The Director of Grace Holdings NZ Limited (Grace NZ) pleaded guilty to 13 theft charges and nine false statement charges laid by the Serious Fraud Office (SFO). The SFO withdrew four theft charges and three false statement charges. Grace NZ traded under the name BullionBuyer; its core business was said to be the trading of gold and other precious metal on behalf of investors. Mr Kairua made false statements in brochures regarding his experience and qualifications, the nature of the trading and the insurance and storage of physical metals. At the time of its collapse, Grace NZ purportedly held investor funds of approximately $2.7 million. In fact, only $70,000 in cash was held and Grace NZ held no gold or other precious metal reserves. The majority of funds received by Mr Kairua were lost in trading – a fact which was not reported to investors thereby inducing them to maintain their investments. Mr Kairua also misappropriated funds of approximately NZ$370,000 which were spent on business and personal expenses and which were also used to repay other investors to maintain the appearance of a successful business. Some funds were also invested contrary to investor instructions. SFO Director, Julie Read said the sentence reflects the serious abuse of trust on the part of Mr Kairua. “The SFO protects New Zealand’s reputation as a safe place to invest and do business by ensuring that those who don’t comply with their obligations when entrusted with other people’s money are brought to justice. Investors should consider carefully whether they can afford to lose their funds when contemplating an investment which promises returns substantially in excess of those to be found elsewhere. It should always be remembered that with the promise of high returns comes high risk and, sometimes, outright fraud.”
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Background to investigation
Grace Holdings NZ Limited (Grace NZ) traded under the name BullionBuyer. BullionBuyer offered a leveraged precious metals trading service to New Zealand investors. During the period of offending Mr Kairua was a director of Grace NZ and was the sole trader for Grace NZ. Grace NZ went into liquidation in February 2012.
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 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 operational teams; the Evaluation and Intelligence team along with two investigative teams. The SFO operates under two sets of investigative powers. Part 1 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 2 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…” In considering whether a matter involves serious or complex fraud, the Director may, among other things, have regard to: • the suspected nature and consequences of the fraud and/or; • the suspected scale of the fraud and/or; • the legal, factual and evidential complexity of the matter and/or; • any relevant public interest considerations. The SFO’s Annual Report 2014 sets out its achievements for the past year, while the Statement of Intent 2014-2018 sets out the SFO’s strategic goals and performance standards. Both are available online at www.sfo.govt.nz— ]]>