R v Ward[2024] QCA 243

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  The applicant was convicted, on his pleas of guilty, of one count of unlawful possession of ten or more weapons (an offence under s 50(1)(a) of the Weapons Act 1990 (Qld)) and one count of manufacturing weapons whilst not licensed (an offence under s 69(1A)(a) of the Weapons Act).  He was sentenced on 5 September 2024 to three years and six months’ imprisonment for the first offence and a concurrent term of two years’ imprisonment for the second offence.  The sentences were ordered to be suspended after he has served six months’ imprisonment for an operational period of four years.
2. [2]
   The applicant applies for leave to appeal against the sentences on the following grounds:

“GROUND 1: The sentences imposed were manifestly excessive, in imposing a head sentence of 3.5 years, and/or requiring the Applicant to serve actual time in custody rather than wholly suspending the sentences of imprisonment.

GROUND 2: The sentences imposed were otherwise manifestly excessive in effect, on the head sentence or requirement to serve actual time in custody, arising from any one or more of the following:

1. The Sentencing Judge erred in taking into account the case of Fraser v R [2022] NSWCCA 253 on sentence such that it was an irrelevant consideration, or otherwise, one to which weight ought not have been given over other factors that favoured the Applicant serving no actual time in custody; and / or

2. The Sentencing Judge erred in taking into account hypothetical risks to the community from the Applicant’s firearm possession in circumstances where the identified risks were not reasonable inferences open on the evidence or were not ‘significant risks’ as required by Fraser (if properly applied);

And further,

The Sentencing Judge otherwise ought not have placed weight on the identified risk, over other factors that favoured a sentence requiring no actual time in custody; and / or

3. The Sentencing Judge erred in failing to provide the Applicant with a benefit in the reduction of his sentence arising from admissions made to Count 2 as required by AB v The Queen (1999) 198 CLR 111; and / or

4. The Sentencing Judge failed to give adequate weight to the delay in the Applicant being charged relevant to his rehabilitation, the cessation of his military payments arising from his incarceration and / or his relative youth.”

Factual basis for the sentence

3. [3]
   The sentencing hearing proceeded on the basis of an agreed statement of facts.  The applicant was aged between 28 and 29 at the time of the offending and 31 when he was sentenced.  He held a weapons licence at the time that allowed him to possess (registered) category A and B weapons, for the purpose of recreational shooting, and (registered) category H weapons that had a calibre of .45 inches or less.  The applicant’s counsel informed the sentencing judge that, in addition to the weapons the subject of the charges, the applicant had “around 18 guns for which he held a licence and for which there was no concern about the way that they were stored”.
4. [4]
   On 14 September 2022, Australian Border Force (ABF) commenced an investigation into the applicant following their detection of a parcel, addressed to the applicant at his home address, which they suspected contained firearm barrels.  On 7 November 2022, police, with ABF officers, executed a search warrant at the applicant’s home.  The applicant was present, as was his partner and their young child.
5. [5]
   The police found the following things:

3. (a)
   inside the defendant’s bedside drawer, a semi-automatic handgun – a category H weapon – which had live rounds chambered as well as a magazine containing live ammunition;

3. (b)
   in a number of bags that were in the garage under what appeared to be a workbench:

3. (i)
   two semi-automatic rifles (category D weapons), which were marked “FGC-9 MK II PMF”.  “FGC-9” stands for “Fuck Gun Control 9mm”.  The sentencing judge accepted that the applicant had downloaded files containing this engraving and that the expression did not necessarily reflect his attitude to gun control;

3. (ii)
   a semi-automatic rimfire rifle (category D weapon);

3. (iii)
   three single shot rimfire handguns (category H weapon);

3. (iv)
   four “silencers” or suppressors (category R weapon);

3. (v)
   a Stirling model 20P semi-automatic rimfire rifle (category D weapon) – which had been shortened and had its factory serial number removed;

3. (c)
   in the garage near the other weapons:

3. (i)
   a number of high-capacity magazines used for submachine guns and assault rifles;

3. (ii)
   items consistent with the manufacturing of firearms including a 3D printer and laptop in the garage, rifling buttons, and various firearm parts; and

3. (iii)
   other related accessories and tools.

6. [6]
   The weapons referred to in paragraphs (a) and (b)(i) to (iv) above were all “PMF”, which means “privately made firearms”.  They were primarily of hybrid construction meaning that they had been constructed using both components that had been made by a 3D printer and “factory-made” components.  All of the firearms were analysed by the police and “deemed as operable”; all were unregistered.
7. [7]
   In total, police found 12 items – eight firearms and four suppressors, which were category D, H and R weapons.  None of these weapons were safely or securely stored.  This is the subject of count 1.
8. [8]
   The statement of facts records that during the search warrant, and after being cautioned, the applicant told police the following:

“… that he used the garage where the relevant weapons and items were found.  He made full admissions in relation to the items found.  He told police that he had used his 3D printer to manufacture the components found by police and told them what components he had made and which components he had bought.  He said that, while he could not recall the exact dates, he made everything that they had found ‘this year’.  He confirmed with police that he didn’t have a licence to manufacture weapons and that he knew it was an offence.  He said that it was a hobby as he liked ‘tinkering’ and that he did not sell, and had no plans, to sell any of the items.”

9. [9]
   The manufacture of the weapons is the subject of count 2.
10. [10]
    The applicant told police the rifle described in paragraph [5](b)(v) above had been given to him by a friend who had now passed away.  He also admitted to test-firing some of the guns.

Reasons for the sentences imposed

11. [11]
    The learned sentencing judge noted in his remarks the applicant’s age and that he had no prior criminal history.  His Honour referred to the agreed facts, and also observed that the applicant had “cooperated with the police and made admissions”.  His Honour also noted the applicant had pleaded guilty at an early stage and expressed remorse; that the applicant did not oppose an order for forfeiture of the weapons; nor did he oppose an order disqualifying him from holding a licence under the Weapons Act.
12. [12]
    A number of mitigating factors were referred to by the sentencing judge, as follows:

“The search at your premises was described by your counsel as a wake-up call. There are many mitigating factors to be taken into account. You have pleaded guilty and expressed remorse. You have no prior criminal history. You are married with a young son, aged almost three. You and your wife have engaged with IVF to have a second child. You have served as an infantry rifleman with the Australian Defence Force. You spent three years in the ADF before being medically discharged. During army service, you injured your knees after which you began to experience depression and anxiety. Several army colleagues committed or attempted suicide.

You suffered a major depression disorder from at least 2015. You became reclusive due to depression and anxiety and according to the psychologist who provided a report, you manufactured guns as a coping mechanism. You have had psychological treatment, which you plan to resume shortly. The psychologist who provided a report states that there is no evidence of major personality disorders or major psychiatric disorders. There is no indication that you were associated with extreme groups, conspiracy theories, or extreme religious organisations. The psychologist states that the psychometric risk assessment indicates that you are a low risk for further similar offending. Also, it is added that your arrest has had a salutary impact upon you and you are unlikely to reoffend.

There are favourable character references from your wife, mother, friends, an army colleague, and a work supervisor. You have a good work history and presently operate a business manufacturing tattoo machines. One factor that was particularly relied upon is the impact of an actual sentence of imprisonment upon your family. Your wife and son depend on you for emotional and financial support. Apart from the income generated by your business, you receive a veteran’s incapacity payment of $2643 per fortnight. The incapacity payments will cease if you are sent to prison. At present, a medical certificate will be required in December to continue those payments, but on the evidence, that is likely to occur.

There will be a significant financial burden on your family if you are sent to jail. I was informed that the family could not meet rent obligations and other financial commitments. The impact of a sentence of imprisonment on an offender’s family is relevant, but it cannot overwhelm other facts such as the requirement to impose an appropriate sentence or one that acts as a deterrent to others.”

13. [13]
    The sentencing judge noted that there were limited cases that provide yardsticks for consideration of a proposed sentence but that, as explained in R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345 at [37], the lack of comparable cases does not preclude the sentencing judge from finding the relevant facts and applying the applicable principles and, in that way, arriving at an appropriate sentence.
14. [14]
    His Honour noted that the Crown had referred to a New South Wales decision, Fraser v R [2022] NSWCCA 253, which considered a number of comparable cases.  In relation to that case, his Honour said:

“It must be noted that the maximum penalty in New South Wales in those cases was imprisonment for 20 years.  The cases analysed in Fraser show that in New South Wales, substantial sentences are imposed for weapons offences, even where the offenders have excellent subjective characteristics.”

15. [15]
    In contrast, his Honour noted that the maximum penalty for count 1 was 13 years and, for count 2, 10 years.
16. [16]
    His Honour also addressed the two cases relied upon by the applicant’s counsel, R v Wilson [2022] QCA 18 and a first instance sentencing decision from the District Court of R v Dique, to which I will return shortly.
17. [17]
    The sentencing judge then moved to the principles of sentencing, set out in the Penalties and Sentences Act, and the principles in the Weapons Act.  The remarks included the following:

“I must also have regard to the nature and seriousness of the offences, as well as your character, age, and the psychological assessment. Your cooperation with the police during the search and your plea of guilty and indication of remorse are important matters to take into account. The hardship to your family is a matter specifically referred to in section 9(2)(fb) of the Penalties and Sentences Act.

I must also have regard to the principles in the Weapons Act. A principle in the Weapons Act 1990 is that public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage of weapons. The object of the Act is to prevent the misuse of weapons. That is why the Act provides for severe penalties. The misuse of firearms can lead to the death and injury of innocent people.

The prosecution accept that you had no plans to sell any of the items. The acceptance of your version does not eliminate the possibility of misuse of the weapons. They were not stored securely. If, for example, there had been a break-in at your home, the weapons may well have ultimately been circulated in the community and caused serious injury or death. I accept, without any hesitation, that you had no plans to distribute the weapons, but the fact is, there is always a risk of that happening. The semi-automatic handgun in your bedside drawer had live rounds chambered and a magazine containing live ammunition. If a visitor to the home was to have obtained possession of that weapon and an argument ensured [sic], then tragic results could follow. The manufacturing involved different types of weapons and occurred over a period between 1 January 2022 and 8 November 2022. You told the police that you could not remember exact dates, but everything that had been located had been manufactured during that year.

The ability to manufacture weapons using a 3D printer is very disturbing. For that reason, general deterrence is an important consideration. General deterrence is important for offenders who try to circumvent the well-regulated firearms industry.

I have carefully considered the submission made by your counsel, Mr Taylor, that a sentence of 12 to 18 months imprisonment, wholly suspended, is appropriate. In my view, a sentence of that nature would not adequately reflect the purposes of sentencing.

Having carefully considered all of the circumstances of the case, including the factors in mitigation, I have reached the conclusion that a sentence involving actual imprisonment is appropriate. I have, of course, considered the principle that a sentence that would allow you to remain in the community is preferable. There is considerable overlap between the offences, so the head sentence will be reflected on count 1, the possession count. In my view, the appropriate sentence is three and a half years’ imprisonment, which will be suspended after you have served six months.”

18. [18]
    As already noted, a concurrent term of two years’ imprisonment was imposed for count 2.
19. [19]
    Turning then to the grounds on which the applicant seeks leave to appeal against the sentences imposed. I will deal first with the contended specific errors, the subject of ground 2, before addressing the broader contention of manifest excess, the subject of ground 1.

Ground 2(a) – was it an error to have regard to Fraser v R?

20. [20]
    In Fraser v R [2022] NSWCCA 253, the Court of Criminal Appeal dealt with an application for leave to appeal a sentence imposed for unlawful possession of 19 firearms at a rural property, contrary to s 51D(2) of the Firearms Act 1996 (NSW).  That is the equivalent provision to s 50 of the Weapons Act, although, as the sentencing judge correctly observed, the maximum penalty for the New South Wales offence is higher (20 years, as opposed to 13 years under the Queensland provision).  The decision in Fraser includes a discussion about the principles which apply to sentencing for unlawful possession of firearms, including the importance of general deterrence in that regard (at [29]-[31]), and also refers to a number of previous sentencing decisions in New South Wales (at [35]-[45]).  In Fraser, it was accepted that the firearms had been dropped off at the offender’s shed by another person (they were not bought or stolen, let alone made, by him), he did not hold them for sale and he intended to surrender them to the police, although he had not acted on that intention prior to being found in possession of the weapons three weeks later.  The offender in that case was described as having a “powerful subjective case”, meaning powerful personal mitigating circumstances.  Notwithstanding that, following the appeal, he was sentenced to four years and three months’ imprisonment, with a non-parole period of two and a half years.
21. [21]
    The only point made by the sentencing judge in the present case about Fraser is that which is set out at paragraph [14] above.  That was an entirely apt observation, of a matter of general principle.  The sentencing judge did not apply Fraser as though it were a comparable decision on its facts which informed the appropriate penalty to impose.  His Honour had regard to it as a relevant decision of an intermediate appellate court from which statements of principle could be drawn.
22. [22]
    The relevance of the decision is not limited to the fact that it is the decision of an intermediate appellate court in relation to an equivalent offence; it is enhanced when one considers the national approach to the regulation of weapons and firearms which is revealed by the legislative history, to which I now turn.

Legislative history

23. [23]
    The Weapons Act was enacted in Queensland in 1990.  Following the Port Arthur shootings in 1996, the federal, state and territory governments, through the Australasian Police Ministers’ Council, entered into a National Firearms Agreement, to implement nationally consistent legislation aimed at improving gun control and public safety.  Amendments were made to the Weapons Act to give effect to the National Firearms Agreement,^[1] including the addition of what is now s 3, stating the “principles and object of the Act”.

3. “Principles and object of Act

3. (1)
   The principles underlying this Act are as follows—

3. (a)
   weapon possession and use are subordinate to the need to ensure public and individual safety;

3. (b)
   public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.

3. (2)
   The object of this Act is to prevent the misuse of weapons.”

24. [24]
    Another tragedy, the Monash University shootings in 2002, led to a further agreement, the National Firearms Trafficking Policy Agreement, which in turn resulted in further amendments to the Weapons Act.
25. [25]
    The offence the subject of count 1 is created by s 50(1)(a).  Relevantly, s 50(1) provides:

3. “50
   Possession of weapons

3. (1)
   A person must not unlawfully possess a weapon.

3. Maximum penalty—

3. (a)
   if the person unlawfully possesses 10 or more weapons at least 5 of which are category D, E, H or R weapons—13 years imprisonment; or

3. (b)
   if paragraph (a) does not apply and the person unlawfully possesses 10 or more weapons—500 penalty units or 10 years imprisonment; or

3. (c)
   if paragraphs (a) and (b) do not apply—

3. (i)
   for a category D, H or R weapon—300 penalty units or 7 years imprisonment; or

3. (ii)
   for a category C or E weapon—200 penalty units or 4 years imprisonment; or

3. (ii)
   for a category A, B or M weapon—100 penalty units or 2 years imprisonment.”

26. [26]
    Section 50(1) goes on to provide for mandatory minimum penalties in particular circumstances, which do not apply here.
27. [27]
    Section 50(2) provides that:

“A court, in sentencing a person found guilty of an offence against subsection (1), may take into consideration whether the person stored the weapon in the way prescribed under a regulation for the weapon.”

28. [28]
    The offence the subject of count 2 arises under s 69(1A)(a) of the Weapons Act, which provides as follows:

“A person who is not a licensed armourer must not manufacture a weapon.

Maximum penalty—

1. for a category D, H or R weapon—500 penalty units or 10 years imprisonment;

2. for a category C or E weapon—300 penalty units or 7 years imprisonment; or

3. for a category A, B or M weapon—200 penalty units or 4 years imprisonment.”

29. [29]
    Section 50(1) of the Weapons Act was enacted in its current form in 2003, by the Weapons (Handguns and Trafficking) Amendment Act 2003.  Prior to that amendment, the maximum penalty for unlawfully possessing a weapon (relevantly, category D, H or R) was two years’ imprisonment, and there was no sliding scale having regard to the number of weapons possessed.  The maximum penalty for an offence under s 69(1A) of the Weapons Act was also increased in 2003, from two years to 10 years’ imprisonment.
30. [30]
    The significant increase in maximum penalty (from two years to 13 years, for an offence under s 50(1)(a)) is explained, in the explanatory notes to the relevant bill,^[2] as follows:

“The Weapons (Handguns and Trafficking) Amendment Bill 2003 details proposed amendments that will give effect to the objectives of the Council of Australian Governments (COAG) agreement, related Australasian Police Ministers Council (APMC) resolutions and to the terms of the National Firearms Trafficking Policy Agreement. The proposed Bill will amend the Weapons Act 1990 (the Act), the Weapons Categories Regulation 1997, the Judicial Review Act 1991, and the Police Powers and Responsibilities Act 2000 (PPRA). Further amendments to the Weapons Regulations will be necessary following passage of the proposed Bill.

As a consequence of a shooting incident by a licensed handgun owner at Monash University on 21 October 2002, the Prime Minister initiated a discussion with Premiers and Chief Ministers about options for tightening handgun control.

Commonwealth, State and Territory Heads of Government agreed to develop a plan to significantly tighten handgun controls. Heads of Government requested that the APMC develop detailed proposals for a national approach to handgun control. In order to facilitate APMC consideration, the Prime Minister provided a list of key measures to promote handgun law reform. The APMC then made specific recommendations for consideration by the COAG.

COAG agreed on a national approach to restrict availability and use of handguns by sporting shooters and endorsed 28 resolutions made by the APMC. COAG agreed that legislative and administrative measures be in place by 30 June 2003 and that a handgun amnesty be in place from 1 July 2003 until 1 January 2004. Further, COAG agreed that a compensation scheme for legally held handguns operate during the amnesty.”

31. [31]
    The explanatory notes go on to state that the proposed legislation under the national agreement contained a broad range of measures which are designed to, among other things, “substantially increase penalties for the illegal possession of a firearm”.
32. [32]
    This purpose of the amendment was further elaborated upon in the notes, as follows:

“Increased penalties

Current penalties under the Act do not reflect the seriousness of the conduct. For example, unlawful possession of highly restricted firearms such as handguns, high-powered semi-automatic rifles, and military style weapons attracts a maximum penalty of only 2 years imprisonment. Unlawful possession of a semi-automatic or pump action shotgun or possession of a bulletproof vest attracts a maximum penalty of only 1-year imprisonment. The unlawful sale or manufacture of these firearms attracts the same minor penalties.

The substantial increase in penalties is considered justified and is required to comply with the COAG Agreement and the Firearms Trafficking Agreement.”

33. [33]
    In the context of a demonstrated national approach to the regulation of firearms, it was entirely appropriate for the sentencing judge to have regard to the decision of the New South Wales Court of Appeal in Fraser, in so far as it informed the relevant sentencing principles.  The particular principle applied – that substantial sentences are imposed for weapons offences, even where offenders have excellent subjective characteristics – is reinforced having regard to the legislative history of s 50(1), and the deliberate, national decision to increase the applicable penalties which was implemented in Queensland by the amendments made in 2003.

Ground 2(b) – was it an error to take into account hypothetical risks to the community?

34. [34]
    The answer to the question posed by ground 2(b) is, simply, no.  As demonstrated by s 3 of the Weapons Act, public and individual safety is at the core of the policy behind the Weapons Act.  The potential risk to the community where a person manufactures and possesses weapons, contrary to the strict requirements of the Act, is plainly a relevant consideration.  The weight to be given to a relevant consideration is a matter for the sentencing judge in the exercise of the sentencing discretion;^[3] and no specific error can be said to arise on this basis.  In any event, the “hypothetical risks” identified by the sentencing judge, in the passage set out in paragraph [17] above, were obvious and concerning – not least arising from the presence of a loaded (chambered) semi-automatic handgun in the bedside drawer, even apart from the multiple weapons found, unsecured, in the garage.  The applicant’s submission, that he ought to have been sentenced on the basis that there was “no or minimal risk” is untenable.

Ground 2(c) – did the principles in AB v The Queen apply?

35. [35]
    The applicant next contends that the sentencing judge erred in failing to provide the applicant with the special leniency called for by the principle in AB v The Queen (1999) 198 CLR 111, as a result of his admissions.
36. [36]
    The relevant principle from AB v The Queen is set out in the reasons of Hayne J at [113]:

“An offender who confesses to crime is generally to be treated more leniently than the offender who does not.  And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known.  Leniency is extended to both offenders for various reasons.  By confessing, an offender may exhibit remorse or contrition.  An offender who pleads guilty saves the community the cost of a trial.  In some kinds of case, particularly offences involving young persons, the offender’s plea of guilty avoids the serious harm that may be done by requiring the victim to describe yet again, and thus relive, their part in the conduct that is to be punished.  And the offender who confesses to what was an unknown crime may properly be said to merit special leniency.  That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of proof of guilt; such a confession will often be seen as exhibiting remorse and contrition.”

37. [37]
    It is apparent from the sentencing remarks that the sentencing judge did take into account the applicant’s cooperation with the police during the search, his pleas of guilty and his indications of remorse.  In Queensland, as is well known, an offender who pleads guilty and is sentenced to imprisonment can very often expect a reduction in the period before their release from custody (on parole, or a suspension of the remainder of their sentence) from the statutory half-way mark,^[4] to one-third of the sentence imposed.^[5]  In the present case, the applicant was given the benefit of a significantly greater reduction, since he was required to serve only six months of the three and a half year sentence.  It may readily be inferred that the many mitigating factors (including those just mentioned) were taken into account in arriving at that reduction.  That was appropriate.
38. [38]
    Having regard to the facts, however, there is no basis to suggest that the applicant ought to have been afforded the special leniency contemplated by AB v The Queen.  His crimes were discovered when the police searched his home and found the weapons the subject of count 1, and items consistent with the manufacturing of firearms (including a 3D printer, laptop, rifling buttons and various firearm parts), which conduct is the subject of count 2.  The applicant admitted the things found were his, and told police he had used his 3D printer to manufacture the components found by police.  He also told police he made everything they found “this year”.  That demonstrated cooperation with the police, as noted by the sentencing judge, but did not constitute confession to an unknown crime.
39. [39]
    Counsel for the applicant emphasised the date range the subject of count 2 (between 1 January 2022 and 8 November 2022); submitting that, absent the applicant’s admission, “all that could have been charged for the manufacturing date was a period of about 7 weeks (the period from 14 September 2022 when postal items were detected by Australian Border Force to 7 November 2022 when during the search police located a printer, laptop, and rifle parts, to show some manufacturing occurred at some stage)”.
40. [40]
    The gravamen of the offence under s 69(1A) is manufacturing (that is, making) a weapon without a licence to do so.  The sliding scale, in terms of penalty, depends upon the type of weapon manufactured.  The number and type of weapons manufactured, the purpose of doing so, and the nature and duration of the manufacturing operation are all matters that could affect the objective seriousness of a particular offence.  But, here, the scope of what was manufactured was identified by what was actually found by police during the search.  The admission made by the applicant did no more than confirm that he had made the things which were found “this year” (that is, during 2022).  That admission did not expand the conduct constituting the offence to matters unknown – it applied to the things that were actually found by the police.
41. [41]
    It is to the applicant’s credit that he cooperated with the police during the search, and made the admissions that he did, as well as pleading guilty to the offences.  Those factors were all taken into account by the sentencing judge.  There was no submission made, at first instance, that greater lenience, of the kind contemplated by AB v The Queen, was called for.  That was appropriate, because the principle does not apply in this case.

Ground 2(d) – delay, cessation of military payments and “relative youth”

42. [42]
    The last of the contended specific errors is that the sentencing judge failed to give “adequate weight” to the delay in the applicant being charged relevant to his rehabilitation, the cessation of his military payments arising from his incarceration and/or his relative youth.  This ground suffers the same difficulties as mentioned above – the weight to be given to relevant considerations is a matter for the sentencing judge in the exercise of their discretion.  In the applicant’s submissions, this ground is adapted to argue that the identified matters were not considered “on the face of the reasons”.  That is incorrect.  It is clear from the sentencing remarks that the sentencing judge took into account each of these factors:

    1. that there was a delay of nine months, from the date of the search, which took place on 7 November 2022, to the applicant being charged with the offences on 5 August 2023 – and that, in that time, the applicant had sold the weapons for which he did hold a licence and took steps to cancel his licence;
    2. that his military payments would cease if he were sent to prison; and
    3. that he was 28 to 29 at the time of the offending, and had no prior criminal history.
43. [43]
    In the circumstances, there was no error of the kind contended for by ground 2(d), as articulated in the application or in the submissions.
44. [44]
    It follows from my rejection of each of the contentions the subject of ground 2 that no specific error was made in the exercise of the sentencing discretion.

Ground 1 – was the sentence manifestly excessive?

45. [45]
    By ground 1, the applicant submits that, apart from specific errors, it should be inferred that there has been a failure to properly exercise the discretion, because the result is “unreasonable or plainly unjust”.^[6]
46. [46]
    Although ground 1 refers to the head sentence of three and a half years “and/or” the requirement to serve six months in actual custody, counsel for the applicant confirmed at the hearing that the argument applies to both elements of the sentence.
47. [47]
    It was not in issue below that a sentence of imprisonment was the appropriate penalty (as opposed to a community based order, for example); and it is not contended that it was not open to the sentencing judge to impose a period of actual custody.^[7]  Nevertheless, the applicant submits the sentence imposed was, in both respects, manifestly excessive, having regard to two decisions – R v Wilson [2022] QCA 18 and R v Dique (a first instance sentencing decision of the District Court made on 28 May 2015).
48. [48]
    Dique may be put to one side immediately, as it is to be inferred from the transcript of the sentencing remarks that there were factors affecting the sentence in that matter which are not articulated in the available remarks.
49. [49]
    The offender in R v Wilson [2022] QCA 18, was convicted on his pleas of guilty of 12 drug offences (including two counts of aggravated possession for a commercial purpose, involving a total of just over 94 grams of pure methylamphetamine) and one offence under s 50(1)(a).  He was sentenced to five and a half years’ imprisonment for the most serious drug offences, a concurrent period of two years’ imprisonment for the weapons offence, and lesser concurrent terms for the remaining offences.  He was required to serve two years before being eligible for parole.  The weapons were found in a self-storage shed of which the offender was the occupier, and included a flick knife, the rear stock of a shotgun and eight firearms (at [5]).  The offender was 31 when he committed the offences and had a “very concerning criminal history”, which included serious drug offences and offences of violence for which terms of imprisonment involving actual custody had been imposed.  He was on parole at the time he committed the offences the subject of the decision.  The sentence of five and a half years’ imprisonment imposed on the most serious drug offences was arrived at taking account of the “overall criminality inclusive of the weapons offences” (at [15]).  In relation to the weapons offence, the Court noted that:

“[14] The maximum penalty for the weapons offence is 13 years’ imprisonment. The sentencing judge described the applicant’s possession of the cache of weapons as ‘extremely serious in its own right’ and observed that it required a material uplift in the sentence for the drug offences. After noting that there had been no considered attempt on the applicant’s behalf to mitigate the seriousness of the possession of so many weapons by a criminal on parole, the sentencing judge remarked that, if the weapons offences had stood alone, it could attract a sentence upwards of two years’ imprisonment.”

50. [50]
    Justice Fraser (with whom Morrison JA and North J agreed) expressed his agreement with that observation, and said that the weapons offence alone should attract two and a half years’ imprisonment (at [25]).  The weapons offence was described as a “serious example of the offence [which] calls for a substantial sentence of imprisonment”.  General deterrence was identified as a relevant sentencing purpose in that case.
51. [51]
    Although the Court in Wilson accepted that an error had been made, in relation to the treatment of time served in pre-sentence custody, the application for leave to appeal the sentence was dismissed, out of fairness to the offender, because the Court concluded that, on a resentence, it would have imposed a more severe sentence than was imposed at first instance (six and a half years on the serious drug offences, taking into account the overall criminality).
52. [52]
    After referring to the sentences imposed, and observations of the Court of Appeal just noted, the sentencing judge said this about Wilson:

“Although the circumstances of that case, in so far as the weapons offence is concerned, are more serious than your case, there was no offence of manufacturing weapons involved.  Because of the drug offences, the Court was not required to undertake any analysis of the principles of sentencing for weapons offences or consider any cases from other jurisdictions.  Your counsel relied on the indicative sentence of two and a-half years as providing some sort of upper benchmark and accordingly, he submitted the appropriate sentence here was between 12 and 18 months to be wholly suspended.”

53. [53]
    As already noted, in the passage set out in paragraph [17] above, the sentencing judge rejected that submission, on the basis that the sentence proposed was not appropriate and would not adequately reflect the purposes of sentencing identified by reference to both the Penalties and Sentences Act and the Weapons Act.
54. [54]
    The applicant relies upon Wilson to submit that the sentence imposed on him is manifestly excessive, emphasising that Wilson involved possession of weapons by a person with a concerning criminal history, whilst on parole, in conjunction with serious drug offending.
55. [55]
    The decision in Wilson does not establish a “yardstick” for an offence under s 50(1)(a); nor was it treated by the sentencing judge as a truly comparable case.  It is but one example of the offence, and it may well have been the case that the serious drug offending, which called for a much higher penalty, overshadowed the consideration of the weapons offence.  In the absence of truly comparable cases, the sentencing judge approached the matter correctly, by finding the facts and identifying the relevant principles.  His Honour appropriately identified that:

    1. general deterrence as an important consideration in sentencing for offences of this kind – consistent with the decisions in Fraser and Wilson;
    2. the legislative scheme provides for substantial sentences to be imposed for weapons offences, and the need for general deterrence means that this is appropriate even where the offenders have excellent subjective characteristics – a factor which is only reinforced having regard to the legislative history, and the deliberate increase in maximum penalties introduced in 2003; and
    3. the additional offence of manufacturing weapons, using a 3D printer, was a serious and disturbing feature, not present in Wilson, and which called for additional punishment – this was achieved by increasing the penalty on the possession offence (consistent with the approach in R v Nagy [2003] QCA 175) rather than imposing cumulative terms.
56. [56]
    To those matters I would also add s 50(2), which expressly provides that, in sentencing a person for an offence against s 50(1), a court may take into consideration whether the person stored the weapon(s) in the way prescribed under the regulations.  Having regard to the objects of the Act (s 3(1)(b)), and s 50(2), the failure to safely and securely store the weapons which were possessed is an aggravating feature of the possession offence.
57. [57]
    Taking all of those matters into account, together with the maximum penalties for both offences, and having regard to the observation made in Wilson that two and a half years could be imposed for the weapons possession offence alone in that case, it cannot be said that a sentence of three and a half years, which factors into account the additional manufacturing offence, is manifestly excessive.  Nor, in my view, is there any basis to conclude that the requirement to serve six months in actual custody rendered the sentence manifestly excessive.  Whilst it is appropriate to observe that the offender in Wilson had far worse antecedents, that was reflected in the time he was required to serve (two years) before being eligible for parole.  Once a sentence of imprisonment was imposed, the requirement to serve some time in actual custody was open.  The sentencing judge gave the applicant the benefit of his many favourable mitigating features in reducing that period of time to six months, and suspending the sentence at that point.
58. [58]
    I would dismiss the application.

59. [59]
    BOND JA:  I agree with the reasons of Bowskill CJ and the order proposed by her Honour.
60. [60]
    VAUGHAN AJA:  I agree with Bowskill CJ's reasons and the order proposed by the Chief Justice.