Crown appeals Brewer sentence
Controversial businessman Mark Brewer should not be allowed to avoid punishment for running a business while bankrupt, the High Court at Auckland has heard.
The Ministry of Business, Innovation and Employment today appealed the $5000 fine handed down by Auckland District Court Judge Stephen O'Driscoll in October.
A sentence of home detention had been sought by prosecutors, but Judge O'Driscoll was swayed by an offer from financial adviser David McEwen to pay $190,000 in reparations if Brewer was allowed leave to immediately fly to Ireland and work on a joint business venture.
Justice Mark Fogarty, hearing the appeal, said the Crown appealing sentences was "very unusual" and required the consent of the Solicitor-General.
Steve Symon said Judge O'Driscoll had erred in handing out only an "immaterial" fine, and sentencing guidelines said reparation could not over-ride all other considerations.
"Otherwise there's no denunciation or deterrence," Symon said.
The prosecution resulted from Brewer's management of horse-racing prediction software company Intervest Global.
At the time of the offending Brewer was an undischarged bankrupt, into his second bankruptcy.
Following his work with Intervest Global, Brewer went on to serve as the head salesman of Phoenix Forex.
Phoenix Forex was the subject of a Financial Markets Authority warning that claims its currency trading software could generate annual returns of 60 per cent were "unrealistic".
More than a dozen investors have since complained the software, which cost $24,700 in licence fees and was widely advertised on radio stations, caused large losses.
Brent O'Callaghan, acting for Brewer, opposed the appeal and said his client's case was "remarkable" in that the $190,000 reparation offer covered all of the losses from Intervest and his bankruptcy had been annulled.
O'Callaghan said despite only being handed a fine for his guilty plea, Brewer nevertheless suffered consequences from the offending.
"For a businessman to have this offence on his record is a serious matter," he said.
O'Callaghan said Brewer was now living in Ireland where his new business, Paymark Autotrader, was operating.
Fairfax Media has previously reported Paymark Autotrader sells foreign exchange software, including under the brand VodaFX.
McEwen and Brewer have both defended their product and claim it is different to OakFX.
The court heard $135,000 in reparations have been made to date by McEwen, and O'Callaghan said the outstanding balance would not be paid were the sentence to be toughened.
An attempt by O'Callaghan to gain a suppression order on Brewer's 1993 conviction for sexual violation, for which he was sentenced to three years in prison, was rejected when it was revealed this offending had previously been reported.
Justice Fogarty said the sexual violation conviction was "utterly unrelated" to the offending at hand and he did not consider it relevant for his deliberations.