Jennifer Anne Cook v The King - [2025] NSWCCA 96

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jennifer Anne Cook v R [2025] NSWCCA 96
Hearing dates: 11 April 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Before: Mitchelmore JA at [1];
Rothman J at [2];
Yehia J at [104]
Decision:
(1)   Leave to appeal be granted;
(2)   The sentence imposed by the District Court on Jennifer Anne Cook on 5 April 2024 be quashed and the following sentence be imposed in lieu thereof:
(a) For the offences of use of a carriage service to access child abuse material committed between 14 December 2020 and 28 October 2022, contrary to s 474.22 of the Criminal Code (Cth), and use carriage service to transmit and make available child abuse material, contrary to s 474.22(1) of the Criminal Code, an aggregate head sentence of three years and two months, including a non-parole period of one year and 10 months, commencing 25 March 2023 and concluding, in relation to the non-parole period, on 24 January 2025, and, in relation to the head sentence, on 24 May 2026.
(b) For the offence of committing an act of bestiality with an animal, a dog, contrary to s 79 of the Crimes Act 1900 (NSW), and taking into account the offence of possession of bestiality material on a Form 1, a non-parole period of one year and nine months, commencing 25 September 2023 and concluding 24 June 2025, as part of a head sentence of three years imprisonment, concluding 24 September 2026.
(3)   The applicant will first be eligible for parole on 24 June 2025.

Catchwords:
CRIME — appeals — appeal against sentence — application for leave to appeal — whether the sentencing judge erred in the determination of objective seriousness — whether the sentencing judge erred in her determination that the s 17A threshold was crossed thus necessitating the imposition of a full-time custodial term of imprisonment — whether the sentencing judge erred in the application of the parity principle — whether the overall sentence was manifestly excessive — Commonwealth and State offences — appeal allowed — applicant resentenced

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

Cases Cited:
Cargnello v DPP (Commonwealth) (2012) 224 A Crim R 204; [2012] NSWCCA 162
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
House v The King (1936) 55 CLR 499; [1936] HCA 40
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Mulato v R [2006] NSWCCA 282
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
Stines v R [2025] NSWCCA 11

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWCCA 96
Decision Date: 20 June 2025

CaseChat Overview and Summary

Jennifer Anne Cook appealed against her sentence, challenging the determination of objective seriousness, the applicability of the s 17A threshold, the application of the parity principle, and the overall sentence's excessiveness. The sentencing judge had imposed a full-time custodial term, finding the threshold for such a sentence had been crossed. The High Court of Australia considered the appeal against sentence and the application for leave to appeal, focusing on the sentencing judge's determinations.

The legal issues before the Court involved whether the sentencing judge correctly assessed the objective seriousness of the crime, whether the threshold for a full-time custodial term was appropriately applied, and whether the parity principle was correctly used in sentencing. Additionally, the Court examined whether the overall sentence was manifestly excessive. The applicant argued that the sentencing judge erred in each of these areas, leading to an unjust sentence.

The Court found that the sentencing judge did indeed err in her determination of objective seriousness and in applying the s 17A threshold. The Court determined that the threshold for a full-time custodial term was not appropriately applied, and the parity principle was not correctly used. The overall sentence was found to be manifestly excessive. Consequently, the appeal was allowed, and the applicant was resentenced. The Court's detailed examination highlighted the need for careful consideration of each sentencing factor to ensure justice is appropriately served.

Orders