Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QSC
  3. 2021
  4. R v Baggaley - [2021] QSC 112

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •  Notable Unreported Decision

R v Baggaley[2021] QSC 112

R v Baggaley[2021] QSC 112

SUPREME COURT OF QUEENSLAND

CITATION:

The Queen v Baggaley & Baggaley [2021] QSC 112

PARTIES:

THE QUEEN

v

DRU ANTHONY BAGGALEY

(Defendant)

and

NATHAN JON BAGGALEY

(Defendant)

FILE NO/S:

BS No 881 of 2020

DIVISION:

Trial Division

PROCEEDING:

Contested Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2021

JUDGE:

Lyons SJA

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – where both defendants pleaded not guilty but were found guilty by jury of one count of attempting to import a commercial quantity of a border – controlled drug, namely cocaine – where the Crown allege that each defendant was a principal in the importation, was aware of the nature and quantity of the drug to be imported, and would have expected to have received a very substantial reward – where Dru Baggaley argues he should be sentenced on the basis that he intended to import tobacco while reckless as to whether the consignment contained a border-controlled drug – where Nathan Baggaley argues he should be sentenced only on the basis that he aided Dru Baggaley and that his role was comparatively minimal – whether each of the defendants were principals in the importation, were aware of the quantity and would have expected to receive a reward

LEGISLATION:

Evidence Act 1977 (Qld), s 132C

Penalties and Sentences Act 1992 (Qld), s 13A

CASES:

Cheung v The Queen (2001) 209 CLR 1

Filippou v R (2015) 323 ALR 33

Koh v R [2013] NSWCCA 287

Lau v The Queen [2011] VSCA 324

Olbrich v The Queen (1999) 199 CLR 270

Omorogbe v R [2013] NSWCCA 201

R v Ocampo Alvarez [2018] QCA 162

R v Ostrowski; Ex parte Commonwealth Director of Public Prosecutions [2018] QCA 62

R v Handlen [2015] QCA 292

R v Tran (2007) 172 A Crim R 436

Savvas v The Queen (1995) 183 CLR 1

Tabuan v R [2013] NSWCCA 143

The State of Western Australia v JWRL (a child) [2010] WASCA 179
Weininger v The Queen (2003) 212 CLR 629

COUNSEL:

B J Power with S Harburg for the Crown

M J McCarthy for Dru Anthony Baggaley

A J Kimmins for Nathan Jon Baggaley

SOLICITORS:

Commonwealth Office of the Director of Public Prosecutions for the Crown

Dib and Associates Lawyers for Dru Anthony Baggaley

Jasper Fogerty Lawyers for Nathan Jon Baggaley

Background

  1. [1]
    On the morning of 31st of July 2018 a foreign freighter rendezvoused 360 kilometres off the Australian coast with a Rigid Hulled Inflatable Boat (‘RHIB’) which had set off from Brunswick Heads about 11 hours earlier with Dru Baggaley and Anthony Draper on board. Items were thrown from the freighter and retrieved by the men onboard.
  2. [2]
    The RHIB was subsequently located by an Australian naval vessel and during a pursuit Dru Baggaley was seen jettisoning parcels into the sea. Thirty packages were recovered by the Navy with other parcels washed ashore at various locations off the east coast of Australia.
  3. [3]
    When retrieved, all the parcels contained 512 kilograms of pure cocaine within more than 650 kilograms of white powder. Approximately $130 to $200 million dollars’ worth of cocaine was recovered.
  4. [4]
    The RHIB was intercepted close to shore and the occupants were arrested. The RHIB had been purchased and equipped with a GPS system and a telephone satellite kit by Nathan Baggaley in May 2018 and it was registered in his name. 
  5. [5]
    Dru Baggaley and Nathan Baggaley were each charged on a one-count Commonwealth Indictment that between 16 December 2017 and 2 August 2018 at Coolangatta and elsewhere in the State of Queensland they each attempted to import a commercial quantity of an unlawfully imported border-controlled drug namely cocaine contrary to sections 11.1(1), 11.2(1) and 307.1(1) of the Criminal Code 1995 (Cth).
  6. [6]
    Both defendants pleaded not guilty to the charge. Anthony Draper pleaded guilty prior to trial and was sentenced to 13 years’ imprisonment. He gave evidence at the trial pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld).

The Trial

  1. [7]
    The Crown case at trial included video footage of the intercept and the pursuit as well as maps and surveillance evidence from observers on the aircraft about the meeting of the boats at sea. Evidence was also given by officers on the Australian Defence Force vessel, the Cape Fourcroy. Officers from the Queensland Water Police gave evidence of the arrest and Federal Police gave evidence in relation to the subsequent investigation including surveillance evidence from the area around the Brunswick Heads boat ramp where the RHIB had set off and a trailer belonging to Nathan Baggaley and a ute belonging to Dru Baggaley were parked.
  2. [8]
    Evidence was also given by the driver of the RHIB, Anthony Draper, pursuant to his s 13A undertaking.  Draper’s evidence was that he was a professional fisherman who knew Dru Baggaley. He said that he had been recruited by Dru on 29 July to drive the RHIB to pick up what he was told was “pot” or “smoko” at sea. He did not know there was a consignment of cocaine until the items were being thrown overboard and he said to the crewmen on the freighter “no more pot” and they told him it was “cacao”. His evidence was that Dru organised his plane ticket and made all the arrangements including picking him up at the airport on the evening of 30 July 2018. He also stated that Dru entered the waypoints on the chart plotter and gave all the instructions at sea about avoiding the Navy and dumping the cargo overboard. He was to be given $5,000 for the trip.
  3. [9]
    Significantly, the defendants made 103 admissions[1] in the trial. For the purposes of the sentencing hearing the Crown have tendered a summary of the admitted facts,[2] based on those admissions, which is not disputed by the defendants. Those facts are as follows:
  1. On 14 May 2018, Nathan Baggaley began negotiating for the purchase of a BRIG Navigator 700 rigid-hulled inflatable boat (RHIB) from Sirocco Marine North in Coomera, Queensland.  When speaking with the salesperson from Sirocco Marine North on that date, Nathan Baggaley said that he wanted the RHIB within a certain time frame which the salesperson believes was a period of three weeks and that if he could not purchase the RHIB in that time he did not want to buy it.
  2. The price for the RHIB was quoted as $106,700 and $2,500 for a trailer upgrade. Between 21 May 2018 and 8 June 2018, a number of payments totaling $100,550 were made to Sirocco Marine to pay for the RHIB.
  3. On 29 May 2018, Nathan Baggaley purchased an Inmarsat Fleet One GPS system from Satcom Global for $7,949.70.
  4. The satellite phone number allocated to Nathan Baggaley was 870773246981 under the RHIB.
  5. On 30 May 2018, Nathan Baggaley purchased a Thuraya SatSleeve kit (a satellite telephone kit) from Pivotel.  Nathan Baggaley was allocated Satellite phone number 0405 633 212.
  6. On 31 May 2018, Nathan Baggaley began negotiating the installation of the Inmarsat Fleet One system with Onboard electrical.
  7. On 6 June 2018, the RHIB was registered at the Southport Queensland Transport Office. The RHIB was given a registration number of ANG70Q and the trailer was given a registration number of 471UGY and was registered in the name of ‘Nathan Jon Baggaley’.
  8. On 6 June 2018, Nathan Baggaley attended Sirocco Marine North with his partner, Rebecca Dow and collected the RHIB and trailer.
  9. On 11 June 2018, at the request of Nathan Bagagley the Inmarsat Fleet One system and Netgear01 was installed on the RHIB at Nathan Baggaley’s residential address.
  10. Installed on the RHIB was a “Sailor Fleet One” below deck unit which incorporates a satellite phone (IMEI 352862060040208).  Connected to the “Sailor Fleet One” was a Netgear Wireless Router with a Wi-Fi network name of “Netgear01”.
  11. On 3 July 2018, Nathan Baggaley attempted to connect to the internet via the wireless system linked to the Inmarsat Fleet One.  Experiencing difficulty, Nathan Baggaley contacted Onboard electrical for assistance.
  12. On 6 July 2018, Nathan Baggaley messaged Matthew Flesser from Pivotel Satellite (where he had earlier purchased a Thuraya Satellite sleeve) requesting assistance setting it up and activating data.
  13. At 10.02am on 28 July 2018, waypoint labeled “002” with coordinates S28.09.507°  E157.21.944° was entered into the Lowerance Elite 7TI chart plotter which was fixed to the rigid-hulled inflatable boat (RHIB), registration number ANG70Q.
  14. At 6:03pm, on 28 July 2018, (8:03am Universal Time Coordinated (UTC)), waypoint labeled, “28_Jul2018_08_03_57” with coordinates 28.167.683°  157.365740° was entered into a fishing application located on a Samsung J320ZN mobile phone with service number 0472 637 412 (subscribed in the name of Rachel Sibilant).
  15. At 6:06pm (8.06am UTC), on 28 July 2018, waypoint labeled, “28_jul_2018_08_06_06” with coordinates 28.158450° 157.365740° was entered into a fishing application located on a Samsung J320ZN mobile phone with service number 0472 637 412 (subscribed in the name of Rachel Sibilant).
  16. At 11.57pm, on 29 July 2018, Telstra mobile phone recharge voucher, charge number 658120920270, for the value of $30 at Caltex Starmart, Murwillumbah was purchased using cash.
  17. At 9.10am on 30 July 2018, recharge number 658120920270 for $30 was charged onto the Samsung J250G mobile phone with service number 0487 951 720 (subscribed in the name of Emma Cottee).
  18. At 9.55am, on 30 July 2018, Dru Baggaley booked and paid for Anthony Draper to fly to Coolangatta Airport.
  19. On 30 July 2018, Anthony Draper travelled to the Coolangatta Airport, Queensland on Jetstar flight JQ 414 departing Sydney at 4.40pm and arriving at 6.00pm.
  20. At 10:01pm and 10:57pm, on 30 July 2018, waypoints labeled “004” and “4”, each with identical coordinates S28.09.507° E157.21.944°, were entered in the Lowerance Elite 7TI chart plotter.   
  21. At 7.26am and 7.28am on 31 July 2018, a mobile phone with service number 0467 363 762 (subscribed in the name Graham Black) has attempted to contact the RHIB’s satellite number 870 773 246 981.
  22. At 10.49am, on 31 July 2018, once all the packages that had gone in the water were onboard, Anthony Draper and Dru Baggaley began tracking westerly (260°) at 15 knots per hour towards the mainland.
  23. About 12.45pm, on 31 July 2018, the Australian Defence Force (“ADF”) Vessel Cape Fourcroy (Cape Fourcroy) located Anthony Draper and Dru Baggaley and attempted to stop and board the RHIB.  ADF officers onboard Cape Fourcroy verbally directed Anthony Draper and Dru Baggaley to yield to allow boarding however, they failed to do so.
  24. Dru Baggaley moved around the RHIB throwing the packages into the ocean.
  25. Cape Fourcroy terminated the pursuit and began recovery of the packages from the ocean.
  26. The Cape Fourcroy was able to track and recover the packages thrown from the RHIB from the ocean.  A total of 30 packages were recovered from the ocean.  Upon inspection the packages were found to contain a white powered substance.
  27. During the journey to the mainland, one Wickr and two Threema encrypted messages were sent to the Samsung J250G mobile phone with service number 0487 951 720 (subscribed in the name of Emma Cottee).  Later AFP investigations were able to show the following about those messages:
    1. (a)
      The message on Wickr did not display any content and the password protected encrypted application could not be opened by the AFP without the password.
    2. (b)
      The Threema messages were from the user name “Thunderbutt” asking “How’s things” and "I'm on standby ready. Let me know what's g….”  The full messages could not be opened by the AFP without the password as the encrypted application was password protected.
  28. On 31 July 2018, at about 4.55pm, Queensland Police Service (“QPS”) Water Police located and intercepted Anthony Draper and Dru Baggaley approximately 65 nautical miles East of Byron Bay NSW and detained them.
  29. On 31 July 2018, an initial search of the RHIB was conducted by QPS officers. During this search the following items were located:
    1. (a)
      Samsung J250G mobile phone with service number 0487 951 720 (subscribed in the name of Emma Cottee); and
    1. (b)
      brown wallet containing a NSW driver’s license and various other cards for Anthony Draper.
  30. About 7.20pm on 31 July 2018, Dru Baggaley’s Nissan Navarra [sic], registration DVS02V with Nathan Baggaley’s RHIB trailer, registration 471UGY was reversed and parked next to ‘Reflections’ caravan park at Brunswick Heads, NSW.
  31. At 12:39am on 1 August 2018, mobile service number 0467 363 762 (subscribed in the name Graham Black) attempted to contact the RHIB’s satellite number 870 773 246 981.
  32. Around 7.27am, on 1 August 2018, AFP members executed a search warrant at 87 Stokers Road, Stokers Siding, NSW where Dru Baggaley lived with his parents. Located during the search was:
    1. (a)
      recharge voucher number 658120920270 for $30 - located in Dru Baggaley’s bedroom bin; and
    1. (b)
      encrypted Samsung SM-J105Y mobile phone PS3538982/006.
  33. Between approximately 7.30am and 10.30am, on 1 August 2018, AFP members executed a search warrant on the Nissan Navara.  Located during the search was:
    1. (a)
      8 keys;
    1. (b)
      1 car key;
    2. (c)
      black wallet containing a driver’s license for Dru Baggaley;
    3. (d)
      Jetstar boarding pass in the name of Anthony Draper; and
    4. (e)
      Samsung J320ZN mobile phone with IMEI number 358523/07/162248/3 and service number 0472 637 412 (subscribed to Rachel Sibilant).
  34. About 8.26am, on 1 August 2018, Nathan Baggaley drove past Dru Baggaley’s Nissan Navarra [sic], registration DVS02V with Nathan Baggaley’s RHIB trailer, registration 471UGY which was still parked out the front of the Reflections Caravan Park.  Nathan Baggaley turned his vehicle around and left the area.
  35. At 9.02am, on 1 August 2018, Nathan Baggaley stood next to a Mitsubishi Triton utility NSW registration CF98NZ, on the northern side of the Brunswick River, directly opposite the Brunswick boat ramp.  He stood at that location looking in the direction of the boat ramp until 9.23am.
  36. At 9.30am, on 1 August 2018, Nathan Baggaley drove to the Brunswick boat ramp and parked at the eastern side of the carpark, adjacent to the Reflections Caravan Park. From there, Nathan Baggaley walked through the caravan park towards the main office.
  37. At 9.47am, on 1 August 2018, Nathan Baggaley went to the end of South Beach Road near the Brunswick Heads Surf Club.  From that point, there is an uninterrupted view of boats out to sea making way for the Brunswick River entrance.
  38. At 10.35am, on 1 August 2018, in Carlyle Street Byron Bay, NSW Police stopped Nathan Baggaley who was driving a Mitsubishi Triton registration number CF98NZ.  The car was searched and nothing of interest was located.
  39. On 1 August 2018, the RHIB was transferred by the police onto the trailer registration 471UGY and conveyed from Brunswick Heads, NSW.  The RHIB fitted correctly on the trailer. Both the trailer and the RHIB were transferred to an Australian Border Force (“ABF”) facility.
  40. On 1 August 2018, AFP officers searched the RHIB and located the following:
    1. (a)
      a black and grey beanie located behind the driver’s seat under some seat padding;
    1. (b)
      Black Samsung Phone IMEI 356397086726825;
    2. (c)
      Lowrance Elite 7TI Chart Plotter;
    3. (d)
      Netgear Wireless Router;
    4. (e)
      Sailor Fleet One Below Deck Unit;
    5. (f)
      Immasat Sim Card 89870 99174 14543 385;
    6. (g)
      Two pieces of black adhesive tape that was concealing the RHIB registration numbers – PS3539066;
    7. (h)
      DNA swab of Samsung phone;
    8. (i)
      6 rolls of silver masking tape;
    9. (j)
      Submersible handheld radio; and
    10. (k)
      Red bag Radio.
  41. On 1 August 2018, AFP forensic officers conducted a forensic examination of the 30 packages retrieved from the ocean. Contained within the packages were 588 wrapped blocks of consistent size. Presumptive and pre-analytical tests were conducted on one of the blocks that indicated the presence of cocaine. The dimensions of the blocks were approximately 225mm x 145mm x 45mm.
  42. On 4 September 2018, Police executed a search warrant at Nathan Baggaley’s home at 43 Raywards Lane, Skinners Shoot, NSW.  During the search police located and seized the following:
    1. (a)
      Owner’s manual for a Garmin GMI 20 Box containing manuals for Garmin Manual, Brig RHIB and Honda boat engine;
    1. (b)
      Documents- Cobham IP Handset; Brig Rigid and Pivotel Satellite;
    2. (c)
      Packaging and owner’s manual for a Lowrance Elite 7TI;
    3. (d)
      Samsung SM-G920P Galaxy S6 IMEI 990006974103607 with mobile service number 0498 251 240 (Subscribed in the name Graham Black);
    4. (e)
      Samsung SM-G930F Galaxy S7 IMEI 354074094404040 with mobile service number 0473 168 329; and
    5. (f)
      Samsung mobile phone (locked and encrypted).
  43. At approximately 6.39am, on 4 September 2018, Nathan Baggaley was served with an order to provide information or assistance that is reasonable and necessary to allow access to data held in, or accessible from, the seized mobiles phones.  Nathan Baggaley did not comply with that order in relation to the locked and encrypted Samsung mobile phone and in relation to the two passcode-protected encrypted messaging applications Threema and Wickr.

EXAMINATION OF DIGITAL DEVICES

Samsung J250G phone – Service number 0487 951 720 – Seizure 3539008/001

  1. The Samsung J250G phone with service number 0487 951 720 was located on the RHIB.
  2. On 2 August 2018, the Samsung J250G phone with service number 0487 951 720 was forensically examined by an AFP Digital Forensic Officer.
  3. Examination of the Samsung J250G phone with service number 0487 951 720, which was located in the RHIB, identified:
    1. (a)
      Two encrypted messaging applications, Threema and Wickr;
    1. (b)
      The Threema icon indicates there were three messages that have not been opened/ read. Two of the three Threema messages could be partially read. They were from Threema username “thunderbutt” and read:
    2. (c)
      “How’s things”; and
    3. (d)
      “I’m on standby ready. Let me know what’s g…”
    4. (e)
      Threema ID – ABJHEZCY;
    5. (f)
      Navionics boating application for Australia and New Zealand (Marine charts and GPS plotter); and
    6. (g)
      Has auto reconnect enabled to the Netgear01 wireless router in the RHIB.

Samsung Galaxy G930F Service number unknown – Seizure 3539056/001

  1. The Samsung Galaxy G930F mobile phone (service number unknown) was located under the seat of the RHIB.
  2. On 2 August 2018, the Samsung Galaxy G930F (service number unknown) was forensically examined by an AFP Digital Forensic Officer. Examination of the phone shows:
    1. (a)
      It has encrypted messenger application WhatsApp; and
    1. (b)
      It had been connected to the Netgear01 wireless router in the boat.
  3. Forensic examination of the mobile phone located Dru Baggaley’s DNA profile and a second profile from an unknown source.

Samsung J320ZN – 0426 637 412 Seizure 3939006/001 

  1. On 17 January 2018, Samsung J320ZN mobile phone with IMEI number 358523/07/162248/3 and service number 0472 637 412 was subscribed to Rachael Sibilant.
  2. On 1 August 2018, the Samsung J320ZN phone (service number 0426 637 412) was located in Dru Baggaley’s Nissan Navara.
  3. On 6 August 2018, Samsung J320ZN (service number 0426 637 412) was forensically examined by an AFP Digital Forensic Officer. Examination of the Samsung J320ZN mobile phone identified several saved waypoints including:
    1. (a)
      Way point 28.167683°  157.365740° labeled “28_Jul_2018_08-03_57”; and
    1. (b)
      Way point 28.158450° 157.365740° labeled “28_Jul_2018_08_06_06”. 
  4. Both of the above way points are located in close proximity to the location (28°09’S 157°23’E) where Anthony Draper and Dru Baggaley met up with a larger vessel to collect the packages.
  5. A third coordinate, 28.397387° 153.416920° labelled “36’s” is located at 87 Stokers Road, Stokers Siding, NSW.
  6. Dru Baggaley resided at 87 Stokers Road, Stokers Siding NSW with his mother and father.
  7. Examination of the images with the mobile phone identified:
    1. (a)
      two images dated 3 July 2018 of a bed, pillow and a cabinet which have been identified as being taken in Dru Baggaley’s bedroom; and
    1. (b)
      two images dated 29 April 2018 and 22 July 2018 indicating that the phone had two encrypted messaging applications, Threema and Wickr installed on it.

Lowrance Elite 7TI – Seizure 3539095/001

  1. Examination of the Lowrance Elite 7TI chart plotter identified the following waypoints saved on the device:
    1. (a)
      ‘002’: Way point S28.09.507°  E157.21.944° entered at 10.02am 28/07/2018;
    1. (b)
      ‘003’: Way point S28.30.207°  E153.39.100° entered at 10.30am 28/07/2018;
    2. (c)
      ‘004’: Way point S28.09.507°  E157.21.944° entered at 10:01pm 30/07/2018; and
    3. (d)
      ‘4’: Way point S28.09.507°  E157.21.944° entered at 10:57pm 30/07/2018.
  2. Above waypoints were located in close proximity to the location (28.09°S 157.23°E) where Anthony Draper and Dru Baggaley met up with a larger vessel to collect the packages.

Sailor Fleet and SIM Card – Seizure 3539095/003

  1. On 1 August 2018, the Sailor Fleet and SIM Card was on the RHIB.
  2. On 6 August 2018, the Sailor Fleet and SIM Card was forensically examined by an AFP Digital Forensic Officer.

Samsung SM-G920P Galaxy S6 mobile phone handset– Seizure 3542383/003

  1. After its seizure, the Samsung SM-G920P Galaxy S6 mobile phone handset was forensically examined by an AFP Digital Forensic Officer. As a result, the examination identified:
    1. (a)
      The handset had the mobile service number 0498 251 240 (subscribed in the name Graham Black);
    1. (b)
      two passcode protected encrypted messaging applications, Threema and Wickr, were present on the phone; and
    2. (c)
      numerous personal and business-related photographs of Nathan Baggaley.

Samsung SM-G930F Galaxy S7 mobile phone handset –Seizure 3542383/004

  1. After its seizure, the Samsung SM-G930F Galaxy S7 IMEI 354074094404040 with mobile service number 0473 168 329 handset was forensically examined by an AFP Digital Forensic Officer. As a result, the examination identified:
    1. (a)
      On occasions between 7 August 2017 and 1 July 2018 Nathan Baggaley discussed in texts using the encrypted messaging application Wickr with others;
    1. (b)
      Text messages between Nathan Baggaley and Dylan Lopez arranging the purchase of the RHIB;
    2. (c)
      Text messages between Nathan Baggaley and David Campbell arranging the purchase of a satellite system;
    3. (d)
      Text messages between Nathan Baggaley and Mathew Flesser arranging the purchase of a satellite sleeve kit;
    4. (e)
      Numerous personal and business related photographs of Nathan Baggaley.

Samsung mobile phone handset (locked and encrypted) – Seizure 3542383/005

  1. On 4 September 2018, The Samsung mobile phone was located in the bathroom of Nathan Baggaley’s residence. The phone was located on top of Nathan Baggaley’s work phone (Samsung SM-J105Y) which was inspected by police, found not to contain any relevant evidence and therefore not seized.
  2. On 19 September 2018, Samsung mobile phone (locked and encrypted) – Seizure 3542383/005 was forensically examined by AFP Digital Forensic Officer. As a result, it was determined that the phone was unable to be examined due to it being fully encrypted.

Encrypted Samsung SM-J105Y mobile phone handset – Seizure 3538982/006

  1. On 1 August 2018, Encrypted Samsung SM-J105Y mobile phone handset was located at 87 Stokers Road, Stokers Siding, NSW, the home Dru Baggaley shared with his parents.
  2. On 5 November 2018, Encrypted Samsung SM-J105Y mobile phone handset was forensically examined by AFP Digital Forensic Officer. The device was found to have a Telstra SIM card ID 8500147789466NGP.  As a result, it was determined that the phone was unable to be examined due to it being fully encrypted and no password having been provided.

Overview of the evidence at trial

  1. [10]
    Significantly, those admissions and the other evidence established, amongst other things, the purchase of the RHIB by Nathan Baggaley for over $100,000 and that it was equipped with a GPS system and a telephone satellite kit on his instructions. It was also admitted that negotiations for the purchase had commenced on 18 May 2018 and that the RHIB and the trailer were registered in Nathan Baggaley’s name. 
  2. [11]
    During the rendezvous at sea on 31 July 2018 at around 9.30 am a large parcel was thrown from the foreign ship into the ocean and retrieved by the men on the RHIB. After collecting all the items they began tracking in a westerly direction at 10.49 am.  The RHIB was subsequently located by an Australian naval vessel at 12.45 pm and during a pursuit at speed Dru Baggaley was seen jettisoning parcels into the sea. The pursuit of the RHIB was terminated and 30 packages were recovered by the Navy. Further parcels were subsequently recovered after they were washed ashore at various locations off the east coast of Australia.
  3. [12]
    The RHIB was ultimately intercepted at 4.55 pm on 31 July by Queensland Water Police about 65 nautical miles from Brunswick heads. The RHIB registration was covered in black duct tape which was subsequently examined and revealed three of Nathan Baggaley’s fingerprints on the underside of the tape.  Dru Baggaley’s ute and the trailer were moved to the vicinity of the boat ramp at around 7.20 pm on the evening of 31 July.
  4. [13]
    A phone in the name of Graham Black tried to make contact with the satellite phone on the RHIB at 7.26 am and 7.28 am on 31 July and again at 12.39 am on 1 August. A different phone but also subscribed in the name of Graham Black was subsequently found in a search of Nathan Baggaley’s home. Encrypted partial messages had been sent to a phone found in the RHIB stating that a person on shore was on “standby”.  Nathan Baggaley was seen in the vicinity of the Brunswick Heads boat ramp on the morning of 1 August 2018 at 8.26 am where Dru’s parked ute and the trailer were being searched by the AFP.
  5. [14]
    Those admissions also included details of the ownership and location of phones and other matters such an admission that on 28 July 2018 waypoints were entered onto a chart plotter on the RHIB at 10.02 am and subsequently onto a fishing application on a phone ending in “412” subscribed in the name of Rachel Sibilant at 6.03 pm.  They were the coordinates for the meeting point with the foreign ship. That phone was located in Dru Baggaley’s ute after his arrest.
  6. [15]
    After the arrest of Dru and Draper, a Samsung phone ending in “720” was found on the RHIB which had the encrypted applications Threema and Wickr on it. Part of a message was able to be downloaded which stated, “How’s things” and “I’m on standby ready.  Let me know what’s g…”. Subsequently four phones were found at Nathan Baggaley’s home including a Samsung phone subscribed in the name of Graham Black ending in “240”, another Samsung phone ending in “329” and a further Samsung phone that was locked and encrypted.  He allowed access to three of the phones but would not allow access to this third Samsung or allow access to the Threema or Wickr apps.

Summary of the Crown case at trial in relation to Dru Baggaley

  1. [16]
    The Crown case at trial in relation to Dru Baggaley was that he attempted to import the packages into Australia knowing or by being at least reckless that it was cocaine by virtue of six things:
    1. (a)
      He made arrangements for Draper to assist with the voyage to collect the cocaine at sea.
    2. (b)
      He prepared for that voyage by purchasing fuel and other items.
    3. (c)
      He undertook the voyage to the specified coordinates to collect the parcels.
    4. (d)
      He collected the parcels and loaded them into the RHIB at sea.
    5. (e)
      He attempted to bring the cocaine into Australia on the return voyage with Draper for 2 hours before the intercept by the Navy.
    6. (f)
      He gave instructions to Draper once they were intercepted.
  2. [17]
    Dru Baggaley gave evidence at trial.

Dru Baggaley’s evidence at the trial

  1. [18]
    In summary, Dru Baggaley gave evidence that he had known Anthony Draper for some time, and they had socialised together.  His evidence was that during a business trip to Sydney, Draper put a proposition to him which involved buying a boat in order to meet up with a ship coming into Brisbane from Indonesia with a load of illicit tobacco which was to be sold under the counter. Draper outlined that whilst there was significant profit in selling illegal tobacco the penalty was a fine. Draper asked him to discreetly buy the boat, set it up with some equipment and have it ready to go when he arrived so that he and a friend Stuart Montgomery could go out to sea and meet up with the foreign ship to get the cargo and return to shore. He was told that he would be able to keep the boat in return for his assistance and when he eventually agreed they discussed a boat that would meet both their requirements. His evidence was that Draper subsequently reneged on that deal and told him that he would in fact have to make some payments “over time” in exchange for the boat.
  2. [19]
    He was told by Draper to use the cipher phone he would send him and to use encrypted applications to message him. His evidence was that in mid-May 2018 Draper organised for the money to buy the boat to be delivered and it was delivered in cash by a man of Asian appearance in a black BMW to a location near his house.
  3. [20]
    Dru’s evidence was that he told Nathan he had obtained a cash loan from a friend so they could set up a whale watching business and that he was going to purchase a boat for that purpose with the cash. As he was busy at the time he asked Nathan to purchase the boat.  Draper then subsequently gave him a list of other things that were needed including a navigation system with a chart plotter and a satellite phone with internet capabilities. He travelled to Sydney in late June to get the extra $5,000 cash needed and to return one of the cipher phones which was not working.
  4. [21]
    Ultimately, he said the boat was delivered in late June and stored at Nathan’s place.  He stated they then used it around Brunswick Heads and Byron Bay taking footy mates and backpackers whale watching and out into the marine park.  Photos were tendered showing activities using the RHIB.
  5. [22]
    He stated that Draper messaged him about two days before the trip asking him to put some coordinates into the chart plotter. He then accessed a fishing app which was on his phone which had those same coordinates on the night of 30 July whilst he was sitting in his car waiting for Draper to arrive. He also said that Draper had also contacted him just before the trip and asked him to purchase his airline ticket as he had no money left on his credit card and because he did not want to alert anyone to the trip. He then booked the ticket based on the details Draper gave him.
  6. [23]
    Dru stated that the arrangement was that on the night of 30 July 2018 he was to have the RHIB in the water at the Brunswick Heads boat ramp.  Draper was to be picked up by Montgomery at the Coolangatta airport and Draper and Montgomery would drive down, get into the boat and head out to sea. Montgomery was supposed to organise extra fuel and supplies. He stated he got the RHIB from Nathan’s place and backed down the boat ramp and put the RHIB into the water.  He then got a message from Draper that Montgomery had failed to show, and he needed to be picked up.  His evidence was that he left to pick him up at the airport and left the trailer in the car park and the RHIB on the pontoon.  He picked up Draper and after they stopped to eat, they headed south stopping for fuel and provisions along the way. Draper told him that Montgomery had been in contact and would now meet him at the boat ramp. 
  7. [24]
    Dru gave evidence that at the boat ramp Draper turned on him and said he had to go on the voyage with him as Montgomery had failed to show. His evidence was that Draper told him they needed to cover the boat registration and he ultimately used a roll of black tape they found in a compartment on the RHIB.  Draper then took the rest of the tape and some other items up to a rubbish bin and disposed of them. His evidence was that he initially refused to go and protested that he got seasick and was not dressed for a trip out to sea.  Ultimately, he agreed to get Draper out of the Brunswick River but was to be dropped off at the sea wall and Draper was to continue alone.  He said he left his ute it in the carpark leaving the keys in the tray of the ute under a towel.  At the sea wall however, Draper increased the speed on the boat, and he was not able to get off the RHIB given the speed they were travelling, the fact it was 10.30 pm and the currents were dangerous.
  8. [25]
    He said Draper was driving the boat and he could see that he was following a straight line on the chart plotter. He stated that the chart plotter cut out a number of times and Draper had to re-enter the waypoints. He did not discuss where they were going with Draper. Dru stated he had used the chart plotter previously to mark spots for their whale watching business and to enter some GPS waypoints on the plotter at Draper’s request. They travelled all night with Draper driving as he was seasick for most of the trip. He sat back and did not assist.
  9. [26]
    He stated that they met up with the freighter the next morning. Draper at first tried to contact them by radio without success as all he got was static, so hand signals were given by Draper. After contact was made, around six to eight men came onto the deck and they dragged a large net attached to drums and pushed it into the ocean. The ship then took off and they were left to recover the items in the water. At no point did he hear Draper speak to the men on the vessels.  He did not hear him say “no more pot” and he did not hear anyone say “cacao cacao”.  He said it was Draper who cut the net away and started retrieving the parcels and putting them into the boat. He was told to assist.
  10. [27]
    When they were intercepted by the Navy ship, he stated that Draper was at the wheel and it was Draper who gave him the instructions to start throwing things overboard. Draper also asked him where the keys to the ute were and he rang ahead and asked a mate to move the ute and trailer. At the end of the day when they could see the water police boat coming Draper told him to take over so that he could start throwing other things overboard. As the water police approached Draper told him to keep his mouth shut.
  11. [28]
    He gave evidence that after they were arrested and he was in jail he received two letters from Draper. About a month after their arrest he got the first letter in which Draper said that he had tricked him. The letter also contained an acknowledgment from Draper that he was told he couldn’t tell him it “wasn’t tobacco” and a direction to not talk to police as “These guys will kill us”. Dru also stated that he had given Nathan the SIM card in the name of Graham Black.

Instructions to the jury in relation to Dru Baggaley

  1. [29]
    In relation to Dru Baggaley the jury were given written instructions about the elements of the offence[3] and were instructed that that before they could return a verdict of guilt with respect to Dru Baggaley they would need to be satisfied beyond reasonable doubt of five things namely that:
    1. (a)
      He intended to import a substance into Australia.
    2. (b)
      He attempted to import the substance by taking steps that were willed acts which were more than merely preparatory, to import the substance into Australia.
    3. (c)
      The substance was a commercial quantity of a border-controlled drug namely cocaine.
    4. (d)
      He was reckless as to whether the consignment was a border-controlled drug in that he was consciously aware of the risk.  Recklessness could be established by proving intention, knowledge or recklessness.
    5. (e)
      They also had to be satisfied that the Crown had excluded beyond a reasonable doubt that Dru Baggaley was under duress whilst carrying out the conduct constituting the offence.
  2. [30]
    Dru Baggaley was found guilty by the jury after a 10-day trial.

Summary of the Crown case at trial in relation to Nathan Baggaley

  1. [31]
    The Crown case in relation to Nathan Baggaley was that he, either as principal or as someone who aided Dru, attempted to import the packages into Australia knowing or by being at least reckless that it was cocaine by virtue of the following:
    1. (a)
      He purchased and registered the RHIB and equipped the vessel the vessel with navigation and other equipment in May/June 2018.
    2. (b)
      He covered the registration number of the RHIB with tape prior to the voyage.
    3. (c)
      He provided access to the vessel to Dru.
    4. (d)
      He communicated or attempted to communicate with Dru whilst the RHIB was at sea.
    5. (e)
      He was at Brunswick heads ready to receive the consignment on 31 July and 1 August 2018.
  2. [32]
    Nathan Baggaley gave evidence at trial.

Nathan Baggaley’s evidence at the trial

  1. [33]
    Nathan gave evidence that he was approached by Dru in May 2018 who said he had a partner for the whale watching business they wanted to set up and the partner was prepared to make a cash investment in the business. Through his kayak business he was aware of Sirocco Marine and arranged with Dylan Lopez the manager, to buy the RHIB and the trailer.  He had seen vessels similar to the RHIB being used by dive companies and thought it would be suitable for their venture.
  2. [34]
    He indicated that the entire time he was dealing with Dylan Lopez to purchase the boat he had used his own phone, his own email and made no attempt to disguise his identity in any way because he had no idea that it was to be used for anything other than their business. He also purchased the satellite phone and other equipment and had it installed as that was what Dru had specified was needed. He stated that Dru gave him over $108,000 cash over a period of time to pay for RHIB and trailer as well as the satellite phone, the wireless router and the navigation equipment. On one occasion he gave Lopez $5,000 in cash. Dru paid him in cash because he was told that the partner had sold a boat for cash and did not want to declare it for tax purposes.
  3. [35]
    Whilst the RHIB and trailer were registered in his name, his view was that they belonged to Dru. He kept the boat at his place as it was more practical given he was located closer to Byron Bay. He had not however insured it. His evidence was that Dru was able to access the boat at any time as he had keys to his house.  After the RHIB and trailer were delivered he went out on the boat on a number of occasions but his last involvement with the boat was on 6 July when he sorted out the satellite phone with the assistance of a technician. When he sought assistance with the satellite phone he made no attempt to hide his involvement.  He stated that he did not have anything to do with any of the equipment after that date and did not enter any waypoints into the chart plotter.  He denied having any suspicions about the purchase of the RHIB and equipment.
  4. [36]
    He also denied covering the registration details with black tape although he admitted he owned a roll of black tape and had used it to protect the boat while some of the equipment was being installed by workmen.  He denied moving Dru’s ute and the trailer on 31 July or being anywhere near the RHIB on 31 July.
  5. [37]
    He stated that on 30 July 2018 he got home to find a note from Dru saying he had taken the boat out for a few hours but that he should be back for footy training that night.  When he did not return with the boat he presumed he was at his girlfriend’s place or with their parents. He stated that he did not ring the satellite phone to check on him as he didn’t have the number written down.
  6. [38]
    He stated the phone ending in “329” was his personal phone and that the phone ending in “240” had a SIM card which Dru had given him. He agreed that he had downloaded the encrypted apps Threema and Wickr onto the phone about a year before as well as a lot of other apps, many of which he did not use.
  7. [39]
    He stated that on 31 July he went to work and then to football training and then went home and went to bed.  The next morning he was exercising at home when his father texted him around seven. He then referred to the text messages in evidence which showed that he texted back at 7.10 am asking his father what time he would be at work at the oyster lease on the Brunswick River. His father responded that it would be between 8.30 and 9 am. Nathan stated that he was subsequently contacted by an electrician working on Dru’s proposed fish shop asking him if he had heard from Dru. The electrician indicated that Dru hadn’t met up with him at the shop on the previous day and had now also not arrived that morning. He said he was getting a bit worried. Nathan stated that he organised to pick him up and planned to then to then call in on his father to see if he knew anything. It was during that drive that they saw Dru’s car and the trailer parked near the caravan park. He denied doing a U-turn to avoid police.  They drove to the oyster lease to see his father however his father did not arrive. At 10.33am his car was pulled over by police and searched but nothing of interest was found. His father then rang him at 10.51am to say that his home had been searched.
  8. [40]
    In relation to the phones found at his home Nathan’s evidence was that the encrypted phone found at his home when it was searched on 4 September came into his possession after 1 August and that the phone with the SIM “240” had been given to him by Dru to use for the business.

Instructions to jury in relation to Nathan Baggaley

  1. [41]
    In relation to Nathan Baggaley at trial, the jury were given written instructions[4] that he was charged on two alternate bases first that he was a principal offender and that they had to be satisfied beyond reasonable doubt of four things, namely:
    1. (a)
      He intended to import a substance into Australia.
    2. (b)
      He attempted to import the substance by taking steps that were willed acts which were more than merely preparatory, to import the substance into Australia.
    3. (c)
      The substance was a commercial quantity of a border-controlled drug namely cocaine.
    4. (d)
      He was reckless as to whether the consignment was a border-controlled drug in that he was consciously aware of the risk. Recklessness could be established by proving intention, knowledge or recklessness.
  2. [42]
    The second alternate basis was that Nathan Baggaley aided Dru Baggaley to commit the offence.
  3. [43]
    The jury were instructed that a person who aids, the commission of an offence by another person is taken to have committed that offence.
  4. [44]
    The person's conduct must have in fact aided, the commission of the offence by the other person; and the person must have intended that his conduct would aid the commission of any offence of the type the other person committed.
  5. [45]
    The jury were instructed that before they could convict Nathan Baggaley on this basis, they would have to be satisfied beyond reasonable doubt that the answer to all of the following four questions is yes:
    1. (a)
      Did a person commit the offence of attempting to import a commercial quantity of a border-controlled drug?
    2. (b)
      Did Nathan Baggaley’s conduct in fact aid, abet, counsel, or procure the commission of the offence of attempting to import a commercial quantity of a border-controlled drug by another person?
    3. (c)
      Did Nathan Baggaley intend that:
      1. his conduct would aid, abet, counsel or procure the commission of any offence of the type committed (here an attempt to import a commercial quantity of a border-controlled drug)? Or
      2. his conduct would aid, abet, counsel or procure the commission of an offence and has been reckless about the commission of the offence that was committed (here an attempt to import a commercial quantity of a border-controlled drug)?
    4. (d)
      Has the Crown excluded beyond reasonable doubt that Nathan Baggaley terminated his involvement; and took all reasonable steps to prevent the commission of the offence before the offence was committed?
  6. [46]
    The jury were instructed that Nathan Baggaley could be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if Dru Baggaley was not found guilty.
  7. [47]
    Each of the terms “aid, abet, counsel or procure” mean conduct that brings about, or makes more likely the commission of an offence.
  8. [48]
    Nathan Baggaley was found guilty by the jury after a 10-day trial.

The contested sentence

  1. [49]
    At the end of the trial and before the jury retired to consider its verdict, the Crown Prosecutor was asked whether there was a request for a special verdict. The Crown Prosecutor advised that he was not seeking a special verdict.
  2. [50]
    At sentence the Crown now contends that a number of inferences should be drawn from the whole of the evidence based on the jury’s verdict.
  3. [51]
    The Crown contends that the proper inferences to be drawn from the whole of the evidence are:
    1. (a)
      That each defendant was a principal in the importation.
    2. (b)
      That each defendant was aware of the nature and quantity of the drug to be imported.
    3. (c)
      That each defendant would have expected to have received a very substantial reward, whether in drugs or money, for their critical roles in the importation.
  4. [52]
    Those inferences are disputed by both defendants.

Factual dispute

  1. [53]
    The duties of a sentencing judge when there is a factual dispute were considered by the High Court in Cheung v The Queen[5] as follows:

“The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual.  It is commonplace.”

  1. [54]
    It is clear that when there is a factual dispute after trial the following principles, as summarised by the Crown Prosecutor and endorsed by Counsel for both defendants, apply:
    1. (a)
      It is for the sentencing judge to determine the facts on sentence.[6]
    2. (b)
      Whilst some of those facts will have emerged in evidence at the trial; others may only emerge during the sentencing hearing.[7]
    3. (c)
      The primary sentencing judge’s view of the facts for the purposes of sentencing must be consistent with the verdict of the jury.[8]
    4. (d)
      Section 132C of the Evidence Act 1977 (Qld) applies to sentencing for Federal offences, so that findings of fact by a sentencing judge are on the balance of probabilities.[9] However, as the determination of the fact that is aggravating is likely to increase penalty, the sentencing judge must conclude to a high standard of satisfaction that the evidence establishes the contested fact.
    5. (e)
      The jury’s verdict only decides the issues joined by the plea to the indictment. It does not decide, either expressly or by implication, all facts of relevance to sentencing. It may be possible, however, to infer that particular parts of the evidence, logically crucial to the prosecution case, must have been accepted by the jury in reaching their verdict.[10]
    6. (f)
      Provided the facts found by a sentencing judge are not inconsistent with the jury’s verdict, a sentencing judge may well make an assessment of an offender’s degree of culpability which would not be supported by all, or perhaps any, members of the jury.[11]
    7. (g)
      Some aspects of what an offender did may not be capable of resolution, because there are insufficient facts known to the Court regarding that particular issue.[12] In such circumstances, there is no general requirement that a sentencing judge must proceed upon a view which is most favourable to the offender.[13]  If there are facts favourable to the offender, they must be proved on the balance of probabilities.[14]
    8. (h)
      Not every fact relevant to sentence can be categorised as either an aggravating or mitigating circumstance. There are matters of human behaviour that lie between those extremes.[15]
  2. [55]
    I also accept that the correct approach to determining the factual basis for sentence following a jury trial is as articulated by Gleeson CJ, Gummow and Hayne JJ in Cheung v The Queen, as helpfully summarised by the Western Australian Court of Appeal in The State of Western Australia v JWRL (a child) at [9]:[16]

“Where the offender to be sentenced has been found guilty following trial by jury, the judge must determine the facts relevant to the sentencing process: see Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5] and [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the trial judge who must find those facts, rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] – [11]. '[P]rovided the facts found by a sentencing judge are not inconsistent with the jury's verdict, a sentencing judge may well make an assessment of an offender's degree of culpability which would not be supported by all, or perhaps any, members of the jury': Cheung [36].”

  1. [56]
    Where the prosecution fails to prove to a high standard of satisfaction a possible circumstance adverse to the offender, and the offender fails to establish on balance a competing possibility favourable to the offender, a judge can sentence on the basis that neither of the competing possibilities is known.[17]
  2. [57]
    Section 132C of the Evidence Act 1977 (Qld) is in the following terms:

“132C  Fact finding on sentencing

  1. (1)
    This section applies to any sentencing procedure in a criminal proceeding.
  1. (2)
    The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.
  1. (3)
    If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.
  1. (4)
    For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.
  1. (5)
    In this section— allegation of fact includes the following—
  1. (a)
    information under the Penalties and Sentences Act 1992, section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;
  1. (b)
    information under the Youth Justice Act 1992, section 150(4A) or in a pre-sentence report under section 151 of that Act;
  1. (c)
    information given to the court under the Penalties and Sentences Act 1992, section 179K;
  1. (d)
    other information or evidence.”
  1. [58]
    It is clear therefore that s 132C provides that a civil standard of proof applies in relation to disputed facts on sentence but that the standard varies according to the Briginshaw[18] test articulated by Dixon J as follows:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. On criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters " reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

  1. [59]
    There can be no doubt that one of the relevant considerations on sentence is the role that a particular defendant played in the importation and their degree of involvement in the enterprise. Similarly, a conclusion that a particular defendant had been involved in the planned importation for a long period of time would also be a matter of aggravation. A finding that a particular defendant was a principal in the trafficking operation, had actual knowledge of the nature and quantity of the drug imported and was to receive a substantial reward for their involvement in the importation, would also be a matter of aggravation and would therefore inevitably lead to a submission that a greater period of imprisonment should be imposed.
  2. [60]
    I accept that knowledge by a defendant that a substantial drug importation was to take place, and their voluntary involvement in that, places them at a much higher level of culpability than a courier who lacks actual knowledge and is merely reckless as to a substance being a border controlled drug, as was the case in R v Tran[19] and Lau v The Queen.[20] I note however that in Ostrowski,[21] the Queensland Court of Appeal confirmed that although the applicant was not aware of the true identity and quantity of the drug he imported, that was not a mitigating feature.[22]
  3. [61]
    I would accordingly need to be satisfied about those findings to a high degree of satisfaction which would not be established if there were inexact proofs or indirect inferences

Overview of the Crown allegation of facts for sentence

  1. [62]
    The Crown contends at sentence that, at some time prior to 14 May 2018, each defendant formed a plan along with unknown persons to import a commercial quantity of cocaine given the negotiations for the purchase of the RHIB commenced on that date. The Crown contends each defendant carried out critical roles in the importation.
  2. [63]
    In respect of Dru Baggaley, the Crown contends that he was either an organiser of the importation, or was aware of, and supported, Nathan Baggaley’s role in that regard.  The Crown argues that Dru Baggaley recruited the co-offender Anthony Draper to be the boat driver. Dru Baggaley had the coordinates for the meeting with the Columbian vessel on his phone, and he was entrusted with the more than 500 kilograms of pure cocaine.
  3. [64]
    The Crown submits that Dru Baggaley at the very least played an essential role in the attempted importation and whilst having regard to the limitations that apply to attaching such descriptions, his role could properly be described as that of an Australian-based organiser of the importation and as a trusted intermediary for others involved in the importation, and who recruited another person to assist him and then supervised the obtaining of the cocaine. Given the level of trust placed in the defendant by others and the risks that the defendant was taking, it can be expected that he would have received a very substantial reward.
  4. [65]
    The Crown submits that Dru’s motivation for his involvement in the offence was purely for financial gain because from the financial records available to the prosecution (which were tendered in the trial), it does not appear that the defendant had any financial difficulties. The commission of the offences for financial reward is an aggravating feature.
  5. [66]
    The Crown also submits that the inference should be drawn that the defendant was aware that the importation was to involve the amount of cocaine that was in fact received, approximately 650 kilograms. The Crown further submits that the defendant had actual knowledge of both the identity and the quantity of what he was to receive, he was not merely reckless. The prosecution submits this is established by the procurement of the RHIB vessel, to specification. 
  6. [67]
    In respect of Nathan Baggaley, the Crown contends that he was an organiser of the importation and this included the purchase and fitting out of the RHIB used for the importation, and that he was to have been present to receive the imported cocaine when it arrived given the phone call to the RHIB on 1 August and his movements at Brunswick Heads that morning in the vicinity of the boat ramp.  It is also argued that he must have been aware of the recruitment of the co-offender Anthony Draper to be the boat driver.
  7. [68]
    The Crown also submits that the inference should be drawn that he was also aware that the importation was to involve the amount of cocaine that was in fact received, approximately 650 kilograms.  The Crown further submits that the defendant had actual knowledge of both the identity and the quantity of what he was to receive, he was not merely reckless. The prosecution submits this is established by the procurement of the RHIB vessel, to specification. 
  8. [69]
    The Crown argues that, to the extent that the defendants gave evidence contrary to what is set out above, the evidence of each defendant should be rejected.

Dru Baggaley

Dru Baggaley’s submissions on sentence

  1. [70]
    Counsel for Dru Baggaley argues that it is not accepted that Dru Baggaley knew the consignment contained cocaine, or any border-controlled drug, or that he was a principal in the operation.
  2. [71]
    Rather, it is argued that I should find that Dru Baggaley intended to import tobacco while reckless as to whether the consignment contained a border-controlled drug.
  3. [72]
    Counsel argues that the Crown’s submissions as to the factual basis for the sentence depend upon acceptance of that part of the evidence of Anthony Draper that was favourable to the Crown, and rejection of his evidence that was favourable to the defence. 
  4. [73]
    In particular it is argued that Dru Baggaley should be sentenced on the basis that he intended to import tobacco, and from sometime after he was informed that Montgomery was not coming, he was reckless as to whether the consignment contained border controlled drugs.
  5. [74]
    In particular, it is argued that I should find that:
    1. (a)
      Anthony Draper recruited Dru Baggaley to source and set up the RHIB, on the basis that Anthony Draper and Mr Montgomery would travel to sea to receive a consignment of tobacco;
    2. (b)
      Sometime after Anthony Draper arrived at Coolangatta, but before the departure of the RHIB from the Brunswick River boat ramp, the defendant was alerted to facts that gave rise to a conscious awareness of risk that the consignment may contain a border controlled drug;[23]
    3. (c)
      Duress having been rejected, from that time onwards it was unjustifiable for the defendant to take the risk, but he nonetheless proceeded with the attempt;
    4. (d)
      While the defendant was reckless as to the substance being a border-controlled drug, he did not know it was cocaine, and did not know its true value; and
    5. (e)
      The defendant’s payment for involvement in the venture was to be ownership of the RHIB after the conclusion of the venture.

What factual findings are available for Dru Baggaley?

  1. [75]
    As already noted, the findings I make on sentence must be established by the Crown to a high degree of satisfaction given the consequences of such findings. Counsel for Dru Baggaley argues that the Crown case against him in relation to the submission that he knew that the consignment contained a border controlled drug depends largely on the acceptance of Draper’s evidence and without it there cannot be a finding that he had actual knowledge that a border controlled drug was being imported and that the Crown’s submissions should be rejected.
  2. [76]
    There is no doubt that aspects of Anthony Draper’s evidence were inconsistent and some lacked credibility.  As I warned the jury, special  considerations arose in relation to his evidence as he pleaded guilty to a crime which arose out of the same events for which the defendants were on trial and there was a strong incentive for a person in Anthony Draper’s position to implicate the defendants when giving evidence.  The jury were also warned that Draper had received a reduced sentence because of his co-operation and if he did not co-operate in accordance with his undertaking, the sentencing proceedings may be re-opened and a different sentence imposed.  The jury were told that they should accordingly scrutinise his evidence with great care.
  3. [77]
    Anthony Draper also accepted in his evidence that he had made a false statement to police when he was first interviewed as he stated that he was picked up at the airport by Stuart Montgomery.  There is also no doubt that he gave inconsistent evidence in relation to the letters he sent to Dru Baggaley whilst he was in custody. The letters essentially contained statements that Draper had tricked Dru into believing they were bringing in tobacco.  Draper accepted at one point in his testimony that the letters was true when he wrote it them but subsequently retracted it by saying he had been “stood over” to write the letters. I do not accept the submission by Counsel for Dru that his declaration about the letters being truthful was unequivocal, as the flow of the question and answers indicate to me that he did not understand the question. The Crown Prosecutor in his re-examination also established the following:[24]

Were your answer’s [sic] the to the jury to my questions the truth or not?---They were the truth.

All right. And so was the evidence you gave about Dru Baggaley’s involvement the truth or not?---Truth.

All right. Now, you were asked about two letters in cross-examination yesterday and again today. In relation to the second letter you said:

I wrote in that letter, but I was – yeah. But I was stood over.

Who stood over you?---I was in jail at the time. I was.

Yes. All right?---There were just other inmates.

Okay. And you also said that Dru Baggaley had written you a letter. What was in that letter?---I can’t recall. I really can’t recall.

All right. So in those letters it says that you tricked Dru Baggaley, and is that right? Did you trick Dru Baggaley?---I didn’t trick Dru Baggaley.

They were just [indistinct] down but I never tricked him.

HER HONOUR: Sorry. I didn’t hear any of that?---I didn’t trick him.

MR POWER: Okay. It was suggested to you in cross-examination that you had tricked Dru Baggaley by getting him into the boat on the pretence that you needed his help to navigate out of the Brunswick River, but once you got out of the Brunswick River you just drove off, and that he protested and you essentially kidnapped him. Is that true?---No.

  1. [78]
    I accept that Draper also gave some evidence which was implausible.  He recounted an exchange with the men on the freighter at the point of transfer when he told them “no more pot” and they yelled that it was “cacao” as the parcels were being dropped into the sea. That evidence was clearly self-serving and given to minimise his knowledge about the nature of the importation.
  2. [79]
    However, at trial the jury were instructed that they could reject or accept evidence as they saw fit.   In relation to the oral evidence of a witness they were instructed that they could accept all of the evidence, some of it or none of it.  In relation to contentious evidence they were instructed that they should compare it with other evidence they did accept and where there were inconsistencies or discrepancies, they were to consider whether there was a satisfactory explanation for it.
  3. [80]
    Accordingly, consistent with those instructions the jury could have rejected all of Draper’s evidence unless it was supported by other evidence they did accept or they considered had been satisfactorily explained.  Was there any objective evidence to support the Crown case that it was Dru who had recruited Draper? Clearly there was as there was objective evidence that Dru had paid for and organised Draper’s flight to the Gold Coast. There was also clear evidence from both Dru and Draper that Dru had picked Draper up from the airport and had picked up fuel cans, fuel and supplies on the way. All at a time when Dru was the person driving. He was also able to source all the items that were needed from places that were open and in the time frame available.  The evidence also indicates that they arrived at the boat ramp and departed late at night precisely at a time which meant they would arrive at the waypoint at the correct time to meet the freighter.  Furthermore, the evidence clearly established that the waypoints on the chart plotter on the RHIB were entered on 28 July, well before Draper’s arrival at Brunswick Heads.  Those same waypoints were then found on the phone located in Dru’s ute on 1 August 2018.
  4. [81]
    As already noted, the findings I make must also be consistent with the jury’s verdict. In this regard I note that the jury were given a direction that in order to convict Dru they had to be satisfied beyond reasonable doubt about five things.  That direction is set out in paragraph 29 above. Accordingly, there can be no doubt that by their verdict the jury were satisfied that Dru intended to import a substance into Australia, that he attempted to import the substance by taking steps that were willed acts which were more than preparatory to import the substance into Australia, that the substance was a commercial quantity of a border-controlled drug and that he was reckless as to whether the consignment was a border-controlled drug as he was consciously aware of the risk.  Dru’s own evidence was that he was in negotiations about the planned importation of “something” from around Easter of 2018 or at some time in April 2018.
  5. [82]
    Significantly the jury were specifically instructed, as outlined at paragraph 28(e) above,  that in order to convict Dru of the charge they also had to be satisfied that the Crown had excluded beyond a reasonable doubt that Dru was acting under duress whilst carrying out the conduct constituting the offence. Accordingly, I conclude that by their satisfaction beyond a reasonable doubt that Dru was not acting under duress the jury must have necessarily rejected his evidence about being forced by Draper to undertake the voyage out to sea. It would seem to necessarily follow therefore that given the jury’s satisfaction that Dru was not acting under duress, that there was a rejection of Dru’s account that Draper was the organiser of the whole venture and had recruited him rather than vice versa. Dru accepted in his evidence that he entered waypoints on the chart plotter at Draper’s instructions.  Consistent with the jury’s rejection of Dru’s evidence that he was acting under duress at the boat ramp I similarly reject Dru’s evidence that he only entered the waypoints on Draper’s instructions. If that was indeed the case why would he also enter those same coordinates on his phone? 
  6. [83]
    Furthermore, the encrypted message to Dru’s phone that there was a person on “standby” to assist on their return is not consistent with Dru’s sudden abduction. Furthermore, Dru’s evidence that Draper was in contact with someone during the voyage to assist them on their return is also inconsistent with that encrypted message. The only reasonable inference is that Dru had arrangements in place for someone to assist and receive the consignment on the return to Brunswick Heads.
  7. [84]
    Intrinsic to Dru’s account that Draper was the organiser of the whole venture was his evidence that he believed that he was organising a boat for Draper and Montgomery to head off shore to pick up a load of tobacco which was coming off a ship from Indonesia destined for Brisbane with a legitimate cargo. Dru’s account of a plan for the RHIB to leave Brunswick Heads to travel out to a point hundreds of kilometres offshore, well south of Brisbane, as evidenced in the maps tendered in evidence[25] is simply implausible when one considers the geography.
  8. [85]
    Furthermore, given that both Draper and Dru gave evidence in court, it would have been manifestly clear to the jury, as it was to me, that Draper was not a person who could organise anything that required any degree of sophistication or execution.  He was significantly older than Dru. The video footage also established him giving instructions to Draper as he was throwing the parcels off the RHIB and that he was driving the RHIB as they approached the Australian coast. Draper was a simple and unsophisticated man who was flustered and agitated by being in Court to give evidence. He was easily confused and agreed to propositions without fully considering them. Dru in contrast gave evidence in a calm, confident, practised and careful way. 
  9. [86]
    The Crown case against Dru was always that he was a principal in the plan to import the consignment.  By their verdict the jury must have been satisfied that he was a major organiser or facilitator of the importation and that he well knew it was a large quantity of a border controlled drug given his reward would have been the RHIB. The jury would have also rightly rejected his account that for merely organising the purchase of RHIB and getting it into the water on the night of 30 July he would receive it as payment. Dru’s attempt to backtrack from this initial statement by giving evidence that Draper subsequently said he would have to pay some of the money back over time was not credible.  Neither was his evidence that the “Graham Black” phone ending in “240” found at Nathan’s home had a SIM which had been supplied to him by Draper and he gave it to Nathan. 
  10. [87]
    Dru also gave inherently implausible evidence that after the chase involving the Navy and as they were returning to shore Draper said they would have to move the ute and trailer. He then asked where the keys were and then rang a friend who lived at Billinudgel to organise to move it as follows:

Okay. And you’ve told us that you never communicated to anyone after you left the boat ramp?---Yeah, so on the way back after about Draper – like, the navy ship had stopped. He then, at some point not long after, said to me, “Got to move your car. Get your car moved.” And I said, “Why?” He goes, because you have to stuff inside my car that would identify him, he then messages – he gets out his phone – I believe – yeah, he gets his phone out. He says, “I’ll get it sorted.” He said he knew someone in the local area in Billinudgle [sic]. Asked me where I left my keys, told him. He goes, “All right. Done” And he wanted it moved for that reason. Now, I’m not in a position to argue, I’m sick. I say, “Whatever, do whatever you got to do.”

  1. [88]
    Counsel for Dru argues that without Draper’s evidence that the men on the freighter said the consignment was “cacao” there would have been no evidence that Dru knew the consignment contained cocaine. I accept that there is no objective evidence that Dru knew the consignment contained cocaine.  It is however an inference which is the only rational inference which can be drawn from the established facts that a high powered RHIB worth at least $100,000 travelled for eleven hours at speed in an easterly direction to a point 360 kilometres off the Australian coast.  It was a difficult, risky, uncomfortable voyage which involved concealed registration details, vessels travelling in Australian waters after dark, encrypted communications and predetermined waypoints entered on chart plotters.  I am satisfied to a high degree of satisfaction that the only reasonable inference is that Dru Baggaley undertook such a voyage with knowledge that the consignment to be collected was a large quantity of cocaine.
  2. [89]
    I am not satisfied however to the requisite standard that Dru knew the precise quantity involved given the number and weight of the parcels compared to the size of the RHIB. I also accept there was some truth to Draper’s view, as a professional fisherman, that there was ‘too much” being offloaded given the size of the RHIB.  Dru however did know that the consignment would be ‘heavy’ given the specifications he gave to Nathan.

Findings

  1. [90]
    I find:
  1. That Dru Baggaley was involved in actively planning the attempted importation of a quantity of cocaine with unknown others from at least April 2018 to late July 2018.
  2. That Dru Baggaley was a principal organiser of the attempted importation of the cocaine by organising the purchase and the equipping of the RHIB for a voyage some 360 kilometres out to sea and by recruiting Anthony Draper to undertake that voyage with him.
  3. Dru Baggaley knew the importation of cocaine involved a large quantity.
  4. That Dru Baggaley was to receive a substantial reward for his services which involved at least part ownership of the RHIB, trailer and equipment which were worth in excess of $100,000.

Nathan Baggaley

Nathan Baggaley’s Submissions on Sentence

  1. [91]
    Counsel for Nathan Baggaley submits that the Crown’s submissions should not be accepted and that there is no evidentiary basis to accept the Crown’s submission that;
    1. (a)
      Nathan Baggaley’s involvement in the planning of the importation began at a point prior to May 2018 when he began negotiations to purchase the RHIB for use in the importation.
    2. (b)
      Nathan Baggaley played an essential role and was an Australian-based organiser and a trusted intermediary.
  2. [92]
    Counsel argues that Nathan Baggaley should be sentenced only on the basis that he aided Dru Baggaley and allowed Dru Baggaley access the vessel on 30 July 2018 and that his role was comparatively minimal compared to that of Dru Baggaley.

What factual findings are available for Nathan Baggaley?

  1. [93]
    In relation to this aspect of the factual dispute in relation to the period of his involvement, the Crown maintains that Nathan Baggaley was involved in the importation prior to May 2018 when he commenced the negotiations in relation to the purchase of the RHIB.  That is that Nathan must have been an organiser of the importation or knew the details of it prior to the commencement of the negotiations for the purchase.
  2. [94]
    The Crown submits that it can be inferred that Nathan was aware of and supported Dru’s recruitment of Draper to drive the boat. In this regard there is no evidence that Draper knew Nathan and Draper’s evidence did not refer to Nathan at all.  There is no evidence from Dru that Nathan knew Draper as opposed to knew of him.
  3. [95]
    There is no doubt that Nathan Baggaley commenced negotiations in relation to the purchase of the RHIB in May 2018 and Admissions 11 to 23 are detailed admissions whereby Nathan Baggaley accepts that the negotiations commenced on 14 May 2018, the quoted price was $106,700 plus the trailer and that an amount of $100,500 was paid between 21 May and 8 June 2018. The satellite phone kit and other items of equipment were also purchased by him and some the installation occurred at his home given Nathan’s evidence that he used the black tape to protect the RHIB form damage by workmen when they were working on it. 
  4. [96]
    There is no doubt that Nathan was given more than $100,000 in cash by Dru. Dru’s own evidence was that he received $100,000 in cash just before the purchase of the RHIB on 18 May 2018. It is clear that the Crown accepts that unknown persons financed the importation. Dru’s evidence was that Nathan was unaware of the real source of the money or that the real purpose for the purchase of the vessel was to go offshore and pick up a consignment of something. 
  5. [97]
    Whilst there is some basis to conclude that Nathan must have been suspicious or at least curious about the source of the money, there is nothing inherently implausible in Dru’s evidence that he had an investor who wanted to give a cash loan to avoid a tax liability for the sale of a boat and that the cash was being made available to them to fund the purchase of a boat for their business venture. 
  6. [98]
    In this regard I note that all negotiations and transactions in relation to the RHIB were fully transparent.  The RHIB and trailer were registered in Nathan Baggaley’s name, there was no attempt to use false names, lay a false paper trail or disguise or anonymise his attempts to install various pieces of equipment. Whilst there is clear evidence of at least one payment in cash with Nathan accepting that he paid $5,000 in cash up front, it would also seem that most of the other payments went through Nathan’s bank account.
  7. [99]
    Objectively viewed, the purchase of a RHIB with the associated satellite and navigation equipment is not a purchase which is such that it would raise an immediate suspicion that it was going to be used for the importation of a border-controlled drug.  A RHIB is not a vessel which would normally be used for long distance voyages. The RHIB that was purchased does not have large fuel tanks, a covered area, toilet facilities or large storage facilities.  It has limited space and is not a large vessel although it has powerful engines. The video evidence at trial showed that travelling at speed in the RHIB was uncomfortable given the footage of it bouncing on the ocean and the evidence that Dru was seasick during the voyage.
  8. [100]
    There is evidence from Dylan Lopez that Nathan made it clear the vessel was needed in a short time frame however given that the voyage did not occur until at least two and a half months later I am not sure what the significance of that evidence was. I accept that there was evidence from Lopez that he was told that the RHIB would need to be able to carry a large load.  That could give rise to an inference that Nathan knew something was going on but it is also is consistent with being given specifications by Dru about what to purchase. Neither is there any evidence that of 650 kilograms was ever discussed.
  9. [101]
    Given that background Nathan may have reason to have been suspicious that the purchase of the boat was for some illegal purpose be it tax evasion, drug trafficking or even smuggling of some sort.  However, the mere purchase of the RHIB and the equipment does not in my view raise an inference that Nathan must have known about the planned importation of a border controlled drug at that point in time or prior to the purchase of the RHIB. An available inference is that Dru may well have been deliberately using Nathan to distance himself from the transaction and that at least initially Dru was keeping Nathan in the dark about the true nature of the venture. 
  10. [102]
    Those factors do not give rise, in my view, to an inference that Nathan must have known about a planned importation of anything let alone a large quantity of a border-controlled drug at that point in time.  Such a finding would be an aggravating factor. I am not therefore satisfied to a high degree of satisfaction required that there is evidence to support a finding that when Nathan did those willed acts in relation to the purchase of the RHIB he knew about the planned importation or was an organiser of such an importation at that point in time or at an earlier point in time.
  11. [103]
    I consider that Counsel for Nathan Baggaley has satisfied me that on the balance of probabilities that Nathan’s involvement did not commence before 30 July 2018.
  12. [104]
    I am however satisfied to a high degree of satisfaction that when the RHIB left the Brunswick Heads boat harbour on the evening of 30 July 2018 Nathan knew that the consignment being brought in on the RHIB was a border-controlled drug and that it was a large quantity.
  13. [105]
    The RHIB was stored at Nathan’s property after it was picked up on 6 June 2018 and it is admitted that the waypoints for the voyage out to sea were entered on 28 July whilst it was stored at his property. Dru’s evidence was that he entered those waypoints after Draper rang him and told him the co-ordinates to enter on the chart plotter. There is no evidence directly linking Nathan to the entry of the waypoints particularly given the same waypoints were later found on the fishing App on the phone ending in “720” found in Dru’s ute. There is no objective evidence to link Nathan to knowledge of a trip some 360 kilometres offshore until 30 July 2018.
  14. [106]
    There is however evidence which establishes Nathan knew of the voyage by 30 July 2018 and he knew it was to retrieve a large quantity of a bored controlled drug namely cocaine. Significantly the evidence indicates that the registration details on the RHIB were covered in black tape which had Nathan’s fingerprints on the underside.  The registration details must have been covered before the vessel entered the water on the evening of 30 July.  It is highly improbable that the covering of registration details would be done in plain sight at the boat ramp or once the RHIB was in the water. Dru’s evidence that Draper instructed him to cover the registration details after they arrived at the boat ramp late in the evening of 30 July when the boat was already in the water is implausible given the degree of difficulty to achieving that result in the dark whilst the boat was in the water.  Similarly his evidence that he used a roll of black tape belonging to Nathan, which he had coincidently but conveniently left in the RHIB, is also implausible.  I am satisfied to a high degree of certainty, that the only reasonable inference is that Nathan covered the registration details just prior to the voyage. He therefore knew the RHIB was to be used for an illegal purpose at that point.  
  15. [107]
    Furthermore Nathan’s evidence was that he was not concerned that Dru was out on the RHIB and did not return on the evening of 30 July.  On his own evidence he knew by the morning of 1 August that Dru had been out on the RHIB since 30 July given the note Dru had left and his sighting of Dru’s ute and the trailer parked near the boat ramp that morning.  He did not however raise any alarm with police who were near the vehicle.  The evidence at trial supports a conclusion that it was Nathan who moved the trailer and the ute on the evening of 31 July 2018 given he was the registered owner of the trailer and would have had easy access to car keys belonging to his brother. Dru’s evidence that Draper rang somebody to move his car and the trailer is not supported by any independent evidence and is frankly implausible. It is therefore reasonable to infer and I find that Nathan knew of Dru’s plan to undertake a return voyage out to sea which would take more than 22 hours.
  16. [108]
    Given a voyage of that distance in a high speed RHIB it is also reasonable to infer that there was a substantial risk that something illegal was being brought into Australia. Given the trailer and the ute were moved at precisely a time that the RHIB would have been expected to return, I consider that action supports a finding that Nathan at that time was aware of the details of a planned arrival of something that had been delivered many nautical miles out to sea.
  17. [109]
    I am also satisfied that there was evidence of three calls to the RHIB satellite phone from the 762 phone (which was the phone in the name of  Graham Black and was never found) and that they were made by Nathan given he had another phone which had been subscribed in the name of Graham Black which was the 240 phone.
  18. [110]
    The evidence in my view also establishes that there was an attempted communication to Dru at sea via an encrypted message to Dru’s 720 phone which was found on the RHIB after it was searched. That message asks what is happening and advises that the person is on standby. The only reasonable conclusion is that the message was sent by Nathan given his phone had the messaging app downloaded and his failure to provide police access to that app on his phone. Clearly then given that Nathan is asking for an update and is on standby to assist he must have known that there was a plan to import a consignment of something. He would not have needed to be on standby if there was no cargo.
  19. [111]
    In my view those facts support a conclusion that Nathan knew that what was being imported was a large quantity of cocaine by 30 July 2018. I also conclude that Nathan was not only aware of the plan but was actively engaged and intending to be at the boat ramp to not only meet the RHIB on its arrival back to shore but also to take possession and facilitate its movement.  

Findings

  1. [112]
    I find:
    1. That Nathan Baggaley was actively involved in the attempted importation of a large quantity of cocaine with unknown others from at least 30 July 2018.
    2. That Nathan Baggaley knew by 30 July 2018 that the RHIB was purchased and equipped for a voyage some 360 kilometres out to sea and that Dru Baggaley and another person were to undertake the voyage.
    3. That Nathan Baggaley knew the importation of cocaine involved a large quantity and was actively standing by to receive that cargo and to facilitate the movement of that cargo as a principal.
    4. That Nathan Baggaley was to receive a substantial reward for his services which involved at least part ownership of the RHIB, trailer and equipment which were worth in excess of $100,000.

Footnotes

[1] Exhibits 1.2 and 1.3 at trial.

[2] Exhibit 2 at sentence.

[3] Marked for Identification with letter ‘Z’ at trial.

[4] Marked for Identification with the letter ‘Z’ at trial.

[5] (2001) 209 CLR 1 (‘Cheung’).

[6] Savvas v The Queen (1995) 183 CLR 1 at 8 (‘Savvas’); Cheung at [4]-[5], [14]; Tabuan v R [2013] NSWCCA 143 at [12].

[7] Cheung at [14].

[8] Savvas at 8; Cheung at [9], [14].

[9] R v Handlen [2015] QCA 292 at [86]; R v Ocampo Alvarez [2018] QCA 162 at [22].

[10] Cheung at [4]-[7], [14], [17].

[11] Cheung at [36].

[12] Olbrich v The Queen (1999) 199 CLR 270 at [13]-[18] (‘Olbrich’); Koh v R [2013] NSWCCA 287 at [117]-[119]; Omorogbe v R [2013] NSWCCA 201 at [44].

[13] Cheung at [9], [14].

[14] Olbrich at [27].

[15] Weininger v The Queen (2003) 212 CLR 629 at [22].

[16] [2010] WASCA 179 (Martin CJ, McLure P agreeing at [148], Buss JA agreeing at [155]);

[17] Filippou v R (2015) 323 ALR 33, 49.

[18] (1938) 160 CLR 338 at 361-362.

[19] (2007) 172 A Crim R 436.

[20] [2011] VSCA 324.

[21] R v Ostrowski; Ex parte Commonwealth Director of Public Prosecutions [2018] QCA 62.

[22] See particularly paragraphs [8], [15], [23].

[23] T6-38 and following.

[24] T5-21, lines 5-33.

[25] Exhibit 3 at trial.

Close

Editorial Notes

  • Published Case Name:

    The Queen v Baggaley & Baggaley

  • Shortened Case Name:

    R v Baggaley

  • MNC:

    [2021] QSC 112

  • Court:

    QSC

  • Judge(s):

    Lyons SJA

  • Date:

    24 May 2021

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 160 CLR 338
1 citation
Jump To
Cite 1 - (1938) 160 CLR 338
Cheung v R (2001) 209 CLR 1
11 citations
Jump To
Cite 1 - (2001) 209 CLR 1
Cite 2 - (2001) 209 CLR 1
Cite 3 - (2001) 209 CLR 1
Cite 4 - (2001) 209 CLR 1
Cite 5 - (2001) 209 CLR 1
Cite 6 - (2001) 209 CLR 1
Cite 7 - (2001) 209 CLR 1
Cite 8 - (2001) 209 CLR 1
Cite 9 - (2001) 209 CLR 1
Cite 10 - (2001) 209 CLR 1
Cite 11 - (2001) 209 CLR 1
Cheung v The Queen [2001] HCA 67
1 citation
Jump To
Cite 1 - [2001] HCA 67
Filippou v R (2015) 323 ALR 33
2 citations
Jump To
Cite 1 - (2015) 323 ALR 33
Cite 2 - (2015) 323 ALR 33
Koh v R [2013] NSWCCA 287
2 citations
Jump To
Cite 1 - [2013] NSWCCA 287
Cite 2 - [2013] NSWCCA 287
Lau v R [2011] VSCA 324
2 citations
Jump To
Cite 1 - [2011] VSCA 324
Cite 2 - [2011] VSCA 324
Omorogbe v R [2013] NSWCCA 201
2 citations
Jump To
Cite 1 - [2013] NSWCCA 201
Cite 2 - [2013] NSWCCA 201
R v Alvarez [2018] QCA 162
2 citations
Jump To
Cite 1 - [2018] QCA 162
Cite 2 - [2018] QCA 162
R v Handlen [2015] QCA 292
2 citations
Jump To
Cite 1 - [2015] QCA 292
Cite 2 - [2015] QCA 292
R v Olbrich (1999) 199 CLR 270
2 citations
Jump To
Cite 1 - (1999) 199 CLR 270
Cite 2 - (1999) 199 CLR 270
R v Ostrowski [2018] QCA 62
2 citations
Jump To
Cite 1 - [2018] QCA 62
Cite 2 - [2018] QCA 62
R v Tran (2007) 172 A Crim R 436
2 citations
Jump To
Cite 1 - (2007) 172 A Crim R 436
Cite 2 - (2007) 172 A Crim R 436
Savvas v The Queen (1995) 183 CLR 1
2 citations
Jump To
Cite 1 - (1995) 183 CLR 1
Cite 2 - (1995) 183 CLR 1
Tabuan v R [2013] NSWCCA 143
2 citations
Jump To
Cite 1 - [2013] NSWCCA 143
Cite 2 - [2013] NSWCCA 143
The State of Western Australia v JWRL (a child) [2010] WASCA 179
2 citations
Jump To
Cite 1 - [2010] WASCA 179
Cite 2 - [2010] WASCA 179
Weininger v R (2003) 212 CLR 629
2 citations
Jump To
Cite 1 - (2003) 212 CLR 629
Cite 2 - (2003) 212 CLR 629

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.