The Federal Court found that James Mawhinney acted with “total disregard” for the Corporations Act and ASIC Act and that his contravention is “of a very serious kind and warrant a very substantial period of restraint”.
“As I have stated, I have no confidence that Mr Mawhinney properly understands or appreciates the protective purposes of Australian financial services laws, or the importance of properly disclosing relevant and material matters to prospective investors,” Justice Anderson said in his sentencing.
Mr Mawhinney raised more than $211 million across multiple funds, but most investors will likely “never be repaid their principal or interest”. He has been restrained from soliciting funds in connection with a financial product and receiving funds in relation to any financial product for a period of 20 years.
“Mr Mawhinney accepted funds from new investors for the purpose of making interest and redemption payments to old investors, when there was a real likelihood that the subsequent investors would lose some or all of their monies,” Justice Anderson wrote.
“Subsequent investors were not informed that their invested funds would, could or might be used to pay distributions to current investors.”
One contributing factor to the sentencing was the extreme speed with which Mr Mawhinney was able to implement his schemes. Mayfair’s Australian Property Bonds product – which Justice Anderson found was formulated to circumvent court orders made in April 2020 – received inquiries in the order of $100 million “within a matter of weeks”.
Justice Anderson did not impose a harsher or longer sentence for three reasons: the conduct was not the subject of a criminal conviction; evidence did not allow Justice Anderson to find that Mr Mawhinney did or could benefit personally; and ASIC did not allege that Mr Mawhinney engaged in “conscious dishonesty or an intent to defraud”.
