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

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Woods v R [2023] NSWCCA 37

Category:

Principal judgment

Parties:

Jennifer Anne Cook (Appellant)
Director of Public Prosecutions (Respondent)

Representation:

Counsel:
Mr S Schaudin (Appellant)
Mr A Chhabra (Respondent)

Solicitors:
George Sten & Co Solicitors (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2022/00274822

 Decision under appeal 

Court or tribunal:

District Court New South Wales

Jurisdiction:

Criminal

Date of Decision:

5 April 2024

Before:

Judge Baly SC

File Number(s):

2022/00274822

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 5 April 2024, the applicant was sentenced following pleas of guilty to one count of using a carriage service to access child exploitation material contrary to s 474.22(1) of the Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code); one count of using a carriage service to transmit and make available child exploitation material contrary to s 474.22(1) of the Crime Code (together, “the Commonwealth offences”); and one count of committing an act of bestiality with an animal contrary to s 79 of the Crimes Act 1900 (NSW) (“the State offence”).

In respect of the Commonwealth offences, the applicant was sentenced to an aggregate term of 3 years and 6 months imprisonment with a non-parole period of 2 years and 6 months. In respect of the State offence, the applicant was sentenced to 3 years imprisonment with a non-parole period of 3 years. The two sentences were to be served partly concurrently for a total effective sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years.

The applicant sought leave to appeal against the sentences imposed on four grounds: (1) the sentencing judge erred in assessing the objective seriousness of each of the Commonwealth offences; (2) the sentencing judge erred in determining that the threshold for a custodial sentence in s 17A of the Crimes Act 1901 (Cth) was met; (3) the sentencing judge erred in applying the parity principle; and (4) the sentence was manifestly excessive.

The Court held (Rothman J, Mitchelmore JA and Yehia J agreeing), granting leave to appeal, allowing the appeal and resentencing the applicant:

As to Ground 1:

1. Given the concession by the Crown that the agreed facts incorrectly stated that there were two images depicting real children, when in fact there was only one, the sentencing judge operated on a mistake of fact. A mistake of fact is an identifiable error and permits the Court on appeal to intervene in the sentence imposed: at [80].

2. There is no error in the determination by the sentencing judge of the objective seriousness of each of the Commonwealth offences, but in relation to one of the offences the determination was based on a mistake of fact: at [93].

As to Ground 2:

3. The s 17A threshold has been passed in relation to each offence, given the seriousness and depravity of the offending even when it does not involve an image of a real child: at [90].

As to Ground 3:

4. Given the differences and the express reference made by the sentencing judge to those differences and the obvious application of the parity principle, it does not appear to me that error is disclosed in that respect: at [94].

As to Ground 4:

5. There is an oddity in the structure of the sentence related to the length of the effective overall non-parole period, compared to the ratio for same in each individual sentence: at [97]-[99].

JUDGMENT

1. MITCHELMORE JA: I agree with Rothman J.

2. ROTHMAN J: The applicant, Jennifer Anne Cook, applies for leave to appeal and appeals the sentence imposed upon her in the District Court. The applicant pleaded guilty to three offences and was sentenced to an aggregate sentence of three years and four months imprisonment for Counts 1 and 2, with a non-parole period of two years and, for Count 3, to a sentence of three years, with a non-parole period of two years. The total effective sentence for Counts 1, 2 and 3 was a sentence of three years and six months, with a non-parole period of two years and six months, expiring 24 September 2025, with the head sentence expiring on 24 September 2026.

3. The three offences were:

1. Use carriage service contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth) (hereinafter “the Criminal Code”) for which there is a maximum penalty of 15 years imprisonment;

2. Use carriage service to transmit and make available child abuse material contrary to s 474.22(1) of the Criminal Code (Counts 1 and 2 together are hereinafter referred to as “the Commonwealth offences”); and

3. Commit an act of bestiality with an animal, a dog, contrary to s 79 of the Crimes Act 1900 (NSW), for which there is a maximum penalty of 14 years imprisonment (hereinafter “the State offence”).

4. Over and above the three offences to which the applicant pleaded guilty, the offence of possession of bestiality material contrary to s 547E(2) of the Crimes Act was noted on a Form 1 in relation to Count 3, the State offence.

Grounds of appeal

5. Initially, the applicant relied upon the following grounds of appeal:

1. Her Honour erred in her determination of the objective seriousness of each of the Commonwealth offences.

2. Her Honour erred in her determination that the s 17A threshold was crossed thus necessitating the imposition of a full-time custodial term of imprisonment.

1. Her Honour erred in not finding ‘exceptional circumstances’ pursuant to s 20(1)(b)(iii) enabling the applicant’s immediate release on recognizance.

3. Her Honour erred in the application of the parity principle.

4. The overall sentence imposed is manifestly excessive.

6. At the hearing, the applicant informed the Court that she was not pressing ground 2A. ^[1] The Crown does not oppose the Court granting leave.

   1. Tcpt 11/04/25, p 4, ln 43-45.

7. The sentence structure is complicated by the circumstance that there is one sentence that needed to be imposed under State sentencing procedures and two offences under Commonwealth procedures. The applicant pleaded guilty to all three charges in the Local Court and was committed for sentence in the District Court. She received a 25% reduction in each sentence for the plea of guilty at the earliest opportunity.

Principles

8. Given the nature of this appeal and the concession that the Crown has made, it is appropriate to deal at the outset with the principles applied by the Court in dealing with an application for leave to appeal and an appeal against a sentence.

9. Sentencing is not a mathematical or scientific function. ^[2] It is an evaluative or discretionary process in which a sentencing judge must assess objective seriousness and consider the subjective circumstances pertaining to the offender before synthesising the subjective and objective features in order to arrive at a sentence that seeks to achieve the purposes of sentencing. ^[3]

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

   3. Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

10. The process of sentencing is often described as “intuitive” or “instinctive”. The instinctive synthesis conducted by a sentencing judge to arrive at an appropriate sentence results in the circumstance that there is inevitably more than one correct sentence and the circumstance that a judge on appeal may have imposed a different sentence is an insufficient basis for intervention on appeal.

11. There is not one single sentence that would be correct for any specific offence. The correct sentence sits within a range of sentences that are available to the sentencing judge. The available range is determined having regard to the objective seriousness of the offence and the subjective circumstances of the offender.

12. Sentencing can be a very difficult process. Regardless of the theoretical seriousness of the offence with which an offender has been charged, compared with other offences, the Court in sentencing an offender is required to assess the objective seriousness of a particular offence within the range of conduct covered by such an offence. It is necessary to assess the conduct of an applicant to determine where, objectively, in the range of seriousness of the offence with which the applicant has been charged, the offence fits. This was the exercise being performed by the learned sentencing judge.

13. The maximum sentence available to the sentencing judge for each of the two Commonwealth offences was 15 years imprisonment. The maximum sentence available to the learned sentencing judge for the State offence was 14 years imprisonment.

14. The maximum sentence is imposed only in circumstances where the objective seriousness of the offence, coupled with the subjective circumstances of the applicant, warrant the imposition of the maximum sentence. Those sentences that warrant the maximum available have often been referred to as “the worst category of cases” although the term has been described as misleading. One can always imagine worse cases.

15. In State offences, the consideration of the objective and subjective features is performed in the context of seeking to achieve the purposes of sentencing as prescribed by s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

16. The prescribed purposes of sentencing reflect the common law, which applies to sentencing under the Crimes Act 1914 (Cth) (hereinafter “the Commonwealth Act”). Those principles include the protection of society; the deterrence of the applicant (specific deterrence), and of others who might be tempted to offend (general deterrence); retribution; and reform. One is also required to deal with the factors in s 16A of the Commonwealth Act.

17. The purposes of sentencing overlap and may often, if not always, pull in different directions. None of those purposes can be considered in isolation and each is a guidepost to the appropriate sentence to be imposed. So too, the maximum sentence is a guidepost to the sentence to be imposed.

18. In assessing the objective seriousness of the offence, the sentencing judge examines the range of conduct that may generally be involved in the offence that has been committed and assesses where, in the range of seriousness of such conduct, the conduct giving rise to the offence may fit.

19. In determining objective seriousness, a sentencing judge assesses objectively the features of the offence and the circumstances of its commission. In performing that assessment, a sentencing judge determines whether it is in the category of case that warrants the imposition of the maximum sentence or lower on the scale of seriousness. If it be lower on the scale of seriousness, then the sentencing judge assesses the level of seriousness within the notional range between the lowest level of seriousness and the worst category of cases.

20. This is a different process to that which compares the seriousness of offences to other offences. Such a comparison is established by the legislature. A sentencing judge assesses objectively the seriousness of the particular offence within the range of seriousness for the offence that has been charged.

21. The consequence of the application of the above principles is that the sentence to be fixed is correct if it is within the range of sentences available for an offence with the assessed objective seriousness committed by an offender with the subjective circumstances applicable to the offender. On appeal, as already stated, the mere fact that a particular judge may have a different view of where, in the range available, the sentence should have been pitched, is not a basis for interference with the sentence imposed.

22. Thus, in order to intervene in a sentence, a Court on appeal must be satisfied of the existence of an identifiable error or a manifest error. An identifiable error is where, in exercising the sentencing discretion, the sentencing judge has acted upon a wrong principle; has allowed extraneous or irrelevant matters to guide or affect the exercise of the discretion; has mistaken the facts; or has failed to take into account some material consideration. ^[4]

    4. House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ).

23. If error of the above kind cannot be identified, an appeal court may still intervene in a sentence imposed if it were to appear to the appeal court that, on the facts and circumstances before it, the result of the exercise of the sentencing discretion is unreasonable or plainly unjust. In those circumstances, the appeal court infers error of the kind to which reference has been made, even though it cannot be identified. Such an error is manifest error and, as stated, may be corrected in reviewing a sentence only in circumstances where the result is “unreasonable or plainly unjust”. ^[5]

    5. Ibid; see also Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J, with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agree).

24. The principles were summarised by this Court in Obeid, supra, where the Court said:

“443   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

25. In addition, the assessment of objective seriousness is itself a matter for the sentencing judge and an assessment or evaluation akin to an exercise of discretion. The assessment of objective seriousness is, itself, able to be reviewed only on the principles established for an intervention in the sentence itself. In Mulato ^[6] Simpson J (as her Honour then was) said:

“46   The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

6. Mulato v R [2006] NSWCCA 282.

26. The principles cited above are to be applied in dealing with the appeal now before the Court. Before undertaking such a task, it is appropriate to set out some of the factual aspects of the offending, which were largely the subject of agreed facts (“the Agreed Facts”).

Facts

27. The applicant and her co-offender, Benjamin Day, were in a de facto relationship and have one daughter together who is three years old. The applicant was 27 years of age at the date of the appeal and her co-offender was 34 years old.

28. On 14 September 2022, the Australian Federal Police Child Protection Operations Team executed a search warrant at the home address of the applicant and Mr Day. They located four mobile phone handsets and one tablet belonging to the applicant, and one mobile phone handset and one tablet belonging to her co-offender. Both co-offenders were arrested.

29. The applicant and Mr Day communicated via Facebook Messenger and Mega, a cloud storage and file hosting service. They exchanged sexually explicit images and/or video files, and discussed the content of the files, their sexual preferences, and what sexual activities they wished to attempt.

30. Between 14 December 2020 and 28 October 2022, the applicant accessed 28 child abuse materials (“CAM”) comprising animated/cartoon (subject to later comment) or real images, and GIF and video files which were sent to the applicant by Mr Day (Count 1). The applicant also transmitted eight CAM files in animated, cartoon or real image form and three messages constituting CAM to Mr Day (Count 2).

27. Mr Day accessed six CAM files sent to him by the applicant; transmitted 87 animated/cartoon or real images, GIF and video files and three messages constituting CAM to the applicant; and disseminated one video to the applicant which depicted bestiality, namely, a five second video of a dog’s penis being removed from an adult female vagina.

28. The devices owned by the applicant had 274 cached files constituting CAM, as well as searches for “Baby Anal Porn Videos”, “Tiny teen Impregnated Porn Videos”, “Brother impregnates his little teen stepsister”, and “teen abducted and impregnated”. The devices owned by Mr Day contained 126 cached animated images classified as CAM on one device, and two cached images and one image stored on the other device which constituted CAM.

29. A significant portion of the CAM was animations of children, about five to ten years of age, being anally and vaginally penetrated by adult males, during which the males ejaculated in their mouths and on the genital area. The CAM depicted real, as opposed to animated, children, to which aspect I will shortly return because it gave rise to an issue in the proceedings.

30. A video was located on the phones of both the applicant and her co-offender which depicted the applicant lying naked on the ground while her mother’s dog penetrated her vagina. Mr Day appears to film the act while holding the dog’s penis and moving it in and out of the applicant’s vagina (Count 3).

31. The applicant and Mr Day discuss the acts of bestiality in a series of messages between January 2021 and January 2022. Mr Day sent a further 14 animated/cartoon or real images, GIF and video files constituting bestiality to the applicant, while the applicant sent 11 files to Mr Day. On the devices owned by the applicant, 83 cached images depicting sexual contact between adults and animals were found, as well as search terms “teen fucks horse”, “Horse fucks girl”, and “Anal sex with llama”.

32. The applicant objected to some of these facts on the basis that they occurred before the date of the commencement of the relevant offence provision under s 547E of the Crimes Act 1900 (NSW). It seems that the aforementioned facts of the images between January 2021 and January 2022 were included in the Agreed Facts because there was originally a fifth sequence of charge being the dissemination of bestiality material, which charge was withdrawn.

33. However, the material is relevant on sentencing, not because it proves a different offence or renders the offences committed more serious, but because earlier conduct of the same kind is relevant to the necessity and weight to be given to specific deterrence.

34. On the device owned by Mr Day, 38 cached images and three video files which constitute bestiality were found. This then became part of a Form 1 taken into account on the sentencing of Count 3 for Mr Day.

35. On 14 September 2022, the applicant participated in a digital record of interview with police during which she made admissions, including that:

• She and Mr Day would send CAM to each other. They would pick a category and send images back and forth while sitting on the lounge across from each other.

• Mr Day asked her to download Mega which he used to send CAM and bestiality files to her.

• She participated in these conversations to appease Mr Day, but CAM ‘does nothing for her’.

• Their relationship has a lot of conflict. She is always the instigator of any violence.

• During 2020, she visited her mother’s farm with Mr Day, during which time she engaged in penile-vaginal intercourse with her mother’s dog, Woody. Mr Day filmed the incident.

40. On the same day as the applicant provided her interview, Mr Day participated in a digital record of interview with police. Similarly, Mr Day made admissions, including that:

• He and the applicant produced pornography together for their Pornhub account, ‘Little Gemma’.

• He has viewed and shared CAM on Mega group chats.

• He has participated in conversations on Facebook Messenger where he discussed having sex with underage girls.

• He denied that the woman in the video being penetrated by a dog was the applicant.

41. The Agreed Facts annex Facebook and Mega chats between the applicant and Mr Day where they sent and discuss CAM and bestiality. It is unnecessary to detail the discussions. Some of those messages are, as earlier stated, the subject of objection.

42. It is necessary to note that, during the hearing of the appeal, the Crown conceded that there was an inconsistency between the Agreed Facts in one aspect. The inconsistency is not overt and arises from the iterations of the Agreed Facts.

43. The Agreed Facts define the images as images of real children unless otherwise specified. ^[7] Later in the Annexure to the Agreed Facts, there is a reference to a video depicting “a naked pre-pubescent female child approximately 4-6 years of age”. ^[8] It does not specify that it depicts other than real children.

    7. Agreed Facts at [19].

    8. Agreed Facts Annexure; Appeal Book p 105.

44. However, the image in question was an animated 3D video. As a consequence of the error, her Honour concluded that there were two images depicting real children, when, in truth, there was only one such image. ^[9]

    9. Remarks on Sentence at [28]; Appeal Book p 63.7.

45. Even though the Agreed Facts refer to an item in a manner that defines it as “real children”, counsel for the applicant on sentence pointed out during the course of submissions that there was only a “single image” containing a picture of an actual child, ^[10] which submission was conceded by the Crown before her Honour. ^[11] On appeal, by leave of the Court, the Crown relied upon an affidavit explaining the discrepancy. ^[12]

    10. Tcpt, Proceedings on Sentence, 25/03/24 at p 33 (Appeal Book p 45), ln 35-40, p 46, ln 5-10.

    11. Tcpt 25/03/24, p 39 (Appeal Book p 51, ln 12-17).

    12. Affidavit of Caitlin Julia Muddle affirmed 11 April 2025.

46. The true position before the Court is that there was one image of a real child in respect of Count 2 and no images of real children in relation to Count 1. The sentencing judge’s reference to “a small amount of images depicting real children” and the two examples to which the sentencing judge referred were therefore incorrect. ^[13]

    13. Remarks on Sentence at [28], Appeal Book p 63.

47. Ordinarily, evidence inconsistent with Agreed Facts cannot be admitted and the parties are bound to that which they have agreed. Here, however, the submissions to the sentencing judge and on appeal are, in substance a correction to the Agreed Facts, rather than evidence inconsistent with them. It is unfortunate that the sentencing judge was misled in the Agreed Facts and the correction was not formalised.

Submissions of the applicant

48. As a consequence of the concession by the Crown and the clarification of the factual basis upon which sentencing in relation to Count 1 should have occurred, much of the submissions of the applicant on Ground 1 need not be repeated.

49. The applicant refers the Court to authority that reiterates that the determination of objective seriousness is an assessment quintessentially for the sentencing judge.

50. In sentencing proceedings, the applicant made submissions as to the availability of a non-custodial sentence pursuant to s 20(1)(a) of the Commonwealth Act and referred to certain features of each of Counts 1 and 2 supporting such an order.

51. The sentencing judge determined, in relation to objective seriousness, that the offending was not at the lowest end, nor was it “low level offending of its kind”. It was also not at the highest level, but was “around the mid-level”. ^[14]

    14. Remarks on Sentence at [34].

52. The applicant’s counsel, at first instance and on appeal, emphasised that the applicant had gained access to only 28 files over two years and that, in relation to Count 1, there were no real images, only cartoon or animation. The applicant criticised the terminology used by her Honour and categorised the determination of “around the mid-level” as lacking certainty and synonymous with middle of the range, which has been described as “unhelpful”. ^[15]

    15. Cargnello v DPP (Commonwealth) (2012) 224 A Crim R 204; [2012] NSWCCA 162 at [88] (Basten JA).

53. Ground 2 of the appeal refers to the s 17A threshold in the Commonwealth Act which proscribes a Court from passing a sentence of imprisonment unless it is satisfied “that no other sentence is appropriate in all the circumstances of the case”. The applicant submitted that the starting point for each offence was three years and five months imprisonment which, after a 25% discount for the plea of guilty at the earliest available time became an indicative sentence of two years and nine months for each offence. The provisions of s 17A of the Commonwealth Act required consideration of all available sentencing options and all the circumstances of the case. ^[16]

    16. Woods v R [2023] NSWCCA 37 at [56].

54. The reference in Ground 2A to “exceptional circumstances” is a reference to the provisions of s 20(1)(b) of the Commonwealth Act, which provides that a recognizance order may not be made where an offence involves a Commonwealth child sex offence unless the Court is satisfied that there are exceptional circumstances. A recognizance order may be made in different circumstances and in different ways, but given that the ground is now abandoned, it is unnecessary to provide those details.

55. In relation to Ground 3, the applicant relied upon a table at [71] of the Applicant’s Written Submissions which sets out the offences, indicative sentences and overall sentences together with the ratio of the non-parole period to the overall head sentence of each of the co-offenders. The table is in the following terms:

DAY	COOK
Count	Offence	Indicative sentence	Indicative sentence
1	Use carriage service to access CAM + F1 Possess CAM obtained using carriage service (DAY ONLY)	3 y	2 y 9m
2	Use carriage service to transmit and make available CAM	2 y 9m	2 y 9m
3 + Form 1	Commit act of bestiality Possess bestiality material (DAY AND COOK)	3 Y	3y 2y NPP
4	Disseminate bestiality material (DAY ONLY)	6 m	N/A
Commonwealth Sentence		H/S: 3y 6m NPP: 2 years	H/S: 3y 4m NPP: 2 y
State sentence		H/S 3y3m NPP 2 y	H/S 3y NPP 2y
Overall sentence		H/S 3y 9m NPP 2y 6m	H/S 3 y 6m NPP 2 y 6m
NPP as a portion of total sentence		66%	71.4%

56. The applicant submitted that her Honour addressed parity at page 27 of the Remarks on Sentence and stated that the offenders played similar roles. Mr Day’s moral culpability was reduced due to his mental health and disadvantaged background. The applicant demonstrated remorse whereas Mr Day did not. The applicant also adduced evidence of hardship whereas Mr Day did not. Each of them had significant mental health problems. Nevertheless, the applicant was being sentenced for less offending.

57. As to Ground 4, the applicant submitted that a review of indicative penalties reveals that the non-parole period for the State offence is 60% of the full term and the non-parole period for the Commonwealth offence is 60% of the full term. Nevertheless, the overall effect of the non-parole period is 71.4% of the full term. Her Honour found special circumstances in relation to the State offence, but there is no requirement for the finding of special circumstances and no necessity for it in relation to the Commonwealth offences.

58. In the event of re-sentence, the applicant points to subjective features found by the sentencing judge, including that the applicant had no criminal record, mental health difficulties and her conditions of incarceration are onerous. The toxic relationship that existed between the co-offenders, the applicant’s attempts to address her mental health issues since her arrest, her employment in custody and her employment plans once released show her to be a person who is unlikely to reoffend.

59. The features outlined above arise from the applicant’s affidavit sworn 5 February 2025 and filed 17 February 2025, and admitted on the usual basis, namely, for the purpose of receipt if the Court were required to resentence.

60. The affidavit sets out that the applicant was employed at each of the correctional centres as a house sweeper, promoted to sector sweeper at her first correctional centre, an induction sweeper at the second correctional centre, and in ground maintenance then logistics in the textile section with a possible promotion to second in charge of tech and assembly section in her last correctional centre. The applicant has completed a certificate in Work Safely, A Guide to Safe Working Practices Training.

61. In the affidavit, the applicant also attests to the fact that she intends to move to a temporary house with NSW Housing and seek to obtain custody of her daughter. The applicant also intends to attend Alcoholics Anonymous, apply for work at an abattoir and apply to complete a Traffic Control Course at TAFE.

Submissions of the respondent

62. After summarising the facts and an overview of the applicant’s charges and sentence, together with those of the co-offender, the Commonwealth Crown makes clear that it does not oppose the grant of leave to appeal. It also makes clear that, were leave to be granted, the appeal should be dismissed.

63. As to Ground 1, the Crown submits that the sentencing judge emphasised the depravity of the material rather than the quantity, and her Honour particularised the matters that contributed to the seriousness of the offending. In so doing, the Crown made clear that the submission of the applicant based upon the circumstance that the depictions were almost entirely animated or cartoon, or the low number of them, does not detract from her Honour’s findings as to objective seriousness.

64. Her Honour found, correctly in the submission of the Crown, that the offending involved a depraved process of obtaining and exchanging child abuse material, motivated by a mutual sexual gratification over a prolonged period. It was, on the submission of the Crown, open to the sentencing judge to assess the objective seriousness of the applicant’s conduct as mid-range. ^[17]

    17. Respondent’s Written Submissions at [35].

65. While conceding the mistake of fact as to the number of real images, the Crown submitted that, on the Agreed Facts (even as amended by reference to the mistake), it could not be said that there were no real children involved in the offending and such a feature did not detract from the depravity of the material. The Crown submitted that the assessment of objective seriousness as “around the mid-level” was reasonably open to the sentencing judge and that, as a matter quintessentially for the sentencing judge, the applicant needed to do more than cavil with the sentencing judge’s assessment. No error has been disclosed.

66. Omitting for present purposes each of the submissions on Ground 2A, given the withdrawal of the ground by the applicant, the Crown submits, in relation to Ground 2, that the applicant has failed to point to any specific error. The sentencing judge abided by well-established principles in determining the sentence to be imposed and it was open to the sentencing judge to sentence the applicant to imprisonment in circumstances where her offending was objectively very serious, and the maximum penalty was 15 years.

67. On the issue of totality in Ground 4, the Crown submitted that the applicant’s submissions were misconceived and do not disclose how it is said the principle of totality was misapplied. Her Honour concluded that the co-offender’s circumstances warranted “a slighter greater variation in terms of the ratio between the head sentence and the non-parole period” compared with that applied to the applicant. Such a finding was evaluative and open to her Honour.

68. Her Honour concluded that there needed to be partial accumulation between each of the federal offences and partial accumulation between the federal and state offences given that they involved different and distinct criminality. Lastly, the Crown submitted that the divergence between the effective head sentences of the applicant and the co-offender is explicable.

69. In relation to Ground 3, the Crown submits that the total effective head sentence imposed upon the applicant was less than that imposed on the co-offender and the total effective non-parole period was the same. The sentencing judge concluded that the objective seriousness of each of the Commonwealth offences fell at the same level and each offender had mitigating features in their cases.

70. In those circumstances, it was open to the sentencing judge to find their subjective cases warranted approximately similar levels of mitigation. In the Crown’s submission, Mr Day’s subjective case was materially more compelling, particularly in light of the causal relationship between his comorbid mental health conditions and offending as well as his deprived childhood.

71. There is, on the Crown’s submission, no marked or unjustified disparity, which would give rise to a justified sense of grievance such that the parity principle has been misapplied.

72. As to resentencing, the Crown submits that the affidavit is consistent with the sentencing judge’s findings as to the prospects of the applicant on rehabilitation and does not add to the material that the sentencing judge considered. If the Court were minded to grant one or other of the grounds of appeal and move to resentencing, the Crown has submitted that no lesser sentence is warranted at law, in light of the maximum penalties for the offences and their objective seriousness. Obviously, if one or more of the grounds raising manifest excess or parity is successful on appeal, then the Crown does not agitate for that position.

Consideration

73. Given the concession of the Crown and the mistake of fact, the Court should grant leave, and I will propose such.

74. The applicant points to the use of the terminology “around the mid-level” as lacking certainty. It should be clarified that it is inappropriate for the Court on appeal to be concerned with “looseness of language” or “unhappy phrasing”. ^[18]

    18. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ); Stines v R [2025] NSWCCA 11.

75. The Court on appeal does not construe the first instance judgment “minutely and finely with an eye keenly attuned to the perception of error”. ^[19]

    19. Ibid.

76. The practice of expressing a view as to where in the range of offending a particular offence sits is, in relation to Commonwealth sentences, not required, although it aides transparency in the process being adopted by the sentencing judge. The peak of such descriptions was reached when the Court and sentencing judges were required to apply the principles that this Court expressed in Way, ^[20] involving that which was at the time considered to be the proper method for applying standard non-parole periods. Following the judgment of the High Court in Muldrock ^[21] the level of precision of expression that had previously been thought to be appropriate has not been required. Nor should it be.

    20. R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131.

    21. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

77. Given that the objective seriousness of the offence, assessed within the range of conduct that could give rise to this offence, must be synthesized with the subjective circumstances, there will always be a degree of imprecision in the manner in which one describes where in the range the offending fits. As earlier stated, the process is not mathematical. Nor does it lend itself to a precision which would fix a percentage within the range.

78. The assessment requires an evaluation in which the outcome is, itself, within a defined range. In this case, the learned sentencing judge in describing the objective seriousness as “around the mid-level” could have been more precise but there is no error in that description.

73. Necessarily, given the failure to correct the Agreed Facts formally, the sentencing judge operated on a mistaken view as to whether there was the image of a real person in the material that gave rise to Count 1. No mistake was made in relation to the material that gave rise to Count 2. As earlier stated, there was one image of a real child in relation to Count 2 but no images of real children in relation to Count 1.

74. As the concession of the Crown indicates, the sentencing judge operated on a mistake of fact. A mistake of fact is an identifiable error and permits the Court on appeal to intervene in the sentence imposed. However, in this case, the mistake of fact applied only to Count 1.

75. The underlying submission, not fully expanded, as to the absence of the image of a real child in relation to one of the offences implies that the use of real children in child abuse material is more serious than animated and cartoon depictions.

76. The use of a real child is more serious. It involves the abuse of a real victim. Nevertheless, in today’s world, where computer generated and AI images are wholly realistic, the use of such images is still serious.

77. The Crown does not suggest that, with the exception of the bestiality offence, the applicant or her co-offender filmed a real person being abused. Rather, the material was transmitted and received. But the use of child abuse material, whether real or otherwise, still creates a market for such material and consequently encourages the abuse of children.

78. I accept the submission of the Crown that, even though there were not large numbers of files being transmitted or received, the sentencing judge was most concerned with the depravity of the material, rather than its volume. Nevertheless, the sentencing judge fixed the same indicative sentence in relation to Counts 1 and 2, notwithstanding that only one of them involved a real child.

79. Given the depravity of the material, the level of seriousness in respect of Count 2 is not much greater than the level of seriousness in relation to Count 1 (the offence which did not involve an image of a real child).

80. The appeal is against the sentence imposed, which, in the case of the Commonwealth sentence, was an aggregate sentence involving both offences. The applicant was sentenced, as is clear from the table contained within this judgment, to a head sentence of three years and four months, with a non-parole period of two years. While the indicative sentences that led the sentencing judge to impose such an aggregate sentence are not the subject of appeal, the indicative sentence for each of Counts 1 and 2 was identical and involved a head sentence of imprisonment of two years and nine months. This was an error and, if not explained, one which would infect the aggregate sentence imposed.

81. No error is disclosed in the State sentence. In dealing with the Commonwealth offences, I accept that the material was transmitted and received only by persons who are otherwise in a relationship. However, the material had been obtained from elsewhere in order to exchange it between the couple, being the applicant and her co-offender.

82. I also accept the subjective circumstances outlined by the sentencing judge. The applicant was under 24 years of age at the time that these offences were committed, which is young and although the applicant is not a juvenile, given her history and psychiatric issues, it is unlikely that a fully mature approach was taken to the offending. I also accept that the applicant has expressed remorse and her recent activities in prison confirm the approach that the learned sentencing judge took as to her capacity for rehabilitation.

83. I note the emotional abuse that the applicant suffered as a child and that she has suffered from substance-abuse disorders, post-traumatic stress disorder, depression and anxiety. I also accept, as did the sentencing judge, that the relationship with her co-offender was not a positive one and contributed to the applicant’s mental health issues and her excessive use of alcohol.

84. Bearing in mind the comments earlier made as to the seriousness and depravity of the offending even when it does not involve an image of a real child, I take the view that the threshold in s 17A of the Commonwealth Act has been passed in relation to each offence. There are two aspects that require comment.

85. First, it is necessary to consider all other sentencing options, which I have done. Secondly, the Commonwealth Act requires the Court, when sentencing, to be satisfied that the other options are not “appropriate”. The test is not that which is “available”. Different judges may arrive at a different conclusion and still be correct. Unless otherwise stated in these reasons, I rely on all of the findings of the sentencing judge at first instance.

86. In order for the Crown to succeed on its submission that “no lesser sentence is warranted in law”, the Crown would need to persuade the Court that the sentence imposed was at the lowest possible level for an offence of that kind. Given the range of sentences available in relation to any particular conduct, such a submission usually involves some difficulty.

87. I have taken the view that there is no error in the determination by the sentencing judge of the objective seriousness of each of the Commonwealth offences, but in relation to one of the offences the determination was based on a mistake of fact. Further, as has been already stated, I have determined that the s 17A threshold has been crossed.

88. I do not consider that there is an error in the application of the parity principle. The parity principle requires an applicant to have a “justified sense of grievance” at the sentence imposed upon the applicant as compared to a co-offender. There are aspects of the offending and offenders which differentiate the applicant from her co-offender. Not all of them are in the applicant’s favour. Given the differences and the express reference made by the sentencing judge to those differences and the obvious application of the parity principle, it does not appear to me that error is disclosed in that respect.

89. However, on resentencing, the Court is required to sentence afresh. There is much to be said for a similar sentence to be imposed on each of the co-offenders.

90. In resentencing on account of the indicative sentence which did not involve the image of a real child, the Court is required to take into account all of the aspects to which I have already referred. I would assess the offending at just below the mid-range and I accept, as already stated, the significant subjective factors applicable to the applicant.

91. While the applicant has raised “manifest excess”, there is no ground of appeal relating expressly to totality. Nevertheless, totality is a factor, which the Court is required to consider. There is also an oddity in the structure of the sentence imposed, which I will correct in the sentence that I recommend should be imposed by the Court.

92. Where a sentencing judge imposes a sentence that reflects a non-parole period of 60% and 66% respectively, if the overall sentence then reflects a non-parole period of 74%, which is the case in this sentence, there are two possibilities: the higher level of non-parole period was unintended; alternatively, it was intended.

93. A sentencing judge that sets indicative sentences and/or individual sentences as part of an overall sentence regime who intends to increase significantly the level of the non-parole period needs to explain why such a course has occurred, or at least, that it was intended. Otherwise, the Court would ordinarily assume that it was an unintended result of accumulation. It is unnecessary to take the issue further, as I will be recommending different sentences and a different outcome.

94. In all of the circumstances and taking into account all the matters to which I have referred, and which were summarised by the sentencing judge, I would propose the fixing of the following indicative sentences for the Commonwealth offences:

1. Count 1 – use carriage service to access CAM, an indicative head sentence of imprisonment of two years and nine months.

2. Count 2 – use carriage service to transmit and make available CAM, an indicative head sentence of two years and six months.

101. I would also propose an aggregate sentence for the two Commonwealth offences: a head sentence of three years and two months and a non-parole period of 22 months each of which will commence on 25 March 2023.

102. As a consequence of the alteration to the sentences imposed for the Commonwealth offences, it is necessary to alter the non-parole period for the State offence to take account of the earlier conclusion of the non-parole period for the aggregate Commonwealth sentence, and, because of the effect of accumulation, I find, in relation to the State offence, further special circumstances warranting a reduction from 75% for the total effective non-parole period. As a consequence of the effect of accumulation and the need to apply the 66% non-parole period consistently, the non-parole period for the State offence, which commences on 25 September 2023, shall be one year and nine months, concluding 24 June 2025.

103. I propose that the Court make the following orders:

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:

1. 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.

2. 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.

104. YEHIA J: I agree with Rothman J.

**********

Endnotes

Decision last updated: 20 June 2025