New South Wales Crime Commission v Stevermver

Case •

[2015] NSWSC 1355

•

08 September 2015

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Stevermver [2015] NSWSC 1355
Hearing dates:8 September 2015
Date of orders: 08 September 2015
Decision date: 08 September 2015
Jurisdiction:Common Law
Before: Wilson J – Duty Judge
Decision:

1. Pursuant to s 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 s 7 of the Criminal Assets Recovery Act 1990) of Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer), including the interests in property in the property specified in Schedule One hereto to Schedule Nine hereto.
2. Pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer) 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 examination ordered in Order 2 above.
4. Pursuant to s 12(1)(e) of the Criminal Assets Recovery Act 1990 Members of the New South Wales Police Force are authorised to seize and take possession of the property specified in Schedule Seven hereto and Schedule Nine hereto.
5. Pursuant to s 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interests of Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer) in the property specified in Schedule Seven hereto and Schedule Nine hereto.
6. Pursuant to s 12(1)(d) of the Criminal Assets Recovery Act 1990 Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer) shall furnish to the Plaintiff, within fourty two (42) days after service of a sealed copy of these orders on Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer), a statement verified by oath of Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer) setting out the particulars sought in Schedule 10 hereto.
7.   Liberty is granted to the Plaintiff and Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer) to apply on three (3) days' notice.
8.   The costs of obtaining these orders shall be costs in the cause.
9. Pursuant to r 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof.

Catchwords: CIVIL PROCEDURE – Criminal Assets Recovery Act 1990 – restraining order
Legislation Cited: Crimes Act 1900
Criminal Assets Recovery Act 1990
Uniform Civil Procedure Rules 2005
Category:Procedural and other rulings
Parties: New South Wales Crime Commission (Plaintiff)
Bernhard Stevermver (Defendant)
Representation: Ms E Goh (NSW Crime Commission)
Ex parte
File Number(s):2015/00229490
Publication restriction:None

EX TEMPORE Judgment

  1. By summons filed in the Registry of this Court on 6 August 2015 the plaintiff, the New South Wales Crime Commission, seeks an order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (“the Act”) in relation to assets and other property interests which are owned or controlled by Bernhard Stevermuer. He is the defendant in the proceedings.

  2. Before the Court in support of the application there is a bundle of evidentiary material including Ex A, which is an affidavit of John Patrick Egan sworn 17 August 2015. In his affidavit Mr Egan deposes that on 6 August 2015 at about 11.30 in the morning Mr Egan met with the defendant at a location in Fairy Meadow and served him with a bundle of documents relevant to the proceedings. The documents included a letter of 6 August 2015 addressed to the defendant from a solicitor with the Crime Commission, a copy of an affidavit of Jonathan Spark of the Crime Commission which is Ex B, a sealed copy of the summons which the Court is now addressing, and a sealed copy of the Statements of Facts and Circumstances filed as part of the evidentiary material which is before the Court, with a copy of the draft orders that the New South Wales Crime Commission seeks from the Court pursuant to this application.

  3. On the basis of that evidence from Mr Egan I am satisfied that the defendant has been served with the relevant process and is aware of the proceedings which are listed today. Indeed the defendant has been a party to consent orders when the matter has been listed before the Registrar on previous occasions - 10 August, 25 August and 8 September of 2015. It was indicated on those occasions before the Registrar that the defendant intended to consent to the orders sought by the Crime Commission.

  4. Although I am satisfied that the defendant is aware of today’s proceedings, he has not attended; nor has any solicitor or other legal representative attended on his behalf. Section 10A of the Act gives the Court power to proceed on an ex parte basis and I propose to proceed in accordance with s 10A.

  5. The evidence upon which the Crime Commission relies is principally the affidavit of Mr Spark sworn 5 August 2015, and a bundle of evidentiary material Ex JLS1 before the Court. Mr Spark is employed by the New South Wales Crime Commission as the Director of Financial Investigations and he is an authorised officer within the meaning of s 4(1) of the Criminal Assets Recovery Act 1990. He is a person authorised in writing by the Crime Commission to act as an authorised officer for the purposes of s 10A and Pt 4 of the Act.

  6. As part of his duties Mr Spark has access to various computerised records including records held by the New South Wales Police Force by Land Property Information New South Wales, that being a unit of Finances and Services within the Treasury. He has access to the records of the New South Wales Roads and Maritime Services and, through Crime Commission staff, access to the ASIC data base.

  7. Mr Spark deposes that the defendant, who uses a number of spellings of both his first name and surname, is a person who he believed to have been engaged in serious crime related activity within the meaning of that phrase as defined in s 6 of the Act.

  8. The defendant is charged with an offence of knowingly participating in a criminal group contrary to s 93T(1)(a) of the Crimes Act 1900, that being an offence which falls within the definition of “serious criminal offence” pursuant to s 6(2)(g1) of the Criminal Assets Recovery Act 1990. The basis of the suspicion held by Mr Spark as to the defendant’s engagement in serious criminal activity is based upon the inquiries of the New South Wales Police. Those inquiries have determined that the defendant was charged with a series of criminal offences including dealing with the property being suspected of proceeds of crime, and knowingly participate in a criminal group.

  9. On the evidence before the Court the defendant was charged with these criminal offences by the New South Wales Police on 8 July 2014. In brief, the facts of the charge against the defendant are these. In April 2014 police from the Middle Eastern Organised Crime Squad commenced a particular Strike Force which had the task of investigating a criminal group believed to be supplying prohibited drugs in the Sydney area. During the course of the investigation by that Strike Force it became apparent to the police that there were two criminal groups in operation, one operating within Australia and one operating from an international location. The defendant was identified as a person who was a participant in the international leg of the operation. The police investigations revealed that the defendant and persons associated with him internationally were responsible for the importation of prohibited drugs, and the precursor materials with which to manufacture prohibited drugs in Australia.

  10. There were related activities relevant to the laundering of money obtained through drug supply and that money laundering operation took place by the purchase, and operation of an aircraft and training maintenance business. Indeed more than one such business was in operation.

  11. The defendant is a person qualified to fly aircraft and he holds a commercial pilot’s licence. He is the sole director of a company known as Always Airborne. The object of the business was to purchase airplanes which were then leased or sold on for profit.

  12. The defendant was contacted by persons engaged in drug supply and importation activities principally it appears, because of the nature of the business that he operated, and his access to and ability to fly aircraft. Subsequently a number of aircrafts were purchased with the defendant operating as something of a conduit between persons engaged in criminal activity and financiers. There were some significant financial transactions discovered by police investigators including the transfer of money between a number of persons located in China and Hong Kong.

  13. On 14 February 2014 a particular aircraft was purchased and the defendant was enlisted to fly the aircraft to the Philippines, with the defendant returning from the Philippines on a commercial flight. Subsequently the defendant returned to the Philippines, collected the aircraft and flew it to a location in Malaysia. From Malaysia the defendant flew the aircraft to Coffs Harbour having come from the west of the country to the east coast. Subsequent to that the defendant was involved in the purchase of another aircraft in Malaysia, of a flight training and charter business in New South Wales, and other associated assets. There was some considerable activity in acquiring assets connected with the conduct of these various businesses and substantial amounts of money appear to have changed hands.

  14. On 8 July 2014 the police executed a search warrant upon the defendant’s residential premises at an address in Fairy Meadow. The sum of $40,000 in cash was found at the residence made up entirely of $50 notes. The cash was subjected to DNA testing and that DNA testing linked the cash to the defendant. A search of the defendant’s motor vehicle found a further sum of some $30,000, again made up in denomination of $50 notes. The defendant has no legitimate business or personal records which would explain his possession of such large sums of cash.

  15. It was the view of the investigating police, substantiated by the defendant’s plea of guilty to the relevant offence, and is the suspicion of Mr Spark, that the cash and other assets are the proceeds of crime, the crime being the large scale supply of drugs, and trafficking in drugs.

  16. The defendant’s role was principally to act as an aviator, a role for which he received, it would appear, substantial cash benefits together with the unrestricted use of the various aircrafts purchased by the criminal syndicate.

  17. As noted, the defendant entered a plea of guilty to the charges against him in the Local Court at Port Kembla. He was sentenced by Magistrate Stoddart on 22 May 2015 in relation to firstly, an offence of dealing with property suspected of being proceeds of crime and secondly, the offence of knowingly participate in a criminal group.

  18. With respect to the first of the offences he received a term of imprisonment of eight months to commence on 22 May 2015 and expiring on 21 January 2016 with a non-parole period of six months specified.

  19. In relation to the second of the offences the defendant was convicted and sentenced to a term of imprisonment of 19 months to commence on 22 May 2015 expiring on 21 December 2016 with a non-parole period of nine months specified.

  20. The Court result, which is at tab 4 of Ex JLS1, makes a reference to an appeal which was at 9 July 2015, pending. Ms Goh has indicated from the bar table, and it appears at least possible, that the defendant has obtained a grant of appeals bail prior to the determination of his appeal against severity of sentence in the District Court.

  21. The investigations by both the police and the Crime Commission have established that the defendant owns a number of assets and it is his assets which are suspected of being the proceeds of crime which are sought to be restrained in the summons before the Court.

  22. The defendant is a registered proprietor of premises at Fairy Meadow. He is the registered proprietor of two trailers each of which are listed in Schedule Two of the summons. He holds a number of share assets in both the companies he established, Always Airborne and another company called New South Wales Air Engineering Pty Limited held in the defendant’s name, and shares in a company known as Cessnock Aircraft Maintenance Pty Limited. Those shares are specified in Schedule Three to the summons. Schedule Four refers to the defendant’s ownership of shares in a company called Oregon Aero Club. Schedule Five refers to the sum of $750,000 which was paid by the defendant’s company Always Airborne for the purchase of the City of Wollongong air patrol referred to in the factual outline from the New South Wales Police.

  23. Schedule Six relates to the two sums of cash seized from the defendant’s home and motor vehicle on 8 July 2014. Schedule Seven refers to the various aircraft, some seven of them, which have been registered in the name of Always Airborne Pty Limited. Schedule Eight is a motor vehicle, a 2007 Audi which similarly is registered to All Waves Airborne. Schedule Nine refers to two further aircraft which are owned by Oregon Aero Club, that being the entity in which the defendant holds shares.

  24. I am satisfied that the suspicion held by the authorised officer is reasonably held. I accept the evidence that the Commission has tendered to the Court and accordingly I propose to make the orders sought in the summons filed by the New South Wales Crime Commission.

ORDERS

  1. 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 Jonathan Lee Spark sworn 5 August 2015, there are reasonable grounds for the suspicion stated therein, the court orders:

  1. Pursuant to s 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 s 7 of the Criminal Assets Recovery Act 1990) of Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer), including the interests in property in the property specified in Schedule One hereto to Schedule Nine hereto.

  2. Pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer) 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 examination ordered in Order 2 above.

  4. Pursuant to s 12(1)(e) of the Criminal Assets Recovery Act 1990 Members of the New South Wales Police Force are authorised to seize and take possession of the property specified in Schedule Seven hereto and Schedule Nine hereto.

  5. Pursuant to s 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interests of Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer) in the property specified in Schedule Seven hereto and Schedule Nine hereto.

  6. Pursuant to s 12(1)(d) of the Criminal Assets Recovery Act 1990 Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer) shall furnish to the Plaintiff, within fourty two (42) days after service of a sealed copy of these orders on Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer), a statement verified by oath of Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer) setting out the particulars sought in Schedule 10 hereto.

  7. Liberty is granted to the Plaintiff and Bernhard Stevermver (also known as Bernhard Stevermuer and Bernard Stevermuer) to apply on three (3) days' notice.

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

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

SCHEDULE ONE

The whole of the property described as Lot 12 in Deposited Plan 30637, Parish of Woonoa, County of Camden also known as 12 McLean Avenue, Fairy Meadow, New South Wales 2519 and registered in the names of Bernhard Stevermuer and Tara Louise Stevermuer as joint tenants.

SCHEDULE TWO

  1. 1995 homemade trailer with registration number Y90508 and registered in the name of Bernhard Stevermuer.

  2. 2014 Ausmarine trailer with registration number X82864 and registered in the name of Bernhard Stevermuer.

SCHEDULE THREE

  1. One fully paid ordinary share in Always Airborne Pty Limited held in the name of Bernhard Stevermuer.

  2. 75 fully paid ordinary shares in NSW Air Engineering Pty Limited held in the name of Bernhard Stevermuer.

  3. Two fully paid ordinary shares in Cessnock Aircraft Maintenance Pty Limited held in the name of Bernhard Stevermuer.

SCHEDULE FOUR

  1. 1499 of 1500 shares in Oregonian Aero Club (US) held in the name of Bernhard Stevermuer.

SCHEDULE FIVE

The sum of $750,000 paid by Always Airborne Pty Limited as a deposit for the purchase of City of Wollongong Air Patrol.

SCHEDULE SIX

  1. Cash in the amount of approximately $30,000 seized by police on 8 July 2014 during a search of motor vehicle BBX81X at the lllawarra Regional Airport, Albion Park, New South Wales.

  2. Cash in the amount of approximately $40,000 seized by police on 8 July 2014 during a search of 12 McLean Avenue, Fairy Meadow, New South Wales 2519.

SCHEDULE SEVEN

  1. 2000 power driven aircraft with amphibious landing gear, single piston engine, manufactured by Arnold Tanzman, model Seawind 3000, serial number 038, registered in the name of Always Airborne Pty Limited with call sign VH SWN.

  2. 1978 power driven aircraft with tricycle-fixed land gear, single piston engine, manufactured by Cessna Aircraft Company, model U206G, serial number U20604310, registered in the name of Always Airborne Pty Limited with call sign VH FVW.

  3. 1976 power driven aircraft with tricycle-fixed landing gear, 2 piston engines, manufactured by Partenavia Costruzioni Aeronautiche SPA, model P.68B, serial number 77, registered in the name of Always Airboume Pty Limited with call sign VH PNZ.

  4. 1976 power driven aircraft with tricycle-fixed landing gear, 2 piston engines, manufactured by Partenavia Costruzioni Aeronautiche SPA, model P.68B, serial number 64, registered in the name of Always Airborne Pty Limited with call sign VH PNR.

  5. 1966 power driven aircraft with tailwheel-fixed landing gear, single piston engine, manufactured by Helio Aircraft Corp, model H-250, serial number 2540, registered in the name of Always Airborne Pty Limited with call sign VH LIW.

  6. 1960 power driven aircraft with tricycle-retractable landing gear, single piston engine, manufactured by Cessna Aircraft Company, model 210A, serial number 21057628, registered in the name of Always Airborne Pty Limited with call sign VH BCY.

  7. 1957 power driven aircraft with tricycle-fixed landing gear, single piston engine, manufactured by Cessna Aircraft Company, model 172, serial number 36317, registered in the name of Always Airborne Pty Limited with call sign VH SNW.

SCHEDULE EIGHT

2007 Audi Q7 panel van with registration number BBX81X and registered in the name of Always Airborne Pty Limited.

SCHEDULE NINE

  1. 1971 fixed wing aircraft with multi engine turbo-prop engine, manufactured by Swearingen, model SA-226T, serial number T217, owned by Oregonian Aero Club Inc with call sign N224HR.

  2. 1979 fixed wing aircraft with multi engine, reciprocating engine, manufactured by Piper, model PA-23-250, serial number 27-7954061, owned by Oregonian Aero Club Inc with US call sign N232KP.

SCHEDULE TEN

  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 s 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property:

  1. 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;

  2. the location of the interest;

  3. the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

  4. the approximate date of acquisition of the interest;

  5. the source of funds used to acquire the interest.

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

  1. a full description of the liability including the nature of that liability and the amount of that liability;

  2. the name of the person or institution to which the liability is owed.

  1. Provide full particulars of the source of the monies specified in Schedule Six hereto.

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Decision last updated: 15 September 2015

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