Ben Jayaweera, a former financial adviser and director of Growth Plus Financial Group Pty Ltd (in Liquidation), has been sentenced to 12 years' imprisonment following a hearing in the Brisbane District Court on 26 August 2024.
On 23 August 2024, a jury found Mr Jayaweera guilty of 28 counts of fraud pursuant to section 408C(1)(e) Criminal Code Act 1899 (Qld). Over the course of 28 transactions, Mr Jayaweera caused 12 former clients a total detriment of $5,958,870.
ASIC Deputy Chair Sarah Court said, 'ASIC is committed to pursuing criminals who commit serious harm against individuals and act dishonestly, as was the case here. Mr Jayaweera's actions betrayed the trust of his clients with some clients at or near retirement age and caused them significant financial harm. This sentence demonstrates that such behaviour will not be tolerated.'
In sentencing Mr Jayaweera, Judge Moynihan KC described Mr Jayaweera's conduct as 'brazen, gross, and callous' and said 'his actions were not only criminal but evil, demonstrating no remorse'. His Honour noted there was a gross breach of trust and the victims have suffered, and continue to suffer, substantial personal and financial harm.
Judge Moynihan KC also observed that this was a case of serious offending as Mr Jayaweera was a trusted financial advisor and his actions were deliberate, sophisticated and systematic. Mr Jayaweera withheld information from his clients concerning the true nature of the fund and, in some cases, removed clients' funds from self-managed super funds (SMSFs) without their knowledge or consent.
Between August 2013 to November 2015, Mr Jayaweera dishonestly obtained money from his clients via two methods:
- he induced clients to invest in the Australian Diversified Sector Investment Fund (ADSIF) by misrepresenting the attributes/qualities of the fund to give the impression that it was a diversified investment fund holding assets in a range of asset classes. Those investment monies were then transferred to one of Mr Jayaweera's corporate entity accounts, and
- he encouraged clients to establish SMSFs, which involved transferring the clients' superannuation funds into a newly set up bank account with the Adelaide Bank. Mr Jayaweera then transferred money from those accounts to one of his corporate entity accounts without authority.
Mr Jayaweera made the following representations about ADSIF, both orally and in writing, to investors:
- ADSIF was a diversified fund which held underlying assets in aquaculture, agriculture, property and cash investments in Australia, and
- there was a maximum fund allocation assigned to each asset class.
Mr Jayaweera intentionally omitted to inform investors of the following critical information, knowing that it would be relevant to their decision as to whether to invest in ADSIF:
- ADSIF was not a diversified fund; its only asset was in the form of loans to Mr Jayaweera's private corporate entities, which held the assets comprising an abalone farming project in South Australia
- he was involved and had a controlling interest in the abalone farming project through those private corporate entities as the sole director and shareholder
- since ADSIF did not hold any physical assets, there was no capacity for its investments to achieve capital growth.
The matter was prosecuted by the Office of the Director of Public Prosecutions (Cth) (CDPP) following an investigation and referral by ASIC.
The sentence was imposed followed a three-week retrial in the Brisbane District Court before his Honour Judge Moynihan KC. Mr Jayaweera will be eligible for parole after six years, with 977 days of pre-sentence custody declared as time already served.
Background
On 23 August 2024, Mr Jayaweera was found guilty of 28 counts of fraud pursuant to section 408C(1)(e) Criminal Code Act 1899 (Qld). The offending took place between August 2013 and November 2015, resulting in a total detriment of $5,958,870 to 12 of Mr Jayaweera's former clients. A jury delivered the guilty verdict on all 28 counts on the indictment, following a three-week retrial in the Brisbane District Court (24-187MR).
Following a three-week trial in September and October 2019, Mr Jayaweera was found guilty of six charges of fraud contrary to section 408C(1)(e) Criminal Code Act 1899 (Qld). The six counts on the indictment related to 28 transactions where 12 clients collectively lost approximately $5.9 million (19-285MR).
On 17 October 2019, Mr Jayaweera was sentenced to 12 years imprisonment, with a minimum period of six years to be served before becoming eligible for parole (19-285MR).
On 12 November 2019, Mr Jayaweera appealed the conviction and sentence in the Queensland Court of Appeal. Mr Jayaweera's appeal was heard by the Queensland Court of Appeal on 19 November 2021 (22-147MR).
On 10 June 2022, the Queensland Court of Appeal allowed the appeal and ordered a retrial (22-147MR).
