SPCS

It is a criminal offence to knowingly swear or affirm a false affidavit (a written statement given under oath). Such offences are committed by those seeking to pervert the course of justice.  For example, a false written statement provided to a District Court by a banned company director about his or her ownership of shares and the methods he or she used to acquire and/or sell them, constitutes a criminal act (perjury).

Section 110 (False oaths) of the Crimes Act 1961 states:

“Every one is liable to imprisonment for a term not exceeding 5 years who, being required or authorised by law to make any statement on oath or affirmation, thereupon makes a statement that would amount to perjury if made in a judicial proceeding.”

This section of the Crimes Act (part 6) is concerned with “Crimes affecting administration of law and justce”.

In order to determine whether the accused knowlingly sought to pervert the course of justice, a judge would determine this on the basis of the facts. If the hypothetical banned company director had given prominence in his company’s advertising material to the fact that he possessed for example a (claimed) MBA, he would find it very hard to convince the judge that his claims about his shareholdings,  once proven false in court, were due to an error on his part – based on his misunderstanding of the nature of the definition of “ownership of shares”. [Read more…]

The Ministry of Economic Development (MED) and the Serious Fraud Office  (SFO) commented favourably in late December 2010 on the custodial sentences imposed by a judge on two company directors convicted of breaching the law, saying that the sentences sent a clear “denunciation and deterrent” message to other company directors.  Prior to this judgment both directors had been banned for five years by the Registrar of Companies – bans commencing 23 March 2010 – under section 385 of the Companies Act 1993, from being involved in the directing, management or promotion of a company.

SFO chief executive Adam Feeley said he was “pleased with the delivery of a custodial sentence” in the case of the two banned Five Star Financed directors who had pleaded guilty to a number of criminal offences.

“This is the first sentencing in relation to a major finance company collapse, and continues the clear message from the courts as to the seriousness of white collar crime.” But are errant company directors taking note of this message? It appears not in some cases!

Just two weeks after the two Five Star Finance directors were banned, another company director (not connected with Five Star) was banned for four years under the same s. 385 of the Companies Act. Recently he appeared in Court charged with breaching his banning order. If convicted he faces a custodial sentence of up to five years jail or a significant fine of up to $200,000. The accused told the Judge he was not guilty of the charge.

He told the media in May 2010 that he intended to fight the MED over the banning order it imposed against him and take it to judicial review in the High Court. More recently he is reported to have said he will fight the charge of his alleged breach of his banning order in the courts.

The MED and SFO appear to strongly support  judges who send clear denunciations and deterrents in their sentencing of company directors who deliberately breach the Companies Act and/or Orders issued by the Registrar of Companies. Custodial sentences appear to be harsher in cases where company directors lie to the courts.

Reference:

http://www.stuff.co.nz/business/money/4483505/Jailed-Five-Star-Finance-director-to-appeal-sentence

An international law and order expert says successive New Zealand governments are to blame for the “scandal of the century” – a raft of offender-friendly legislation.

In his newly released book, Badlands, NZ: A Land Fit for Criminals, former English National Criminal Intelligence Service analyst David Fraser says politicians should look back on their actions with shame.

“The record of all governments in New Zealand since the 1950s in relation to crime prevention has been disastrous,” Fraser writes.

“The fact is that all governments since then have gone out of their way to introduce policies that have encouraged criminals to become more criminal.

“Almost every piece of criminal justice legislation passed during the period has made it easier for judges to avoid sending criminals to prison, by expanding the number of non-custodial alternatives available to them.

“In addition, other acts of parliament, as well as procedural and administrative changes, have put numerous obstacles in the way of finding, arresting and convicting offenders.”

Fraser spent 24 years working in the UK’s Probation Service and visited New Zealand in 2007 to promote his first book, A Land Fit For Criminals: An Insider’s View of Crime, Punishment and Justice in the UK.

He became concerned about the nature of offending in New Zealand, and has since spent the past three years researching crime rates and law and order changes.

For full story go to:

The Sunday Star Times (24 April) report by Neil Reid

http://www.stuff.co.nz/national/crime/4921693/NZ-laws-encourage-criminals [Read more…]