Mr John Lindsay Merity, of North Nowra, New South Wales, has today been sentenced by the District Court of New South Wales to an overall term of two years imprisonment, with a minimum period of one year in custody, in relation to his conviction on two counts of contravening section 1308(2) of the Corporations Act 2001 (Cth) (the Act).
On 31 October 2018, Mr Merity pleaded guilty (18-336MR) to two charges of making misleading statements to ASIC in response to its enquiries into the identities of parties who had an interest in the shares in Northwest Resources Limited (Northwest) that were held by Craigside Company Ltd (Craigside) and Broome Enterprises Ltd (Broome Enterprises), contrary to section 1308(2) of the Act.
The charges related to ASIC’s investigation conducted under the Serious Financial Crime Taskforce (SFCT) into the identities of parties who had a relevant interest in 17,376,120 Northwest shares that were held by Craigside and Broome Enterprises. Both Craigside and Broome Enterprises were companies incorporated in the British Virgin Islands and operating from Hong Kong.
‘ASIC views seriously any attempt by individuals to hide their identities in holding substantial interest in shares by offshore entities, as well as, any attempt to provide false or misleading statements. ASIC will hold to account persons who seek to obstruct or hinder its investigations,’ ASIC Commissioner John Price said.
SFCT Chief and ATO Deputy Commissioner Will Day welcomed the sentence handed down today. ‘This outcome shows that the Serious Financial Crime Taskforce continues to work closely across multiple government agencies, bringing serious offenders of financial crimes to account.’
In delivering his sentence, Judge Blackmore was satisfied beyond reasonable doubt that Mr Merity’s motivation for the conduct was financial advantage. He noted that the offending involved cynical and deliberate preparation. His Honour further stated that it was ‘difficult to imagine a more intricate set of manoeuvres to conceal [the offender’s] involvement [in NWR]’ and ‘this type of corporate behaviour is completely unacceptable.' Due to the serious nature of the conduct, his Honour concluded ‘Full time imprisonment must be imposed. There is no other alternative.’
ASIC was assisted by its international counterpart regulators during its investigation, in particular, the Hong Kong Securities and Futures Commission (HK SFC) and the British Virgin Islands Financial Services Commission (BVI FSC).
The matter was prosecuted by the Commonwealth Director of Public Prosecutions.
This case represents another successful prosecution under the SFCT.
Serious Financial Crime Taskforce
The SFCT is a multi-agency taskforce that was established on 1 July 2015. It brings together the knowledge, resources and experience of relevant law enforcement and regulatory agencies to identify and address the most serious and complex forms of financial crime. The SFCT is ATO-led and includes:
- Australian Taxation Office (ATO)
- Australian Securities and Investments Commission (ASIC)
- Australian Federal Police (AFP)
- Australian Criminal Intelligence Commission (ACIC)
- Attorney-General's Department (AGD)
- Australian Transaction Reports and Analysis Centre (AUSTRAC)
- Commonwealth Director of Public Prosecutions (CDPP)
- Department of Home Affairs (Home Affairs), incorporating its operational arm, the Australian Border Force (ABF).
ASIC contributed to the taskforce’s work in 2018-19 in respect of three of the taskforce’s priority areas: crimes related to offshore tax evasion, illegal phoenix activity, and technology enabled crime (cybercrime) affecting the Australian taxation and superannuation systems.
ASIC will have an enhanced involvement in the SFCT across 2020 to 2023, having been granted increased taskforce funding to support our role in enforcement activities and criminal intelligence analysis.
Since the establishment of the SFCT in 2015, six people have been sentenced (excluding this case) and the Taskforce has collected $338 million for the community and has 21 individuals currently before the courts (excluding this case).
Between December 2004 and August 2015, Northwest was listed on the Australian Securities Exchange.
In December 2011, ASIC obtained orders from the Federal Court of Australia restraining Craigside from disposing of, or exercising any votes or rights attached to, 15 million shares that it held in Northwest (11-303AD). At the time of those orders, Craigside’s parcel of shares represented approximately 11.46 per cent of Northwest’s issued capital.
In April 2014, ASIC obtained orders from the Court cancelling the 15 million Northwest shares held by Craigside (14-076MR). Those orders were made with Northwest’s consent and not opposed by Craigside. In seeking the orders, ASIC alleged that although Craigside was the holder of the shares, it did not have a relevant interest in them and that those that did had not disclosed that interest to Northwest, contrary to legislative requirements.
On 7 June 2016, Northwest’s members resolved to place Northwest into liquidation and the company was on a later date deregistered.
Under the Act, a person has a 'relevant interest' in shares if, among other things, they:
- are the holder of the shares;
- have power to exercise, or control the exercise of, a right to vote attached to the shares; or
- have power to dispose of or control the exercise of a power to dispose of, the shares.