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Thursday 18 February 2016

16-040MR New South Wales woman charged in relation to SMSF property investments

Following an ASIC investigation, Ms Sarah Jane Busteed has appeared in the Downing Centre Local Court in Sydney charged with three counts of dishonestly obtaining a financial advantage by deception and one count of dealing with over $100,000 that was the proceeds of crime.

Ms Busteed was charged with these offences following an ASIC investigation into amongst other things, Ms Busteed's conduct in dealing with members of self- managed superannuation funds (SMSFs) which were undertaking property purchases. It is alleged that Ms Busteed dishonestly obtained monies from those SMSFs and separately, dealt with monies obtained from a SMSF which are believed to be proceeds of crime.

Ms Busteed was not required to enter a plea and was granted conditional bail. The matter is listed for return at the Downing Centre Local Court on 12 April 2016. 

The Commonwealth Director of Public Prosecutions is prosecuting these matters.

Ms Busteed has also been charged with various other offences involving dishonestly obtaining financial advantage by New South Wales Police and those matters are being prosecuted by the NSW Director of Public Prosecutions

Background

The charges of dishonestly obtaining a financial advantage by deception contrary to section 192E of the NSW Crimes Act 1900 each carry a maximum penalty of ten years imprisonment.

The charge of dealing in the proceeds of crime contrary to section 400.4(1) of the Commonwealth Criminal Code carries a maximum penalty of twenty years imprisonment or a $216,000 fine or both.

In 2012,  in response to the growth in SMSFs, ASIC established the SMSF Taskforce. The Taskforce continues to meet regularly to examine high-risk and emerging SMSF issues such as property spruiking to SMSFs, unlicensed conduct and false and misleading advertising of SMSFs. 

Outcomes and actions stemming from the SMSF Taskforce include:

  • Superannuation Warehouse Australia Pty Ltd was ordered to pay a penalty of $25,000 for false and misleading“Free SMSF Setup” advertising (refer: 15-332MR);
  • The Supreme Court of NSW found Park Trent Properties Group Pty Ltd had been unlawfully carrying on a financial services business for over five years by providing advice to clients to purchase investment properties through a SMSF (refer: 15-300MR);
  • Dixon Advisory Group Limited complied with two ASIC infringement notices, paying two $10,200 penalties after including potentially misleading claims on its website (refer: 15-207MR);
  • The credit licence of Queensland-based Smithson & Baye was cancelled following an investigation into a property and SMSF promoting group (refer: 15-228MR);
  • ASIC released two information sheets to improve the quality of advice provided by advisers on  SMSFs: Information Sheet 205 Advice on self-managed superannuation funds: Disclosure of risks (INFO 205) and Information Sheet 206 Advice on self-managed superannuation funds: Disclosure of costs (INFO 206) (refer 15-192MR).
  • Omniwealth Services paid a $10,200 penalty for potentially misleading claims on its website (refer: 15-190MR);
  • The principal of Sherwin Financial Planners, Bradley Thomas Sherwin, was charged with fraud. The charges relate to the use of SMSFs of former clients of Sherwin Financial Planners (refer: 15-158MR);
  • The Federal Court of Australia ruled that Craig Gore and several other parties and financial services businesses, including Queensland-based ActiveSuper and Royale Capital, contravened sections of the Corporations Act or were knowingly concerned in those contraventions. (refer: 15-134MR);
  • Australian Financial Planning Solutions Pty Ltd paid $10,200 in penalties for potentially misleading SMSF ads (refer: 15-052MR);
  • ASIC banned the founder of the Charterhill Group of Companies, George Nowak, from providing financial services until 3 July 2017 on the basis that Mr Nowak is an undischarged bankrupt (refer: 15-048MR);
  • Interprac Financial Planning agreed to address ASIC concerns relating to advice provided to some clients about SMSFs (refer: 14-258MR);
  • Sentry Financial Services agreed to address ASIC concerns about SMSF advice provided to clients (refer: 14-109MR);
  • SuperHelp Australia paid a $10,200 penalty after making potentially misleading statements about the cost of setting up SMSF (refer: 14-051MR);
  • Media Super paid $10,200 in penalties for potentially misleading SMSF ads (refer: 14-001MR);
  • Spring Financial Group entered into an enforceable undertaking following ASIC concerns about the level of monitoring and supervision of its representatives (refer: 13-263MR);
  • Anne Street Partners agreed to engage an independent expert following ASIC concerns about SMSF advice provided to clients (refer: 13-248MR); and
  • we published Report 337 Improving the quality of advice given to SMSF investors. (refer: 13-081MR).

SMSFs will continue to be a focus in ASICs enforcement work.

Editor's note 1:

On 12 April 2016, the matter was adjourned for further mention on 26 April 2016.

Editor's note 2:

On 26 April 2016, the matter was adjourned for further mention on 24 May 2016.

Editor's note 3:

On 24 May 2016, the matter was adjourned for legal argument until 17 August 2016.

Editor's note 4:

On 17 August 2016, the matter was adjourned for mention to 20 September 2016 at the Downing Centre Local Court in Sydney.

Editor's note 5:

On 20 September 2016, the matter was adjourned until 6 December 2016. 

Editor's note 6:

Ms Sarah Busteed had been committed for trial in the NSW District Court at Sydney. The matter has now been listed for arraignment on 16 December 2016. 

Editor's note 7:

The matter has been adjourned for further mention in the NSW District Court on 10 February 2017.

Editor's note 8:

The matter has been further adjourned to 3 March 2017.

Editor's note 9:

At the hearing on 3 March 2017, Ms Busteed entered a plea of not guilty and the matter has now been set down for a three week trial in the NSW District Court commencing 23 October 2017.

 

 

 

 

Last updated: 18/02/2016 12:00