management – 20 tool (“HCR-20 V3”). He found the following:-

"The findings of this assessment highlight that [XE] has historical risk factors in relation to relationships, traumatic experiences and attitudes towards violence. These risk factors all appear to be linked to the child-rearing experience and pro-violent attitudes of the parenting-style she was exposed to and environment in which she was raised. There is a potential historical risk factor in mental health concerns as [XE] has definite diagnoses of Bipolar Disorder and Post-Traumatic Stress Disorder although it is unclear to what extent these played a role in her offending.

There were no identified risks with the clinical risk factors. Although [XE] has confirmed diagnoses that are identified as historical risk factors, there have been no recent concerns or issues in this area. [XE] has actively sought support and help in this area and has proven that she can currently safely manage her symptoms to the point that they appear to be quiescent at this time. There does not appear to be any evidence of current/recent behavioural instability or cognitive dysfunction.

The outcomes of the Risk Management Scale suggest that within the accepted rating period for the HCR-20 V3, [XE] is likely to have future problems with Living Situation, Personal Support and Stress or Coping. These areas scored highly as [XE] is likely to spend this time within the adult correctional system which is highly likely to expose [XE] to high levels of violence as a means to an end and a problem-solving strategy. [XE] has good external personal and professional services in place currently and has shown excellent compliance and responsiveness to her treatment and supervision. This is likely to continue if [XE] has regular contact with these services."

75. Mr Gillespie identified the offender’s risk factors as follows:-

"In [XE]'s case, the most consistent risk factors for future violence relate to the child-rearing experiences and pro-violent attitudes of the parenting-style she was exposed to and the environment in which she was raised. The effects of these factors are likely to be reduced significantly after [XE] is released due to too main factors. Firstly, [XE] has chosen to live with an aunt in Queensland who does not share the same values and attitudes towards violence that are espoused by her father and brother and secondly, it is likely that [XE]’s father and brother will remain incarcerated after her release. These situations will give [XE] the opportunity and support to cement her own identity and future outside of that potential influence.

While there are no current concerns regarding risk of violence in custody, there is a strong possibility that time spent within the adult correctional system will expose [XE] to examples of violence as problem-solving and means-to-an-end tools. Adult custody is a milieu that is likely to increase [XE]’s exposure to pro-violent attitudes and beliefs. The potential for this is much greater than she would have experienced with Youth Justice custody. This could potentially reinforce residual pro-violent beliefs and attitudes [XE] experienced through her formative years making them more intractable."

Report of Dr John Kasinathan

76. Dr John Kasinathan, forensic psychiatrist, provided a brief report dated 27 April 2021. Dr Kasinathan noted that the offender had significant substance abuse issues in the community and that she presented with short periods of high stress and poor sleep.

77. Dr Kasinathan observed that a prior diagnosis of bipolar disorder was considered due to irritable mood, reduced need for sleep and pressured speech. The offender was prescribed quetiapine as a mood stabiliser from 2018, melatonin for sleep from 2019 and clonidine for anxiety from 2020. The offender reportedly ceased clonidine on 12 October 2020 and declined quetiapine from 22 January 2021. Dr Kasinathan reported that since January 2020 the offender had not presented with any significant symptoms or signs of depression, mania, psychosis or post-traumatic stress disorder (PTSD) in psychiatric reviews. At the time of the report, the offender’s only medications included small doses of PRN quetiapine, 50mg for anxiety, and melatonin 6mg to assist with sleep.

78. Contrary to earlier diagnoses, Dr Kasinathan was of the view that the offender did not have an active diagnosis of either bipolar disorder or PTSD. Dr Kasinathan was not able to say definitively whether historical bipolarity contributed to the offending. However, given the lack of persistent psychiatric disturbance, Dr Kasinathan was of the opinion that historical psychiatric conditions were unlikely to have significantly contributed to the offence.

Educational records

79. XE provided her custodial educational records. These confirm her completion, whilst in custody, of several HSC subjects, vocational courses and a pre-university psychology course. They also record her desire to pursue tertiary studies in psychology. Also in evidence are a letter of offer and a confirmation of enrolment in a Bachelor of Psychological Science from the University of New England, dated 19 February 2021.

80. The offender also provided email correspondence with Clarence Correctional Centre. That correspondence discloses that Clarence Correctional Centre does not permit inmates to access the internet, and inmates therefore have only limited opportunity to pursue external tertiary studies online while in custody at that Correctional Centre.

Letters of support

81. Included in the defence bundle are 11 letters of support for the offender. I will not summarise them in detail here. I have had regard to each of them. They all describe the offender’s development and progress since she entered custody, and speak of her intelligence, her generosity and her potential once she is released.

Prior letters from the offender

82. Before me are two letters from the offender which were included in the defence material at the offender’s first sentencing in 2021.

83. The first letter is dated 18 February 2021. At the time of writing this letter, XE was 21 years old and incarcerated at the Reiby Youth Justice Centre. By this date, she had been incarcerated for almost four years.

84. The offender says that she is deeply sorry for the death of the deceased. She describes his death as a tragic event and expresses her condolences to the deceased’s loved ones.

85. XE describes her family and her upbringing. She says that drug use, violence and anti-authority behaviour were normalised in her household. She discloses her use of methamphetamine. She describes how her life revolved around drugs and the consequences that followed.

86. The offender acknowledged her negative attitude when she first entered custody. She says that over time, her attitudes changed. She recounts her experience being sentenced by the Woy Woy Children’s Court, when a Magistrate told her that she had potential and that her life would be the average of the lives of the five closest people around her. She says that this statement stuck with her.

87. The offender says that there was not a precise moment when her attitude and perspective changed, but rather that it happened gradually over time. She says that she is growing each day, and over time she has come to develop her own set of values, beliefs and morals. She expresses gratitude to the juvenile correctional centre staff who have pushed, motivated and inspired her to be a better person. She describes how her experience with the chaplaincy service challenged her pre-conceived notions of faith and religion and how this deepened her connection with her own spirituality.

88. The offender recounts working with her psychologist. She says that she has learned to set goals and achieve them. She details her participation in indigenous cultural and mentoring programs. She describes how she completed her high school studies whilst in custody, and how she was recently accepted into the Bachelor of Psychological Science program, minoring in criminology, at the University of New England. She says that she would like to experience university life on campus.

89. XE sets out her aspirations for the future. She acknowledges that her offending may affect her employment opportunities but says that she will not let it define her and that she will do everything she can to get to where she wants to be.

90. XE says that she has discussed her goals with her caseworker and her transition advisor, and her options for achieving them whilst in custody. She hopes to be able to continue her university studies whilst at an adult correctional facility, and to participate in work and study pre-release programs.

91. The offender says that, bearing in mind all that she has achieved, being incarcerated has been a blessing in disguise.

92. The second letter is undated, but it is apparent from its content that it was drafted after the first letter, and approximately a month after the offender’s transition into adult custody (in May 2021).

93. The offender begins by expressing her gratitude for her time in the Youth Justice system and for the opportunity to stay out of adult custody for as long as possible. She says that since arriving in adult custody, she has seen “the same amount … if not more” drugs and drug paraphernalia than she saw outside of custody. The offender says she knew that adult custody would be different to juvenile custody, but that she “did not think it would be like this”.

94. The offender says that Dillwynia Correctional Centre, where she was housed at the time of this second letter, does not offer much in the way of employment, education or progress programs. She describes the waitlist for programs and the time she must spend in her cell. She observes that this time could be put to better use if she could access educational materials, which she is not permitted to have.

95. The offender describes how she was able to gain entry to her university course whilst in juvenile custody, which she refers to as the biggest achievement in her life. She says that she will be unable to continue her studies after transferring to Dillwynia Correctional Centre (despite the fact that her course was entirely online). She expresses her sadness and disappointment that she cannot continue to put her time to good use by continuing her studies.

96. The offender recounts how, whilst in juvenile custody, she made a decision to deliberately remove herself from an anti-social and negative peer group. This included ending a relationship with her long-term partner and some of her closest friends. The offender observes that the many of people with whom she is now housed in adult custody are negative influences. She describes her efforts trying to keep to herself while not coming off as rude to other inmates, something she says can cause unnecessary conflict. She says that, unlike youth custody, she has difficulty finding like-minded, pro-social inmates. She says that some of her fellow inmates are not the peer group with whom she would choose to associate but that in the custodial environment she has no choice.

97. XE says that her future is uncertain. She observes that she has worked very hard to improve her circumstances and that she does not want to go backwards.

Affidavit of the offender’s solicitor

98. The offender read an affidavit of her solicitor Karen Psaltis affirmed on 23 July 2025. Ms Psaltis explains that prior to the offender’s conviction appeal, as she an inmate convicted of murder, her custodial classification was subject to review by the Serious Offenders Review Committee (“SORC”). In January 2025, SORC listed XE for further review on 14 August 2025, for the purpose of considering reclassifying her from “C3” classification down to “C2 off complex”. Ms Psaltis explains that if the offender attains the latter classification, she could be recommended for placement in a transitional custodial centre.

99. Ms Psaltis says that because of XE’s successful appeal, the offender reverted to being a remand inmate and has consequently been returned to maximum security housing. As a remand inmate, SORC has no jurisdiction with respect to the offender’s custodial classification status, and she was removed from the SORC review that was listed on 14 August 2025.

100. However, Ms Psaltis has instructions from the offender that if she is sentenced by 6 August 2025, there will be time for SORC to receive two clean drug test results, which would then allow the offender to be included in the SORC review on 14 August 2025 for possible reclassification.

101. I observe that the offender’s sentence hearing has proceeded expeditiously so that the timetable referred to by Ms Psaltis can be met. I thank the Crown and Mr Carroll, who appeared for the offender, for the collaborative way in which they have approached this sentencing exercise so that XE can avail herself of the timetable imposed by SORC.

Affidavit of the offender

102. An affidavit of the offender affirmed on 30 July 2025 was read.

103. Like Ms Psaltis, the offender provided an account of her recent custodial classification history. She explains how, prior to her appeal, she had been due to be reclassified for custodial purposes, such that she might have become eligible for imminent placement at a transition centre. She says that after her successful conviction appeal, she reverted to being a remand inmate and cannot be reviewed by SORC until she is re-sentenced.

104. XE says that during her time in juvenile custody, she completed high school and secured a place at university. She observes that she completed a term of university before being moved to adult prison, at which point she was unable to continue her studies and thus never progressed further. The offender says that she is looking forward to resuming her university studies once she is released, although she sensibly proposes to study part time so that she can also secure some employment.

105. The offender says that when she first arrived in adult prison, she found herself around inmates who were badly behaved and had access to drugs. She explains that she relapsed shortly after entering adult custody. XE says that she has experienced periodic relapses in the years since, particularly during periods of high stress such as court appearances. The offender states that she now concentrates on working and vocational training and otherwise keeps to herself as much as possible.

106. The offender describes her involvement with Aboriginal art projects whilst in custody. She notes her participation in courses such as an Intensive Drug and Treatment Program. She explains that she completed all but the last couple of weeks of what is a six-month course but was unable to finish due to becoming a remand inmate again. She says she has been unable to do any courses or programs because they are not available to remand inmates.

107. The offender says that, prior to her conviction appeal, she had been working as a leading hand in the ground maintenance unit. She lost this role when she reverted to being a remand inmate. However, the offender says that she was recently able to resume her ground maintenance role, even though remand inmates are not usually allowed to work, as she was a good worker and doing well. The offender expressed her appreciation for this “show of faith”.

108. The offender says that she takes daily medication for symptoms of her bipolar disorder. She is trusted to be allocated her whole month's allowance at once and does not have to be supervised when taking her medication.

109. XE says that although she tries not to think too far ahead, she feels that she has made a lot of progress. She has received a lot of support in custody and notes that, with the assistance of Legal Aid NSW, she has obtained an offer of priority housing upon release.

110. Annexed to the offender’s affidavit are two documents. The first is a document recording the minutes from the offender’s most recent SORC assessment interview, which occurred on 27 February 2025. I set out that document in full:-

“Notes from interview with inmate: currently classified CAT 3 with an EPRD which expires on 3 January 2028. Head sentence to expire 3 July 2034. Classification and Placement Team, Manager of Security, Governor and Manager of Classification support CAT 2 at Dillwynia Correctional Centre.

Chair introduced Committee members present.

Last seen in June 2024 where she progressed to a CAT3.

Centre has recommended progression to CAT2.

Started IDAPT in January 2025 and will be finishing the program by end June 2025.

Committee noted Governor's feedback on inmates improved behaviour.

Committee noted positive result for Bupe on recent urinalysis conducted on 13 Jan 2025 and dirty pro-cups on 10 Feb, inmate had been on Buvidal but voluntarily ceased and then struggled with the custodial environment and the commencement of IDAPT where inmates often relapsed at the beginning.

lnmate is now back on Buvidal and feels more confident in staying out of trouble and in completing IDAPT.

Chair acknowledged that inmate is currently doing well and if inmate maintains stability of positive behaviour we can consider progression for CAT 2 OFF and then CAT 1.

Committee noted inmate has family located in Queensland and in Sydney.

Note: At conclusion of the interview, assessment Committee Chair read out the interview notes before inmate leaving the interview room and advised a copy will be sent at a later date. Inmate acknowledges that this is an accurate record of what was discussed at the interview on 27 February 2025.”

111. The second document is a further letter from the offender to the court. She explains that she is writing to provide some additional information about her current circumstances. She observes that she has been in custody since she was 17 and that she is now 25 years old. She describes the process and experience of SORC review. She says that she is eager to be sentenced so that she can be reclassified as eligible for progression to a transition centre. The offender says she has been working toward the goal of moving to a transition facility for a long time. She says that she wants to live a pro-social, drug free and crime free life, and that she hopes to study, find and maintain employment, give back to her community, and give herself the best possible chance at succeeding in life. XE states that moving to a transition centre will provide her with the necessary foundation to achieve her goals, as it will give her an opportunity to seek employment, save money for accommodation, and otherwise facilitate her transition back into society.

Objective Seriousness

112. I note the agreed facts set out above. XE’s participation in the joint criminal enterprise included:-

1. Advising and assisting to locate the men from the Toyota Kluger soon after she let her home in Wyee with her co-offenders;

2. Implicitly threatening Daniel Hill and Luke Hill outside Billy Thompson’s house in Woodward Avenue as part of the endeavour to locate the men from the Toyota Kluger; and

3. Willingly being the communication point between the two groups before they met up at Baker Park.

113. XE accepts that she was part of an agreement that her brother would discharge the shotgun with an intention to kill, rather than with an intention to inflict grievous bodily harm.

114. The Crown submitted that the shooting at the Toyota Kluger was not spontaneous. Whist the initial decision to leave Wyee with a loaded shotgun within the Triton ute was made quickly by the offenders, the act of fatally shooting Jesse Thompson happened in circumstances where:-

1. The offenders took a shotgun with them on their drive to locate Shane Weir, Levi Dean and/or Jayke Rodgers;

2. There was a drive of some duration from Wyee to Wyong;

3. There was a confrontation outside Billy Thompson’s house in Woodward Avenue that involved the presentation of the shotgun and a threat;

4. There was a suggestion that the parties meet at Baker Park and later, the suggestion that the meeting take place in an area secluded from “workers”;

5. There was the presentation and the discharge of the shotgun at Baker Park; and

6. There was the extended erratic pursuit of the Toyota Kluger through the streets of Wyong.

115. The Crown accepts that XE’s culpability must necessarily be less than her co-offenders by reason of their more “hands-on” role. However, it was submitted that she was an active and enthusiastic participant between at least the time of receiving the first communication from Jayke Rodgers at 12.06 pm on the day of the shooting and the time that she raised her left arm out the window holding up her middle finger at about 12.25 pm just after shooting.

Aggravating Factors

116. It was submitted that the following aggravating factors pursuant to s 21A of the Sentencing Act are present:-

1. s 21A(2)(c) – the nature of the weapon used. In this case a powerful shotgun was discharged at close range. The offender does not dispute that this aggravates objective seriousness;

2. s 21A(2)(e) – in company. The offence was committed in the company of the offender’s father and brother. The offender does not dispute that this aggravates objective seriousness;

3. s 21A(2)(d) – without regard for public safety. The shotgun was discharged without regard for public safety on a public street in the middle of the day, with members of the public nearby. The offender does not dispute that this aggravates objective seriousness;

4. s 21A(2)(d) – previous convictions. The offender has a record of previous convictions, as noted above. While this aggravating factor is present, it aggravates the offending rather than the objective seriousness; and

5. s 21A(2)(j) – conditional liberty. The offence was committed whilst the offender was on bail in relation to offences involving allegations of personal violence. While this aggravating factor is present, it aggravates the offending rather than the objective seriousness.

117. I observe that the offending involved minimal planning on the part of XE, who was under the care and authority of her father at the time of the offending and who, I infer, encouraged her to join the joint criminal enterprise. Her motivation appeared to be a childish wish for retribution for the Kluger occupants coming to her home, smashing the glass door and injuring her. To the extent that the offender’s youth and immaturity mitigates the offending, I deal with it below.

118. Mr Carroll submitted that I would find objective seriousness at below mid-level. I observe that there is no obligation on a Court to indicate where on a notional scale of objective seriousness the offending lies. In DH v R [2022] NSWCCA 200, Yehia J said at [60]:-

“The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.” (endnote omitted) [emphasis in original]

119. I have taken into account the legislative guidepost of the maximum penalty. The offending is, by its nature, objectively very serious. In deference to the submission made by Mr Carroll, I find that that the objective seriousness is below mid-level.

Subjective Circumstances

Plea of guilty

120. It is agreed that the strict sentencing discount scheme contained within Division 1A of the Sentencing Act has no application for two reasons. First, because those amendments took effect from 30 April 2017, and second, because the offender was under the age of 18 years at the time of offending and under the age of 21 years when the proceedings were commenced (see s 25A(1)(b) of the Sentencing Act). The law as it stood prior to 30 April 2018 therefore applies. The timing of her plea, and its utilitarian value, are of utmost significance.

121. In this case, the offender pleaded guilty very shortly after her conviction was set aside and before a trial date was set. On the other hand, the plea was entered well after she was first arraigned in the Supreme Court on 5 April 2019 and after her original trial began on 13 November 2020.

122. By pleading guilty, the offender’s co-offenders’ trial was able to proceed expeditiously in circumstances where the Crown was poised to apply for an adjournment so that all offenders could be tried together. Her plea has shortened the trial that otherwise would have been had. Further, her instructions have facilitated the efficient conduct of the sentence proceedings. In my opinion, XE’s plea has had significant utilitarian value.

123. Mr Carroll suggested that the offender’s plea should lead to a discount of 10%. The Crown did not seriously disagree and submitted that such a discount was within range.

124. I allow a discount on sentence of 10%.

Remorse

125. There is evidence of XE’s remorse in her several letters to the Court and in the various documents which were tendered in the 2021 sentence proceedings. I accept that by her plea in these proceedings to the facts set out above, that XE has accepted responsibility for the death of Jesse Thompson and has accepted that his death was caused by her actions. In the circumstances, I accept that XE has satisfied s 21A(3)(i) of the Sentencing Act.

Time in custody

126. It is agreed that the offender’s sentence should be backdated to commence on the date of her arrest on 4 July 2017.

Youth/ Background of disadvantage/ Moral Culpability

127. The principles which apply to a youthful offender were set out in KT v R [2008] NSWCCA 51, where McClellan CJ at CL said at [23]:-

“The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).”

128. In the present case, there is little doubt that the offender, who was deprived of a mother, and was under the influence of a father who had significantly warped views about revenge and retribution, behaved immaturely in her participation in the criminal enterprise. So much can be gleaned from the extracts of her conversations set out above in the agreed facts. I have no doubt that her immaturity was a significant contributing factor in the commission of the offence. To the extent that it may be observed that the offender engaged in “adult behaviour”, in my opinion the offender’s behaviour was a childish reaction to a perceived slight in which she was encouraged by her father, who ought to have prevented her from joining the criminal enterprise. In BP v R [2010] NSWCCA 159, Hodgson JA said at [6]:-

“…I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was [17] years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.”

129. This is a similar example of such a case. In my opinion the offender’s youth diminishes her moral culpability. I observe that the present case demonstrates why rehabilitation is of particular significance in the sentencing of youthful offenders.

130. The details of the offender’s background of deprivation are set out at length above. She grew up in a background of domestic violence. Her mother was not present and her father, although caring, had a skewed moral compass. She was taught to use violence to resolve interpersonal conflict. The Crown does not dispute that Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) principles apply. It is uncontroversial that the effects of profound childhood deprivation do not diminish with the passage of time and must be given “full weight” in every sentencing decision: Bugmy at [44].

131. To paraphrase Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69], I am not prepared to accept that XE bears equal moral responsibility with an offender who had a normal or advantaged upbringing. She had fewer emotional resources to guide her behavioural decisions. Those decisions had devasting consequences.

132. On the basis of XE’s background of deprivation, I find that her moral culpability is diminished.

133. It is important to note that a finding of diminished moral culpability does not mean that XE’s moral culpability has been extinguished. XE continues to bear responsibility for the murder of Jesse Thompson. However, her diminished moral culpability is a matter to synthesise on sentence.

General deterrence and denunciation

134. Notwithstanding my findings on the offender’s youth and background of disadvantage, general deterrence and denunciation have a role to play in this sentencing exercise.

Prospects of rehabilitation

135. There is no doubt that whilst in juvenile justice detention, the offender made significant strides towards rehabilitation and her prospects at 2021 were excellent. Since her entry into adult custody, she has suffered some setbacks with respect to her drug use. I observe that the path to rehabilitation is rarely linear, and setbacks do not necessarily point to failure. In this case, I am comforted by the notes of SORC with respect to their interview with XE on 27 February 2025. I infer from that document that SORC is of the view that the offender has continued to take positive steps towards her rehabilitation.

136. I assess the offender’s prospects of rehabilitation as good.

Likelihood of re-offending

137. Bearing in mind the significant progress made the by the offender since being incarcerated, and in spite of the several obstacles she has faced since entering adult custody, I am of the view that if XE continues on her current path and maintains abstinence for the balance of her non-parole period she is unlikely to re-offend. Much will depend on the resilience of the offender and the assistance she is given when she is released into the community. In my opinion, personal deterrence has less of a role to play in this sentencing exercise.

Special circumstances

138. It is not in dispute that a finding of special circumstances is appropriate in all the circumstances of this case, so that the offender has an extended period on supervision to allow for her re-integration into the community and to be afforded assistance with matters such as housing, employment and mental health support. I make such a finding and deviate from the statutory ratio to approximately 62.5%.

Threshold

139. Having considered all the possible alternatives, I am satisfied that the s 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were made to the contrary.

Ceiling Principle

140. As set out above, the offender was sentenced by Ierace J on 22 July 2021 to a term of 17 years, with a non-parole period of 10 years and 6 months. If an accused is convicted at a retrial following the quashing of a previous conviction, she should ordinarily not receive a longer sentence or non-parole period than that which was imposed following the first trial: R v Gilmore (1979) 1 A Crim R 416 at 419-420; R v Lane (No 4) [2018] NSWSC 1898 at [73]; R v White [2023] NSWSC 611 at [75]. The offender, rather than proceeding to the retrial, chose to plead guilty. The “ceiling principle” therefore applies, and in my view there is no reason to depart from the principle in this case. No submissions were put otherwise. I have assessed the sentence I consider ought to be imposed and then compared it with the sentence imposed by Ierace J in order to assess whether any adjustment should be made in light of the “ceiling principle”. Here I take into account the offender’s deprived background and continuous efforts at rehabilitation.

Sentence

141. I have taken into account the various purposes of sentencing under s 3A of the Sentencing Act. They include ensuring the offender is punished for her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions. In my opinion, this is especially so given XE’s need for continuing support in order to achieve rehabilitation.

142. As the High Court said of s 3A in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [20]:-

“The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.”

143. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the Court, including the facts surrounding the commission of the offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guidepost of the maximum penalty and the factors referred to in s 21A of the Sentencing Act. The sentencing Court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

144. I intend to proceed to sentence the offender by way of a term of full-time imprisonment. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the appropriate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose a sentence of imprisonment of 14 years and 10 months (rounded down) after a discount of 10% for the plea of guilty. Without the discount, the sentence would have been 16 years and 6 months. I impose a non-parole period of 9 years and 3 months.

Orders

145. XE, please stand.

1. I convict you of the offence of murder contrary to s 18(1)(a) of the Crimes Act and impose a sentence of imprisonment of 14 years and 10 months. Without the discount of 10% for your plea of guilty, your sentence would have been 16 years and 6 months. I impose a non-parole period of 9 years and 3 months.

2. I have backdated your sentence for murder to commence on 4 July 2017. Your head sentence will expire on 3 May 2032. You will be eligible for release to parole on 3 October 2026.

3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that Act and of its application to the offence of murder for which you have been convicted. Your legal representatives are directed to advise you of the implications of that matter to you.

4. Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of the name, or any information leading to the identity of XE is prohibited.

5. XE, do you understand the orders I have made?

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Amendments

17 September 2025 - Correcting typo in Cover sheet - Representation

Decision last updated: 17 September 2025