Convicted of fraud offences fourteen years apart, Mark Joseph Benjamin’s prohibition from acting as a company director was lifted by the High Court on strict conditions, over objections from both Companies Office and Corrections.
Benjamin was convicted of fraud in 2008 on proof he dishonestly accessed the electronic payroll system operated by his then employer Kerry (NZ) Ltd where he worked as chief financial officer, increasing his pay and holiday pay. He was sentenced to community service and ordered to pay $18,600 reparations.
At this sentencing, the trial judge was moved to say Benjamin was unlikely to ever come to the court’s notice again. His offending was described as a probably a classic example of a good man fallen from grace.
These sentiments proved optimistic.
Benjamin subsequently became chief executive officer of a company called Five Star Pork (NZ) Ltd. In 2016, he approved ‘advance payments’ to Kaimai Pork Ltd totalling $495,000 for pork which was never delivered to Five Star. He was a director of Kaimai. Funds misappropriated were repaid within months. The full extent of this fraud was not uncovered until after Benjamin left Five Star in late 2016.
In 2022, Benjamin pleaded guilty to the Five Star fraud. He was sentenced to nine months home detention.
Both the 2008 and 2022 fraud convictions resulted in automatic five-year Companies Act disqualifications from acting as a company director. As he had done following his prior 2008 fraud conviction, Benjamin asked the High Court to lift his second prohibition from company management following his subsequent 2020 conviction.
Benjamin told the court he is director of Burnley Lodge (2009) Ltd, a company providing residential care for individuals experiencing mental health issues; a twelve-bedroom facility with all tenants on WINZ benefits. This social service will collapse without his participation as director and manager, he claimed.
The business was described as a modest operation, paying Benjamin a salary of $50,000 while generating a $34,000 operating surplus for the year ended March 2022.
Companies Office said the past pattern and circumstances of Benjamin’s offending meant the public, and Burnley Lodge residents in particular, were at risk. It asked the prohibition be left to run its five years.
Corrections told the court Benjamin disregarded directives issued when he was on home detention. It said those Burnley Lodge residents not as financially savvy or socially aware as other members of society were at risk of financial exploitation by Benjamin, particularly if they were to come into a fortuitous financial windfall.
Benjamin was criticised for not putting before the court evidence of current notices from Tenancy Service and Fire & Emergency requiring upgrades at Burnley Lodge.
Justice Becroft said Benjamin’s lack of candour in his evidence and his past non-compliance demonstrated a degree of self-entitlement which did not bode well for any conditions imposed on his return to company management.
Approval to manage Burnley Lodge was approved, under strict conditions, including a requirement that the company’s financial statements be audited each year, with all payments verified by a third party. Burnley Lodge is prohibited from making any loans to Benjamin. All current and future residents of Burnley Lodge are to be told of Benjamin’s fraud convictions.
Justice Becroft also ordered Benjamin’s past offending be disclosed to those public agencies he currently deals with: WINZ, Auckland City Mission, Auckland Mental Health Services, Tenancy Services and Fire & Emergency.
re Mark Joseph Benjamin – High Court (14.09.23)
23.156