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Court of Criminal Appeal 20 June 2025

Jennifer Anne Cook v R

[2025] NSWCCA 96

Sexual offencesPublic order & justice offences

Citation: [2025] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 20 June 2025
Judges: Mitchelmore JA, Rothman J (principal judgment), Yehia J

Background

The applicant pleaded guilty in the District Court to three offences: two Commonwealth charges of using a carriage service to access and to transmit child exploitation material (contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth)), and one State charge of committing an act of bestiality with a dog (contrary to s 79 of the Crimes Act 1900 (NSW)). An additional offence of possessing bestiality material was taken into account on a Form 1.

The applicant received a 25% discount on each sentence for early guilty pleas. The District Court imposed an aggregate term of 3 years and 6 months imprisonment for the Commonwealth offences, with a non-parole period of 2 years and 6 months, and a separate term of 3 years with a non-parole period of 3 years for the State offence. The sentences were structured to run partly concurrently, producing a total effective sentence of 3 years and 6 months with a non-parole period of 2 years and 6 months.

The applicant sought leave to appeal, arguing the sentencing judge had assessed objective seriousness too highly, wrongly imposed full-time custody, misapplied the parity principle, and imposed a manifestly excessive overall sentence.

  • Whether the sentencing judge erred in assessing the objective seriousness of each Commonwealth offence, including whether she proceeded on a mistake of fact in the agreed facts
  • Whether the threshold for imposing a full-time custodial sentence under s 17A of the Crimes Act 1914 (Cth) was correctly crossed
  • Whether the sentencing judge correctly applied the parity principle
  • Whether the overall sentence was manifestly excessive, having regard to the structure of the non-parole periods relative to the head sentences

Decision

Ground 1: Mistake of fact as to objective seriousness. The Crown conceded that the agreed facts incorrectly stated there were two images depicting real children, when in fact only one such image existed. The Court confirmed that a mistake of fact constitutes an identifiable error, which opens the sentence to appellate intervention. Although the sentencing judge's approach to objective seriousness was not otherwise flawed, the error in respect of the relevant offence was sufficient to ground intervention.

Ground 2: Section 17A threshold. The Court held that the s 17A threshold (which requires a court to consider whether any sentence other than full-time imprisonment is appropriate before imposing one) was crossed in relation to each offence. Rothman J reasoned that the seriousness and depravity of the conduct met that threshold even where the material did not depict a real child.

Ground 3: Parity principle. The Court found no error in the sentencing judge's application of the parity principle. The sentencing judge had expressly identified the differences between the applicant and any co-offender or comparable offender, and the Court found those differences were properly reflected in the sentences imposed.

Ground 4: Manifest excess and sentence structure. The Court identified an anomaly in the architecture of the sentences, specifically that the ratio between the non-parole period and the head sentence across the combined effective sentence did not sit consistently with the ratios within each individual sentence. This structural oddity, combined with the mistake of fact, led the Court to resentence the applicant.

Orders Made

  • Leave to appeal granted
  • The District Court sentence imposed on 5 April 2024 was quashed
  • In its place, the following sentence was imposed:
  • For the two Commonwealth offences (using a carriage service to access and to transmit and make available child abuse material): an aggregate head sentence of 3 years and 2 months, with a non-parole period of 1 year and 10 months, commencing 25 March 2023, with the non-parole period concluding 24 January 2025 and the head sentence concluding 24 May 2026
  • For the State offence of committing an act of bestiality (with the Form 1 offence taken into account): a non-parole period of 1 year and 9 months, commencing 25 September 2023 and concluding 24 June 2025, as part of a head sentence of 3 years imprisonment concluding 24 September 2026
  • The applicant's first parole eligibility date is 24 June 2025

Key Takeaways

  • A factual error in agreed sentencing facts, even one that affects only part of the sentencing assessment, constitutes an identifiable legal error that opens the sentence to appellate intervention under the principles in House v The King.
  • Under s 17A of the Crimes Act 1914 (Cth), the threshold for imposing full-time imprisonment can be satisfied by the seriousness and depravity of child exploitation material offending even where none of the images depict real children.
  • No error in applying the parity principle arises where the sentencing judge expressly identifies and accounts for the differences between offenders.
  • Structural inconsistency in sentence architecture, specifically an incongruity between the non-parole period ratios across individual sentences and the combined effective sentence, can support a finding of appellate error warranting resentencing.
  • Sentencing is an evaluative synthesis, not a mathematical exercise, and appellate intervention requires an identifiable error rather than mere disagreement with the result reached.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.22(1)
- Crimes Act 1914 (Cth), ss 17A, 20(1)
- Crimes Act 1900 (NSW), ss 79, 547E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Cargnello v DPP (Commonwealth) (2012) 224 A Crim R 204; [2012] NSWCCA 162
- Woods v R [2023] NSWCCA 37
- Stines v R [2025] NSWCCA 11
- Mulato v R [2006] NSWCCA 282
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6