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A man who ran a rogue trading scheme that borrowed money from underworld figures before it went bust will spend a year in jail after being convicted of dishonest conduct.
Daniel Kirby was on Tuesday sentenced to two years and 11 months’ jail over his role at Berndale Securities, which collapsed in 2019, on one count each of lying to his company’s auditor, dishonest conduct as a company director and misuse of company funds.
Daniel Kirby (right), the former director of Berndale Capital Securities. Credit: Facebook
The corporate watchdog, which brought the charges, alleged Kirby had misused at least $1 million of client funds to fuel his lavish lifestyle of high-end cars and expensive holidays.
The McLaren-driving former hotshot will spend a minimum of 12 months behind bars before being eligible for parole. His sentence is the first to be handed out under the new regime for white-collar criminals to be tried at the Federal Court, rather than at local courts.
It marks a significant outcome for the Australian Securities and Investments Commission, which began its action against Berndale and its directors in 2018.
His co-accused, Stavro D’Amore, whose social media pages are littered with photos of himself and underworld figures including Mick Gatto, has pleaded not guilty and awaits trial later this year.
D’Amore was banned from working in financial services for six years in late 2018, but that ban lapsed in November last year.
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Together D’Amore and Kirby ran Berndale, a trading house that before its collapse was the fourth-largest seller of high-risk financial gambling products known as “contracts for difference” or “foreign exchange trading”.
The charges were laid two years after a lengthy public examination in the Federal Court in 2020 by Berndale’s liquidators.
Those examinations revealed an extraordinary tale of missing money from Swiss bank accounts and Berndale’s collection of high-end cars, including McLarens and Porsches, and unusual property investments.
The examinations also revealed how Berndale, which was formerly known as Forex TG, was linked to a number of other international trading schemes that stood accused of misusing investor money. This included that one of Forex TG’s former directors was Yossi Herzog, a man who is wanted in the US on securities fraud.
Another man, Aviv Talmor, who was Kirby and D’Amore’s business partner at Forex TG and later Berndale, is serving a five-year sentence in Israel over his involvement in a dodgy trading scheme.
During the examinations, Kirby explained that the group had borrowed money from underworld figure and Gatto confidant Angelo “Fat Ange” Venditti to assist in paying its legal fees.
There is no suggestion that Venditti or Gatto were in any way involved in the operation of Berndale, just that they socialised with D’Amore and Venditti provided financial assistance to the group.
In sentencing Kirby, Justice Wendy Abraham said the offences showed “an ongoing deliberate disregard by Mr Kirby for responsibilities he held and the trust reposed in him, given his position in the business”.
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She added that Mr Kirby “deliberately undermined an audit process to bypass a regulatory measure designed to protect consumers”.
“Offences of this nature undermine the integrity of the Australian financial markets and system of corporate regulation, and erode the confidence of participants in the commercial world,” she said.
“Victims of this type of crime are not confined to those who directly suffer through loss of their funds but extend to the investing public at large.”
Despite Kirby being criminally charged, ASIC never sought orders banning him from working in the finance sector.
Last year this masthead revealed that Kirby was legally back at work in the world of finance, working for a Sydney-based group called Summit Auto Trading.
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