CDPP v Low [2025] VCC 1172

1. In February 2024, Telstra reported a series of fraudulent 'phishing' messages received by Telstra customers in Melbourne. Telstra also reported that their system had detected a second generation system or '2G' signal being emitted in locations around the CBD. This generation of network signals had been decommissioned by Telstra some time ago. I will return to the significance of that shortly, but note first that a 2G network signal is an obsolete system; connections made through it are unencrypted.
2. On 5 April 2024 those reports from Telstra ultimately led two AFP officers to you, sitting in your parked car on Collins Street between Elizabeth and Queen Streets at lunchtime. As police approached your parked car, their phones, which were both subscribed to the Telstra network, received a text message falsely claiming to be sent by the Commonwealth Bank and containing a hyperlink; "www.commbbmk.com". The investigators clicked on the hyperlink which took them to a login page which looks identical to the Commonwealth Bank internet banking login page. Through this method, the principal offenders' scheme, facilitated by your involvement, was to obtain personal banking login details from people who mistook the SMS as a legitimate communication from their bank and clicked on the link.
3. The details of how you came to be there, and the granular technological details, are set out, as I have said, in the Prosecution opening.
4. In summary, you had, since August the year before, been preparing for this activity. The process, as I understand it, is called 'smishing': this adopts the term 'SMS fishing' for personal financial information.
5. You have been charged in relation to a single date, 5 April 2024, and I will be careful to sentence you accordingly. However, it was conceded on your plea that I must also have regard to your offending's context, which includes the communication with others, and the preparation of technology before you ultimately went into the CBD in a car containing the digital equivalent of a megaphone, but one which delivers many thousands of unsolicited SMS messages to proximate mobile phones on the Telstra network.
6. In brief compass, the preparatory activities included:
   • Communicating with others through an encrypted app, in conversations where it is clear that you were told the content of the messages would be unlawful;
   • Negotiating for an $800 fee per 10 hours of driving, to be paid to you via cryptocurrency;
   • Purchasing hardware with funds supplied to you for this purpose: a laptop, cable, rechargeable battery, portable WIFI box and data card;
   • Setting up this equipment according to instructions, including downloading an application which allowed others to operate the laptop remotely;
   • Taking delivery, in person, of a 'cell site simulator' (I will return to a description of this device later);
   • Following instructions as to how to rig these various pieces of technology in the back seat of your car;
   • Chatting in a group chat with others involved about the various equipment and plans;
   • Problem solving, including taking one piece of equipment for repair, (twice), and negotiating for payment for this (twice); and
   • Checking the links to fraudulent bank websites were working properly.
7. During December 2023 you began to express misgivings about your participation; you told another party that you had become aware of people being arrested for something similar. There is discussion of someone else taking over your role; but in the end you stay in the scheme and say you want to 'try start work' instead.
8. At one stage, during a negotiation for better payment with the person directing you, you tell them that you had sent out 100,000 messages.
9. On 25, 26, 29, 30 and 31 March 2024 you drove your car into the Melbourne CBD; in the back seat you took the equipment to transmit fraudulent SMS messages.
10. Between 25 and 31 March 2024 you received five cryptocurrency deposits which, when converted to Australian dollars, totalled just over $4,000.00. The rate appears to be about $800 per day.
11. I pause here to set out the basic technological parameters of the project, which have a bearing on your culpability. The central piece of equipment is the 'Cell Site Simulator'. This device creates a mobile phone cell or base station which attracts the signals of mobile phones within its proximity (its field of operation is unclear to me but may be limited to a relatively narrow geographical area and unable to pass through structures). This cell site is a false base station and works as a kind of magnet for phone signals operating across a 4G network, and once the mobile phone signal is attracted to it, it downgrades the phone to operate on a 2G network, which , as I have said, is unencrypted. There was, when I enquired, no legitimate civilian use for such a device.
12. By now, being on the 2G network, the mobile phone is unable to function normally, and its signal is unencrypted. An SMS is sent to it which appears to be sent by a known, and named sender, all of which has emanated from the laptop and managed by the remote user. The setup requires, as I have said, some proximity to the mobile phone user, which is why a busy street in the CBD is selected.
13. The purpose of all of this is, of course, to harvest the personal financial details of unsuspecting people who do not realise that the SMS is not from a trusted bank who click on the link and enter their banking usernames and passwords.
14. The granular technical details are all set out in the Prosecution opening.

1. You will be sentenced by reference to the matters set out in s 16A(2) of the Crimes Act (Cth).[3] My overarching obligation at the end of the day is, pursuant to s 16A(1),[4] to impose a sentence of a severity that is appropriate in all the circumstances of the offence; and you must be adequately punished for what you did.[5]

1. The gravamen of what you did resides in your facilitation of the serious offence of dishonestly obtaining or dealing in personal financial information. The maximum penalty is harnessed to that principal charge.
2. You will not be sentenced for the obtaining or dealing in personal financial information, however, your conduct, that is, organising and operating equipment, facilitated others aims to gather that financial information.
3. You will be sentenced for your participation on a single date, however that conduct has surrounding circumstances which, it was submitted by both parties, it is proper to take into account in assessing your culpability.
4. Your preparation for the offending unfolded over a period of approximately six months and included buying computer equipment, downloading the required applications to the hardware, taking one piece of equipment for repair twice, communicating about those steps with the syndicate who had engaged you, testing devices and hyperlinks before sending them and finally going into the CBD by car to use the equipment. Officially your title seems to have been 'driver', but you were much more than that in this arrangement.
5. By your acts, I understand that tens of thousands of text messages were sent out and delivered.
6. There were, as a result of your conduct, a very large number of people who could potentially have had their financial information compromised - this is at best distressing for the person and at worst results in catastrophic financial loss caused by theft of funds once thought to be safely banked.
7. You were not a 'shareholder' or senior person in the scheme but rather you were paid at a daily rate. You knew from the outset that the process that you were assisting was unlawful. You knew the content of the texts that you helped to deliver. I acknowledge that there is no evidence of any actual loss to others as the result of your participation and facilitation of this activity. You reported up to those handling you. You did not operate the equipment but allowed others to do so by setting it up and driving into the city.
8. You were a small cog in the machinery of financial fraud which undermines trust in both financial institutions and SMS services, both of which are broadly and heavily relied on by the community, both of which are now integral to the way we prosper, communicate, and organise our lives.
9. You offended in the context of a period of social isolation and while experiencing persistent symptoms of depression and anxiety - this I will return to, but I first note that this was proffered by your counsel by way of context and not as directed at reducing your culpability.
10. You were a participant at the lowest level of this scheme, but your moral culpability is still high, being, as you were, an instrumental part of the broader plan. When you expressed concern about what you were doing, this was generally centred, at least at first, on the legal risk to you and whether the reward offered for that was adequate. I accept you were a lowly servant of this arrangement, but your responsibility is still great.

1. You are 40 years old; at the time of the offending you were 39.
2. You were born in Singapore; you are the youngest of three children. You have an elder brother and sister. While you were not generally subjected to violence or abuse in your childhood you often witnessed your parents' verbal abuse of one another; they later separated. On occasion, you experienced corporal punishment.
3. Growing up, you felt there was a lack of emotional support within your family; it was not normal to share how you felt with either your parents or your siblings. Despite this, you recall that you generally felt loved during your childhood.
4. Your education was unremarkable; you were a good student who achieved average grades and behaved well. After finishing Year 12 you did a TAFE course in e-commerce and later completed a Bachelor of Business and Accounting at Swinburne University. Your employment history has been varied. You have worked in hospitality, marketing and owned your own e-commerce business, which had only had limited success. You are not currently employed, but you hope to work in the financial sector in future.
5. Your parents suffer from a range of ongoing and serious health conditions, and despite being separated, live together with you and with your sister. You act as a carer for them, and complete most of the basic household tasks. You have not shared much information about these proceedings with them, due to concerns about their wellbeing.
6. Feelings of emotional isolation have followed you into adulthood. Over the last five to six years, you have experienced persistent feelings of anxiety and depression. You have found it difficult to maintain relationships and meaningful social connections; and at times you have felt lost and without a purpose.

1. You are a 40-year-old man without any criminal history. As I have said, you were 39 when you committed this offence.
2. By your plea you prevented a relatively technical trial involving experts from having to be conducted. No witnesses were cross examined. Despite your participation, you were at least ultimately able to articulate, to the reporting psychologist, the financial and emotional impact of schemes such as the one you facilitated. Your plea is an important matter that has been taken into account in mitigation of your penalty on this sentence.
3. You were initially unforthcoming in an interview with police; you subsequently offered your assistance, but this was declined in those circumstances.

1. Pursuant to s16(2)(p) of the Crimes Act,__[6] I will take into account the probable effect of any sentence under consideration, and what effect it would have on your family. You live with your parents and sister. Your father suffers from Diabetes, chronic kidney disease and Ischaemic heart Disease, among other problems. Your mother is also diabetic and also suffers other systemic and debilitating conditions. Your sister is under the care of a psychiatrist for treatment of a bipolar disorder. Your family are all vulnerable and you care for them. You are, for example, the only person in the household who can currently drive.
2. These matters weigh into the sentencing calculus. I am conscious of the authorities warning me of the danger of placing however excessive weight on family circumstances.

1. You were assessed by a psychologist, Mr Simon Candlish, and a report was tendered. In Mr Candlish's opinion you currently have a persistent depressive disorder (severe) and a major depressive disorder (also severe). You are described as being at risk of self-harm. Mr Candlish holds the opinion that you were suffering from these problems at the time of your offending, which had consequences for your thought processes. It was not submitted, as I have already said, that this reduced your moral culpability.
2. Your counsel argued that limbs 4 (specific deterrence), 5 (weight of a custodial term) and 6 (possible adverse effects on mental health) of the case of Verdins were engaged on the basis of the psychological opinion in the report of Mr Candlish.[7]
3. The greater emphasis was placed on Verdins limbs 5 and 6 - being imprisonment likely to present a risk of deterioration in your conditions and increase the weight of the sentence upon you. I also factor in that the weight of your imprisonment would also be affected by your inability, and concern about your inability to no longer be able to care for your vulnerable family members. I have accepted each of those matters and I have weighed them in the sentencing synthesis in your favour.

Specific deterrence prospects of rehabilitation and contrition

1. As I have said, you have no prior convictions; you were imprisoned for one night after your arrest, an experience that you found, I accept, extremely alarming. You are now, in your words 'too scared to do anything slightly shady', which speaks to the very reduced need for specific deterrence in this case. I am cautiously optimistic that you can and will return to a proper way of living in the future. It is clearly essential that you take steps towards dealing with the mental health issues which have been worsening, unattended to by you, for quite some time. I note that you have in the past attempted to access mental health treatment but been unable to follow through with this. I adopt your counsel's submission that 'subject to treatment for your depressive condition', your prospects of rehabilitation are very good.

1. What are the most pressing purposes of this sentence? The need for adequate punishment, and denunciation but most of all I find general deterrence. This sentence must deter others from participating in schemes that have the potential to wreak so much havoc in normal people's lives, and to erode the trust in communications and banking.

1. This offence has been in the Criminal Code (Cth),[8] I understand for 21 years, but appears to have never been prosecuted. There is no sentencing practice for it and no analogous cases. I was taken to the decision of R v Foster [2022] NSWDC 467 which had some echoes of this case in relation to one of the charges. In that case, the accused also engaged in smishing, but was ultimately sentenced for other, more serious conduct including being involved in a sustained way in the setup of the fraud infrastructure, and receiving funds gathered from that enterprise. He was sentenced to an aggregate term of three years and seven months with a non‑parole period of two years and two months - this is all of little or no assistance in the circumstances of this case. I must sentence according to principle and guided by the submissions of the parties.

1. Counsel for the Commonwealth Director submitted that the offending warrants the imposition of a term of imprisonment, albeit one which allows for the imposition of a recognisance release order with immediate release.
2. Your counsel submitted that the threshold in s 17A,[9] that is, that I must be satisfied that no other disposition other than a term of imprisonment is warranted, is not met in this case. In other words: given that your offending can be adequately dealt with by the imposition of a community-based order, with its attendant flexibility and therapeutic content, a sentence of imprisonment is not lawfully open. I note that I had you assessed for such an order and you were found to be suitable.

1. Turning then now to my disposition and weighing those matters that are now before me. The parties join issue in this case, in essence, on whether the threshold in s 17A[10] is met - is there any other sentence than the one which involves imprisonment that is appropriate in the circumstances of this case?
2. By reference to your high moral culpability and the need to generally deter others from participating in such arrangements, I find that the only appropriate sentence must be one of imprisonment. Put differently, I find that the threshold in s 17A of the Crimes Act is clearly met.[11]
3. That said, I will impose a sentence that will cause you to be at liberty immediately on the conclusion of this case, upon your undertaking to be of good behaviour and to comply with the other conditions of the order. I will return to those obligations in a moment. If you will stand up for me now, please, Mr Low.

1. Teck Low, on Charge 1, using a telecommunications device to facilitate the commission of a serious offence, you are convicted and sentenced to 18 months' imprisonment, to be served by way of a Recognisance Release Order.
2. Pursuant to paragraph 20(1)(b) of the Crimes Act 1914 you will,[12] on giving security by recognisance of $1,000 and an undertaking to comply with conditions you will be released immediately.
3. The conditions will be these, subject to submissions that I will invite from the parties in a moment:
4. That you will be of good behaviour for a period of three years; and
5. You will comply with all the mandatory conditions of a Recognisance Release Order (pursuant to s20(1B) Crimes Act 1914 (Cth))
   • be subject to the supervision of a probation officer for a period of two years;
   • obey all reasonable directions of the probation officer;
   • that you do not travel interstate or overseas without the written permission of the probation officer; and
   • that you undertake such treatment and rehabilitation programs that the probation officer reasonably directs, but most particularly, that you undertake appropriate treatment for your mental health conditions.
   • Conditions necessary to give effect to mandatory conditions
   • Then you will be required to report to your nearest Corrections Centre, and I will hear the parties about which one that is, within two clear working days of the date of this order;
   • You will need to report to, and receive visits from, a Community Corrections officer or officers; and
   • Notify them of any change in address or employment within two clear working days after the change.
6. Thank you, Mr Low, take a seat.

1. For completeness, I note that had you not pleaded guilty but been found guilty after trial, I would have sentenced you to two years' imprisonment to be served immediately.

1. Let me just tell you what a Recognisance Order really means, Mr Low. It means you have got 18 months of imprisonment, but you do not have to serve that as long as you comply with the other conditions of the order. It sits there for a period of three years, and you have to not get into any other trouble over that three years. If you do, the real possibility is that you get brought back before Court and you get into more trouble, and you have to actually serve that time in custody. Your lawyer will also assist you by explaining the particular conditions that you have to comply with, but one of them is going to be to have your mental health condition properly treated, all right.
2. I will start with you, Mr Hogan. Are the conditions of the Recognisance Release Order tolerably clear?
3. MR HOGAN: Yes.
4. HER HONOUR: So, supervision for two years. Undertaking to be of good behaviour for a period of three years. And the term is 18 months.
5. MR HOGAN: Yes. Yes, that is correct and that is clear. There's no real other issues I have noticed in the wording other than perhaps with respect to the treatment for the mental health condition - might just want to - I'm not even too sure on the fly that I could craft the appropriate condition.
6. HER HONOUR: I will read it again. It says undertake such treatment or rehabilitation programs the probation officer reasonably directs, but most particularly appropriate treatment for your mental health condition. I did not want to become more proscriptive about that. I know that one version of that treatment was proposed on the plea, but I wanted to adopt Mr Manning's submission that I didn't want it to unnecessarily go wrong and be unnecessarily inflexible.
7. MR HOGAN: No, it remains flexible. No, I agree, Your Honour. No, I think that is appropriate in the circumstances and it may be a matter that, of course my learned friend can speak to this, that the report is provided alongside the Recognisance Release Order so Mr Low may advise that he has been attending upon Mr Candlish previously.
8. HER HONOUR: Yes, and I trust that the - yes. Mr Manning, do you have anything to add to that? I wanted to, as you submitted, to keep it flexible.
9. MR MANNING: No. Yes, I have no difficulty, and I can see that Your Honour's wording picks up sub-paragraph (d) of sub-section 1B of that provision, with the addition of the reference to the mental health treatment.
10. HER HONOUR: Yes.
11. MR MANNING: I suppose the only query I had, which is more a practical one, is how that one would operate alongside the Corrections Victoria conditions. I should indicate that the closest centre, as I understand it, is Werribee.
12. HER HONOUR: Thank you, that was my next question.
13. MR MANNING: I mean it may well be that under that condition, the probation officer identifies the appropriate treatment and informs Corrections Victoria of that, but I'm not quite clear on how that would operate.
14. HER HONOUR: Neither am I, to be frank with you. And is a probation officer different to a Community Corrections officer?
15. MR MANNING: Indeed. I mean I am just thinking if my client attends upon Werribee Corrections Victoria within two days, as to what actually takes place at that occasion as opposed to an engagement with a probation officer. My learned friend might have some information on that?
16. HER HONOUR: Can you assist, Mr Hogan?
17. MR HOGAN: Yes, Your Honour. So probation officer is used interchangeably within the Act.
18. HER HONOUR: Yes.
19. MR HOGAN: So say with respect to child abuse material offending and they have the prescribed mandatory conditions for child abuse material offenders, they use probation officer within the Recognisance Release Orders.
20. HER HONOUR: So what it really, it is used interchangeably with Corrections Victoria.
21. MR HOGAN: Yes.
22. HER HONOUR: Is that what you say?
23. MR HOGAN: Yes, and there are orders which I have previously drafted for the court which have used Community Corrections officer or Community Corrections services.
24. HER HONOUR: That might be better to keep it consistent throughout, so that there's no confusion.
25. MR HOGAN: Yes.
26. HER HONOUR: So we might make the reference to, in paragraph (b) of the final orders to be, subject to the supervision of a Community Corrections officer for a period of two years, obey all reasonable directions of the Community Corrections officer'. Does that, I have a paper version that we can distribute, if that's of assistance.
27. MR HOGAN: Yes, Your Honour.
28. MR MANNING: Yes, thank you, Your Honour.
29. HER HONOUR: Yes, we could do that. Could we get a couple more of those, thank you.
30. MR HOGAN: Your Honour, I also ask, because I have been required to do so before, would you need my office to draft up the Recognisance Release Order or - - -
31. HER HONOUR: Well my staff have - - -
32. MR HOGAN: - - - you have it here?
33. HER HONOUR: - - - has designed one.
34. MR HOGAN: Yes. This is the correct form.
35. HER HONOUR: Probably based on an earlier one, I think. So to exchange the words 'Corrections officer', thanks, with 'Probation officer' and keep that terminology consistent throughout, might be more appropriate.
36. MR HOGAN: Yes, Your Honour. So, within the mandatory conditions portions,

sub-section (b), (c), (d) and (e), any reference to probation officer can be (indistinct) - - - 37. HER HONOUR: Thank you. 38. MR HOGAN: - - - with Community Corrections officer. 39. HER HONOUR: I think that's desirable, and Ms Polak is working on it as we speak. It will be prepared so that Mr Low can sign it. 40. MR MANNING: Thank you, Your Honour. 41. HER HONOUR: Only one thought detains me, which really is that there was, I understand it a night spent in custody and I've not declared it. It's not been pressed as a day of pre-sentence detention. I would need to - as I have sentenced for 18 months, I would need to restructure the wording of the order if it is pressed as a day of pre-sentence detention, I would have to say one day of which is already served, to be released after a day. Does anyone wish to be heard about that? My inclination is, it is not that there is a day of pre-sentence detention but I haven't really heard you on that. 42. MR MANNING: I have no difficulty with that, Your Honour, if ideally from Mr Low's perspective this is the end of the matter and nothing further happens. 43. HER HONOUR: Yes. 44. MR MANNING: Should that not be the case and there ever indeed was a

re-sentence, then there would presumably be powers to declare it at that point in time. 45. HER HONOUR: At that point. 46. MR MANNING: And in the absence of that, I'd presume in any other occasions it would qualify as Renzella time if not declared under this matter, but in any event it would seem to have limited practical impact upon this sentence. 47. HER HONOUR: It does, but I don't want to - I just wasn't sure what to do with it. 48. MR MANNING: Yes, nor am I, to be frank, Your Honour. 49. HER HONOUR: Yes. All right, let's trust that it won't arise; if it does arise, then Mr Low will need to give his lawyers instructions that he has spent a night in custody and it be taken into account in one of those two ways. 50. MR MANNING: Yes, and Your Honour's sentencing remarks reflect that as well obviously. 51. HER HONOUR: They do. All right, let me just enquire as to whether we have nearly got - thank you. So Mr Low, stand up for me. Mr Manning is going to give you some advice in a moment about what you have to do, so that you don't get into trouble again by breaching this order. But mostly the thing that you have to do is not get into trouble, but there are other things that you have to do too. It's about to be printed out. Mr Manning is going to have a word to you about it and then you are going to sign it, all right. 52. OFFENDER: Yeah. 53. MR MANNING: Your Honour, may I approach Mr Low? 54. HER HONOUR: Yes. Actually, Mr Manning, take this one. 55. MR MANNING: Yes, Your Honour. 56. HER HONOUR: Yes, have you had an opportunity Mr Manning to explain the order? 57. MR MANNING: I have, Your Honour, thank you. 58. HER HONOUR: Thank you, all right. Take a seat, Mr Low. Is there anything further, Counsel? 59. COUNSEL: No, Your Honour. 60. HER HONOUR: Thank you both for your assistance with this case. That completes this matter. 61. MR MANNING: As Your Honour pleases. 62. MR HOGAN: As the court pleases.

[3] 1914 ('Crimes Act').

[5] Ibid s 16(2)(k).

[7] [2007] VSCA 102; (2007) 16 VR 269.