Tennis machines conspirator loses jail appeal

One of the jailed accused in the “tennis machines conspiracy” has lost his appeal against a four-year prison sentence.

Canterbury businessman Gerard Thomas Clifford was appealing on the basis that his co-offender, Robert Briggs, received a four years and 10 month sentence.

Clifford argued that he played a lesser role and should have got less than four years' jail.

Briggs and his wife controlled the Actives Charitable Trust, which held a licence under the Gaming and Lotteries Act 1977. It was required to apply and distribute the income in terms of the deed.

Clifford’s companies owned tennis ball lobbing machines for training tennis players.

They entered into lease arrangements with tennis organisations under which the tennis organisations agreed to pay inflated prices to rent the machines.

The organisations entered into the leases on the understanding that they would receive grants from the trust to meet the cost of leasing the machines.

Clifford’s companies then issued invoices to them for rental of the machines and the organisations paid the invoices using grants they received from the trust.

Briggs and/or his creditors then rendered invoices to Clifford’s companies for consultancy services they had never provided. Clifford used the rental payments his companies received from the tennis organisations to pay those invoices.

Between August 2003 and July 2005, the pair made grants to tennis organisations totalling $1.706 million. The tennis organisations paid Clifford’s companies $1.296m in rental payments.

During the same period, Clifford’s companies paid invoices rendered by Briggs’ companies and/or his creditors totalling $646,775.

Clifford and his companies retained approximately $650,000.

The tennis organisations benefited by having the use of the machines and also by retaining cash from the grants totalling $409,225.

“We accept that Mr Clifford did not owe fiduciary obligations to the trust. Nevertheless, he knew he was receiving the benefit of funds Mr Briggs had diverted from the trust in breach of his fiduciary obligations to it," the Appeal Court says. 

"We see little distinction in terms of culpability between a person who diverts funds away from a trust in breach of his or her fiduciary obligations to it, and a person who receives such funds in the knowledge that they have been diverted by another person acting in breach of fiduciary obligations.” 

Clifford never pleaded guilty nor expressed remorse or offered to pay reparation, the ruling says.

In addition, mitigating factors included efforts by Briggs to deal with his gambling addiction as well as his guilty pleas to the deeds and to conspiracy charges.