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[2026] ACTSC 281
Supreme Court of the ACT
2026-08-04
McWilliam J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Fisher (No 2) Citation: [2026] ACTSC 281 Hearing Date: 4 August 2026 Decision Date: 4 August 2026 Before: McWilliam J Decision: Drug and Alcohol Treatment Order cancelled. Offender resentenced to 1 year, 10 months and 28 days, partially suspended from 10 August 2026. Catchwords: CRIMINAL LAW – DRUG AND ALCOHOL SENTENCE LIST – cancellation application – whether offender unwilling or unlikely to comply with conditions of treatment order – where little rehabilitation achieved and continuation of treatment and supervision component of treatment order unlikely to achieve the objects of the order – treatment order cancelled – where significant time in pre-sentence custody should be taken into account – offender resentenced Legislation Cited: Crimes (Sentence Administration) Act 2005 (ACT), ss 85, 86 Crimes (Sentencing) Act 2005 (ACT), ss 13(4)(g), 80ZE, 95 Cases Cited: DPP v Fisher [2025] ACTSC 442 Figura v DPP [2025] ACTCA 48 R v Tonna (No 2) [2020] ACTSC 362 Parties: Director of Public Prosecutions Dennis Fisher (Offender) Representation: Counsel T Kelliher (DPP) E Small (Offender) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Offender) File Number: SCC 103 of 2024 McWILLIAM J:
The Treatment Order
Dennis Fisher (the participant) is currently subject to a Drug and Alcohol Treatment Order (Treatment Order) that was made on 29 September 2025 in respect of 1 offence of aggravated robbery by joint commission following the imposition of a sentence of imprisonment for 1 year, 10 months and 28 days: see DPP v Fisher [2025] ACTSC 442.
At the time the sentence was imposed, the participant had spent 314 days in custody, referable to that offending. Taking that period of time into account resulted in a Treatment Order being made for the remainder of the sentence, being a period of 1 year and 18 days, which was scheduled to conclude on 16 October 2026. While the Treatment Order was in place, the custodial part of the participant’s sentence was suspended.
Since that time, the participant has spent a further 13 days in custody, having been arrested on 23 July 2026.
The Application for Cancellation
The participant is before the court pursuant to an application brought by the prosecution under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The application seeks to cancel an order made in respect of a person participating in the drug and alcohol treatment programme administered by the court. It was heard on 4 August 2026.
The two statutory bases relied upon by the prosecution are to be found in paragraphs (c) and (d) of s 80ZE(1) of the Sentencing Act, namely: (a) the participant is unwilling or unlikely to comply with a condition of the Treatment Order; or (b) the continuation of the treatment and supervision part of the Treatment Order is not likely to achieve the objects of the order.
The Treatment Order imposed in respect of the participant should be cancelled
I have decided that it is appropriate in the exercise of the court’s discretion to cancel the Treatment Order because I was satisfied that each of those two limbs had been established. This was accepted by the participant during the hearing.
The participant had achieved limited rehabilitation since the order was imposed. He recommenced use of illicit drugs less than a month into the Treatment Order and disengaged from the Treatment Order at the beginning of December 2025. A warrant was issued for his arrest, and he remained at large in the community until 23 July 2026.
His conduct indicated that he was unwilling to comply with the conditions of the order. Further, in circumstances where there is less than three months of his entire sentence remaining, I was satisfied that the continuation of the Treatment Order was not likely to achieve the objects of the order. Accordingly, the Treatment Order will be cancelled.
The offender should be resentenced
The consequences of the decision to cancel the Treatment Order are set out in s 80ZE(2) of the Sentencing Act. The relevant part of the section is as follows: (2) If the court decides to cancel a treatment order under subsection (1) the court must make an order cancelling the treatment order and, taking into account the extent to which the offender has complied with the treatment and supervision part of the order, either— (a) impose the sentence of imprisonment that was suspended under the custodial part of the treatment order; or (b) if the court considers it appropriate in the circumstances—resentence the offender for each offence in relation to which the treatment order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and alcohol treatment orders).
As the words of the section make clear, the court has two options. The first is to impose the sentence of imprisonment that was originally imposed under the custodial part of the treatment order: s 80ZE(2)(a) of the Sentencing Act. The second is to resentence the offender: s 80ZE(2)(b) of the Sentencing Act. This is a discretionary decision which depends on each participant’s circumstances: see R v Tonna (No 2) [2020] ACTSC 362 at [78]-[79], where some of the kinds of considerations that would lead to resentencing were set out, such as where the offender has made substantial efforts at rehabilitation and achieved progress, such that the original sentence may no longer be appropriate.
The applicable principle was articulated in Figura v DPP [2025] ACTCA 48 at [49]: An offender extended the opportunity through a DATO to serve a period of imprisonment in the community to address the challenge of addiction, and who fails to adequately demonstrate compliance with the conditions of that opportunity, should not expect to receive a lesser sentence if the DATO is cancelled for non-compliance, particularly where that non-compliance occurs early in the DATO. The purpose of a DATO is to support offenders to address the primary criminogenic risks factor driving them to engage with the criminal justice system and thereby protect the community from future harm. Non-compliance with the conditions of the opportunity afforded undermines the capacity of the sentence to serve the interest that the community has in offender rehabilitation. Where there has been no demonstrated rehabilitation, and no significant sacrifice to an offender in complying with the DATO for the period prior to cancellation, there will be no basis upon which to reduce the sentence originally imposed.
The history of compliance under the Treatment Order has already been discussed in relation to the cancellation decision. The offender’s subjective circumstances are relevant to that question. They are well known to the court and were alluded to in Fisher at [22]-[24]. As submitted by the participant, a lengthy period of full-time custody will weigh more heavily upon him due to his various medical conditions. In addition, rehabilitation in the form of long-term abstinence from drugs is notoriously difficult to achieve. As I said when sentencing the participant in Fisher at [34], an offender’s attitude and timing play a big role in whether they are ultimately successful. The participant must be psychologically ready for what is usually a rocky journey.
The question is finely balanced in this case, having regard to the need to maintain the integrity of the scheme that the legislature set up, the purpose of the treatment order and the participant’s combined circumstances. While I was initially of the view, that the remainder of the sentence of imprisonment was the appropriate outcome, on deeper reflection I consider that the offender should be resentenced as that is the sentencing option that best takes account of the significant period of full-time custody that the offender has already served referable to this offence. He also now has additional pro-social supports in the community that may assist him not to offend in the future such that partial suspension of the sentence rather than the setting of a non-parole period is appropriate, and the prosecution was not heard against that course.
It should be made clear to the participant that he will have further options to rehabilitate if he chooses. He is unlikely to be able to achieve this without a high degree of support, but there are programs available to him, including while undertaking a good behaviour order, that he can seek to pursue. In the events that have transpired this Treatment Order has not suited the participant’s circumstances, whether that be because he had mental health challenges that could not be overcome or other circumstances that prevented his full commitment, or he was simply not ready. But rehabilitation takes many forms, and the fact that one did not work at this time does not mean that it is not worth trying other options. In short, the participant should never give up.
I have considered it appropriate to partially suspend the sentence from next Monday, by which time he will have served approximately half of the sentence imposed in full-time custody, which is the minimum period that I considered justice to require in order to give effect to the full suite of sentencing objectives. This is also an offender who has previously spent years in gaol. He is institutionalised and will need a lengthy period under supervision in order to give him the best chance to successfully reintegrate. Orders
The orders of the Court are: (1) Pursuant to s 80ZE(1)(c) and (d) of the Crimes Sentencing Act 2005 (ACT), the drug and alcohol treatment order made on 29 September 2025 in respect of Dennis Fisher is cancelled. (2) Pursuant to s 80ZE(2)(b) of the Sentencing Act, the offender is resentenced for the offence of aggravated robbery (CAN 539/2024) with the conviction confirmed and a term of imprisonment imposed for 1 year, 10 months and 28 days, backdated to commence on 11 September 2025 and conclude on 7 August 2027. (3) The sentence is to be suspended after 11 months or from 10 August 2026, upon the offender giving an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 10 August 2026 until 7 August 2027, with the following conditions: (a) The core conditions under ss 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT); (b) Pursuant to ss 13(4)(g) and 95 of the Sentencing Act, a probation condition (as defined in the Sentencing Act) including that: (i) The offender report to ACT Corrective Services on or before 4:00pm on Monday 10 August 2026. (ii) Thereafter, the offender is to submit to the supervision of the Director-General responsible for administering the sentence or their delegate, for as long as deemed necessary, including to comply with any reasonable directions targeted at supporting the offender’s rehabilitation, including abstention from controlled substances, such as urinalysis.
I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.
Associate: Date:
DPP
Fisher (No 2)