CDirector of Public Prosecutions v Gale
[2025] VCC 476
•24 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-02154
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GALE, Charles |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 & 10 April 2025 | |
DATE OF SENTENCE: | 24 April 2025 | |
CASE MAY BE CITED AS: | CDPP v Gale | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 476 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea – possess child abuse material – produce child abuse material overseas - general deterrence – specific deterrence – whether exceptional circumstances exist – immediate release upon recognisance release order
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sentencing Act1991 (Vic); Sex Offenders Registration Act2004 (Vic)
Cases Cited:Phibbs v The King [2023] VSCA 123; R v Tootell; ex parte Attorney General (Qld) [2012] QCA 273; DPP (Cth) v Garside (2016) 50 VR 800; R v Pham [2015] 256 CLR 550
Sentence: 16 months imprisonment – recognisance release order
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr A Morrison | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr T Antos | Canaan Lawyers |
HIS HONOUR:
1Charles Andrew Gale pleaded guilty to two charges:
a)Producing child abuse material outside of Australia, contrary to s 273.6(1)(a)(ii) of the Criminal Code (Cth);
b)Possess or control of child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Cth).
2The maximum penalty for each individual offence is 15 years imprisonment.
Circumstances of the offending
3The accused accepted, through counsel, the prosecution opening as to the relevant factual circumstances of the offending. The offending is summarised as follows.
4Charge 1 – Between 26 and 29 June 2024, the accused took photographs of the victim relative whilst he was in a state of undress in and around the family home in China. There are 36 such images. He was aged about 5 at the time.
5Within the phone’s ‘Recently Deleted’ folder, the 36 images were as follows:
(a) 6 images of a pre-pubescent male child, approximately 5 years of age, standing naked within the kitchen of the house. The child’s genitals are exposed in each of the images, four of which are zoomed in with a further focus on the child’s genitals.
(b) 16 images of a pre-pubescent male child, approximately 5 years of age, laying naked on the couch, the offender captured the images at an angle that exposes the child’s genitals and anal region.
(c) 14 images of a pre-pubescent male child, approximately 5 years of age, laying naked on the couch in various vulnerable positions. Two of the images are of the child with his legs spread and genitals exposed. A further three images captured by the offender are zoomed in images of the child’s genital and anal region which encapsulate the entirety of the image.[1]
[1] Summary of prosecution opening for plea at [13]
6Charge 2 – On 23 July 2024, the accused was found in possession of child abuse material in an encrypted application, KYMS, within a subfolder titled ‘Wank Bank’ on his phone. There were eight files of material depicting female children between three and four years of age.
7Within the KYMS application, the following material was located:
(a) Three images of a pre-pubescent female child, approximately 4 years of age, lifting her dress with a focus on her exposed vagina; and
(b) Five images of a pre-pubescent female child, approximately 3 years of age, bending over while wearing a short green top/dress. The child’s vagina is exposed as she bends over. Of the photos, two images are captured zoomed in on the child’s vagina.[2]
[2] Ibid at [14]
8The offending was uncovered when the accused returned from visiting family in China. At customs control on entry to Australia on 23 July 2024, his baggage was examined by the Australian Border Force and his phone seized and examined.
9An analysis of the phone found child abuse material in the ‘Recently Deleted’ album and in the KYMS application.
10An inspection of the “Recently Deleted” folder discovered the material set out above in the 36 photographs involving the 5 year boy and which is the basis of Charge 1.
11In the KYMS application, within two albums, there were images of pre-pubescent females with their vaginas exposed set out above that comprise the basis of Charge 2.
The Accused’s personal circumstances
12The accused is currently 62 years of age having been born in August 1962. He was adopted at a young age. This was a seemingly very good home. Unfortunately the accused was sexually abused on one occasion at about the age of 4 by a teenage boy. This does not appear to have been known to his parents. Further tragedy followed when his adoptive father died when he was 8 years old and his adoptive mother died when he was 11. He was then adopted again. That was a stable environment where both his parents worked and he had siblings. He remains in close contact with his family having regular catch ups with them. He finished primary school and started a mechanical apprenticeship when he was 15 years old. He has maintained consistent employment in mechanical engineering since that time. He is currently employed in that field on a full-time basis in Thomastown where he has worked for 11 years.
13He has had three significant relationships. He was married to his first wife in about 1993 for 20 years before separating in 2013. He has two children from this marriage. He met his second wife, who is from China, around the time of his divorce. However they had communication issues, due to language barriers, and separated. The separation has been amicable and they remain in contact with each other.
14He met his third and current wife at her workplace where she is a massage therapist. She is also Chinese, which is relevant as the offending in part occurred in China when visiting her relatives. They live together in rental accommodation in Reservoir.
15He has had minimal past involvement with the law, with some minor offences for cannabis. There are no prior convictions.
16The accused has had some health concerns, with diverticulitis in the past, a heart attack in 2014 from diabetes and currently suffers from ongoing gastroenteritis.
Relevant statutory provisions
17The below statutory provisions are extracted from Phibbs v The King.[3]
[3] [2023] VSCA 123 at [19] – [24]
“Section 16A(1) of the Crimes Act provides that, in sentencing a person for a federal offence, ‘a court must impose a sentence … that is of a severity appropriate in all the circumstances of the offence.’ Section 16A(2) sets out a non-exhaustive list of matters that a court must take into account if they are relevant and known to the court.
Section 16A(2AAA) of the Crimes Act makes specific provision for sentencing of offenders for Commonwealth child sex offences in the following terms:
In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:
(a) when making an order—to impose any conditions about rehabilitation or treatment options;
(b) in determining the length of any sentence or non parole period—to include sufficient time for the person to undertake a rehabilitation program.
Section 17A of the Crimes Act provides as follows:
17A Restriction on imposing sentences
(1) A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
22. Section 19(5) of the Crimes Act relevantly provides, for present purposes, that there must be full cumulation of sentences imposed for more than one Commonwealth child sex offence. However, this requirement is qualified by s 19(6) which provides that s 19(5) does not apply if the court is satisfied that imposing the sentence in a different manner – that is, in a manner that allows partial or full concurrency – would still result in sentences that are of a severity appropriate in all the circumstances.
Section 20 of the Crimes Act permits a sentencing court to conditionally release a convicted person. It relevantly provides as follows:
20 Conditional release of offenders after conviction
(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
(a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;
…
(iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or
…
(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):
…
(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances–after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances–immediately.
Section 20AB of the Crimes Act has the effect, for present purposes, that a sentencing court in Victoria which sentences a person for a federal offence may make certain sentencing orders under the Sentencing Act 1991, including a community correction order (‘CCO’).”
Evidence and submissions at the plea hearing
Evidence
18The accused filed submissions, relied on a medical report of Pamela Mathews a psychologist and tendered five character references, from his accountant, dentist, general practitioner, employer and friend.
19The report of Ms Mathews opined that there was a diagnosis of paedophilia, in part based on uncharged acts. These were described in the prosecution opening as (i) photographs (623) and video (7) of naked pre-pubescent male children; (ii) photographs (155) and video (7) of a female child aged about 8 years living her day to day life containing 15 screen captures from video of the child naked while changing; and (iii) photographs (898) screen captures of social media posts for female children aged 2 to 13 where their underwear is exposed.
Ms Mathews further opined that:
a)He has a risk of non-contact sexual re-offending such as possession of CAM material in the range of 18-23% over 5 years;
b)His current offending was directly related to his childhood sexual abuse and the loss of significant attachments early on;
c)He would benefit from a treatment course specific for CAM offenders, and for his emotional and behavioural dysregulation issues;
20He would find time in custody especially onerous given he was at real risk of decompensation if sentenced to a custodial term.
Submissions
Objective seriousness of offending
21At the plea hearing, the prosecution submitted the offending in relation to Charge 1 was a serious example of an offence of this nature. This was because the production of the material occurred in a situation within the family home, where the trust amongst family members was broken repeatedly over a four day period.
22I accept that the breach of trust involved in the capturing of these images makes this offending significant. As Parliament has indicated this is a very serious offence given the maximum penalty. However in this case there are a small number of images in issue, taken in a short space of time with no suggestion of sexual acts or the poses being performative in nature of the view – rather they are captured in “every day life.”
23I have had regard to the matters set out in DPP (Cth) v Garside (2016) 50 VR 800, 810-11 at paragraph [25]:
a)The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
b)The number of ages possessed;
c)Whether the material is for the purposes of sale or further distribution;
d)Whether the offender will profit from the offence;
e)The number of children depicted and thereby victimised;
f)The length of time in which the CAM was possessed.
24A consideration of these matters in this case yields the following results:
(a) The child is captured in daily living, rather than being “scripted” into positions for photographs and there is no sexual activity;
(b) There are a relatively small number of images being 36;
(c) There is no evidence of sale of the material or further distribution;
(d) There is no evidence of profit being derived from the images;
(e) The material involves 1 child and the use is personal; and
(f) The material was only possessed by the offender for a short period of days.
25After consideration I find these facts in Charge 1 to be examples of serious offending at the low to moderate end of the spectrum in respect of the objective seriousness of offending.
26At the plea hearing it was common ground between the prosecutor and defence counsel that the offending on Charge 2 fell within the low end of the spectrum of seriousness. I am of the same view.
Exceptional circumstances
27It was submitted that “exceptional circumstances” exist in this case given a cumulation of factors set out in defence submissions.[4] This was opposed by the prosecution which suggested that these were standard factors.
[4] Defence plea submissions dated 29 March 2025 at paragraph [42]
28The prosecution submitted that exceptional circumstances may have been made out had Mr Gale demonstrated engagement in rehabilitative treatment as suggested by Ms Matthews such as the Forensicare Corrections CEM-COPE program for child exploitation/abuse material offenders, or treatment for emotional and behavioural regulation.
29The principles setting out what constitutes “exceptional circumstances” were set in out in R v Tootell as, “To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”[5]
[5] R v Tootell; ex parte Attorney General (Qld) [2012] QCA 273 at [18]
30In this case, I consider the fact of the offender’s background and its interplay with the current offending to constitute the basis for a finding that exceptional circumstances exist. It can be seen from Ms Mathews’ analysis[6] the significance that the offender’s background experience of being a victim of childhood sexual abuse has to this offending. Compounded with this is the unusual situation that he found himself in at a young age: adopted out and then both adopted parents dying. It makes for a harrowing childhood and which on the evidence has a defined link to this current offending. I consider this constitutes “exceptional circumstances” which satisfies the terms of the Act.
[6] Report of Ms Matthews dated 11 October 2024 at [260]
Plea of guilty
31I accept a plea of guilty was made to the charges at an early opportunity, being at the committal mention of this matter in the Magistrates’ Court. I consider the early plea of guilty is of utilitarian value and demonstrates remorse and acceptance of responsibility. The sentence will be discounted accordingly.
Remorse and cooperation
32The accused has shown a willingness to facilitate the course of justice. This is demonstrated by an early admission of guilt and cooperation with police as well as with the Australian Border Force in providing his passwords to access his phone.
33Further, his remorse is evidenced in the character reference letters provided from his employer, dentist and general practitioner.
Moral culpability and Verdins
34It was submitted that Verdins limbs 1, 2, 4 and 6 had application. The prosecution accepted limbs 5 and 6 were engaged but not 1, 2 and 4.
35On this point given my finding that the role of his early childhood loss and of being sexually abused himself were intimately bound up in the offending, I accept that the mild mental impairment as found by Ms Mathews has a modest effect on moral culpability. On this front, given the accused was the sole producer and storer of the images associated with Charge 1 and in particular that this occurred in a family home, I consider moral culpability to be moderate to high.
Reasons for sentence
36The maximum penalty for each individual charge is 15 years imprisonment. Section 20(1)(b) provides that offenders cannot be immediately released on a recognisance release order unless the Court is satisfied that ‘exceptional circumstances’ exist. It is submitted by the defence counsel, Mr Antos, that no immediate custodial term should be imposed given there are exceptional circumstances.
37I repeat what the Court of Appeal stated in Phibbs.
“It is well established that all offences relating to the sexual abuse of children are very serious and that factors personal to an offender carry less weight than general deterrence and protection of the community. The courts recognise that significant lifelong harm is caused to children who are sexually abused. Accessing or possessing child pornography is not a victimless crime – it is abhorrent because it supports a market for the production of images that involve the sexual exploitation of children. For these reasons, this Court has repeatedly emphasised that, ordinarily, persons who commit child pornography offences will be sentenced to an immediate term of imprisonment.”[7]
[7] [2023] VSCA 123 at [51]
38Her Honour Judge Davis in DPP (Cth) v Bremner[8] stated:
[8] [2023] VCC 51
“General deterrence is the primary sentencing consideration for offending involving child abuse and child exploitation, because there is a paramount public interest in protecting children from sexual abuse.
…
For this reason, personal mitigatory factors such as prior good character, age, and prospects of rehabilitation must be given less weight than might otherwise be given, as such offenders generally have similar backgrounds and are of prior good character.
Specific deterrence, denunciation, punishment, and protection of the community are also very important sentencing considerations. The Court must also consider the seriousness of the offending; your plea and remorse; your personal circumstances, as well as the personal circumstances of any victim of the offence; as well as any injury, loss or damage resulting from the offence.
…
In accordance with the High Court’s decision in R v Pham[9], the need for sentencing consistency throughout Australia when sentencing an offender for a federal offence requires the court to: have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.[10]
There is a presumption of cumulation, unless otherwise ordered, which applies to the sentences imposed upon you.”
[9] [2015] 256 CLR 550
[10] Ibid at [18]
(footnotes omitted)
39As to rehabilitation, I accept that the accused has not used his time to date to commence on a course of treatment, though Ms Mathews considers this would be of benefit. However, there are a number of prosocial factors. Firstly, work, which is particularly important as his employer knows of the charges and has written a reference in support. This supports a moderation of sentence as he will be actively working and engaged in a positive, rehabilitative way in the community. Secondly, the accused is in a relationship and his partner is aware of the charges and appears in Court indicating a degree of ongoing support. Thirdly, he has no substance abuse problems and is noted by Ms Mathews likely to cooperate with treatment. I conclude then that overall he has good prospects for rehabilitation.
40I accept that general deterrence has a pronounced role to play.
41Punishment in this case should be moderated given I accept that Verdins has a role to play in respect of limb 1.
42I also accept that limbs 5 and 6 have a role to play. I am not prepared to accept that limb 4 has a role to play.
43I have had regard to the cases of comparison, however, I am bound to look at this case and so have to synthesise the matters specific to it. In that regard the decision of Phibbs seems particularly useful in setting out the principles to be applied.
44Coming to that synthesis, I sentence the accused to a total effective term of 16 months. On Charge 1 this will be 10 months and on Charge 2, eight months, with two months to be served concurrently to reflect parsimony and totality. Though both offences carry 15 years, sex offences are both objectively serious, the fact of production of child abuse material in the family home requires a greater sentence.
| Charge | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Produce child abuse material outside of Australia contrary to s 273.6(1)(a)(ii) of the Criminal Code (Cth) | 15 years imprisonment | 10 months base sentence | |
| 2 | Possess or control of child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Cth) | 15 years imprisonment | 8 months | 6 months |
Total Effective Sentence: 16 months imprisonment
Pre-Release Period and Recognisance
45I find that there are exceptional circumstances. I therefore order the accused’s immediate release on a recognisance release order upon giving security by recognisance of $2,000 to comply with the following conditions:
i.be of good behaviour for a period of 3 years; and
Mandatory conditions (pursuant to s20(1B) Crimes Act 1914 (Cth))
ii.be subject to the supervision of a probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee) for a period of 15 years; and
iii.obey all reasonable directions of the probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee); and
iv.not travel interstate or overseas without the written permission of the probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee); and
v.undertake such treatment or rehabilitation programs that the probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee) reasonably directs; and
Conditions necessary to give effect to mandatory conditions
vi.report to the Reservoir Community Corrections Centre located at 909 High Street, Reservoir VIC 3073 within two clear working days of the date of this order (if released forthwith) or, otherwise, within two clear working days upon release from custody; and
vii.report to, and receive visits from, a Community Corrections officer or officers; and
viii.notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change; and
Conditions regarding Sex Offender’s Program
ix.attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee;
OR (if already assessed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee as suitable)
x.attend, undertake and complete the Sex Offender’s Program within a period of 3 years.
46Pursuant to s6AAA of the Sentencing Act, but for the early plea I would have sentenced the accused to 21 months imprisonment with a recognisance release order releasing the accused immediately.
47Because of the nature of this offence under the Victorian Sex Offenders Registration Act it is considered a class 2 offence and the Act provides that the accused is automatically on the sex offender registry for 15 years and he automatically must report to police.
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