New South Wales Crime Commission v Sharobeem [2017] NSWSC 82 (14 February 2017)

Last Updated: 15 February 2017

Supreme Court New South Wales

Case Name:	New South Wales Crime Commission v Sharobeem
Medium Neutral Citation:	[2017] NSWSC 82
Hearing Date(s):	14 February 2017
Date of Orders:	14 February 2017
Decision Date:	14 February 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 13 February 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 Eman Sharobeem, including the interest in property in the property specified in Schedule One hereto. 2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Eman Sharobeem shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she has an interest. 3. Pursuant to section 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 the following persons shall be examined on oath before a Registrar of the Court concerning the affairs of Eman Sharobeem, including the nature and location of any property in which Eman Sharobeem has an interest:- (a) Richard Sharobeem; and (b) Charlie Sharobeem. 4. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 2 and 3 above. 5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Eman Sharobeem shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Eman Sharobeem, a statement verified by oath of Eman Sharobeem setting out the particulars sought in Schedule Two hereto. 6. Liberty is granted to the Plaintiff and Eman Sharobeem to apply on three (3) days’ notice. 7. The costs of obtaining these orders shall be costs in the cause. 8. The Summons filed in these proceedings be stood listed for mention before the Common Law Duty Registrar at 9am on Monday 15 May 2017. 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. The whole of the property described as Lot 303 in Deposited Plan 733200 at Abbotsbury, Local Government Area, Fairfield, Parish of Melville, County of Cumberland, also known as 66 Begovich Crescent, Abbotsbury, NSW 2176 and registered in the name of Eman Sharobeem. 2. The whole of the property described as Lot 38 in Strata Plan 18276 at Wetherill Park, Local Government Area Fairfield and also known as Unit 51/36 Ainsworth Crescent, Wetherill Park, NSW 2164 and registered in the name of Eman Sharobeem. 3. The whole of the property described as Lot 4 in Strata Plan 13578 at Fairfield, Local Government Area Fairfield and also known as Unit 4/87 Smart Street, Fairfield, NSW 2165 and registered in the name of Eman Sharobeem. 4. 2004 Honda Accord Sedan with New South Wales Plate Number CSO16H and registered in the name of Eman Sharobeem. 5. Funds held in Australia and New Zealand Bank account number 5111-83662 held in the name of Eman Sharobeem. SCHEDULE TWO 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) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Eman Sharobeem (Defendant)
Representation:	Counsel: R Katrib (Plaintiff - ex parte) Solicitors: Legal Unit, New South Wales Crime Commission (Plaintiff)
File Number(s):	2017/47269

JUDGMENT

1. The Plaintiff seeks a restraining order under section 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an assessment in relation to an unexplained wealth order under section 28A of that Act. Section 10A(5) of the Act says that 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 whose interest in property is sought to be restrained has engaged in serious crime related activity, stating the grounds on which the suspicion referred to therein is based, and the Court considers that there are reasonable grounds for the suspicion.
2. The application is supported by an affidavit of Katie Elaine Bourne sworn 14 February 2017. 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 offences of obtaining a financial advantage or causing a financial disadvantage by deception contrary to section 192E of the Crimes Act 1900 (NSW). That is an offence punishable by imprisonment for five years involving fraud and accordingly falls within the definition of ‘serious criminal offence’ in section 6(2)(d) of the Criminal Assets Recovery Act.
3. Ms Bourne deposes to the fact that her suspicion is held principally by reading a document entitled Summary of Evidence which was disseminated to it from ICAC in January 2017. Ms Bourne sought confirmation from the person believed to be the investigator that prepared the document, that the Summary of Evidence was true to the best of the investigator's knowledge and belief, that the investigator had prepared it and that it was prepared on information attained by ICAC as a result of its investigation and the officer replied in the affirmative to those enquiries.
4. Ms Bourne's suspicion is also based on information obtained from a financial analyst employed by the Plaintiff who engaged in searches identifying property believed to be owned by the Defendant. I have read the Summary of Evidence document provided to the Plaintiff and I am satisfied that Ms Bourne’s suspicion that the offence or offences have been committed is reasonably held.
5. The Plaintiff seeks that the orders be made without prior notice to the Defendant. It does so based on Ms Bourne's statement in paragraph 8 of her affidavit that, based on her experience, in the absence of a restraining order it is possible for people to attempt to enter into unregistered mortgages in relation to real estate very quickly, to dispose of motor vehicles or back date transfer forms and to dispose of funds held in bank accounts very quickly all in an attempt to defeat the operation of the Criminal Assets Recovery Act.
6. I am satisfied that the orders should be made without prior notice to the Defendant. The Defendant has her rights under section 10C of the Act to seek a review of those orders.
7. I note that the usual undertaking as to damages is given by the solicitor for the Plaintiff. On that basis I make orders in terms of 1 to 3, 5, 7 and 9 of the draft order.
8. I grant the leave and liberty in paragraphs 4 and 6. I stand over the summons for mention before the Common Law Registrar at 9am on Monday 15 May 2017. These orders may be entered forthwith.

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