Background
Stavro D’Amore was a director and chief executive of the Berndale group, which operated a foreign-exchange and derivatives business under an Australian Financial Services Licence. He was also Berndale’s responsible manager and key person under the licence. Between 2017 and 2018, he dishonestly transferred company and client-derived funds through an Algoplus account for the benefit of himself and associates.
During an ASIC review of Berndale’s compliance with its licence conditions, D’Amore authorised or supplied three documents falsely representing that Berndale held funds in an HSBC account that did not exist. After ASIC cancelled Berndale’s licence in November 2018, he made further transfers involving client-derived funds to his brother, an associate and his personal company.
D’Amore pleaded guilty to three rolled-up Corporations Act offences: dishonest use of his position as a director, making or authorising false or misleading statements, and dishonest conduct concerning a financial product or service. The matter came before Abraham J for sentencing on an agreed statement of facts.
The Court’s Holding
The Court convicted D’Amore on all three charges and imposed terms of 17 months’ imprisonment for dishonest use of position, 20 months for the false or misleading statements, and 20 months for dishonest financial-services conduct. By partially accumulating the sentences, the Court fixed a total effective sentence of three years and 10 months, with a single non-parole period of 23 months.
Abraham J found the offending serious, sustained and deliberate. D’Amore occupied the most senior position in the Berndale group, abused the trust associated with that role, used client-derived funds to benefit himself and others, and deliberately subverted regulatory oversight by supplying ASIC with false information and a forged bank statement.
The Court allowed a 15% reduction for the utilitarian value of D’Amore’s guilty pleas and considered his remorse, mental health, family hardship, delay, rehabilitation prospects and other mitigating circumstances. Those considerations did not displace the need for actual imprisonment because general deterrence and denunciation carried particular weight in sentencing serious white-collar offending.
Key Takeaways
- Senior financial-services officers who misuse client-derived funds and deceive regulators can expect substantial custodial sentences, even if they have no prior convictions and otherwise possess good character.
- Rolled-up charges retain the statutory maximum for a single offence, but repeated acts or episodes increase the offender’s objective criminality.
- Parity does not require identical sentences for co-offenders: D’Amore’s more senior role, larger dishonest transfers, three false representations and later guilty pleas justified a heavier sentence than his co-director received.
Why It Matters
The decision underscores the sentencing significance of responsibility within a regulated business. D’Amore’s status as chief executive, responsible manager and key person aggravated the breach of trust because those roles placed him at the centre of the systems intended to protect clients and ensure regulatory compliance.
It also illustrates the limited mitigating weight that personal circumstances and prior good character may receive in serious corporate crime. Where misconduct is difficult to detect and depends on an offender’s trusted position, the Court may give priority to deterrence, denunciation and protection of confidence in financial regulation.