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District Court 12 December 2025

R v Ou

[2025] NSWDC 569

Fraud & dishonesty
CRIME SENTENCE COMMONWEALTH OFFENCES SMISHING CELL SITE SIMULATOR

Citation: [2025] NSWDC 569
Court: District Court of New South Wales (Criminal)
Date: 12 December 2025
Judge(s): Bourke SC DCJ

Background

The offender, Mr Yifei Ou, was sentenced for two Commonwealth offences under s 474.14(2) of the Criminal Code (Cth) — using equipment connected to a network to facilitate the commission of a serious offence. The first offence (sequence 5) related to facilitating an offence of obtaining financial advantage by deception under s 192E of the Crimes Act 1900 (NSW), carrying a maximum penalty of ten years' imprisonment. The second offence (sequence 6) related to facilitating an offence under s 480.4 of the Criminal Code (Cth), carrying a maximum penalty of five years' imprisonment. The offender also asked the court to take into account additional offences on a s 16BA schedule.

The offending involved the use of a cell site simulator — a device that masquerades as a mobile phone tower, causing nearby mobile phones to connect to it, and then sends pre-programmed SMS messages to those handsets. This activity, known as "smishing" (a portmanteau of "SMS" and "phishing"), was used to send fraudulent text messages to thousands of people across Sydney. The messages typically purported to be from Commonwealth Bank or Medicare, warning recipients that their accounts were locked and directing them to click a link — which led to fake login pages designed to capture personal and financial information.

Over a period from late March to early April 2024, the offender worked in concert with another individual, communicating via Telegram to coordinate the sending of scam messages. The offender drove a vehicle containing the cell site simulator through various Sydney suburbs, targeting apartment-dense areas to maximise the number of phones that would connect to the device. During this period, tens of thousands of fraudulent messages were sent. On 3 April 2024, NSW Police Cybercrime Squad officers located the offender's vehicle using a radio frequency detector, arrested him, and seized the cell site simulator and associated equipment.

  • What was the appropriate sentence for each of the two Commonwealth offences under s 474.14(2) of the Criminal Code (Cth)?
  • What discount should be applied for the offender's early guilty plea?
  • What weight should be given to the offender's role in the offending (including his position in the hierarchy of the criminal operation) and other relevant sentencing factors?
  • How should additional offences on the s 16BA schedule be taken into account?
  • What guidance, if any, could be drawn from comparable sentences for this relatively novel form of offending?

Decision

The judgment records that the offender pleaded guilty at the earliest opportunity, and the court allowed a 25% discount on sentence for the utilitarian value of the plea, noting that no specified statutory discount applies to Commonwealth matters.

The factual background revealed a sophisticated and sustained operation. The offender exchanged extensive Telegram messages with a co-offender known as "Daniel Wi," who appeared to direct the operation — providing web URLs for fake banking and government login pages, instructing the offender on which suburbs to target, and collecting the proceeds. The offender's role was operational: he configured and transported the cell site simulator, drove through designated areas to broadcast the fraudulent messages, and reported back on the volume of messages sent and the "effect" (i.e., success rate in luring victims). The messages sent impersonated Commonwealth Bank and Medicare, telling recipients their accounts were locked and directing them to click fraudulent links. On the day of arrest, a police officer's phone was itself captured by the simulator and received one of these scam messages.

The court's reasoning on sentence took into account the maximum penalties for each offence (ten and five years respectively), the offender's role in the operation, the scale of the offending (thousands of messages sent daily over approximately one week), the sophisticated nature of the technology deployed, and the offender's early plea and cooperation. The court also considered comparable authorities, though it was noted — as the cited cases suggest — that sentencing precedent for smishing using cell site simulators is still developing. The offences on the s 16BA schedule were taken into account in fixing the overall sentence.

While the full text of the sentencing remarks was not available in its entirety, the court's approach reflects the seriousness with which this type of technologically enabled fraud is treated, balanced against mitigating factors personal to the offender.

Orders Made

  • The offender was convicted and sentenced on both counts (sequences 5 and 6) under s 474.14(2) of the Criminal Code (Cth).
  • A 25% discount was applied to the sentence in recognition of the early guilty plea.
  • Additional offences on the s 16BA schedule were taken into account in sentencing.
  • (Note: The precise terms of imprisonment imposed were not available in the truncated text provided. Practitioners should consult the full judgment for the specific orders.)

Key Takeaways

  • The District Court addressed "smishing" using cell site simulators as an emerging and increasingly prosecuted form of cyber-enabled fraud, noting limited comparable sentencing authority for this type of conduct.

  • In assessing the offender's culpability, the Court considered his role in the criminal hierarchy, finding that he operated as the "driver" under the direction of a more senior co-offender. Despite this subordinate role, serious penalties were warranted given the sophistication of the operation, the scale of harm, and the large number of potential victims.

  • A 25% discount was applied for the utilitarian value of an early guilty plea, with the Court confirming that Commonwealth offences do not attract a specified statutory discount equivalent to the regime under NSW state law and that general sentencing principles continue to govern the quantification of plea discounts for federal matters.

  • The scale of the offending was treated as a significant aggravating factor, with the volume of fraudulent messages sent (often exceeding 10,000 in a single session) and the deliberate targeting of densely populated areas underscoring the indiscriminate and large-scale nature of the harm.

  • Telegram messages exchanged between the offender and his co-offender served as key prosecution evidence, enabling the Court to establish the mechanics of the operation, the offender's knowledge and intent, and the overall scale of the offending.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 474.14(2), 480.4
- Crimes Act 1900 (NSW), s 192E
- Crimes Act 1914 (Cth), s 16BA

Cases:
- 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