Corrupt benefits for trustees and others

Offence title:

Corrupt benefits for trustees and others

Act:

249E Crimes Act (NSW)

Offence:

Any person who offers or gives a benefit to a person entrusted with property, and any person entrusted with property who receives or solicits a benefit for anyone, without consent:

(a)   of each person beneficially entitled to the property, or

(b)   of the Supreme Court,

as an inducement or reward for the appointment of any person to be a person entrusted with the property, each commit an offence.

Penalty:

Imprisonment 7 years.

Summary/Indictable/mixed:

Mixed – if the benefit received or sought exceeds $5,000, otherwise the matter is a Summary offence.

Jurisdiction:

Local, District or Supreme Court.

How committed:

Person A, a beneficiary under a will, offers a sum of money to Person B, the executor, to receive a discretionary gift from an will by a deceased, Person C, without telling the other beneficiaries of the offer and receive their consent or the consent of the Supreme Court.

Important note:

A person entrusted with property is a reference to—

(a)   a trustee of the property,

(b)   an executor or administrator appointed for the purpose of dealing with the property,

(c)    a person who, because of a power of attorney or a power of appointment, has authority over the property, and

(d)   a person managing or administering the property (or appointed or employed to manage or administer the property) under the NSW Trustee and Guardian Act 2009.

The appointment of a person includes a reference to—

(a)   joining in the appointment of the person, and

(b)   assisting in the appointment of the person.

Proceedings for an offence under this section shall not be commenced without the consent of the Attorney General.

A consent to commence any such proceedings purporting to have been signed by the Attorney General is evidence of that consent without proof of the signature of the Attorney General.

Benefit includes money and any contingent benefit.

s.249G Repayment of value of gift etc

(1)   If a person is convicted of an offence under this Part, the court may (as well as imposing a penalty for the offence) order the person to pay to such other person as the court directs the whole or part of the amount or the value, assessed by the court, of any benefit received or given by the person.

(2)   Any money payable to a person under this section may be recovered in a court of competent jurisdiction as a debt due to the person.

s.249H Disqualification for office

If a person is convicted of an offence under this Part, the person is disqualified from holding civic office for the purposes of the Local Government Act 1993, for the period of 7 years from the conviction or such lesser period as the court may order.

s.249I Dismissal of trivial case

If, in any proceedings for an offence under this Part, it appears to the court that the offence is of a trivial or merely technical nature, the court may in its discretion dismiss the case.

s.249J Custom not a defence

In any proceedings for an offence under this Part, it is not a defence that the receiving, soliciting, giving or offering of any benefit is customary in any trade, business, profession or calling.