REGISTRAR OF COMPANIES v ANDREWS [2023] NZHC 3242

REGISTRAR OF COMPANIES v ANDREWS [2023] NZHC 3242 [17 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-001508[2023] NZHC 3242UNDER Section 383 of the Companies Act 1993BETWEEN REGISTRAR OF COMPANIESApplicantAND RAYMOND ANTHONY ANDREWSRespondentHearing: 18 October 202318 October 2023 memorandum of Applicant24 October 2023 memorandum of RespondentAppearances: DB Dow and EH Barnes for ApplicantRespondent in personJudgment: 17 November 2023JUDGMENT OF HINTON JThis judgment was delivered by me on 17 November 2023 2023 at 4.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors: Meredith Connell, Auckland.Copy to: R A Andrews[1] The Registrar of Companies applies under s 383 of the Companies Act 1993(the Act) to permanently prohibit the respondent, Mr Raymond Andrews, from takingpart in the management of a company without the leave of the Court.[2] The application is made on the basis that Mr Andrews, an undischargedbankrupt, is a persistent offender, having been convicted of offences relating to themanagement of companies and also dishonesty offending. The Registrar says that apermanent term of disqualification is justified and necessary to protect the public fromMr Andrews engaging in similar conduct in the future.[3] At the first call of the proceeding on 16 August 2023 Mr Andrews indicatedthat he would be opposing the application. Despite inquiry from the Registry, he hadtaken no steps to do so until the morning of this hearing when he filed a briefsubmission and a number of supporting documents, including his affidavit in supportof an application for discharge from bankruptcy. Mr Andrews also appeared in personat the hearing and filed a memorandum after the fact in response to a supplementarymemorandum filed by the Registrar.[4] The grounds of Mr Andrews' opposition, which for convenience I set out now,are:(a) Recent decisions of the Law Society Standards Committee and/or theLegal Complaints Review Officer (LCRO) demonstrate that he shouldnot have been made bankrupt in April 2008. The bankruptcy was thefault of his then lawyer who gave him bad legal advice.(b) He has applied for release from bankruptcy and the Official Assigneehas indicated that they will not oppose his release.(c) His bankruptcy contains all the safeguards needed to protect the public.(d) He has no intention of returning to business. He says he has reformed,is currently a fulltime law student at AUT and hopes to be admitted tothe Bar.(e) His case is distinguishable from Registrar of Companies v Blake,1 theonly case to date where a permanent disqualification order has beenmade under s 383.Background[5] The evidence relating to the application was provided by Gregory Mark Bruce,a senior investigator with the Integrity and Enforcement Team in the Market ServicesGroup, a division of the Ministry of Business, Innovation and Employment. Mr Brucewas not cross-examined. The matters discussed below are drawn from his affidavitand its annexures, which include previous sentencing and other decisions relating toMr Andrews.Bankruptcy[6] Mr Andrews was adjudicated bankrupt on 21 April 2008 and he has remainedundischarged ever since. Creditors' claims totalling $684,757.75 were received in hisbankruptcy. He has made no contribution towards satisfying any of those.[7] Contemporaneous with his bankruptcy, Mr Andrews was convicted of a verylarge number of charges of tax evasion for which he received fines of $200 in eachinstance. That related to offending from 2002 to 2007.2013 convictions[8] In February 2013, following a jury trial, Mr Andrews was found guilty of sevencharges of operating a business without Official Assignee approval contrary tos 436(1)(b) of the Insolvency Act 2006; two charges of obtaining credit contrary tos 371(1) of the Insolvency Act; and two charges of concealing property from theOfficial Assignee contrary to s 420(2)(a) of the Insolvency Act.[9] This offending extended over a period from about July 2008 to May 2011. Insentencing Mr Andrews, Judge T R Ingram said:21 Registrar of Companies v Blake [2019] NZHC 680, (2019) 12 NZCLC 98-071.2 R v Andrews DC Tauranga CRI-2009-070-006443, 13 March 2013 [First 2013 Sentencing Notes]at [2].The situation that led to this offending was pretty straightforward. You wereadjudged bankrupt and with breathtaking arrogance you decided that yousimply were not prepared to co-operate with the Official Assignee. Over along period of time you actively connived to ensure that the Official Assigneewas unable to carry out the obligations that lay on the Official Assignee withthe result that you were engaged in a long-term pattern of offending anddeception, preying on members of the public, not only in Tauranga but aroundthe northern half of the North Island throughout a period of several years.[10] Mr Andrews had carried out a series of business activities relating in particularto laser hair removal and funded by his son Robert in Australia. Prior to those activitiesMr Andrews had been refused permission by the Official Assignee to be employed byRobert. Judge Ingram noted that Mr Andrews was not particularly remorseful norwilling to change.3 On appeal, the Court of Appeal considered that view justified.4[11] The losses "well and truly exceeded $50,000" and the total of undisclosedfunds through Mr Andrews' bank accounts was $109,000.5 For that offending,Mr Andrews was sentenced to 15 months' imprisonment.6[12] In addition, Mr Andrews pleaded guilty to a single count of obtaining bydeception. This offending, which occurred over a similar period to the offending forwhich he was tried, involved Mr Andrews obtaining a series of payments totallingapproximately $56,000 for supply of a cosmetic treatment machine. The machine wasnot supplied. For that offending, Judge Ingram subsequently sentenced Mr Andrewsto six months' imprisonment, to be served concurrently with the extant 15-monthsentence.7[13] As a consequence of the 2013 convictions, Mr Andrews was automaticallyprohibited under s 382(1) of the Act from being a director or promoter of or directlyor indirectly taking part in the management of a company for a period of five yearsunless he obtained the leave of the Court.3 First 2013 Sentencing Notes, above n 2, at [24].4 Andrews v R [2013] NZCA 281 at [27].5 First 2013 Sentencing Notes, above n 2, at [13]–[14].6 At [43].7 R v Andrews DC Tauranga CRI-2013-070-000617, 7 June 2013 [Second 2013 Sentencing Notes].2017 convictions[14] In 2017, following entry of guilty pleas, Mr Andrews was convicted of onerepresentative charge of operating a business while bankrupt contrary to s 436(1)(b)of the Insolvency Act; one charge of concealing property from the Official Assigneecontrary to s 420(2)(a); and one charge of wilfully misleading the Official Assigneecontrary to s 440(1)(b).[15] The relevant offending covered the period from about November 2013 toNovember 2014, and in the case of the concealing property charge, extended to 2015.The offending concerned Mr Andrews' management of Max Imports Ltd while anundischarged bankrupt. In sentencing, Judge C J Harding held that the amountconcealed from the Official Assignee was in excess of $150,000.8 Although the onlydirect loss to individuals was $3,000, the Judge considered that the scale of MrAndrews' involvement was best referred to by the turnover with which Mr Andrewswas involved — that is, the $150,000 sum concealed from the Official Assignee.9[16] In respect of the 2017 convictions, Mr Andrews was sentenced to 22 months'imprisonment.102019 convictions[17] On 15 March 2019, Mr Andrews was convicted following a jury trial of onecharge of taking part in the management of a business while prohibited, contrary toss 382(4) and 373(4) of the Act; one charge of taking part in the management or controlof a company while prohibited under s 436(1)(b) of the Insolvency Act; three chargesof concealing property under s 420(2)(a) of the Insolvency Act; one charge of wilfullymisleading the Official Assignee in a statement made in the course of administrationof a bankruptcy contrary to s 433(1)(c) of the Insolvency Act; two charges of obtainingby deception contrary to s 240(1)(a) of the Crimes Act 1961; one charge of obtainingby deception contrary to s 240(1)(b) of the Crimes Act; 12 charges of forgery contrary8 R v Andrews [2017] NZDC 28398 [2017 Sentencing Notes] at [10].9 At [6].10 At [13].to s 256(1) of the Crimes Act; and 12 charges of using forged documents contrary tos 257(1)(a) of the Crimes Act.[18] The 2019 convictions related to offending from February 2014 to August 2017,some of this being while Mr Andrews was on bail on the charges which were thesubject of his 2017 convictions.11 The offending primarily related to Mr Andrews'involvement with a variety of trading entities concerned with the importation anddistribution of motor vehicles from Australia in conjunction with his son Robert andRobert's business Maxium Pty Ltd. This offending involved losses somewhere in thevicinity of $500,000 and approximately $775,000 was concealed from the OfficialAssignee.12 As recorded in the sentencing notes of Judge D J Sharp, the Crowndescribed this offending as the "most egregious occasion which they [were] aware ofin relation to persons who have continued to trade while subject to orders ofbankruptcy".13[19] Judge Sharp sentenced Mr Andrews to six years and six months'imprisonment.14 The Judge said:15Your personality, your manner of dealing with things, the way that you havemisled people puts you in a category of someone who completely lacksaccountability. You are someone who the public needs to be protected from.Your ability to persuade people and to make seemingly reasonable statementsfrom a position where no such statements could possibly be made marks youout as a person who has significant negative characteristics unsupported byany sense of personal responsibility.Your submissions show no indication of remorse for the things that you havedone. There is no indication that you are willing to take any course of conductthat would change you from being someone I perceive as a danger to thepublic.[20] The sentence of six years and six months' imprisonment was upheld onappeal.1611 R v Andrews [2019] NZDC 12700 [2019 Sentencing Notes] at [22].12 At [7] and [13].13 At [9].14 At [27].15 At [5] and [8].16 Andrews v R [2021] NZCA 412.[21] As an automatic consequence of the 2019 convictions, Mr Andrews was againdisqualified from being a director of or being able to take part in the management of acompany without leave of the Court for five years until 15 March 2024.17Relevant legal principles[22] The application is brought under s 383 which relevantly provides:383 Court may disqualify directors(1) Where—(a) a person has been convicted of an offence in connection with thepromotion, formation, or management of a company (being anoffence that is punishable by a term of imprisonment of not lessthan 3 months), including an offence under section 138A, or hasbeen convicted of a crime involving dishonesty as defined insection 2(1) of the Crimes Act 1961; or(b) a person has committed an offence for which the person is liable(whether convicted or not) under this Part; or(c) a person has, while a director of a company and whetherconvicted or not,—(i) persistently failed to comply with this Act, the FinancialMarkets Conduct Act 2013, the Takeovers Act 1993, or thetakeovers code in force under that Act or, if the companyhas failed to so comply, persistently failed to takereasonable steps to obtain compliance with those Acts orthe code; or(ii) been guilty of fraud in relation to the company or of abreach of duty to the company or a shareholder; or(iii) acted in a reckless or incompetent manner in theperformance of his or her duties as director; the court may make an order that the person must not, without theleave of the court, be a director or promoter of, or in any way,whether directly or indirectly, be concerned or take part in themanagement of, a company permanently or for a period specifiedin the order.(1A) The court may make an order under this section permanent or for aperiod longer than 10 years only in the most serious of cases for whichan order may be made.17 Companies Act 1993, s 382(1)(a).(2) A person intending to apply for an order under this section must givenot less than 10 days' notice of that intention to the person against whomthe order is sought, and on the hearing of the application the last-mentioned person may appear and give evidence or call witnesses.(3) An application for an order under this section may be made by theRegistrar, the FMA, the Official Assignee, or by the liquidator of thecompany, or by a person who is, or has been, a shareholder or creditorof the company.(3A) Subsection (3B) applies on the hearing of—(a) an application for an order under this section by the Registrar, theFMA, the Official Assignee, or the liquidator; or(b) an application for leave under this section by a person againstwhom an order has been made on the application of the Registrar,the FMA, the Official Assignee, or the liquidator.(3B) The Registrar, the FMA, the Official Assignee, or the liquidator (as thecase may be)—(a) must appear and call the attention of the court to any matters thatseem to him, her, or it to be relevant; and(b) may give evidence or call witnesses.(4) An order may be made under this section even though the personconcerned may be criminally liable in respect of the matters on theground of which the order is to be made.(5) The Registrar of the court must, as soon as practicable after the makingof an order under this section, give notice to the Registrar that the orderhas been made and the Registrar must give notice in the Gazette of thename of the person against whom the order is made.(6) Every person who acts in contravention of an order under this sectioncommits an offence and is liable on conviction to the penalties set outin section 373(4).[23] The following procedural requirements must be met:(a) The applicant must have standing.(b) Before the order is sought, the respondent must be given at least 10days' notice that an order is intended to be sought.(c) The applicant must appear at the hearing and bring to the Court'sattention any matters that appear relevant and may give evidence or callwitnesses.(d) If an order is granted, notice of the order and its subject must be givenin the Gazette, as soon as practicable.[24] Section 383 is contained in pt 21 of the Act, headed "Offences and penalties".While penal in nature, the disqualification should be approached with the protectionof the public in mind rather than punitively, as this Court held in First CityCorporation Ltd v Downsview Nominees Ltd.18 To similar effect in Registrar ofCompanies v Blake, Venning J stated:19... the predominant purpose of prohibition orders is the protection of thepublic. For this reason, when considering whether a prohibition order oughtto be made (and if so, for how long), the Court is engaged in a forward-lookingexercise. The respondent's predilection to engage in future conduct of thenature giving rise to the application will therefore be highly relevant towhether a prohibition order ought to be made and if so, for how long.[25] Of particular relevance is s 383(1A). The Court may only make an order thatis permanent, or for a period of longer than 10 years, "in the most serious of cases forwhich an order may be made". The proper focus of an assessment under s 383 isindividual misconduct, although mismanagement may be relevant to the overallconclusion.20[26] On sentencing for a qualifying offence, an automatic five-year disqualificationperiod applies under s 382 of the Act. Mr Andrews has been subject to two suchdisqualification orders. Any longer period of disqualification requires a separateapplication under s 383 which can be made at any time. As the focus is on the need toprotect the public, the disqualification should be such as is necessary at that point,regardless of the earlier automatic disqualification period(s). An order can be madeunder s 383 even though the person concerned may be criminally liable in respect of18 First City Corporation Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710 (HC). The Court wasapplying the predecessor to s 383, namely s 189(1)(c) of the Companies Act 1955 which wasdrafted in substantially similar terms.19 Registrar of Companies v Blake, above n 1, at [79].20 At [40].the matters that form the basis of an order,21 but the duration of a finite order madeunder s 383 should be determined with regard to any s 382 disqualification. In Blakefor example, Venning J made an order under s 383 that was to run concurrently withthe existing disqualification22 and in Registrar of Companies v Bublitz Fitzgerald Jconsidered the effective disqualification period of ss 382 and 383 combined whenassessing the appropriate duration of an order under s 383.23[27] This is only the fourth time that the Registrar has filed an application for anorder under s 383 and as noted above, in only one of those cases, namely Blake, wasan order made for permanent disqualification.Relevant case lawAustralian Securities and Investments Commission v Adler24[28] Under comparable legislation in Australia, Santow J referenced threecategories of disqualification orders, being short-range (up to three years), mid-range(from seven to 12 years) and long-range (25 years to life). Within these categoriesSantow J identified a number of features applicable to determining into which categorythe offending fell. In the long-range category, Santow J identified the followingfeatures:25(a) large financial losses;(b) high propensity that defendants may engage in similar activities orconduct;(c) activities undertaken in fields in which there was potential to do greatfinancial damage such as in management and financial consultancy;(d) lack of contrition or remorse;21 Companies Act, s 383(4).22 Registrar of Companies v Blake, above n 1, at [74].23 Registrar of Companies v Bublitz [2022] NZHC 2177 at [177].24 Australian Securities and Investments Commission v Adler [2002] NSWSC 483, (2002) 46 ACSR80.25 At [56(xiii)].(e) disregard for law and compliance with corporate regulations;(f) dishonesty and intent to defraud; and(g) previous convictions and convictions for similar activities.[29] In Blake, Venning J said that similar considerations apply in relation to anapplication under s 383.26 I agree but note that the factors listed are not necessarily inorder of priority, nor do they all have to be present.Registrar of Companies v Blake[30] The 2019 decision in Blake is most applicable here. The case involved tworespondents, Mr Blake and Mr Ryan.[31] Mr Blake had been involved in the management of two companies in breachof a prohibition order under s 382 of the Act. The companies were subsequently placedin liquidation, owing respectively over $700,000 and $600,000 to creditors.27Mr Blake had been adjudicated bankrupt three times and had previous convictions forsimilar offending. He was sentenced to two years and four months' imprisonment.28For this offending, Mr Blake was automatically disqualified from being a director ofor being able to take part in the management of a company for five years.29[32] Mr Ryan (previously known as Mr Thompson) had an extensive history ofdishonesty offending, dating back to 2000.30 In 2005 he was sentenced to three yearsand three months' imprisonment for making false statements on the CompaniesRegister and for numerous charges of dishonesty related offending.31 In 2017, he wasconvicted of assisting Mr Blake in his offending and was sentenced to two years and26 Registrar of Companies v Blake, above n 1, at [44].27 At [12]–[13].28 R v Blake [2017] NZDC 28774.29 Registrar of Companies v Blake, above n 1, at [16].30 At [24].31 Ministry of Economic Development v Thompson DC Auckland CRI-2004-092-4718, 18 February2005.two months' imprisonment.32 Mr Ryan had been adjudicated bankrupt twice beforeand was an undischarged bankrupt at the time of his 2017 convictions.33[33] Subsequently Mr Ryan was also convicted for his role in a Ponzi scheme thatreceived $8.39 million from 900 investors over the span of a year.34 The total lossesarising from the scheme amounted to $4.4 million, of which Mr Ryan personally tookapproximately $1.3 million.35 In respect of that offending, Mr Ryan was ultimatelysentenced to six years' imprisonment to be served cumulatively on the two years twomonths' imprisonment for assisting Mr Blake.36 He was also subject to the automaticfive-year statutory ban from being a director or promoter of a company under s 382(1).[34] The Registrar applied for permanent disqualification orders for both Mr Blakeand Mr Ryan under s 383. Following consideration of the various factors identifiedby Santow J in Adler, Venning J made an order permanently disqualifying Mr Ryan.He held that Mr Ryan had been "guilty of persistent and ongoing dishonest behaviourinvolving the use of the company structures to obtain money from the public" and thathis case was "one of the most serious cases" and was therefore an appropriate case fora lifetime ban.37[35] Venning J considered a permanent ban was not appropriate in the case ofMr Blake, although he considered Mr Blake's conduct fell into the category of "themost serious of cases".38 The Judge said that the sums lost as a result of Mr Blake'soffending were not at the extreme end of the range and his offending had not involvedcriminal dishonesty.39 Venning J imposed a 12-year period of disqualification onMr Blake to run concurrently with the existing five-year disqualification under s 382.40As the Registrar submits, it is not possible to discern from Mr Blake's sentencing notes32 R v Blake, above n 28, at [149] and [151].33 Registrar of Companies v Blake, above n 1, at [23].34 At [27].35 R v Ryan [2018] NZDC 13386 at [20] and [36].36 Ryan v R [2018] NZCA 586. The Registrar's submissions referred to a sentence of seven yearssix months' imprisonment but the Court of Appeal resentenced Mr Ryan to six years'imprisonment. In Registrar of Companies v Blake, above n 1, Venning J referred to the sentenceimposed by the District Court, not the sentence as amended by the Court of Appeal.37 Registrar of Companies v Blake, above n 1, at [77].38 At [72].39 At [74].40 At [74].the specific amount involved in relation to his offending, but the loss to creditorsappears to have been in the realm of $600,000.Registrar of Companies v Bublitz[36] In Registrar of Companies v Bublitz, Mr Bublitz and Mr McKay had beenconvicted of offending in relation to their involvement with Mutual Finance Ltd in2010 and its subsequent collapse.41 The total loss to the public was approximately$860,000.42 Mr Bublitz was sentenced to 11 months' home detention43 and Mr McKayto 10 months' home detention.44 Both were also prohibited from taking part in themanagement of a company for a period of five years under s 382 of the Act.45[37] The Registrar sought 12-year prohibition orders against both respondents.When combined with the portion of the five-year automatic ban already served byMr Bublitz and Mr McKay, the total effective prohibition sought by the Registrar was15-and-a-half years from the date of their convictions.46[38] Fitzgerald J noted that while the offending was serious and premeditated, theactual losses were limited to $860,000.47 She considered that the circumstances of MrBublitz and Mr McKay could be materially distinguished from those of the eponymousMr Blake as they had never before offended or engaged in any relevant misconduct.48The Judge noted that while Venning J considered Mr Blake's history demonstrated ahigh likelihood that without an order he would engage in similar activities orconduct,49 Mr Bublitz and Mr McKay were assessed as having a low risk of re-offending.50 That low risk of reoffending was reinforced by the fact that Mr Bublitzand Mr McKay had not engaged in any conduct relevant to the Registrar's application41 Registrar of Companies v Bublitz, above n 23.42 Bublitz v R [2019] NZCA 364 at [152].43 At [167].44 McKay v R [2019] NZCA 493 at [34].45 Registrar of Companies v Bublitz, above n 23, at [2].46 At [3]. The judgment refers to a total prohibition sought of 14-and-a-half years but the correctperiod appears to be 15-and-a-half years.47 At [178]–[179].48 Registrar of Companies v Bublitz, above n 23, at [183].49 Registrar of Companies v Blake, above n 1, at [68].50 R v Bublitz [2019] NZHC 592 at [13].in the 12 years between their offending and the application.51 Although the nature ofthe respondents' offending was more serious than that of Mr Blake, the Judge said:52Mr Blake's history of misconduct provided much greater indicia of futureoffending or misconduct than in this case, and thus a much greater need forprotection of the public.[39] Fitzgerald J disqualified both respondents for three years and six months fromthe date of her judgment.53 This resulted in an effective total prohibition of sevenyears.Registrar of Companies v Branson-Marsters54[40] The Registrar applied under s 383 to disqualify Mr Branson-Marsters for 15years, to which Mr Branson-Marsters consented.55[41] Mr Branson-Masters had a long and persistent history of offending including74 dishonesty convictions for burglary, dishonest use of documents and obtaining bydeception, as well as 30 offences under the Insolvency Act 1967 for breaching hisbankruptcy obligations.56 He had caused significant financial damage through hismisuse of companies. Venning J noted that his actions put him in "the most serious ofcases category".57[42] The Judge was satisfied that the order sought was appropriate and made adecision on the papers accordingly.58Analysis[43] The criteria for the Court to make an order under s 383 are satisfied:Mr Andrews' convictions meet the qualifying thresholds of ss 383(1)(a) and 383(1)(b).The procedural requirements are also satisfied, including that the Registrar has51 Registrar of Companies v Bublitz, above n 23, at [192].52 At [186].53 At [177].54 Registrar of Companies v Branson-Marsters [2022] NZHC 1394.55 At [3].56 At [5].57 At [16].58 At [17].standing to make the current application and Mr Andrews was provided with theappropriate period of notice.[44] The question is whether the Court should make an order and in particularwhether the Court should impose a permanent ban (or a ban longer than 10 years), thatbeing available only "in the most serious of cases".[45] I agree with the Registrar's submission that overall this case has the featuresidentified in Adler and referenced by Venning J in Blake and Branson-Marsters, thatjustify a permanent ban. I address below the relevant factors from Adler; Mr Andrews'grounds of opposition; and my overall assessment.Adler factorsLarge financial losses[46] While the loss suffered by Mr Andrews' victims is not at the extreme end ofoffending, it is nonetheless substantial. The losses for the two sets of offending in2013 well exceeded $106,000 and the amount concealed from the Official Assigneewas $109,000.59 The 2017 convictions involved losses to individuals amounting toonly $3,000, but the total amount concealed was upwards of $150,000.60 The moreserious 2019 convictions involved losses to individuals amounting to $500,000 andconcealment of $775,000 from the Official Assignee.61 There is an overlap betweenthe losses incurred by members of the public and the funds concealed, such that it isnot possible to arrive at an overall loss or amount concealed. However, it is fair to saythat the overall losses are significant.[47] In addition, there is the shortfall in Mr Andrews' bankruptcy of $684,757.75.This loss to creditors was large, particularly measured as at 2008. Mr Andrews'bankruptcy is not one of the qualifying criteria for an order under s 383 but I agreewith the submission made for the Registrar that matters consequent upon thebankruptcy including the quantum of loss are clearly relevant. Observations to similar59 First 2013 Sentencing Notes, above n 2, at [13]–[14].60 2017 Sentencing Notes, above n 8, at [10]. As discussed above, the Judge considered the amountconcealed to be the more important point.61 2019 Sentencing Notes, above n 11, at [7] and [13].effect were made by Fitzgerald J in Bublitz where she stated that evidence relevant towhether an order should be made is not confined to the conduct giving rise to thethreshold ground for the application.62 As noted in Blake, personal financial failuresmay "be an indicator of recklessness towards obligations which would be a relevantconsideration" in determining whether an order should be made and if so, for howlong.63[48] Overall, the New Zealand public has suffered significant losses as a result ofMr Andrews' misconduct (and mismanagement) over the period from 2008 to his latestoffending in 2017.High propensity to engage in similar activities or conduct[49] There is no indication at all that Mr Andrews could rehabilitate. The level ofhis offending has escalated on each occasion, as is evident from the sentencingoutcomes. Most notably, in respect of the 2019 convictions Mr Andrews wassentenced to six years six months' imprisonment, a sizeable sentence which reflectsthe seriousness of his offending. While Mr Andrews is now 74 years old, his last setof offending occurred up to the age of 69 and he was imprisoned not long afterwards.His offending is persistent and escalating. It is clear that his advancing age has notserved to deter him.Fields of activity with potential to do great financial damage[50] Mr Andrews' offending does not fall into the categories which could causemost danger in terms of financial loss. Nonetheless a very large number of individualshave been duped into what amounts in total to large losses. Were it not for theintervention of the criminal system, the damage is likely to have been much moresignificant.62 Registrar of Companies v Bublitz, above n 23, at [82].63 Registrar of Companies v Blake, above n 1, at [60].Lack of contrition or remorse[51] This factor overlaps with that of a respondent's propensity to engage in similaractivities. It is clear from the material before me that Mr Andrews has no remorse. Asdiscussed above, Judge Ingram in 2013, Judge Sharp in 2019 and the Court of Appealin 2021 all considered that Mr Andrews was neither remorseful nor willing tochange.64[52] There is ample evidence to support this conclusion. I note that one ofMr Andrews' victims was his own daughter whose bank accounts were exploited inan effort to conceal money from the Official Assignee.65 Mr Andrews showed noacknowledgment of the impact on his daughter who Judge Sharp described as"devastated by what [Mr Andrews] did".66Disregard for law[53] Mr Andrews has continued offending even after his first experience ofimprisonment, and in the face of a range of measures aimed at mitigating his risk tothe public. A common feature of his offending is a blatant disregard for the restrictionsimposed by law. Associate Judge Doogue in declining to discharge Mr Andrews frombankruptcy in 2013 found he had demonstrated an "overall indifference to hisobligations under the Insolvency Act 1967".67[54] In dealing with Mr Andrews' appeal against the sentence imposed for his firstset of 2013 convictions, the Court of Appeal traversed his extensive non-compliancewith bankruptcy restrictions including multiple instances of operating businesseswhile others were named as directors, using false names, and using his personal bankaccount details on company invoices.68[55] Most recently, in 2019 Judge Sharp described Mr Andrews as havingrepeatedly attempted to continue trading notwithstanding prohibitions against doing64 First 2013 Sentencing Notes, above n 2, at [24]; 2019 Sentencing Notes, above n 11, at [8]; andAndrews v R, above n 4, at [27].65 2019 Sentencing Notes, above n 11, at [6].66 At [6].67 Official Assignee v Andrews [2013] NZHC 3494 at [30].68 Andrews v R, above n 4, at [5]–[12].so.69 There has been a clear and continued effort on the part of Mr Andrews todeliberately disregard the law and any protection it provides for the public.Dishonesty and intent to defraud[56] In addition to the offending under the Act and the Insolvency Act, Mr Andrewshas been convicted of criminal offending, including multiple counts of obtaining bydeception, forgery, using forged documents and tax evasion. All of this offending wasintentional and calculated. His most recent offending was described by the Court ofAppeal as premeditated and concerted, involving multiple victims.70Previous convictions and contraventions for similar activities[57] As set out above, Mr Andrews has been convicted on four occasions of similarbut unrelated offending. Judge Harding remarked in his 2017 sentencing notes thatthe offending before him was nearly identical to the offending Mr Andrews had beenconvicted of in 2013.71 His offending, as already mentioned, has only escalated.Mr Andrews' grounds of opposition[58] The grounds of opposition have no merit.[59] As recorded, Mr Andrews says the decision of the LCRO demonstrates heshould not have been made bankrupt. However, the decision upon which Mr Andrewsseeks to rely makes several findings of unsatisfactory conduct against one of MrAndrews' previous barristers whom he instructed in 2017 to, among other things,endeavour to renegotiate his bankruptcy status. Mr Andrews had been bankrupt formany years at that point. The LCRO findings are based on the barrister's failure toadequately inform Mr Andrews about progress on a retainer, failure to respond in atimely and reasonable manner, failure to hold monies received from Mr Andrews in atrust account and related issues with fees and invoicing. None of these matters hasany bearing on the present application. While the LCRO also found that the barristermisled Mr Andrews into believing that he had completed favourable settlement69 2019 Sentencing Notes, above n 11, at [4].70 Andrews v R, above n 16, at [91].71 2017 Sentencing Notes, above n 8, at [5].negotiations regarding Mr Andrews' bankruptcy when he had not, there was nosuggestion by the LCRO that the barrister's conduct was in any way causative ofMr Andrews' continuing status as an undischarged bankrupt.[60] In all the circumstances, it is extraordinary that Mr Andrews should argue his2008 bankruptcy was the fault of his lawyer. This is however consistent with thefindings made by all the sentencing Judges of a complete lack of personalresponsibility or accountability on Mr Andrews' part.[61] Since the hearing the Official Assignee has confirmed that the InsolvencyService does not oppose Mr Andrews' release from bankruptcy. Again however thatis not relevant. He has been in bankruptcy for 15 years which is materially longer thannormal, and nothing further is served by its continuation at this point. As noted above,no payments have been made to creditors. This again only further demonstratesMr Andrews' disregard for his financial obligations, and supports a s 383 prohibitionorder being made.[62] Mr Andrews' associated point that his bankruptcy contains all the safeguardsneeded to protect the public is of course negated by his application for release. Evenwere this not the case, the submission is clearly incorrect given his extensiveconvictions for non-compliance with the conditions of his bankruptcy. As JudgeIngram said, Mr Andrews not only failed to cooperate with the Official Assignee, heconnived to circumvent the law.72[63] Whether Mr Andrews intends to return to business (or not) is also not relevantto whether he should be allowed to do so. The same applies to his hope to be admittedto the Bar. The purpose of a s 383 order is to protect the public. Whether an order isjustified requires a forward-looking assessment of Mr Andrews' predilection to engagein future conduct of the nature giving rise to the application. There is no evidence thatMr Andrews has reformed. I consider if permitted to take part in the management ofa company there is a high likelihood that he would engage in similar conduct. Theobjective of public protection is not achieved by relying on statements made byMr Andrews.72 First 2013 Sentencing Notes, above n 2, at [2].[64] Finally, Mr Andrews' submission that his situation is distinguishable from thatof the respondents in Blake is discussed below.Overall assessment[65] I agree with the Registrar that Mr Andrews' case falls between that of Mr Blakeand Mr Ryan.[66] Mr Ryan's offending involved greater losses, a larger number of investorsbeing duped and a somewhat more extensive criminal history. However, both Mr Ryanand Mr Andrews were subject to multiple periods of imprisonment for relevantoffending and committed flagrant breaches of the Act and their financial obligations.Although Mr Ryan's offending involved greater financial loss, quantum of loss is butone factor to consider when assessing culpability for offending involving fraudulentconduct. This is reflected in the prison sentence Mr Andrews received for his 2019offending (six years and six months) being six months more than that which Mr Ryanreceived for his most serious offending (six years, to be served cumulatively on anearlier sentence). Similar to the sentencing process, large financial loss is only onefactor identified by Adler as justifying long-term disqualification orders.[67] This case is more serious than that of Mr Blake whose conduct Venning Jnonetheless found fell into the most serious of cases for which an order may be made.73Unlike Mr Blake, Mr Andrews has multiple convictions for dishonesty offendingunder the Crimes Act which raises the seriousness of his offending to a higher level.[68] I reject Mr Andrews' submission that his case is distinguished from Mr Ryanand Mr Blake's in that they conducted businesses under aliases and were directors ofa large number of companies, while Mr Andrews was not. First, this is factuallyincorrect. As noted by the Court of Appeal Mr Andrews has on occasion used falsenames.74 Second, an order under s 383 is not limited to those convicted while adirector of a company, nor is the number of corporate entities involved of particularrelevance. Mr Andrews' convictions did not arise while acting as a director because73 Registrar of Companies v Blake, above n 1, at [72].74 Andrews v R, above n 4, at [8].he was ineligible or unable to do so at all material times. More relevantly, he wasinvolved in the management of companies over a long period where he was acting asa quasi-director in breach of insolvency, company and criminal law.[69] Mr Andrews also submits it is relevant that Mr Ryan and Mr Blake had beenadjudicated bankrupt multiple times while he has been only once. Again, I disagree,certainly on the facts of this case. Bankruptcy is not a qualifying criterion for an orderunder s 383 in any event. But, further, Mr Andrews has been an undischarged bankruptfor 15 years, whereas a bankrupt is ordinarily automatically discharged after threeyears.75 He has remained a bankrupt as a result of the Assignee objecting to adischarge on three occasions.[70] Last, Mr Andrews says it is relevant that Mr Ryan was prosecuted by theSerious Fraud Office while he has never been "investigated" by that office. Thissubmission is also misconceived. While an investigation by the Serious Fraud Officemight be relevant, it is not a significant factor, as highlighted by the features identifiedin Adler.[71] Viewed overall, I am satisfied that, as with Mr Ryan and Mr Blake, this casefalls into "the most serious of cases" in terms of s 383(1A). I consider it is moreserious by some measure than that of Mr Blake and close in seriousness to that ofMr Ryan.[72] This case is quite similar to that of Branson-Marsters where Mr Branson-Marsters was disqualified as a director for 15 years. However, permanentdisqualification was not sought. All that can be said is it clearly fell into the mostserious category given the disqualification imposed was for a period of over 10 years.The parties effectively agreed a period of 15 years.[73] Bublitz is a very different fact scenario. Mr Bublitz and Mr McKay were first-time offenders and had not engaged in any conduct relevant to the s 383 assessment inthe 12 years between the qualifying offending and the s 383 order made by75 Insolvency Act 2006, s 290.Fitzgerald J.76 As they were sentenced to home detention, the lack of relevant conductcannot be attributed to any period of imprisonment. On the other hand, Mr Andrewshas persistently offended over a lengthy period of time — effectively non-stopbetween 2008 and 2017, but for his periods in custody. Mr Andrews was only releasedfrom custody for his last offending on 20 April 2022. Unlike Bublitz, this is not a casewhere the progression of time demonstrates that a person presents less of a risk to thepublic. Mr Andrews' offending has not lessened over time. It has in fact escalated.[74] Further, although the actual loss in Bublitz was similar to that here, when oneconsiders the amounts concealed from the Official Assignee and outstanding inMr Andrews' bankruptcy, the offending demonstrates a far greater risk to the publicthan in Bublitz.[75] The combination of all of the factors discussed above renders Mr Andrews'case one of the most serious cases, and appropriate for a permanent prohibition order.None of his convictions in isolation falls at the extreme end but the cumulative effectof a long period of recidivist (and escalating) offending amounts to serious offending.Mr Andrews has engaged in ongoing and intentional dishonest behaviour facilitatedby his use of company structures. Despite being sentenced to two prior periods ofimprisonment, Mr Andrews continued to offend. His last set of offending (the 2019convictions) involved criminal dishonesty and resulted in a lengthy sentence ofimprisonment, by far his longest to date. Mr Andrews has shown complete disregardfor the law and for his bankruptcy. The financial losses have been significant. MrAndrews is entirely unremorseful. I see no prospect of rehabilitation and a highprospect that he may engage in similar conduct if the door is open for him to do so.[76] In the circumstances, I conclude that a permanent order is necessary to protectthe public.Order[77] Raymond Anthony Andrews is prohibited, without leave of the Court, frombeing a director or promoter of, or in any way, whether directly or indirectly, being76 Registrar of Companies v Bublitz, above n 23, at [191]–[192].concerned or taking part in the management of a company pursuant to s 383(1) of theCompanies Act 1993._______________________________Hinton J