Pair sentenced for theft and false statements

Pair sentenced for theft and false statements

Gregory Alan Arnott (51) and Mark James Whelan (41) have been sentenced in the Auckland District Court today following charges laid by the Serious Fraud Office (SFO).
  
Mr Arnott entered guilty pleas in June to offences under the Crimes Act, comprising five charges of theft by person in a special relationship and five charges of making a false statement. He was sentenced today to six years' imprisonment.

At trial in July, Mr Whelan faced 10 Crimes Act charges comprising three of theft by person in a special relationship and seven of making a false statement. He pleaded guilty after giving evidence at his trial and was sentenced today to two years' imprisonment. His sentence is to be served cumulatively with a prior sentence of four years and four months' imprisonment which Mr Whelan received in May 2013. This earlier sentence was in relation to fraudulently obtaining loans totalling $4.9 million in a previous SFO prosecution.

The SFO's charges against the pair related to their involvement with Derivatek New Zealand Limited (Derivatek) and Global Futures Trading Limited (Global Futures).

Mr Arnott was director of Derivatek and traded in options on behalf of New Zealand clients on the Australian Stock Exchange. Between April 2008 and May 2012, he used $2.5 million received from investors for purposes other than options trading, including repaying other investors and funding a portion of an advance fee in a failed endeavour to obtain a US$20 million loan. In order to conceal the fraud Mr Arnott issued false statements to his investors which indicated that their investments were generating healthy profits, when in reality all invested funds had been lost by February 2009.

Mr Whelan incorporated Global Futures in November 2006. Mr Whelan used Global Futures to obtain funds from high net worth individuals to be traded through Derivatek. Between July 2008 and February 2010 Mr Whelan used approximately $1.2 million of investors' funds to pay for a variety of personal expenses and to fund part of the advance fee for the US$20 million loan. To conceal this activity, Mr Whelan issued false statements to the investors.

SFO Acting-Director, Nick Paterson said, "This was a case where investment was largely based on a trusted relationship with the defendants. It is a reminder that investment decisions should not be based on this factor alone and independent advice should always be taken."

ENDS

For further information

Andrea Linton
Serious Fraud Office
027 705 4550

Note to editors

Background to investigation

The SFO commenced an investigation into Derivatek as a result of information obtained during an earlier investigation into an options trading company operated by Mr Gregory Arnott.

Gregory Alan Arnott has been a self-employed stockbroker and options trader who has traded on the New Zealand Stock Exchange (NZX) and Australian Stock Exchange (ASX) since 2006. Prior to working as a self-employed stockbroker, Mr Arnott had worked for various companies in investment advisory/broker roles.

Mr Arnott traded on an individual basis for certain New Zealand investors from 2006. He also set up and operated the following companies through which he traded: Australian Securities Limited (ASL); Derivatek New Zealand Limited (Derivatek); and Derivatives Management Limited (DML).

Mark Whelan incorporated Global Futures in November 2006. This company was used by Mr Whelan and various business associates to personally invest with Mr Arnott. From mid-2007, Mr Whelan used Global Futures to obtain high net worth individuals to invest funds which were then to be traded by Mr Arnott through Derivatek.

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) Every one 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 242 False statement by promoter, etc
(1) Every one 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.

About the SFO

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 investigative teams:

• 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 committed..."

The SFO's Annual Report 2013 sets out its achievements for the past year, while the Statement of Intent 2014-2018 sets out the SFO's three year strategic goals and performance standards. Both are available online at: www.sfo.govt.nz(external link)