New South Wales Crime Commission v Sako

[2017] NSWSC 366

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Sako [2017] NSWSC 366

Hearing dates:

6 April 2017

Date of orders:

06 April 2017

Decision date:

06 April 2017

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and

 

Considering that, having had regard to the matters contained in the affidavit of Katie Elaine Bourne sworn 5 April 2017, there are reasonable grounds for the suspicions stated therein

 

The Court orders:

 

1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) of Alan Sako, including the interest in property in the property specified in Schedule One and Schedule Two.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Alan Sako shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest.

 

3. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Order 2 above.

 

4. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Alan Sako in the property specified in Schedule One hereto.

 

5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Alan Sako shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Alan Sako, a statement verified by oath of Alan Sako setting out the particulars sought in Schedule Three hereto.

 

6. Liberty is granted to the Plaintiff and Alan Sako to apply on three (3) days’ notice.

 

7. The balance of the summons be listed for mention before the Common Law Duty Registrar on Monday, 10 July 2017 at 9.00am.

 

8. The costs of obtaining these orders shall be costs in the cause.

 

9. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof.

 

SCHEDULE ONE

 

1. Cash in the amount of approximately $166,660 seized by police on 1 March 2017 from the boot area of the vehicle with Victorian Plate Number 1IQ7EN.

 

2. 2014 Toyota Landcruiser wagon with Victorian Plate Number 1IQ7EN registered in the name of Alan Sako.

 

SCHEDULE TWO

 

The whole of the property described as Lot 233 of Plan of Subdivision 617320S, Parent Title Volume 11274, Folio 757, created by instrument PS617320S Stage 6 16/08/2011 also known as 3 Wentworth Street, Beveridge, Victoria 3753 and 3 Wentworth Terrace, Beveridge, Victoria, 3753.

 

SCHEDULE THREE

 

1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property:

 

(a) a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest;

 

(b) the location of the interest;

 

(c) the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

 

(d) the approximate date of acquisition of the interest;

 

(e) the source of funds used to acquire the interest.

 

2. Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability:

 

(a) a full description of the liability including the nature of that liability and the amount of that liability;

 

(b)   the name of the person or institution to which the liability is owed.

 Orders to be entered forthwith.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Alan Sako (Defendant)

Representation:

Counsel:
R Katrib (Plaintiff - ex parte)

  Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s):

2017/105268

Judgment

1. The plaintiff seeks a restraining order under section 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of orders under sections 22 and 28A of that act.

2. Section 10A(5) of the Act says the Court must make a restraining order if the application is supported by an affidavit of an authorised officer stating that the officer suspects that the person's interest in the property sought to be restrained has engaged in serious crime related activity, stating the ground on which the suspicion therein is based, and that there is a reasonable ground for the suspicion. The application is supported by an affidavit of Katie Elaine Bourne sworn 5 April 2017.

3. Ms Bourne, who is an authorised officer, deposes to a suspicion that the defendant is engaged in serious crime related activity or activities, being the commission of the offences of supplying a prohibited drug not less than the commercial quantity and supplying a drug not less than a large commercial quantity, both contrary to section 25(2) of the Drug Misuse and Trafficking Act 1995 (NSW), and the offence of knowingly dealing with the proceeds of crime contrary to section 193B(2) of the Crimes Act 1900 (NSW) being an offence involving money laundering. These offences all fall within the definition of “serious criminal offence” under section 2B of the Criminal Assets Recovery Act.

4. Ms Bourne deposes to the fact that her suspicion is held principally by reading the fact sheet prepared by the police after the arrest of the defendant, to e-mail communication between her and the police officer whom she believed prepared the fact sheet, and her search of the COPS data base showing that the defendant was charged with the offences concerned.

5. In relation to the e-mail correspondence, Ms Bourne sought from the police officer a confirmation that he had prepared the fact sheet, that the facts sheet was true to the best of the officer's knowledge and belief and that it was prepared on information obtained by the police as a result of the investigation. The officer provided confirmation of those matters and provided additional information suggesting that the offence of supplying a commercial quantity might be an alternative to the offence of supplying a large commercial quantity.

6. I have read the fact sheets and I am satisfied that Ms Bourne's suspicion that those offences have been committed is reasonably held. The fact sheet discloses that the defendant resides in Victoria and the information in the affidavit identifies the defendant's ownership of land in Victoria. However, section 10A(3) of the Act does not apply because the interests in the property are derived from serious crime related activity within New South Wales and not from external serious crime related activity.

7. The plaintiff seeks that the order be made without prior notice to the defendant. It does so based on what Ms Bourne says in paragraph 9 of her affidavit concerning the ability to dispose of motor vehicles or backdate transfer forms and to enter into unregistered mortgages of real property very quickly in an attempt to defeat the operation of the Act. I am satisfied that orders should be made without prior notice to the defendant. The defendant has rights under section 10C of the Act to seek a review of these orders.

8. The plaintiff also seeks an order that the New South Wales Trustee and Guardian take control of the interests in the property specified in schedule 1 of the summons which consists of cash and a motor vehicle. I have read the reasons given for the seeking of that order in Ms Bourne's affidavit and I am satisfied that such an order should be made.

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Decision last updated: 10 April 2017