The Queen v Baggaley and Baggaley

Case [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. 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. 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.

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Details
AGLC
The Queen v Baggaley and Baggaley [2021] QSC 112
Case
[2021] QSC 112
Decision Date

CaseChat Overview and Summary

The case of The Queen v Baggaley and Baggaley involved Dru and Nathan Baggaley who were found guilty by a jury of attempting to import a commercial quantity of cocaine. The dispute centred around the respective roles of each defendant in the importation attempt and the appropriate sentencing based on their involvement. The case was heard in the court of appeal. The legal issues before the court included determining the factual basis for sentencing, specifically whether Dru Baggaley should be sentenced as having intended to import tobacco while being reckless as to whether the consignment contained a border-controlled drug, and whether Nathan Baggaley should be sentenced based on his comparatively minimal role in aiding Dru Baggaley. The court was also required to decide if both defendants were principals in the importation, were aware of the quantity of the drug, and would have expected to receive a reward.

The court examined the evidence and arguments presented by both the Crown and the defendants. The Crown argued that Dru Baggaley was either an organiser of the importation or was aware of and supported Nathan Baggaley’s role, and that he had actual knowledge of both the identity and the quantity of the drug. Dru Baggaley claimed he intended to import tobacco and was not aware of the cocaine. Nathan Baggaley argued his role was minimal, only aiding Dru Baggaley. The court considered the credibility and weight of the evidence provided by Dru Baggaley, who testified that the plan was to import illicit tobacco, and weighed it against the Crown's evidence of the sophisticated planning and significant roles played by both defendants. Ultimately, the court found that the Crown had established the factual basis for sentencing, including the awareness and roles of both defendants, to the required standard.

In its reasoning, the court concluded that Dru Baggaley was not merely reckless but had actual knowledge of the importation of cocaine. The court rejected Dru Baggaley's defence that he intended to import tobacco, finding his evidence lacked credibility and was contradicted by the evidence of planning and roles. Similarly, the court found Nathan Baggaley’s role was not as minimal as he claimed, as he was integral to the procurement and fitting out of the vessel used for the importation. The court found both defendants were aware of the quantity of cocaine and would have expected to receive a substantial reward. Based on these findings, the court upheld the sentence imposed on both defendants, considering the gravity of the offence and the roles they played.

The final orders of the court affirmed the sentencing decisions, rejecting the appeals by both Dru and Nathan Baggaley. The convictions and sentences for their roles in the attempted importation of a commercial quantity of cocaine were upheld, reflecting the significant planning and involvement of both defendants in the offence.

Orders

Orders of the court

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Background

Background to the litigation

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 inferencesOverview of the Crown allegation of facts for sentence 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. 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. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

Dru Baggaley gave evidence at trial.Dru Baggaley’s evidence at the trial 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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