R v Ou

Cases Cited: Barnard v The King [2025] WASCA 63
Commonwealth DPP v Huang and Duan [2025] VCC 1396
DPP (Commonwealth) v Low [2025] VCC 1172
R v Foster [2022] NSWDC 467
Stevens v R [2009] NSWCCA 260
Vamadevan v The King [2024] NSWCCA 223

Category: Sentence

Parties: Commonwealth DPP – Crown
Yifei Ou - Offender

Representation: Mr McGinness and Ms M Grawich for Crown
Mr K Park for Offender

File Number(s): 24/123986

remarks on sentence

1. Mr Yifei Ou is for sentence in relation to two offences under the Criminal Code (Cth), the first one being sequence 5 which is an offence under s 474.14(2), that being an offence of using equipment connected to a network to facilitate the commission of a serious offence, namely an offence under s 192E of the Crimes Act 1900 (NSW). That Criminal Code offence is one that carries a maximum penalty of ten years’ imprisonment.

2. The second offence is the sequence 6 offence which is under s 474.14(2) of the Criminal Code, which is an offence of using equipment connected to a network to facilitate the commission of a serious offence, the underlying offence being one under s 480.4 of the Criminal Code. The offence, therefore, carries a maximum penalty of five years’ imprisonment. The maximum penalties, of course, are important guideposts in the sentencing exercise to which I have had regard.

3. In sentencing him for each offence, he asks that I take into account, on a s 16BA schedule, other offences to which he admits, and I will refer to those later in my reasons.

4. The offender pleaded guilty at the earliest opportunity and I intend to allow a 25% discount by reason of the value of that plea of guilty even though there is no specified discount for Commonwealth matters.

FACTS

5. The facts are agreed but are lengthy and include tables setting out many communications which were engaged in by the offender. I do not intend to set all of these out. I have had regard to all of the facts but I will recite them only to the extent that this is required in order to provide a fair and comprehensive representation of relevant matters.

6. In March 2024, New South Wales Police became aware of data indicating that scam text messages were being sent to multiple persons in Sydney by the use of a cell‑site simulator. A cell‑site simulator is a device which masquerades as a mobile phone tower, lures mobile phone handsets within the vicinity to attach to it, and then sends to those handsets a pre-programmed SMS message. When used for criminal purposes, as in this case, this activity is known as “smishing”, a term which is a combination of “SMS” and “phishing”.

7. On 3 April 2024, New South Wales Police Cybercrime Squad planned and executed an operation to locate a portable cell‑site simulator device. This involved the use of a radio frequency (RF) detector to detect radio frequencies being emitted by the cell‑site simulator.

8. The facts for the sequence 5 offence are as follows. The offender used a mobile phone app called Telegram to exchange messages with a person using the name Daniel Wi. On 27 March 2024, the offender asked Mr Wi, “How is the effect for this hour?” and when told it was “all right”, the offender replied, “Close to 5,000 have been sent,” and also “How is the effect for the two hours... more than 12,000 pieces.” Wi then sent a message to the offender which contained the text, “Your account is temporarily locked due to the suspicious activity detected. Please click the link below to complete the verification.” The message appears also to have included an internet link. After this, the offender asked Wi, “How is the effect after the change of content?” and Wi replied, “It is also good.”

9. On 28 March 2024, the offender sent to Mr Wi a message asking if the new web URL was available and was told by Wi to take his time and that he would “get both of them up.” After this, Wi sent to the offender four internet weblinks but telling him only to use the third one and to set it up properly. Wi also sent messages to the offender saying, “Turn it on,” and “Apartment suburbs,” to which the offender replied, “Correct,” and “The northern suburbs.” Around this time, the offender asked Mr Wi, “How is the effect for the hour that just passed?” and “How is the effect after the change of web URL?” after which the offender and Wi appear to have had some other communications.

10. On 29 March 2024, the offender sent to Wi a message that said, “I can talk to you while running - I will not run until the afternoon,” after which Wi sent a message to the offender with text, “Your Medicare account has been temporarily suspended as we’ve noted some unusual activity. Confirm your identity through xxx to regain access,” along with some internet links. After this, Wi asked, “How many were sent?” and the offender replied, “11,322.” After this, there were other messages exchanged between the offender and Wi including one where Wi told the offender to “take some photos to show me - the settings for text messages.” Other messages appear to relate to instructions being issued by Wi and the offender replying to them.

11. On 30 March 2024, in other words the next day, the offender sent a message to Wi asking, “What time does it begin at?” and Wi sent to him a number of weblinks. These appear to have related to the sending out of texts saying, “Your account is temporarily locked, et cetera,” and telling the recipients to click on a link to complete “verification”. The offender and Wi continued, after this, to exchange messages which involved the offender being told by Wi which weblinks to use.

12. On 31 March 2024, the offender and Wi exchanged more messages and Wi sent to the offender a number of weblinks with an instruction to “have a try by running it for one hour,” and “come to me collect money when it is done,” and “take a photo once setup is done.” In response, the offender sent an image of a computer screen showing the “Your account is temporarily locked, et cetera” message, and it seems that the two men spoke by phone, after which the offender asked by text, “How is the effect?” and was told it was “okay”. The offender told Wi that “I will be running until around 4.30 today, have a commitment after that and will come to your place tomorrow.” The offender also asked, “How is the effect this hour?” and was told to stop it and that “no one is buying.”

13. The next day, 1 April 2024, the offender sent a message to Wi stating, “Here,” and “When to get started?” He was then sent, by Wi, four weblinks and was told to use the third one. Wi also said to the offender, “It was not apartments that you were running around yesterday,” to which the offender replied, “It was apartments and houses with many people yesterday,” and “I will let you know when I get started.” After this, Wi sent a message telling the offender to take his time and turn it on in about half an hour, to which the offender replied, saying, “I have configured the software for quite some time now,” and that he “could not turn it on”. Wi told the offender to “film a video” and the offender then transmitted a video which showed a popup on a screen entitled “Registration”, where the offender appears to enter an activation code and the popup states, “Activate code has expired, please activate again.”

14. After this, the offender sent a message to Wi, telling him that previously, for more than a week, the software would operate once cancel is clicked and saying, “Same operation as in Melbourne.” Wi then sent to the offender some form of alphanumeric code, telling the offender to “have a try and see,” after which the offender messaged, “Activation successful.” Wi also sent to the offender messages referring to the need to “run to the apartment suburbs,” and telling the offender to “go to the place where you went on the first day” and commenting that “the villa suburbs where there were a lot of people yesterday are not very good,” and also telling the offender to “start sending from 12 o’clock.” In response, the offender replied, saying he would go to the place he went the first day and saying, “After activation, this time I have set up all four antennas.” The offender also sent to Wi a video showing a screen with various data displayed on it.

15. On that same day, the offender sent messages to Wi, saying that he had “checked the connection between the mainframe and no issues detected,” and was told by Wi to reboot if not working. After the offender indicated that it was “still not working”, he told Wi that he was “downstairs at your home” and would like to look at the machine, “how configure it properly.” The messages suggest that the two men then met up.

16. The next day, 2 April 2024, the offender sent messages to Wi asking when would be a good time to start and “which web URL to use”. Wi then sent, to the offender, four weblinks, telling the offender to use the third one, which appears to have included the message, “Security alert: Your account is temporarily locked due to the security police update. Please verify yourself via xxxx to unlock your account.”

17. Other messages were exchanged between the two men, with Wi referring to “apartment area” and “Suggest you go to the place you went to the first day. The effect is not good. One hour already, hardly any fish.” The offender replied to this, confirming that he “took the route I did on the first day,” and asking, “How is the effect?” after which Wi replied, “Just make do,” and telling the offender to change to another weblink. The offender later asked, “How is the effect for the hour just now?” and was told it was “all right”. The offender later asked again, “How is the effect?” and was told by Wi to “come and get the money,” after which it appears from the texts that the offender arrived at Wi’s location.

18. The next day, 3 April 2024, the offender texted Wi asking what time to start today and was given some weblinks. After this, the offender sent to Wi what appears to be screenshots of the “Security alert: Your account is temporarily locked...” messages to which I have earlier referred, and of what appears to be a replica of a Commonwealth Bank NetBank login page. After this, Wi asked, “Is the sending speed normal?” and was told by the offender that it was slower than yesterday. The offender also said, “Feel not many people,” and “I am changing area,” after which he asked, “Is the effect better or not?” To this, Wi said that he had “just got one fish up” and asked, “How many have been sent?” to which the offender replied, “More than 3,000,” and saying that he will return to areas surrounding the CBD and then again asking, “How is the effect?” In response, Wi told the offender, “Not good,” and that he should “change to this one.” The offender later asked, “Could payment be made today?” and Wi replied, “It could be. Just there is no fish.” This last message by Wi was sent to the offender at 2.43pm on 3 April 2024.

19. On that day, 3 April 2024, police were in the suburb of Balmain conducting their investigation, which was attempting to locate the cell‑site simulator using an RF detector. The RF detector was being used by police in an unmarked police car. While doing so, somewhere in Balmain, it was noticed that the signal on the RF detector reacted when in the vicinity of a white Audi Q5. That Audi was being driven by the offender. The officer monitoring the RF detector noticed that, while trying to use his mobile phone to tell other police in the vicinity that he had located the cell‑site simulator, the mobile phone suddenly lost connection with the Telstra network. The officer then observed his mobile phone to receive an SMS which purported to be from Commonwealth Bank and which said, “Your account is temporarily locked due to the suspicious activity detected. Please click the link below to complete the verification.” The text included such a link.

20. The officer followed the Audi and, once it had stopped, he approached and opened the driver’s door, finding the offender to be the sole occupant. The offender was arrested and, when asked to provide his name and date of birth, he provided the correct details. The officer asked the offender if he knew why he was under arrest and the offender said, “I don’t know.” When asked about the electronic equipment in the Audi, the offender said, “Someone gave me. Asked me to drive the car around.” Upon further questioning, the offender said that the car belonged to his friend, and that he had borrowed it. When asked the friend’s name, the offender said, “Is he going to be in trouble? ‘Cause he’s not involved.”

21. An examination of the Audi revealed a laptop computer, which was powered on, in the front passenger footwell. There was also a large battery/power supply in the rear footwell, a white antenna with cables, which was attached to the rear passenger headrest, which was concealed by some shirts that were wrapped around it. In the boot of the Audi, there was a large black metal box with cables which was identified as a cell‑site simulator. An iPhone 12 was also found in the vehicle. The statement of facts indicates that, once the power to the equipment in the Audi was disconnected, the police officer’s mobile phone reconnected to the Telstra network. The offender was arrested and returned to a police station where he declined an interview.

22. The Statement of Facts notes in summary that, between 27 March and 3 April 2024, the offender used a cell‑site simulator to facilitate the commission of a serious offence, namely fraud contrary to s 192E of the Crimes Act 1900 (NSW), this being, in summary, the offending that is the subject of sequence 5, which I have just set out in more detail. The agreed facts note that testing of the cell‑site simulator device seized from the Audi confirmed that it was capable of masquerading as a mobile phone tower set up to broadcast to both the Optus and Telstra networks. The facts record that the device operated by luring mobile handsets to the fake tower transmission, then sending to those handsets a pre-programmed text message.

23. Turning then to the facts relating to sequence 4, which is to be taken into account in sentencing for sequence 5. The Statement of Facts notes that, on 3 April 2024, the offender was in possession of a thing, namely a cell‑site simulator, for the purposes of obtaining personal financial information, and this is the sequence 4 offence that is on the s 16BA schedule and is to be taken into account when sentencing the offender for the sequence 5 offence. Police conducted an examination of the iPhone that was found in the Audi and found other Telegram communications that had taken place between the offender and a person using the name “H SH SH”. I will refer to this person hereafter just as “H”. A review of the conversations that occurred between 22 January and 7 March 2024 revealed various communications which occurred at a time when the offender was operating in Melbourne.

24. That brings me to the facts relating to the sequence 6 offence. Conversations in the form of text messages found on the iPhone were similar to those that had occurred between the offender and Wi, and included frequent comments about whether there were enough people around, and about the operation of the cell‑site simulator. It is agreed that, between 22 January and 28 February 2024, the offender used equipment, being a cell‑site simulator, to facilitate the commission of a serious offence, namely dishonestly obtaining personal financial information contrary to s 480.4 of the Criminal Code.

25. The Statement of Facts notes some examples of the messages which were exchanged between the offender and H. On 23 January 2024, the offender and H discussed that a port was not working and the offender noted that the “effect at the casino is good”. On 24 January 2024, H asked the offender if today has been okay, and the offender replied with a series of numbers increasing in value with the final number being 17,993, which the Statement of Facts notes can be inferred to have been the number of devices to which the phishing messages had been sent. On 27 January 2024, H gave the offender some instructions and they also discussed the placement of a network cable. On 28 January 2024, the offender indicated that “the effect is not good” due to signal blocking the area. On 30 January 2024, H again gave the offender some instructions about clicking on something, and the offender again sent a series of increasing numbers, ending with 17,125. On 3 February 2024, they discussed the content of the message being transmitted. On 27 February 2024, H told the offender to move to another place because there are “very few fish”.

26. That brings me to the facts relating to the sequence 7 offence, which is the second item on the s 16BA schedule, which is to be taken into account in sentencing for the sequence 6 matter. The facts are as follows. In addition to the instructions to the offender to which I have just referred, and the discussions between them, there were numerous messages about payment being made to the offender as his “salary” and his being reimbursed for expenses. It is an agreed fact that, between 22 January and 7 March 2024, the offender dealt with money reasonably suspected to be the proceeds of indictable crime, namely $9,005.

27. The Statement of Facts records that the Commonwealth Bank confirmed that “smishing” activity targeting CBA customers between January and April 2024 resulted in 296 customers being impacted. The total exposure involved in these transactions was $720,754 and 403 transactions were identified, amounting to $355,053 in actual customer losses. The CBA also confirmed that when smishing links are sent to customers, the customer, if they are taken in by the scam, is instructed by the messaging to enter their login details on a malicious website with the appearance of the real CBA website. This then allows criminals to use those details to access the customer’s CBA profile to view account balances and to retrieve card details. The facts note that it is not suggested that the offender’s actions were responsible for the amount of customer losses or exposure referred to by the bank. Those are the relevant facts of the offences before the Court.

s.16A(2) FACTORS

28. Given that these are Commonwealth offences, I must address s 16A(2) of the Crimes Act 1914 insofar as the various paragraphs of that subsection are relevant.

29. In terms of the nature and circumstances of the offences, I have already set out the facts. However, it is important that I make an assessment of the objective seriousness of the offences for which the offender must be sentenced.

30. Starting with sequence 5, I make the following findings. This offence concerns the offender’s use of a cell‑site simulator between 27 March and 3 April 2024 so as to facilitate the commission of fraud. The fraud offence relied on by the Crown is under s 192E of the Crimes Act (NSW). That offence carries a maximum penalty of ten years’ imprisonment which, by operation of s 474.14(3) of the Code is picked up as the maximum penalty for the sequence 5 offence.

31. The intended fraud at which the conduct was aimed was the wish to trick people into putting their personal identification details into a bogus weblink so as to capture those details and use them to fraudulently acquire a financial benefit.

32. Clearly, offences like this must be treated very seriously given the financial harm that they can cause. People who perpetrate these sorts of scams are parasites on the community. Anyone with a mobile phone knows just how prevalent these sorts of scams are. General deterrence must be given great weight in sentencing.

33. In this particular case, the offending extended over a period of about eight days and involved many thousands of scam texts being sent to mobile phones, each one of which had the potential to result in the theft of innocent people’s funds. Clearly, the operation involved planning and the use of sophisticated technology.

34. It is not suggested that the offender was directly involved in the planning of the offending or in sourcing the cell‑site simulator. His role was basically to drive the cell‑site simulator around various parts of Sydney and to facilitate the sending out of the bogus messages. His was a role that was lower in any hierarchy and it is not suggested that it was he who stood to gain directly from any ill‑gotten gains. Rather, he was paid an hourly rate.

35. However, his role was not akin to that of a mere courier or labourer. He did more than just drive the cell‑site simulator around. He was in constant contact with Daniel Wi. He had a level of autonomy in choosing the areas of Sydney to be targeted. He had a level of control in terms of how many bogus messages were broadcast. He regularly discussed with Wi whether “the effect” was good, presumably this being a reference to how many unsuspecting people were clicking on the bogus links.

36. At other times, he engaged with Wi to troubleshoot problems with the software, sent images or videos to Wi, and, on one occasion, suggested that he change areas because he felt there were “not many people”. He had also taken steps to reduce the risk of suspicion by covering the antenna of the device with an item of clothing.

37. In my view, the offender was an enthusiastic and trusted operative and played a vital role. He clearly knew the fraudulent intent behind the operation, and his own actions. In my view, sequence 5 represents a serious example of this type of offence.

38. In sentencing the offender for sequence 5, I will take into account the sequence 4 offence of being in possession of the cell‑site simulator with the intention of it being used to commit an offence of dishonestly obtaining or dealing with personal information, that being the matter on a s 16BA schedule. Matters on such a schedule can be taken into account in an appropriate case to increase the penalty for a substantive offence by giving greater weight to personal deterrence and to retribution. This is not automatic, however, and depends on my assessment of the particular offence and the circumstances. In this instance, the cell‑site simulator was part and parcel of the commission of the sequence 5 offence and, in my view, it should operate only minimally to increase the penalty for the sequence 5 offence.

39. Turning then to the sequence 6 offence. This offence is also under s 474.14(2) of the Code. The underlying offence, however, is one under s 484.4 of the Code, being an offence of dealing in personal financial information without consent, which carries a maximum of five years’ imprisonment.

40. This offence relates to the offender’s activities in Melbourne, where he was interacting with a different criminal associate. The offending conduct extended over more than a month, and involved similar conduct to that which is the subject of the sequence 5 offence. It involved the sending out of many thousands of bogus messages, again with the aim of tricking people into providing their personal details. Again, it is clear this criminal operation was sophisticated and involved planning. However, and similarly to the sequence 5 offence, it is not suggested that the offender was directly involved in the planning and organising, nor is it suggested that he stood to share in the profits arising from the acquisition of any personal information. Rather, he was paid an hourly rate.

41. In my assessment, the offender performed a similar role to that involved in the sequence 5 offence. He was not a mere courier or labourer. He had some level of autonomy in terms of where to go and some apparent control over the number of messages being sent out. He was in regular contact with his criminal associate, and engaged in discussions about issues with the equipment and about moving to different areas to increase the number of fraudulent messages being received by innocent people. The offender was again an enthusiastic and trusted operative and played a vital role. He clearly knew the fraudulent intent behind the operation and his own actions. In my view, sequence 6 represents a serious example of this type of offence.

42. In sentencing for the sequence 6 offence, I will take into account the sequence 7 offence of dealing with money where it is reasonable to suspect that that money was the proceeds of indictable crime. This offence relates to the amount of $9,005 received by the offender as either payment or reimbursement of expenses in carrying out the illegal activity. I note that the offence is one of “reasonable suspicion” of being proceeds of indictable crime and I take care not to treat the money as being actual proceeds of crime as that would be a more serious offence. In my view, this offence should have the effect of increasing somewhat the penalty for sequence 6 so as to acknowledge the separate criminality involved.

43. I note, by reference to para (c) of s 16A(2), that the substantive offences involved a course of conduct. However, I have taken this into account already in assessing the objective seriousness of each offence.

44. Paragraph (d) of s 16A(2) refers to the personal circumstances of any victim of the offence. The evidence before the Court does not identify any direct victims of the offending.

45. Paragraph (e) of 16A(2) refers to any injury, loss or damage arising from the offence. It is reasonable to assume that some loss of a financial nature probably has occurred as a consequence of one or both offences. However, I have not been provided with any evidence to confirm this and so I put the issue aside. Nonetheless, offences like those before the Court involve inherent harm regardless of whether or not anyone suffers a financial loss. That is because these sorts of offences have the capacity to undermine public confidence in the integrity of the banking system, and also of telecommunications systems such as those operated by Telstra and Optus.

46. Paragraph (f) refers to the degree to which the person has shown contrition by taking action to make reparation for any injury, loss or damage, or in any other way. In terms of any remorse or contrition, there is the letter that the offender has provided to the Court and his comments to a psychologist and others. There is also the evidence of the offender’s participation in voluntary bush care in the Canterbury‑Bankstown area. I accept that there is genuine remorse, although I think a significant part of this is the offender’s concern for the effects of his actions on his family, given the comment in his letter that it is his family who have suffered the most. While there is also his plea of guilty, this was largely an acceptance of the inevitable, given that the offender was caught red‑handed.

47. Paragraph (g) of s 16A(2) refers to the guilty plea, the timing of the plea, and the degree to which they have resulted in any benefit to the community, or any victim or witness. It is accepted that the pleas of guilty were at the earliest opportunity and that they have had utilitarian value and demonstrate some willingness to facilitate the course of justice. While there is no fixed discount for pleas of guilty in Commonwealth matters, I will allow a 25% discount by reason of the practical value of the pleas.

48. Paragraph (h) of 16A(2) refers to the degree to which the person has cooperated with law enforcement agencies. The offender declined to be interviewed by police and has not sought to assist in any way other than by his plea of guilty which I have already taken into account.

49. Paragraphs (j) and (ja) of s 16A(2) refer to the deterrent effect on the person and the deterrent effect on others. Clearly, these are very important aspects which must be given considerable weight in the sentencing exercise. The prevalence of scams of the type that the offender was seeking to facilitate is a matter that any person with a mobile phone is well aware of. People, like this offender, who perpetrate such fraudulent activities seek to prey on the innocence and trust of vulnerable people, many of them likely to be elderly and unsophisticated in relation to computers and the internet. Offending of this kind, which can be carried out from a moving car, are obviously difficult to detect. The public expects that such cynical and cowardly behaviour should be the subject of significant punishment. It is relevant, in this regard, to note the observations of McClellan CJ at CL in the case of Stevens v R [2009] NSWCCA 260 where his Honour said:

“...as the current offences make plain the electronic system is vulnerable to persons intent upon dishonestly exploiting any weakness. That vulnerability may result in a complete loss of confidence in the system if breaches occur. If public confidence in the integrity of the system is to be maintained the courts have an obligation to ensure that when dishonest breaches of its security are identified the offenders are appropriately punished. Both personal and general deterrence are of particular significance in relation to these types of offences.”

50. Paragraph (k) of s 16A(2) refers to the need for adequate punishment, which is just a statement of the obvious.

51. Paragraph (m) refers to the character, antecedents, age, means and physical or mental condition of the offender. In this regard, the offender, I note, is aged 35. He has no previous criminal history. His subjective case is before the Court by means of a selection of written material. The psychological report of Dr Rodriguez notes that the offender was born in China and is the only child of his parents. His childhood was stable and supportive and he was not exposed to neglect, abuse or drug and alcohol problems. He was a good student at school and had no behavioural problems. He is obviously an intelligent person, having obtained a degree in environmental engineering in China and then a master’s degree in environmental engineering at the University of Melbourne in 2015. Since migrating to Australia in about 2013, the offender had lived mostly in Melbourne and worked in various roles. The offender reported a close and supportive relationship with his mother but described a strained and at times fractious relationship with his father, who, understandably, has expressed anger and disappointment about the offender’s actions, describing him as a criminal, which indeed he is.

52. He told the psychologist that he became involved in the offending for financial reasons in that he was seeking to earn money to recoup financial losses that he had incurred from previous investments that had gone sour. It is difficult to have much sympathy for this situation, given the offender’s indication that when he was living in Melbourne, this was in an “apartment purchased for him by his parents”. He denied that he had been coerced or controlled by others and accepted that he engaged in the offending voluntarily and for financial reasons. He knew it was wrong but thought that he would not be caught. I note that these frank admissions are, to some extent, to the credit of the offender.

53. The psychologist detected no evidence of any major mental disorder or any suggestion of antisocial personality disorder. However, the psychologist says that the offending occurred when the offender was experiencing heightened anxiety, shame and financial stress arising from his investment losses and need to repay loans. The psychologist notes that these stressors contributed to impaired judgment and emotional vulnerability and that the offending occurred in the context of desperation to recover financial losses and preserve self‑esteem rather than from antisocial intent or callous disregard for others.

54. I do not regard the circumstances described by the psychologist as providing any excuse for, or mitigation of, the cynical and predatory criminal conduct in which the offender enthusiastically engaged. There can be no doubt that the offender engaged in the offending with his eyes wide open. He knew, as he has admitted, that his actions were wrong and would likely cause harm to innocent people. He went ahead anyway, thinking he would not be caught.

55. The psychologist concluded that the offender currently meets the criteria for adjustment disorder with depressed mood due to a number of issues but including the stress of these proceedings. The psychologist suggests that the offender’s risk of reoffending is low, which is consistent with the assessment contained in the Sentencing Assessment Report. The psychologist says that, if the offender is imprisoned, this would likely exacerbate his anxiety and depression, and suggests that he is unlikely to receive the psychological treatment he needs in gaol.

56. Paragraph (n) of s 16A(2) refers to the prospects of rehabilitation. I accept, based on the assessments in the psychological report and in the sentencing assessment report as well as the offender’s lack of prior criminal history, that his risk of reoffending is relatively low. I think his prospects of rehabilitation are reasonable.

57. Paragraph (p) of s 16A(2) refers to the probable effect that any sentence would have on family or dependants. The offender has no dependants. However, I accept that a sentence of full‑time imprisonment is likely to be not only extremely distressing to the offender’s parents but will involve some real hardship to his mother, who relies heavily on the offender for practical help in the community and for emotional support.

DETERMINATION

58. Turning then to my ultimate determination. The offender is convicted of each offence. I make the orders set out in the short minutes of orders document to the effect that the property set out in that document is forfeited to the Commonwealth, those being the cell‑site simulator, a Microsoft laptop and an EcoFlow power generator.

59. I am satisfied that the purposes of s 17A of the Crimes Act 1914 that the only appropriate penalty is the imposition of a term of imprisonment. In determining the appropriate penalty in this case, I have had regard to a number of sentencing cases that have been decided by other judges and/or by Courts of Appeal, including the following: DPP (Commonwealth) v Low [2025] VCC 1172, Commonwealth DPP v Huang and Duan [2025] VCC 1396, Barnard v The King [2025] WASCA 63, R v Foster [2022] NSWDC 467, and R v Salopek, an unpublished decision of her Honour Judge David of this Court of 18 July 2025. I do not suggest that any of these cases are truly comparable or similar, but they have been of some broad assistance.

60. I intend to impose an aggregate sentence. I am required therefore to set out the indicative sentences that would otherwise have been imposed. These I will set out in a moment. I note that these are after taking into account the 25% discount for the pleas of guilty. For sequence 5, taking into account the matter on the s 16BA schedule, the indicative term is one year, ten months’ imprisonment. For sequence 6, again taking into account the matter on the s 16BA schedule, the indicative term is one year imprisonment.

61. Mr Ou, if you could stand and I will just announce the sentence.

62. I impose an aggregate head sentence of two years, four months. Counsel for the offender submitted that an order for immediate release, either on a Recognizance Release Order or an Intensive Correction Order, would be the appropriate form of punishment. However, the Crown submitted that a term of actual full‑time custody is required, given the importance of general deterrence.

63. In determining whether to impose an Intensive Correction Order, I am required to apply the terms of pt IB of the Crimes Act 1914 and s 16A in particular. See Vamadevan v The King [2024] NSWCCA 223. One of the critically important factors set out in s 16A(2) is the “need for adequate punishment”. Another is the importance of general deterrence. These are, of course, not the only factors, as my earlier of discussion of the s 16A(2) factors makes clear. However, in my view, “adequate punishment” and general deterrence and, to a lesser degree, personal deterrence must be given great weight in this case. That remains the case, notwithstanding that the offender is a person of prior good character.

64. This is a case where the offender, with full knowledge of what he was doing, deliberately and over numerous days was responsible for the distribution of many thousands of fraudulent messages. Each one of those messages, if acted on, had the potential of fleecing innocent people of large amounts of money. The offender was fully aware of those potential, or indeed likely consequences, but was happy nonetheless to engage enthusiastically in these fraudulent operations. His “explanation” for the offences, being his wish to recover his own financial losses, is deserving of little or no weight. His financial situation was hardly one of desperation.

65. Furthermore, and unlike many offenders that this Court encounters, the offender is a person from a relatively conventional family background, had no substantial mental health or substance abuse issues, and certainly cannot be said to have acted impulsively or out of legitimate need.

66. In all the circumstances, I have reached the conclusion, having regard to all considerations including the offenders subjective case and the need for rehabilitation, but especially the need for general deterrence and adequate punishment, that no penalty other than some period of actual custody can adequately address these offences. Anything less would be wholly inadequate and would send a message to persons minded to engage in similar scams that they will get off lightly. However, in my view, the period of actual custody should represent only a small percentage of the head sentence.

67. In recognition of this being the offender’s first sentence of imprisonment and the likely impact of this on his mental health and on his family, as I said, I impose a head sentence of two years, four months.

68. I order, pursuant to s 20(1)(b), that the offender, after serving four months of that term, be released on a Recognizance Release Order for a period of two years upon giving security without sureties, in the sum of $100. The only condition of that Recognizance Release Order is that he be of good behaviour.

69. The sentence will be backdated, by reason of time already served, by three days, to 9 December 2025. The head sentence will expire on 8 April 2028 and the offender will be eligible for release on the Recognizance Release Order on 8 April 2026.

70. Is there anything that practitioners need to raise?

71. GRAWICH: Nothing from my perspective, your Honour.

72. PARK: No, your Honour. Sorry, I was just checking the date. Thank you.

73. HIS HONOUR: Thank you. The offender will have to be taken into custody.

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