A disgraced Dunedin financial adviser whose "unconscionable'' offending included literally visiting victims of his multi-million dollar Ponzi scheme on their death beds has been sentenced to almost nine years prison.
Barry Kloogh was sentenced in the Dunedin High Court today to eight years and 10 months prison, with a minimum period of imprisonment of five years and four months.
Kloogh earlier this year pleaded guilty to multiple charges stemming from his theft of at least $15.7 million from his clients.
Judge Michael Crosbie acknowledged the victims who had packed the courtroom, and said he had carefully considered 32 statements from them.
"To say all the victim impact statements were harrowing would be an understatement."
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Judge Crosbie said Kloogh had told authorities that he had started offending 25 years ago: being 57 now, he had been stealing from clients for around 70% of his professional life.
"Your life has been built on a lie, every cent you have spent was stolen from someone else.''
Kloogh's belief that he could pay the money back was "delusional'' and some of his statements to authorities and victims were "arrogant nonsense'' the judge said.
Although Kloogh should not have any money or assets, Judge Crosbie made a reparation order of $5 million, should Mr Kloogh's circumstances change
However, given his age and employment prospects, victims were unlikely to ever see any of their money back, Judge Crosbie said.
"One person and one person only believes you are a good person.''
While having some sympathy for one victim's submission that Kloogh should receive a year in jail for every million he had stolen, he was bound by the Sentencing Act, Judge Crosbie said.
Aggravating factors were the extent of harm, the fact many people had invested their life savings, the abuse of a position of trust as both a financial adviser and a friend, the vulnerability of his victims and the premeditation of his theft.
Some aspects of Kloogh's offending were "heinous'' and had an enormous impact on his victims, Judge Crosbie said.
Kloogh visited people's homes and often acted in an "unconscionable'' manner, including literally visiting people on their deathbeds.
Hardworking people had invested out of trust and now faced an uncertain future, and a starting point of 13 years was appropriate.
Judge Crosbie said a discount for good character was not appropriate, and the bare fact that Kloogh had attended restorative justice conferences did not automatically lead to discount for remorse.
The fact Kloogh still held a "farcical'' belief that he could pay his victims back showed a lack of insight into his offending, and his remorse "did not go far beyond self-pity'' Judge Crosbie said.
Telling investors he would pay them back almost amounted to revictimisation, but a 5% discount in sentence for attending the conferences would reflect the fact that Kloogh actually took part, Judge Crosbie said.
A bare 2% discount was appropriate for the amount of co-operation Kloogh had offered, the judge said.
Following a 25% discount for a guilty plea, Kloogh should serve eight years and six months, with a minimum period of imprisonment of five years and four months.
Earlier a woman who lost her husband to cancer while being defrauded of more than $700,000 by Kloogh labelled his actions "despicable" and failed to understand how he could be so cruel to a dying man.
The woman was the first of a number of investors who gave victim impact statements at disgraced financial adviser Kloogh's sentencing at the Dunedin High Court today.
The prosecution this morning argued given the gravity of his offending a starting point of between 12 and 13 years imprisonment should be used. His defence counsel said he accepted the offending was serious and said case law suggested a starting point of 10 years imprisonment.
The first investor to speak in court today said the way Kloogh had stolen money from herself and her late husband was "despicable".
"It was a well-executed plan to lure us in, one which he had probably used many times before."
The couple invested money set aside for the holiday of a lifetime, savings and an inheritance, hoping to set the family up financially after her husband was diagnosed with cancer.
The woman said her late husband was happy the family would be provided for.
"The only thing that you could think of was how to get more money out of us ... we thought you were helping us but the only thing you wanted to do was help yourself.
"How you could do that to a dying man I still cannot understand."
The couple lost $712,000 to Kloogh.
"Cancer is cruel but Barry has matched that cruelty."
'We were being groomed'
A second investor told the court he and his family had $268,000 stolen by Kloogh.
Their initial investments had been moderately successful: "we now feel we were being groomed."
Their money was knowingly and deliberately stolen, he said.
On three occasions Kloogh had at been at their table and been given cheques stamped to be invested safely -- instead they had been later counterstamped with the name of one of Kloogh's companies.
"We are shattered that our trust in Barry has been betrayed ... our vision has been stolen."
A third investor, a woman, said twice she had been asked by Kloogh to write cheques to transfer sums which he said had been mistakenly placed in her account.
She asked Kloogh to arrange her finances prior to her retirement, and received modest regular amounts.
A trip to the United States saw her stranded, after a promised $15,000 she had arranged for Kloogh to put into her account never arrived.
She emailed Kloogh to say she was worried about where her money was, and was anxious: Kloogh apologised and told her via email: "I am certainly not slack and certainly not dishonest," and told her the money would be transferred immediately.
The issue was sorted out, but the woman continued to trust a man who she now believed viewed her as a "sitting duck".
The money she trusted would be available to her as a backstop if needed by herself or her children was targeted by Kloogh, she believed.
"I believed I had financial safety: not so today . .. what on earth made him think he could use my money for his own purposes?."
'How could Barry take this money from us knowing this was our child's future?'
A married couple who invested with Kloogh for over 20 years, had planned to use their life savings to build a dream house.
"We don't have holidays or flash cars, we worked hard for our money," the woman said.
They met with Kloogh on May 7 2019 to discuss their portfolio and were given a statement which said they had $152,000 saved.
The money, which was also intended to provide for a disabled child, was now lost.
"How could Barry take this money from us knowing this was our child's future?''
'Barry Kloogh has basically ruined our lives'
The fifth investor to address the court said Kloogh knew he had prostate cancer, but continued to misuse a trust built up over many years.
All their savings had gone, and he had been forced to return to work despite his cancer being incurable.
"Barry Kloogh has basically ruined our lives with his lies and dishonesty.''
'We have lost the freedom to enjoy our hard-earned savings'
A married retired couple said they were devastated that despite using an authorised financial adviser and supposedly investing through a secure platform, that their $530,000 portfolio was "virtually non-existent".
Kloogh had never made any actual investments in their name, and all their retirement savings were gone.
"We are now living a nightmare ... we were enthusiastically and brazenly lied to all the while we were discussing our investments."
Kloogh's "total disregard'' for the couple's wellbeing was beyond belief, the couple said.
"We have lost the freedom to enjoy our hard-earned savings."
Prosecutor Marie Grills said the six investors represented 81 known victims who had lost an estimated $15.7 million.
Kloogh had used his position of trust to prey upon his victims multiple times, she said
Many of the investors were vulnerable, being at retirement age or due to retire soon.
They were not chasing high interest rates but looking for financial safety, Grills said.
"It was known to him that this was what they were relying upon for their future, not just for themselves but for family members, and for some for family members who required particular assistance.''
Kloogh's offending required sophistication and know-how, and he used the e-banking system to create false accounts and statements, she said.
The Crown believed, due to the gravity of Kloogh's offending, that a starting point of between 12 and 13 years imprisonment should be used, Grills said.
The SFO accepted that Kloogh has co-operated with the authorities, but that had to be put in the context that once his thefts were discovered prosecution was inevitable.
Grills said the offending merited a minimum period of imprisonment to ensure Kloogh was held sufficiently accountable for the seriousness of his actions.
A new update from the liquidator said there was little prospect of Kloogh affording any reparations.
Kloogh accepts offending was serious
Defence counsel Sarah Saunderson-Warner said Kloogh wanted all clients to be recompensed as much as possible, but there were no other assets which had not been disclosed to the official assignee.
Kloogh took no issue with the aggravating factors raised by the Crown and did not raise any other mitigating factors.
Case law suggested a starting point of 10 years imprisonment, Ms Saunderson-Warner said, and it was accepted that whatever his Honour decided it was going to be a significant period of imprisonment.
Kloogh had pleaded guilty very early in the investigation and has co-operated with authorities and deserved some credit for that, Ms Saunderson-Warner said.
"His co-operation has been significant for the Serious Fraud Office."
He had provided documents and volunteered to be interviewed by the SFO, she said.
Kloogh had also provided information during follow-up inquiries, assisted the Official Assignee, and had taken steps not to delay matters.
He had attended 13 face-to-face restorative justice conferences and also assisted in a conference where the victim did not want to face him.
"The conferences were difficult for Mr Kloogh, as they should be.''
He had apologised, although not all of the victims had accepted it.
He accepted it was serious offending and had done serious harm to the community, Ms Saunderson-Warner said
One of the investors spoke to the Otago Daily Times ahead of sentencing.
"It's changed our lives completely," one investor who has lost a six-figure sum told the Otago Daily Times this week.
"Straight after it happened, I just went into a deep depression and I did not want to be here.
"I could just not see myself coping with the loss of all our money and the cancer I was going through, and I had to seek professional help and take medication, but it's there every day."
Many of the investors have already sat down with Kloogh as part of a restorative justice process.
"Whether there is any remorse there, I don't know. He's firmly convinced that he's going to get our money back, but how I just don't know," one investor said.
"He's just going to sit in prison. He's got a warm bed and a TV, and he'll get out and he'll just carry on."
Many of the investors who will attend today's sentencing are members of an affected investors group, set up to provide information and support.
The group spokeswoman said today was a significant milestone, but the work of untangling Kloogh's financial affairs would go on for years.
"I believe some people are still coming forward now ... and there are a lot of indirect victims in this, too," she said.
"I think some people will find closure, but there is still a long journey ahead for this process, not just working through this but also trying to make sure it doesn't happen again."
Kloogh was the operator and sole shareholder of Financial Planning Ltd and Impact Enterprises Ltd, and offered insurance and mortgage-broking services as well as financial planning.
However, rather than investing his clients' money through a secure platform — as they believed he would — Kloogh instead operated a Ponzi scheme, using newly invested money to pay off clients who requested their money back.
Kloogh's office and home were searched by police and the Serious Fraud Office in May 2019.
His companies have now been placed in liquidation and Kloogh has declared personal bankruptcy.
In his interviews with investigators, Kloogh said he believed he had stolen $18million from investors, and that he had operated his Ponzi scheme for years.
In March, Kloogh pleaded guilty to representative charges of false accounting, false statement by a promoter, theft by a person in a special relationship and obtaining by deception.
He has also pleaded guilty to four individual charges of forgery, theft by a person in a special relationship, and two charges of obtaining by deception.