Final Rockforte Finance sentences
24 October 2013
Final Rockforte Finance sentences
Two remaining defendants in the Serious Fraud Office (SFO) prosecution of Rockforte Finance Limited (Rockforte), Nigel Brent O’Leary and John Patrick Gardner were sentenced today in the Gisborne High Court.
Mr O’Leary received four years’ imprisonment for nine charges which included theft by person in special relationship, obtaining by deception, false statement by promoter and false accounting.
Mr Gardner received a sentence of 11 months’ home detention and 200 hours of community work for five charges, including theft by person in special relationship, obtaining by deception, and false statement by promoter.
Both Mr O’Leary and Mr Gardner were former directors of the failed finance company. They were charged with using a significant portion of investors’ money as a source of funding for their personal business interests in two companies - Gisborne Haulage and Michael Ward 1969 Ltd, which operated the Jean Jones label throughout New Zealand.
Rockforte was included in the Crown Retail Deposit Guarantee Scheme based on an application that contained false information, so ultimately the New Zealand taxpayer has had to bear the losses that occurred as a result of the defendants’ offending.
Investor losses amounted to approximately $3.8 million.
SFO Director, Julie Read said, “Although Rockforte investors were covered by the Crown Retail Deposit Guarantee Scheme, the fraudulent activities of Mr O’Leary and his co-directors led to the consequential failure of several businesses. This has had a significant impact on the Gisborne community and resulted in the loss of financial investments and jobs. We hope that this decision has brought some form of closure to people who were affected by the failure of Rockforte.”
A third defendant, Colin Mark Simpson, was sentenced last month to 11 months’ home detention and 200 hours of community work.
Rockforte Finance Limited was incorporated on 20 June 2003 and placed into receivership on 10 May 2010.
The SFO opened its investigation into Rockforte on 6 December 2010, following discussions with its Receivers, Indepth Forensic Limited. Rockforte was placed into liquidation on 15 February 2011. The Official Assignee was appointed liquidator.
The Ministry of Economic Development’s National Enforcement Unit and the Financial Markets Authority also provided support and assistance to the SFO on this case.
Rockforte was established in 2003 as
a provider of consumer and commercial financial services. It
operated under a trust deed that prohibited it from using
investors’ funds to make loans to related parties in
excess of 2% of its total tangible assets without the
consent of the trustees.
Its predominant activity was financing the purchase of second-hand motor vehicles (primarily Japanese imports) with loans secured against the vehicles.
In February 2009, Rockforte obtained approval for acceptance into the CRDGS for a period of two years. However, the Crown Deed of Guarantee was withdrawn effective from 1 January 2010.
Crimes Act offences
Section 220 Theft by person in special relationship
(1) This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person -
(a) to account to any other person for the property, or for any proceeds arising from the property; or
(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.
(2) Everyone to whom subsection (1) applies commits theft who intentionally fails to account to the other person as so required or intentionally deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
(3) This section applies whether or not the person was required to deliver over the identical property received or in the person's possession or control.
(4) For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.
Section 240 Obtaining by deception or causing loss by deception
(1) Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right -
(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
(b) in incurring any debt or liability, obtains credit; or
(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
(d) causes loss to any other person.
(2) In this section, deception means –
(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and –
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.
Section 242 False statement by promoter, etc.
(1) Everyone is liable to imprisonment for a term not exceeding 10 years who, in respect of any body, whether incorporated or unincorporated and whether formed or intended to be formed, makes or concurs in making or publishes any false statement, whether in any prospectus, account, or otherwise, with intent -
(a) to induce any person, whether ascertained or not, to subscribe to any security within the meaning of the Securities Act 1978; or
(b) to deceive or cause loss to any person, whether ascertained or not; or
(c) to induce any person, whether ascertained or not, to entrust or advance any property to any other person.
(2) In this section, false statement means any statement in respect of which the person making or publishing the statement—
(a) knows the statement is false in a material particular; or
(b) is reckless as to the whether the statement is false in a material particular.
Section 260 False accounting
Everyone is liable to imprisonment for a term not exceeding 10 years who, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to deceive or cause loss to any other person,—
(a) makes or causes to be made, or concurs in the making of, any false entry in any book or account or other document required or used for accounting purposes; or
(b) omits or causes to be omitted, or concurs in the omission of, any material particular from any such book or account or other document; or
(c) makes any transfer of any interest in a stock, debenture, or debt in the name of any person other than the owner of that interest.
The Serious Fraud Office (SFO) was established in 1990 under the Serious Fraud Office Act in response to the collapse of financial markets in New Zealand at that time.
The SFO’s role is the detection, investigation and prosecution of serious or complex financial crime. The SFO’s focus is on investigating and prosecuting criminal cases that will have a real effect on:
• business and investor confidence in our financial
markets and economy
• public confidence in our justice system and public service
• New Zealand’s international business reputation.
The SFO operates three
• Evaluation and Intelligence;
• Financial Markets and Corporate Fraud; and
• Fraud and Corruption.
The SFO operates under two sets of investigative powers.
Part I of the SFO Act provides that it may act where the Director “has reason to suspect that an investigation into the affairs of any person may disclose serious or complex fraud.”
Part II of the
SFO Act provides the SFO with more extensive powers where:
“…the Director has reasonable grounds to believe that an
offence involving serious or complex fraud may have been
The SFO’s Annual Report 2012 sets out its achievements for the past year, while the Statement of Intent 2013-2016 sets out the SFO’s three year strategic goals and performance standards. Both are available online at: www.sfo.govt.nz