CDirector of Public Prosecutions v Huang
[2025] VCC 1396
•19 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-25-00408
CR-25-00409
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIWEI HUANG and |
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JUDGE: | HER HONOUR JUDGE BRECKWEG | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June, 1 August, 13 August 2025 | |
DATE OF SENTENCE: | 19 September 2025 | |
CASE MAY BE CITED AS: | CDPP v Huang & Anor | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1396 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Conspiracy to cause a loss to a Commonwealth entity - Short Message Service (SMS) phishing scam - MyGov - Centrelink account - malicious website – 16BA Scheduled offence: Dealing with money believed to be proceeds of crime exceeding $100,000
Legislation Cited: Criminal Code 1995 (Cth); Crimes Act 1914 (Cth)
Cases Cited:Black v The Queen [2022] VSCA 125; Dickinson v The Queen [2021] VSCA 50; Hayward v DPP (Cth) [2021] NSWCCA 63; R v Hawkins (1989) 35 A Crim R 430; DPP v Fabriczy (2010) 30 VR 632; Palmisano v R VSCA 124; DPP v SJK [2002] VSCA 131; R v Boland [2007] VSCA 242.
Sentence: Huang- Total effective sentence of 4 years imprisonment with a non-parole period of 2 years imprisonment; 114 days of presentence detention declared as time already served under this sentence; 6AAA declaration -5 years imprisonment with a non-parole period of 3 years. Reparation order made.
Duan - Total effective sentence of 4 years imprisonment with a non-parole period of 2 years and 2 months imprisonment; 499 days of presentence detention declared as time already served under this sentence; 6AAA declaration -5 years imprisonment with a non-parole period of 3 years and 2 months. Reparation order made.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms M. Brown | CDPP |
| For Mr Huang | Ms A. Kapitaniak | Nelson Brown Legal |
| For Mr Duan | Ms C. Hart | Gallant Law |
HER HONOUR:
Introduction
1Mr Huang and Mr Duan, you have both pleaded guilty to one charge of conspiracy to cause a loss to a Commonwealth entity, contrary to sub-s135.4(3) of the Criminal Code (Cth) (the Code).
2The maximum penalty for the charge is 10 years’ imprisonment.
3You have each also admitted your guilt in respect of a charge of dealing with money believed to be proceeds of crime in excess of $100,000 contrary to s400(4) of the Code and have agreed to have this taken into account in sentencing you for the offending the subject of Charge 1 pursuant to s16BA of the Crimes Act 1914 (Cth) (the Act).
Circumstances of the offending
4The agreed facts of your offending are set out in the Revised Summary of Prosecution Opening for Plea dated 17 June 2025 (Exhibit A).
5In summary, the Crown case is that you both participated in a criminal enterprise, with other unidentified conspirators, wherein between 6 September 2023 and 8 May 2024, 2,847 Centrelink customer records were accessed through online services. The records were able to be accessed because of a Short Message Service (SMS) phishing scam that the syndicate operated between around 17 August 2023 until 8 May 2024.
6The phishing scam involved the transmission to people of a large multitude of SMS messages purporting to be from MyGov. The messages informed the recipients that they could access their MyGov record by logging-in via the link contained within the SMS message. Once accessed, the link sent the recipient to one of many malicious websites which purported to be the MyGov website and appeared to be authentic.
7Once at the purported MyGov website, the user would be prompted to enter their MyGov username and password and, in some instances, upload images of identity documents. Malicious software employed by the conspirators then accessed the user’s genuine MyGov account and Centrelink and Medicare accounts. The information obtained by the phishing scam was then used to:
a) Establish bank accounts, some of which you controlled; and
b) After gaining access to a Centrelink account, alter the nominated bank account to which legitimate benefits would be paid so that payments were paid into other bank accounts (receiving accounts) controlled by the conspirators.
8Redirected payments were not sent directly into accounts held in your names, but you possessed bank cards connected to the receiving or intermediary accounts or had previously controlled bank cards connected to them. You both admitted accessing bank accounts and possessing cards connected to the offending. I note however that the Crown does not allege that either of you had exclusive control of the accounts. A bank account can be accessed remotely and there is evidence to infer that other conspirators had access to the accounts and transacted on them.
9Payments were redirected to 1,176 accounts as follows:
(i) For 524 Centrelink consumers, payments due to be paid to them were successfully redirected by other conspirators to other bank accounts including some you controlled, obtaining $504,170.88 from the Commonwealth.
(ii) For the remaining 652 consumers, attempts by other conspirators to redirect payments to other accounts were intercepted and the payments were not ultimately paid. Accordingly, you attempted to obtain $563,399.25.
8As members of the conspiracy, you therefore obtained, or attempted to obtain, $1,067,570.13 in Commonwealth payments.
9I pause here to stress that it is not alleged that either of you personally accessed or altered any victim’s MyGov accounts.
10 Money was transferred out of receiving accounts either directly or indirectly into accounts held in your names and other accounts.
Mr HUANG you received $173,149.57 into your account.
Mr DUAN you received $125,930.52 into your account.
11Once funds were deposited into your accounts, the funds were ultimately liquidated with cash withdrawals and purchases. It is not possible to conclude that you each obtained or kept the amounts received, but you did receive commission.
12You and your co-conspirators communicated via a group chat on the application ‘Telegram’. The chat group was called ‘Disco Club for People Born in 1960s’ (The Sixty Chat) which you, Mr Duan, created on 17 August 2023. A person with the username ‘Streaking’ appeared to be the controller of the group and is suspected to be in China. Group chats revealed lengthy, and detailed discussions about the establishment and maintenance of the criminal enterprise, including exchanges about operating devices for sending bulk SMS messages, purchasing SIM cards, receiving bank cards for accounts to be controlled by the conspirators, sending mass phishing SMS messages containing fake website links resembling MyGov or Centrelink and obtaining login credentials and then using those credentials to fraudulently obtain payments from the Commonwealth.
13You were both active participants in The Sixty Chat and you were involved in the ongoing planning and execution of the phishing scam, suggesting methods to receive funds and bank cards for bank accounts. It is clear from the chat logs that you were both fully aware that the SMS phishing scheme was intended to access restricted data contained in Centrelink and Medicare records.
Search Warrants
14On 8 May 2024, your homes were searched by the Australian Federal Police during which police located:
a) SIM farms at both premises. Two of four SIM farms were live at your house,
Mr HUANG, and were operating and disseminating SMS messages including those related to the phishing scam. In your case, Mr DUAN, two SIM farms were live and operating at your house.b) Hundreds of SIM cards with several being directly employed in the SIM farms.
c) Multiple bank cards and banking correspondence belonging to other persons.
Records of Interview
15Mr HUANG, in interviews with police you:
(a) Admitted attending several Woolworths stores the previous evening (surveillance had observed you attend various Woolworths stores and purchase several Telstra SIM cards);
(b) Admitted that you were the person accessing a bank account (used in the conspiracy) during an ATM withdrawal;
(c) Admitted that you were given a laptop by someone from Telegram;
(d) Said you last talked to this person on Telegram a couple of days ago in a group chat;
(e) You denied knowing your co-accused, Mr DUAN.
16Mr DUAN, in interviews with police you:
(a) Admitted acquiring bank cards and SIM cards, activating the SIM cards and putting them into a SIM box;
(b) Admitted being in possession of several bank cards related to other persons;
(c) Admitted receiving and testing phishing links for a fake MyGov website;
(d) Admitted withdrawing money on instructions;
(e) Admitted that SIM farms/boxes located at his premises earlier that day were sent to you the previous year by post from Hong Kong;
(f) Admitted knowing HUANG and providing him with a laptop;
(g) Admitted knowing the SIM farms were being used by someone in China to send messages and to communicating with that person via Telegram.
Victim Impact Statements
17Mr Ante Bolgic provided a victim impact statement which was read during the plea hearing. He said that in September 2023 he applied for an advance payment through Centrelink due to financial hardship and later noticed his bank account details on his Centrelink profile had been changed to Ubank. He reported this to Centrelink and was advised he had to prove that the account was not his, which was difficult given Ubank had no physical branches. He said as weeks passed his financial situation deteriorated, his utilities were disconnected, and he developed a serious tooth infection. His Centrelink heath care card was cancelled, and he was unable to access medical services and could not afford proper dental treatment. As a result, the infection spread and affected his optic nerve leading to permanent reduced vision in his left eye. Mr Bolgic says this experience has profoundly affected his life, he has suffered financial loss, stress, pain and suffering from untreated infection, which has led to permanent loss of vision, and this has left him feeling vulnerable and let down by the system.
17Ms Beverly Light also provided a Victim Impact Statement in which she outlined how the offending impacted her both emotionally and financially as she is a single parent of two young children and her inability to receive benefits meant she had difficulty paying her bills and had to stop her children from attending activities because she was unable to afford them.
Personal circumstances
18 Mr HUANG, you were born in Shanghai, China, being the only child of your mother and father who are still married and reside in China. You told Dr Hannah Dawson, forensic psychologist, that your childhood was a positive one and you spent lots of time together as a family unit. Your family continue to be supportive of you, despite you having disappointed them with this offending. You speak to them on the phone regularly.
19You first came to Australia in 2016 to study English, being placed with a family in a homestay arrangement. The family was very good to you, but you were profoundly lonely, and it was difficult to adjust to a different culture. You completed Year 12 in 2019 and obtained your VCE. In November 2019, you returned to China but with the onset of Covid you were locked out of Australia, but you continued to study online. You returned to Australia in 2021. You completed a bachelor’s degree in business and finance at RMIT in 2022. By this stage, you were living in a rented property with friends, including Mr YIN who supported you in court. You then met Ms Zixuan Wang who was a neighbour in your apartment building and have been in a relationship with her for the last three years, and she remains a continued support for you.
20Mr DUAN, you were born and raised in China by your father and your paternal grandparents. You are an only child. Your mother left when you were only three years old and you have no memory of her. You had a good childhood, living in a structured and traditional household. You also reported having a close relationship with your father.
21You commenced a degree in film and directing at Guangzhou University in China, but you dropped out when the Covid-19 pandemic swept through China. You came to Australia in March 2023 to study, and because your current partner was intending to study in Australia. You were only in Australia for a short time when you commenced offending.
22On arrival in Australia, you began a language course at the Edinburgh Institute in Melbourne, as this was required for you to study business, and you have worked intermittently as a fast-food delivery driver, and you occasionally did some work on construction sites.
23You have been with your partner for approximately four years. She continues to support you, visits you in custody and you stay in contact regularly. Your partner is the only family you have in Australia. Shortly after you were remanded last year your grandfather passed away from a sudden heart attack. You were very upset by the news as you were very close. Your father and grandmother are now your only family members, and they live in China.
Sentencing Principles and Considerations
24The principles relevant to sentencing for social security and other fraud offences contrary to the Code (Cth)[1] are uncontroversial. In the circumstances of this offending, the most pertinent are:
[1] Black v The Queen [2022] VSCA 125; Dickinson v The Queen [2021] VSCA 50; Hayward v DPP (Cth) [2021] NSWCCA 63; Warden v The Queen [2019] VSCA 2; R v Milne [2001] VSCA 93; R v Purdon NSWCCA, 27 March 1997, unreported, at 7-8.
i.To protect the revenue, the pre-eminent sentencing consideration in offending involving fraud on the government is general deterrence.
ii.Where offending involves deliberate and sustained fraud, the need for general deterrence is such that “an order for imprisonment with at least some of the imprisonment actually to be served, is ordinarily likely to be required”.
iii.This remains the case even if the fraud is in circumstances of significant personal misfortune or is relatively unsophisticated and lacking aggravating features or if the fraud is committed for the benefit of another.
iv.The amount of money involved in the offending is a significant consideration in assessing the seriousness of offending and the level of criminality involved as this is “…an indication of the extent to which an offender is prepared to be dishonest and to flout the law and to advance whatever are his or her own purposes”[2]
v.Social security offences are prevalent, relatively easy to commit and can be difficult to detect.
vi. The social security system is a major impost on the Australian government's revenue and on taxpayers, and the burden of fraud on the system falls on the whole community. Frauds are not victimless and provide a heavy burden for taxpayers.
[2] R v Hawkins (1989) 35 A Crim R 430 [at 435]
25To the above, I would add that because offending which utilises identity fraud to commit other offences has evolved from conduct such as theft of credit cards or mail to now include complex activity such as phishing to acquire personal details, means general deterrence is further reinforced as a paramount sentencing consideration in this case.
26In sentencing you both, I also have regard to the fact that the offence to which you fall to be sentenced is a conspiracy, which means that in assessing the gravity of the offence I must consider the scope and duration of the conspiracy, along with your individual culpability. As stated in DPP v Fabriczy:[3]
[17] 'The extent of the offender’s participation in the combination, established by reference to his or her individual acts and declarations, will inform but not determine the conclusion as to the offender’s degree of criminality. The individual offender is to be punished for involvement in the conspiracy and not just for the acts that he or she performed.'
27I must also have regard to the matters applicable in sentencing for Commonwealth offences. Section 16A(1) of the Act provides that a court must impose a sentence or an order that is of an appropriate severity in all the circumstances of the offending and s16A(2) sets out a non-exhaustive list of factors that must be taken into account as far as these are relevant and known to the court. I have had regard to the following factors set out in s16(A)(2):
16A(2)(a) Nature and circumstances of the offence
28It was accepted by both of your counsel that your conspiracy offending is clearly serious, and I do not understand it to have been submitted that your offending fell at the lowest end of offending of this nature. In my view the seriousness is evident from the following matters:
(a) The maximum penalty for the offence is 10 years' imprisonment.
(b) Your offending was not isolated or sporadic but covered a period of almost nine months from 17 August 2023 until 8 May 2024.
(c) The conspiracy as whole in this case was not theoretical or abstract but achieved its broad purpose of causing significant loss to the Commonwealth. $504,170.88 was obtained by the conspirators. Attempts were made to obtain a further $563,399.25.
(d) The total quantum sought - $1,067,570.13 - was accordingly significant. You fall to be sentenced for a fraud in this amount notwithstanding some of that amount was not obtained as the charge is a conspiracy.
(e) The offending scheme was sophisticated, involving inveigling benefit recipients into unwittingly providing access to their MyGov accounts by causing them to believe they were dealing with a legitimate entity. SMS messages were sent in bulk to many mobile numbers and recipients were directed to over 50 malicious websites. The software employed by the phishing scheme allowed benefit recipient details to be obtained and allowed access to Centrelink records, many of which were altered. Many bank accounts were established to enable the funds to be received.
(f) Whilst the ultimate victim of the frauds was the revenue, there were clearly secondary victims in the form of the benefit recipients who had their benefit payments delayed. Whilst there were only two Victim Impact Statements provided, it can be readily inferred that of the benefit recipients whose payments were diverted, a great number would have been at the very least seriously inconvenienced by your actions given most welfare recipients, by their nature, are reliant on their benefits being paid on time each fortnight with genuine financial consequences ensuing if they are delayed. Your offending accordingly had an obvious ‘flow on’ effect to many benefit recipients of benefits.
(g) Your offending was very technical in nature, well planned and organised and your experience or knowledge of information technology and computer operations was clearly advantageous to the syndicate.
(h) Clearly, your offending was for financial gain. Again, I accept that whilst you received large sums of money into your bank accounts and most of that was withdrawn in cash, it cannot be established beyond reasonable doubt that you received or kept all this money by way of financial gain for yourself. Rather, you were paid by way of a commission of around 5 percent. It is possible that you were instructed to withdraw money and pass it to others or deposit it into other accounts that were not yours.
Roles
29 In terms of your roles in the conspiracy, neither of you were principal offenders, organisers, or at the top of the hierarchy. The architects of the scheme were located overseas. It was however accepted by your counsel that you were both active participants in the agreement and played key roles. In addition, you both performed very similar roles in the conspiracy which included you both:
(a) Testing and hosting the necessary equipment in your homes.
(i) You both hosted SIM farms at your homes which are devices capable of accepting multiple SIM cards at once and sending bulk SMS messages.
(ii) Four SIM farms operated by you, Mr HUANG, were located inside your residence, and two operated by you, Mr Duan, were located inside your residence.
(iii) You both communicated to The Sixty Chat about the functioning of the SIM farms and your operation of them.
(b) Purchasing SIM cards in bulk quantities
(i) You both bulk-purchased mobile phone SIM cards on multiple occasions throughout 2023 and 2024. During the execution of a search warrant at your house, Mr HUANG, investigators found 494 SIM cards, and at your house, Mr DUAN, found 150 SIM cards.
(c) Configuring the SIM cards
(i) You both activated and configured the purchased cards in the SIM farms and sent messages to The Sixty Chat to this effect. For example:
i. On 29 August 2023, Mr HUANG, you wrote ‘activated 11 cards today’
ii. on 27 October 2023, Mr DUAN, you wrote ‘These rubbish Vodafone cards; took one hour to activate 5 cards’
(d) Testing links
(i)You both tested links to fake MyGov and Centrelink websites that were included in the phishing SMS messages and you both reported on your link testing to The Sixty Chat on multiple occasions.
(e) Involvement with conspirator-controlled bank accounts
(i)You both discussed the establishment of bank accounts to be used to receive redirected funds derived from the offending. Mr HUANG, you had advised the chat group on 21 October 2023 on how you planned on using your address to receive some bank cards:
'My idea is, find some unlocked letterboxes or stuffed up letterboxes in my apartment building, select 7-8 boxes, post 2-3 cards to each letterbox. I’ll check every day. I can take it out if it’s there. There is a box placed on top of letterboxes. If owner receives a letter for someone else….he would drop the letter into that unclaimed box. I just take it from there.'
(ii) Several of the bank accounts used in the offending were opened by you both using variations of your home addresses as the account address at which to receive bank cards. Mr HUANG, 25 Ubank accounts used in the offending listed variations of your home address as the account address and, Mr DUAN, 11 accounts listed variations of your home address. In addition, nine Ubank accounts had addresses which were storage units hired by you, Mr HUANG. Bank cards were also directed to storage lockers that had been rented by each of you.
(iii) In total, 138 bank cards held in the names of other people (45 of whom were victims of the phishing scam) were located at your residence, Mr HUANG, and 480 bank cards held in the names of other people (289 of whom were victims of the phishing scam) were located at your residence, Mr DUAN.
(f) Assisted new members in the operation of the phishing scam
(i) As new participants were introduced into the phishing scam, you both assisted them, such as by directing user ‘Not Sleepy’ on how to locate the activation code on SIM cards and on recharging cards on 11 December 2023.
30I accept the prosecution submission that your moral culpability for the offending is high. You were submerged in the conspiracy and not merely casual participants, notwithstanding you were not the designers or planners of the scheme or the ultimate beneficiaries of all or even most of the funds, having only received a commission.
16BA Scheduled Offence
31You have both admitted a charge of dealing with money believed to be proceeds of crime exceeding $100,000 and agreed to have this taken into account in sentencing you for the offending the subject of Charge 1 pursuant to s16BA of the Act. The proceeds offence ordinarily carries a maximum penalty of 20 years imprisonment.
32In terms of you, Mr HUANG, between 25 October 2023 and 9 April 2024 bank accounts held in your name received $173,149.57 that was proceeds of the phishing scam.
33In terms of you, Mr DUAN, between 20 December 2023 and 29 April 2024 bank accounts held in your name received $125,930.52 that was proceeds of the phishing scam.
34You are not convicted of the offence taken into account, but it may increase the sentence otherwise appropriate for the conspiracy offence for which you have been convicted by giving greater weight to the need for specific deterrence and to the community’s entitlement to exact retribution for serious offences.[4] This does not infringe the De Simoni principle as you are not being sentenced for an uncharged act.[5]
[4]Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; De Lorenzo v DPP (Cth) [2017] VSCA 270 at [36]; R v Lamella [2014] NSWCCA 122 at [48].
[5] Huang v R [2018] NSWCCA 57, [54].
35It is to be noted that the 16BA process is expected to produce longer sentences (or sentences of a different type) than would have been imposed if the charged offence stood alone and it may be the case that the additional penalty will be noticeable or even substantial.[6] The nature and seriousness of s16BA offences is therefore relevant to determining an appropriate sentence for the offence for which you are to be sentenced,[7] however the maximum penalty for the offence on which you are sentenced is not affected by taking into account another offence or offences.[8]
[6] Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
[7] Huang v R [2018] NSWCCA 57.
[8] s 16BA(4) Crimes Act 1914 (Cth)); Abbas v R [2013] NSWCCA 115.
36In assessing the objective seriousness of the scheduled offence, I have had regard to the matters set out in cases such as Palmisano v R.[9] In your case the amount of money dealt with was not insignificant but was at the lower end of the offence provision which covers dealings from $100,000 up to $1,000,000. Your role in the offending involved you receiving funds into your accounts in multiple smaller transactions which is generally considered more serious than a single transaction involving a larger amount. You gained financially from the dealings. The offending occurred over a period of four or five months. The funds were the product of a wider conspiracy which sought to obtain over $1m and you obviously believed the money was the proceeds of that scheme.
[9] [2021] VSCA 124, [24]
16A(2)(e) Any injury, loss, or damage resulting from the offending
37I accept the prosecution submission that it is not likely that the full loss to the Commonwealth will ever be fully recovered, despite reparation orders being made.
16A(2)(g) Plea of guilty
38You both pleaded guilty (and admitted the scheduled offence) at the first available opportunity, being the committal mention stage of the matter. Your pleas warrant a clear reduction in the sentence to be imposed to reflect their utilitarian value in saving the community the time and expense of a trial and witnesses from having to give evidence. In a conspiracy case such as this, the utilitarian value of your plea is increased given the complexities that would have been involved in a trial. Your pleas also demonstrate acceptance of responsibility, willingness to facilitate the course of justice and remorse.
16A(2)(f) Contrition
39Mr Huang, in your case I am satisfied that you have also demonstrated remorse for your offending over and above that reflected by your plea alone. Your contrition is evident from a letter of apology you provided to the court in which you expressed your remorse for your offending and said that you are devastated by the consequences of your choices, not only for the damage caused to the victims, but also the betrayal of your parent’s trust, and values. Since the offence you have been regularly repaying money through a repayment plan with Services Australia, noting you are currently financially dependent on your family. This is to your credit. You said you accept the consequences of your actions and are ready to take every step necessary to make amends and rebuild your life.
39Mr DUAN, I accept that you have also demonstrated some remorse for your offending beyond that reflected by your plea alone because Dr Staios noted that you did not attempt to minimise your part in the offending, and you acknowledged that you were fully aware that you were participating in illegal activity.
16A(2)(j) Specific Deterrence
40I have had regard to the need to deter you both personally from further offending of this type and consider that specific deterrence is of importance in sentencing you given the length of your offending, its persistence and the fact that it was undertaken for some financial gain. As stated above, I am also able to consider the proceeds of crime offence you have admitted in considering the weight to be given to specific deterrence.
41Mr DUAN, I accept that your absence of priors, strong support from your partner and your acceptance of responsibility for your offending, means that the weight to be given to specific deterrence in your case can be moderated.
42Mr HUANG, the weight to be given to specific deterrence should also be moderated in your case for similar reasons, although I note that you still do have some work to do in developing insight into your offending, and its effect on collateral victims.
16A(2)(ja) General Deterrence
43Again, to protect the revenue, general deterrence is the primary sentencing consideration in offending involving fraud on the government.
16A(2)(k) Need for Adequate Punishment
44I must also ensure that I impose a sentence that means you are both adequately punished for your offending.
16A(2)(m) Character, antecedents, age, means and physical or mental condition
Mr Huang
45You are 24 years of age and were 22-23 years of age when the offending was committed. Whilst you were not a child or a young offender when you committed the offence, you are relatively youthful and a person of immature years. As held in R v Boland[10] although you fall to be sentenced as an adult, ‘common sense and fairness’ dictate that an assessment of the nature and gravity of your offending crime and your level of moral culpability should take into account ‘…that what was done was done as a child, or a person of immature years, and not as an adult or a person of greater maturity’.
[10] [2007] VSCA 242, [16].
46Having said that, where general deterrence is primary, personal mitigatory factors such as prior good character, age, prospects of rehabilitation etc. must therefore be given less weight than might otherwise be given.
47Further, yours is not the type of offending where it can be readily said that offenders have because of their age and level of maturity, made an ill-considered or rash decision, where the offending resulted from a lack of judgment or self-control, or where they had not fully appreciated the seriousness of the offending and the real consequences that may follow from it.[11] The offending here was neither spontaneous nor the product of poor impulse control, such as is seen in some types of offending where youthful immaturity is explanatory of the offending. Your offending was sophisticated and involved planning, persistence and the taking of deliberate actions over many months along with the employment of some degree of skill.
[11]DPP v SJK [2002] VSCA 131.
48I do however accept that your relative youth must be given some weight because of the need to promote your rehabilitation and because at your age executive functions such as planning and decision-making may still be developing. I remain of the view however that your relative youth and the need to promote your rehabilitation, does not override the requirement to give primacy to general and specific deterrence in your case.
49You were on remand for some four months before being released on bail and I accept that your time in custody was, and would continue to be, onerous because you do not speak English and you are naïve and at risk of exploitation by other prisoners due to your youth. I expect that like Mr DUAN, you may also experience difficulties accessing interpreting and other services and experience a degree of social and cultural isolation due to your lack of English.
50You have no prior criminal history and no subsequent or pending matters. I do not give any consideration to the outstanding fraud matter that was allegedly committed after the present offending as this remains contested.
51I have considered the psychological report from Dr Dawson tendered at the plea. You presented at interview as slightly depressed and anxious arising from your current legal predicament. You do not have any substance abuse issues. You do not have any diagnoses involving intellectual or mental health impairments and no reliance was placed on limbs 1 to 4 of Verdins. In terms of explaining your offending, Dr Dawson opined that it was possible you offended due to pressure to achieve, to attain financial independence and social status, and because you had difficulty forming autonomy and an adult identity after growing up in an environment where there was an implicit expectation of success. She stated further that you presented as naïve and possibly easily led due to your protected and sheltered childhood. This was exacerbated by your young age where you are considered an adult and seeking to achieve goals using adult behaviours when you are still considered dependent on your parents.
52Dr Dawson also considered your early success in the illegal scheme and the lack of immediate consequences may have produced “financial and psychological rewards” and provided you with a “buzz” or stimulation. She noted that for you, the perceived rewards were disconnected from insight into the consequences of your offending and the individuals who were affected by it. In other words, you justified your offending at the time because it targeted an organisation or government rather than individuals. Dr Dawson further noted that during interview you engaged in ‘significant impression management’ which meant your level of insight into your offending could not be properly determined. She recommended you engage in treatment to address cognitive distortions around entitlement and victimless crime and to develop accountability and insight.
53Dr Dawson opined that you are a low risk of reoffending as you have no priors, you do not have an entrenched criminal disposition or anti-social peer group, and your prospects of rehabilitation are good. Verdins limbs 5 and 6 are enlivened as Dr Dawson opined that imprisonment will likely weigh more heavily on you given your age and naivety, which place you at a greater risk of exploitation by other prisoners, and your current anxiety and depression symptoms could be exacerbated in a prison environment.
54I have had regard to character references tendered on your behalf. Haoxiang YIN, a former classmate and close friend of yours, said you met when you both studied at a language school in Box Hill, and you supported each other through the challenges of adjusting to a new culture and living away from your families. She said that you are a kind and reliable person, and you would often take on part time work to ease the financial burden on your family. She said she has stayed in contact with you while you have been on bail and she knows you are remorseful, not only for the harm caused to the victims but also for the shame you have brought upon your own family.
55Yunfeng SHI, the father of one of your friends from high school, also provided a character reference. He said that for nearly two years while you were in High School you were like part of his family, and he treated you like you were his own son. He says you have always been a respectful, kind and helpful young man, offering help with anything around the house. He said you have remained in contact with his family over the years and he was shocked to find you had been charged with conspiracy. He believes you to be remorseful and capable of genuine reform.
Mr Duan
56You are now 23 years old and were between 21-22 at the time of the offending. You are also a relatively youthful offender. For the reasons I outlined in respect of Mr HUANG, I accept that some weight must be given to your relative youth and the need to promote your rehabilitation, but general and specific deterrence remain significant principles in sentencing you.
57You have no prior criminal history and no subsequent or pending matters. You have been on remand since your arrest in May 2024, and whilst not an unusual factor, I do give weight to the fact that your time in custody has been onerous and has affected you because you do not speak English, are confronted with cultural differences and you have had difficulty accessing services because of difficulties accessing interpreters.
58I have had regard to the contents of a psychological report from Dr Matthew Staios, Clinical Neuropsychologist. The report did not identify any cognitive or mental health impairment condition that was connected to your offending and your counsel place no reliance on limbs 1 to 4 of Verdins. Dr Staios indicated that you have reported experiencing recurrent depression and an episode of suicidal ideation since you have been incarcerated and you have suffered social isolation due to linguistic differences. You have engaged with mental health services in custody and Dr Staios opined that you would benefit from continued engagement with these services due to his concern that an extended period of incarceration would negatively impact your mental health and rehabilitation prospects.
59Given the opinion of Dr Staios, I consider Verdins limbs 5 and 6 to be applicable and imprisonment “…will very likely to result in a significant decline in his mental state and be more onerous compared to other individuals”. Likewise, MR HUANG, I accept that imprisonment will be more onerous for you, and it may result in deterioration of your anxiety and depression symptoms, although not to the extent of MR DUAN at this point.
16A(2)(n) Prospects of rehabilitation
60I now turn to an assessment of your prospects of rehabilitation, Mr HUANG, you have no criminal history, and you have the support of your partner. Your counsel submitted I should find that you have reasonable to good prospects of rehabilitation. In my view, your prospects are good, but I note you still need to address cognitive distortions around your offending and to develop accountability and insight. I assess your risk of reoffending as low.
62Mr DUAN, Dr Staios opined that your present offending appears to have resulted from flaws in your decision-making and consequential thinking, your susceptibility to negative peers and a desire for financial gain. He considered these factors and the absence of immediate family to be factors of concern for your rehabilitation. However, he considered that you also had several protective factors, including the support of your partner, no prior convictions, good general intelligence and level of education, no history of drug or alcohol misuse and stable accommodation. Your counsel submitted, and I accept, that your prospects of rehabilitation are good. I assess your risk of reoffending as low.
16A(2)(p) Family hardship
63Mr HUANG, your counsel relied on the probable family hardship your long-term partner, Ms Wang, would endure because of your imprisonment. It was submitted that you are committed to each other and have no other family in Australia. The same submission would apply to Mr DUAN. Whilst it is not necessary to establish exceptional family hardship, the probable hardship asserted is not of a nature as to assume any significance in the sentencing exercise as the matters relied upon are not out of the ordinary when compared to the hardship encountered by other individuals who have had a family member incarcerated.
Prospect of deportation
64In both your cases, there is an inevitability that you will have your visas cancelled and, subject to any appellate avenues you may pursue (likely without success), at the expiration of your prison sentence you will be deported. I accept that this will make imprisonment more onerous for you both given the anxiety this would produce having to prepare yourselves to leave. In your case, Mr HUANG, you will also be additionally punished because you will have lost the opportunity to reside permanently in Australia in circumstances where your partner resides here. You also have close connections to the Australian community and good support here. As I understand it, Mr DUAN, your counsel did not have instructions that you intended to reside permanently in Australia, but submitted that the knowledge that you have lost the opportunity to do so still reflects a degree of further punishment.
Comparative sentences
65I was provided with a schedule of intermediate appellate sentences by the Crown and a table of cases by both your counsel. The intermediate appellate sentences are of assistance in illustrating the relevant sentencing principles, but are of less assistance in identifying a sentencing yardstick given the different objective and subjective facts and circumstances of those cases compared to yours.
Parity
66In terms of parity, the prosecution submitted that there is no significant or material difference in the objective roles you each played in the conspiracy. I agree the roles played by you both were very similar, but they are not completely identical. Whilst the period for which you both fall to be sentenced for your involvement in the conspiracy is identical,
Mr DUAN, you created The Sixty Chat and subsequently invited Mr HUANG and others to join, although I accept your invitation to Mr HUANG was not made as a formal recruiter for the syndicate. You also had a laptop computer that contained login credentials for China Skyline Domain, which was the software used to operate the SIM farms.67In my view, Mr DUAN, your creation of the chat group - the central means of discussion between the co-conspirators as to the objectives and methods of the scam – at the inception of the conspiracy on 17 August 2023 reflects you playing a greater role – even if only marginally – than Mr HUANG. Similarly, it was you who invited Mr HUANG to join the venture on 17 August 2023 and you had the software to operate the SIM farms on your computer, pointing to a more active role than Mr HUANG. Again, I am not sentencing you on the basis that you were a principal or organiser of the conspiracy, and whilst you were both willing participants in the scheme, Mr DUAN, you were doing more ‘hands on’ things for the syndicate including, importantly, to facilitate communication between parties, when compared to Mr HUANG.
68Having said that, Mr HUANG, you had more SIM cards at your home and more bank account access cards. You also dealt with some $47,000 more in proceeds of crime than Mr DUAN. That small extra amount is however a matter more relevant to an assessment of the effect the scheduled offence will have on the sentence I impose on Charge 1.
69On balance, whilst I am of the view that your role in the conspiracy, Mr DUAN, was marginally greater than that of Mr HUANG, the other matters to be considered in determining the sentence to be imposed on you, Mr HUANG, effectively “balance this out” such that it would be open to me to impose the same head sentence on you both.
70In terms of the subjective mitigating factors you both rely on, these are also quite similar. The most relevant differences seem to me to be that you, Mr HUANG, are repaying the money obtained with financial support from your family and for you, the prospect of your deportation may be seen as having a slightly greater effect on you because you clearly intended to remain permanently in Australia with your partner and have built up a supportive and close network of friends here. Mr Duan, you however have experienced, and will likely continue to, a more serious deterioration in your mental health in custody.
Submissions on sentence
71The prosecution submitted that the objective seriousness of both of your offending is such that a sentence of imprisonment should be imposed which requires the imposition of a non-parole period – that is, a head sentence of imprisonment exceeding three years.[12] It was accepted by both of your counsel that your offending warrants a sentence of imprisonment and that some part of that sentence would be required to be served immediately but I should impose a sentence that would allow for your release on a recognisance release order pursuant to s 20(1)(b) of the Act after serving a portion of the term of imprisonment. That is, I should impose a head sentence that does not exceed three years imprisonment.
[12] s 19AB(1) Crimes Act 1914 (Cth)
72I am satisfied, as required by s17A of the Act, that no other sentence than one of imprisonment is appropriate in all the circumstances of the offending, given its overall seriousness, the maximum penalty, the effect on Centrelink recipients whose payments were delayed or affected, the effect of the16BA on the sentence to be imposed on Charge 1 and the importance of imposing a sentence that reflects general deterrence. It was accepted by both your counsel that your offending warrants a sentence of imprisonment, and that some part of that sentence would be required to be served immediately. Both of your counsel submitted however that I should impose a sentence that would allow for your release on a recognisance release order pursuant to s21B of the Act after serving a portion of the term of imprisonment. That is, I should impose a head sentence that does not exceed three years' imprisonment.
73Mr DUAN, your counsel submitted that the period required to be served immediately should allow for your release as soon as possible, noting you will have served 499 days or just over one year and four months in custody. Mr HUANG, your counsel made a similar submission but submitted that the four months or so you had already served on remand would be a sufficient period. Your counsel, quite rightly in my view, accepted that this submission was “ambitious” in the circumstances and seemed ultimately to accept that you are facing a return to custody.
74In my view a head sentence of three years or less which would permit the imposition of a RRO would not adequately reflect the maximum penalty, the effect of the scheduled offence on the sentence on Charge 1, the weight to be given to general and specific deterrence, and the seriousness of your offending. I have, of course, had regard to all factors you both rely on in mitigation – most notably your youth, lack of priors, early pleas, low risk of reoffending, good prospects of rehabilitation and prospect of deportation – but you were involved in a conspiracy whereby over $1m was sought to be obtained, you played important roles, you did so for some financial gain, your offending had the consequence of defrauding the revenue of over half a million dollars and affecting vulnerable welfare recipients and general deterrence is a significant sentencing principle.
Sentence
75Mr HUANG, on Charge 1 you are convicted and sentenced to four years’ imprisonment. I direct that you serve a non-parole period of two years' imprisonment.
76I declare 114 days served as pre-sentence detention, excluding today.
77Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a sentence of five years imprisonment with a non-parole period of three years.
78Mr DUAN, on Charge 1 you are convicted and sentenced to four years’ imprisonment. I direct that you serve a non-parole period of two years and two months' imprisonment.
79 I declare 499 days served as pre-sentence detention, excluding today.
80Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a sentence of five years imprisonment with a non-parole period of three years and two months.
Reparation
81Your counsel both submitted that reparation orders should only be made against you in the sum of the amounts you dealt with as proceeds of crime, not in respect of the full amount of $504,170.88 that was obtained from the Commonwealth from the conspiracy offending. The prosecution opposed this submission, arguing that it was because of your agreement to cause a loss to the Commonwealth (your entry into the conspiracy) and your actions in furtherance of the conspiracy that caused or led to the larger $504,170 amount being obtained. I agree. Your actions were pivotal to the achievement of this larger amount. Your activities as part of the conspiracy did not cause only the amounts in your personal bank accounts to be obtained, but resulted in the loss to the Commonwealth of the much larger sum.
82Accordingly, I order pursuant to s21B of the Crimes Act 1914 (Cth), that you are jointly and severally liable to pay reparation in the sum of $469,530.80 to the Commonwealth of Australia.
Thank you very much for your assistance.
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[3] DPP v Fabriczy (2010) 30 VR 632, 633 [2].
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