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[2025] ACTCA 48
respondent. Appeal dismissed. The Court held that the error in imposing the whole original sentence did not enliven resentencing because it could only have operated in the appellant’s favour. The sentence and...
Figura received a DATO after sentencing for serious driving offences. After repeated breaches, the order was cancelled and the suspended prison sentence was put into effect. The sentencing judge imposed the full original sentence, although the law required imposition of only the part that had been suspended. The Court of Appeal found that this mistake favoured Figura, so it did not justify a fresh sentencing exercise. It also held that the decision to impose the suspended sentence, the original sentence and the non-parole period were not manifestly excessive. The appeal was dismissed.
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2,243 words · generated 06/10/2026
Figura v DPP [2025] ACTCA 48 is an ACT Court of Appeal decision about sentencing after cancellation of a Drug and Alcohol Treatment Order (DATO), the effect of a sentencing error that favoured an appellant, and an appeal alleging manifest excess. The Court, constituted by Baker and Taylor JJ and Elkaim AJ, dismissed the appeal on 17 November 2025.
4 cited instruments linked from this judgment.
Figura had originally been sentenced on 4 November 2024 for three offences: aggravated furious driving as a repeat offender, failing to give particulars to police, and driving while disqualified as a repeat offender [5], [11]. The Court’s background describes a sequence in which the appellant failed to stop for police, drove away from them, reversed into an unoccupied Suzuki, drove over a grassed area and later failed to give way at a roundabout during another attempted police stop [6]. The sentencing judge regarded the conduct as capable of causing significant harm and observed that more serious consequences had been avoided by good fortune [8].
The original sentence for aggravated furious driving was 15 months’ imprisonment. With time already served and the appellant entering a DATO, 12 months and 12 days of that sentence was suspended under the treatment order [11]-[12]. The DATO was intended to provide treatment and supervision while the custodial part of the sentence was suspended.
The record of compliance was mixed but, after about six weeks of positive engagement, included positive drug or alcohol tests, missed testing, curfew breaches, substance use, missed rehabilitation and eventual disengagement [16]-[19]. The primary judge cancelled the DATO on 22 May 2025. On 5 June 2025, the judge decided to impose the suspended sentence rather than resentence Figura, imposed 15 months and set a non-parole period of 9 months and 22 days [14], [19]-[24].
On appeal, the DPP identified that the primary judge had imposed too much of the original sentence. The Court of Appeal agreed that the correct amount to impose under s 80ZE(2)(a) was 12 months and 12 days, the portion suspended under the DATO, rather than the original 15 months [26]-[30]. However, it concluded that the mistake could only have helped Figura and did not require the Court to resentence him [33]-[37]. It then rejected the manifest-excess challenge to the relevant sentencing decisions [38]-[61].
The first important issue was the statutory meaning of imposing a sentence after cancellation of a treatment order. Section 80ZE(2) provides two alternatives: impose the imprisonment suspended under the custodial part of the treatment order, or, if appropriate, resentence the offender for each offence [26]. Relying on Allred v DPP, the Court held that the first alternative means imposing only the suspended part, not the entire original sentence [27], [29].
The original sentence had been 15 months, but the amount suspended under the DATO was 12 months and 12 days. The primary judge instead imposed the full 15 months and backdated it to account for custody [29]. The Court explained that this produced a sentence ending on 4 March 2026 rather than 7 March 2026, due to the way the date of sentence and February days were counted [30]. It did not treat the arithmetic discussion as changing the essential point: the statutory amount to impose was the suspended part.
The next issue was whether the Court had to conduct a new sentencing exercise because of that error. The Court adopted the approach that resentencing requires a material error, meaning one with capacity to influence the sentence imposed [34]-[35]. It preferred authorities stating that an error must have capacity to operate to the appellant’s prejudice before the resentencing discretion is enlivened. Its stated reason was that sentence appeals correct errors with material effect, not errors that could only have benefited the appellant [35].
The Court was careful not to make that principle automatic. It warned that an error that appears favourable may reveal other, hidden problems in the sentencing process, so the court must assess whether the error is genuinely discrete [36]. Here, it found the error discrete. The respondent did not contend that the sentence was manifestly inadequate and did not seek an increase in the head sentence or non-parole period [37]. The Court also declined to decide whether the correct suspended term would have led to a different non-parole period, because it was unnecessary to resolve that question [32]-[33].
On the decision to impose rather than resentence, the Court treated the DATO compliance record as central. Figura had positive engagement for about six weeks, but then repeated substance use and failures to comply with testing and rehabilitation requirements [16]-[19], [46]. The primary judge had recognised that rehabilitation is not linear, but concluded that the period and examples of non-compliance were sufficient to show that the treatment order had not achieved its purpose in this case [19], [48]. The Court held that it was open to the primary judge to impose the suspended sentence [50].
The Court also rejected the claim that the original sentence was manifestly excessive. It emphasised the restrained appellate role in reviewing a discretionary sentence: a different view about the appropriate sentence is not enough. The relevant threshold is a sentence that is unreasonable or plainly unjust [38]-[39]. Applying that approach, the Court considered the dangerous driving, the appellant’s record of driving offences, his prior disqualifications and prior furious-driving conviction, the need for deterrence and denunciation, and community protection [52]-[58]. It found the 15-month sentence within the permissible bounds [58].
Finally, the Court considered the non-parole period. The primary judge had regard to Figura’s recent participation in a driver education program, but also to his DATO non-compliance and guarded prospects of rehabilitation [59]-[60]. The Court found the period of 9 months and 22 days within the sentencing discretion [61].
Before this decision, Allred v DPP [2025] ACTCA 25 had addressed the meaning of imposing a sentence under s 80ZE(2)(a). As the Court recounted it, Allred held that the court must impose only the part suspended under the treatment order [27]. Figura applies that interpretation directly: a 12-month-and-12-day suspended part was the amount that should have been imposed, rather than the whole 15-month original sentence [29].
The decision also adds an ACT Court of Appeal statement about the consequence of a sentencing error that benefits an appellant. It considered differing approaches in other appellate decisions. Some authorities suggested that even a favourable error might trigger resentencing, while others required capacity for prejudice [34]. The Court preferred the latter approach, on the basis that the purpose of a sentence appeal is to correct material effects on the sentence [35].
That position is qualified rather than absolute. An apparently favourable error may be a sign that other, latent parts of the sentencing process miscarried [36]. The judgment therefore distinguishes a genuinely isolated error from one that has broader consequences. In Figura, the mistake was found to be discrete and favourable, and the DPP did not seek an increase [37].
The decision also explains the sentencing significance of DATO compliance in this setting. The extent of compliance is a significant consideration when choosing whether to impose the suspended sentence or resentence [44]-[46]. The judgment does not establish that every breach must lead to imposition. Rather, it upholds the primary judge’s decision on this record, which included early and repeated non-compliance and a failure to sustain rehabilitation engagement [46]-[50].
The case’s own analysis is the available account of the law before and after this decision. The supplied judgment does not identify subsequent decisions applying, distinguishing or reconsidering Figura.
At [26], the Court sets out s 80ZE(2): after cancelling a treatment order, the court may impose the suspended prison sentence or resentence the offender, taking compliance into account. In plain English, cancellation does not itself dictate a single sentencing response; the statute provides two options.
At [27], the Court explains Allred’s interpretation: “only that part of the sentence that had been suspended” is to be imposed. Put simply, the court does not revive the whole original sentence under that option if part of it was already served or otherwise not suspended.
At [35], the Court states: “An error that can only have operated in favour of the appellant should not result in this Court undertaking the sentencing discretion afresh.” This is the decision’s central statement on favourable sentencing errors. The appellate court’s role is not to reopen sentencing just because an error occurred, if that error could not have harmed the appellant.
At [36], the Court adds an important caution: some errors may point to “other latent aspects” of sentencing that miscarried. In plain terms, a court should not assume an error is harmless merely because one visible consequence appears beneficial. It should consider whether the error signals a wider problem.
At [49], the Court describes the consequences of non-compliance with a DATO. It says an offender should not expect a lesser sentence after cancellation for non-compliance, particularly where the non-compliance occurs early and rehabilitation has not been demonstrated. Read in context, this supports the result on Figura’s facts; the judgment does not say that every breach invariably requires imposition.
At [58] and [61], the Court concludes that the 15-month sentence and the non-parole period of 9 months and 22 days were “well within the bounds” of the sentencing discretion. These passages record the Court’s rejection of manifest excess, rather than a separate calculation of what sentence it would have imposed.
The decision is most directly relevant where a DATO has been cancelled and the sentencing court chooses the statutory option of imposing the sentence suspended under the custodial part. It clarifies that the relevant amount is the suspended portion, not automatically the whole original sentence [26]-[30].
It is also relevant where a sentence appeal reveals an error that appears to benefit the appellant. The court’s approach requires attention to materiality and prejudice: does the error have capacity to influence the sentence adversely, or is it isolated and favourable? The warning at [36] matters where the error could indicate a wider failure in the sentencing process.
For the DATO choice, the record that mattered here included early positive compliance followed by repeated substance use, missed testing, curfew breaches and failure to attend rehabilitation [16]-[19], [46]. The Court’s reasoning is fact-sensitive. It upheld the primary judge’s assessment that there had been enough time and examples of non-compliance to conclude the treatment order opportunity had not succeeded [48]-[50].
The manifest-excess analysis is relevant to appeals challenging the severity of a discretionary sentence. The judgment identifies the demanding nature of the threshold and applies it to dangerous driving, repeat offending, prior driving disqualifications and community-protection concerns [38]-[39], [52]-[58]. It does not prescribe a sentencing range for aggravated furious driving.
The supplied decision is dated 17 November 2025 and does not cite any later decisions considering Figura. On the materials provided, it is not possible to describe subsequent judicial treatment of this case.
Within Figura itself, the Court applied Allred v DPP on the meaning of the sentence to be imposed after DATO cancellation [27], [29]. It also considered decisions taking different approaches to favourable errors and expressly preferred the approach requiring capacity for prejudice [34]-[35]. The decision therefore records its own treatment of those authorities, but not later treatment of Figura by other courts.
The judgment cites Tracey v The Queen, Zdravkovic v The Queen and Dinsdale v The Queen for the principles governing manifest excess [38]-[39]. Those citations show the framework the Court used in deciding this appeal. They do not establish how later courts have treated Figura.
The Court did not decide whether the non-parole period would have been different had the primary judge correctly imposed 12 months and 12 days rather than 15 months [32]-[33]. It found that determination unnecessary because the error could only have operated in Figura’s favour. The relationship between the head sentence, backdating and non-parole period may therefore require attention in a future case where the error’s effect is not clearly favourable.
The Court’s approach to favourable errors also leaves factual questions for future cases. It says that a discrete error that can only benefit the appellant will not trigger resentencing, but warns that an error may reveal latent miscarriages [35]-[36]. Determining when an error is genuinely isolated will depend on the sentencing reasons and the practical effect of the error.
The DATO discussion does not supply a fixed threshold for non-compliance. It identifies compliance as significant and upholds the decision on the particular record, but does not specify how much non-compliance, over what period, requires imposition rather than resentencing [44]-[50]. Nor does it prescribe how different forms of progress or treatment engagement should be weighed in other cases.
There are apparent date inconsistencies in the supplied judgment text. For example, the offending is described as occurring on 7 February 2024 at [6], but as occurring on 7 February 2023 at [52]. Paragraph [51] refers to a sentence imposed on 4 November 2025, although the background identifies 4 November 2024 [5], [11], and [59] refers to sentence on 5 June 2024 despite the appeal record stating 5 June 2025. These inconsistencies are noted here without resolving them.
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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 COURT OF APPEAL
Case Title: Figura v DPP Citation: [2025] ACTCA 48 Hearing Date: 11 November 2025 Decision Date: 17 November 2025 Before: Baker and Taylor JJ, Elkaim AJ Decision: The appeal is dismissed. Catchwords: APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentence manifestly excessive – driving offences – appellant initially sentenced to a DATO – DATO subsequently cancelled – whether primary judge erred in imposing the original suspended sentence – where resulting error operated in favour of appellant – whether error in favour of appellant a material error requiring resentence – sentence including non-parole period not manifestly excessive – appeal dismissed Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 12A, 80W, 80ZE, 80ZH Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (Road Rules) Regulation 2017 (ACT) s 287 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 6 Cases Cited: Allred v DPP [2025] ACTCA 25 Benn v R [2023] NSWCCA 24; 305 A Crim R 550 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 DPP v Figura (No 2) [2025] ACTSC 233 DPP v Figura [2024] ACTSC 358 Gordon v Tasmania [2020] TASCCA 17 Hughes v R [2024] SASCA 110 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 R v Czerniawsky [2009] VSCA 2 Singh v R [2018] NSWCCA 60 The Queen v Omari [2022] ACTCA 4 Tracey v The Queen [2020] ACTCA 51 Williams-Savage v The Queen [2022] ACTCA 58 Wilson v R [2025] NSWCCA 86 Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 Parties: Ashley Brian Figura (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel Self-represented (Appellant) M Howe (Respondent) Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 25 of 2025 Decision Under Appeal: Court: ACT Supreme Court Before: Christensen AJ Date of Decision: 5 June 2025 Case Title: DPP v Figura (No 2) Citation: [2025] ACTSC 233 Court File Numbers: SCC 177 of 2024 SCC 178 of 2024 THE COURT: Overview
Mr Ashley Figura (the appellant) appeals from the sentence imposed on him by Christensen AJ (the primary judge) following the cancellation of a Drug and Alcohol Treatment Order (DATO).
The appellant is self-represented. The only ground of appeal in his Notice of Appeal is that the sentence imposed is manifestly excessive.
On the appeal, counsel for the respondent drew the Court’s attention to an error in the primary judge’s approach to the imposition of the sentence following cancellation of the DATO. However, as the respondent submitted, that error could only have operated in favour of the appellant. As the error did not have the capacity to have operated adversely to the appellant, the power to resentence is not enlivened.
The sentence imposed following the cancellation of the DATO was not manifestly excessive. It follows that the appeal must be dismissed.
Background
The offending
The appellant was originally sentenced by the primary judge on 4 November 2024 for the following three offences: (a) Aggravated furious driving (repeat offender), contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), carrying a maximum penalty of 5 years imprisonment, 500 penalty units, or both. An automatic minimum licence disqualification for 12 months applies. (b) Not give particulars to police, contrary to s 287(1) of the Road Transport (Road Rules) Regulation 2017 (ACT), carrying a maximum penalty of 20 penalty units. (c) Drive while disqualified (repeat offender), contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), carrying a maximum penalty of 1 year imprisonment, 100 penalty units, or both. An automatic minimum license disqualification for 24 months applies.
The circumstances of these offences were described by the primary judge in her reasons for sentence as follows: On 7 February [2024] at about 9:54am, police were stationery at an intersection in Downer. The police observed a black Holden Commodore to be speeding on a nearby residential street. Police activated their emergency warning devices and signalled for the vehicle to stop. It did not do so, and police lost sight of the vehicle. At about 10:20am, police received information of the same vehicle driving into a retirement village in Higgins. Police arrived at the location at about 10:37am and began to circulate the village. The vehicle was found to be stationery, about 50 metres down a driveway. The front end of the vehicle was facing a police vehicle. Police activated their emergency warning devices and drove down the driveway towards the vehicle. The vehicle rapidly reversed away from police, around a tight corner. The vehicle continued to reverse away from police, before it collided into the rear of an unoccupied parked Suzuki Jimny. The force of the impact pushed the Suzuki off the concrete surface and into a garden bed. It came to a stop at the rear of the village. The vehicle rapidly accelerated onto a grass bed, and over a small grassed knoll adjacent to the roadway in the retirement village. It then drove directly past a police vehicle that was stationary on the opposite side of the grassy knoll. Police got out of their vehicle and prepared to deploy a tyre deflation device. At this time, they were able to identify the driver of the vehicle as Mr Figura. He had a female passenger. Mr Figura continued away from police and they lost sight of the vehicle. They began conducting patrols in the immediate area. At about 10:40am, it was seen traveling westbound on Belconnen Way in Scullin. Mr Figura was seen to fail to give way at a roundabout. Police initiated a pursuit, again activating emergency warning devices. Mr Figura did not stop. Police pursued him along William Hovell Drive for approximately 30 seconds before losing sight of the vehicle. The pursuit was terminated at about 10:42am. On 21 February 2024, police attended at a residence in Bonner and saw Mr Figura jump from the rear yard of the residence into a neighbouring yard. Police were able to apprehend him.
The original sentences
In her reasons for sentence, the primary judge found that the offending was serious, noting that it was “capable of causing significant harm to community members with the potential for grave consequences”, and that “[i]t is only by good fortune that more serious outcomes did not occur”: Figura (No 1) at [13].
After surveying the appellant’s criminal history, the primary judge concluded that “it is obvious that [the appellant] is a recidivist offender in this respect, and his criminal history suggests that strongly deterrent sentences which prioritise community protection from this form of offending are warranted”: Figura (No 1) at [37].
However, in view of the appellant’s long standing issues with drug use (commencing with cannabis use at 15 years and methamphetamine use at age 21), and the appellant’s genuine commitment to engaging with rehabilitation, the primary judge found that it was appropriate to afford the appellant the benefit of a DATO: Figura (No 1) at [53] – [71].
The primary judge imposed the following sentences:
(1) Ashley Brian Figura be convicted of driving while disqualified (repeat offender) (CAN 2024/2367) and sentenced to 6 months imprisonment, reduced from 8 months imprisonment on account on his plea of guilty, commencing 16 February 2024 and ending on 15 August 2024.
(2) Ashley Brian Figura be convicted of aggravated furious driving (repeat offender) (CAN 2024/2365) and sentenced to 15 months imprisonment, reduced from 20 months imprisonment on account on his plea of guilty, commencing 16 August 2024 and ending on 15 November 2025.
(3) Ashley Brian Figura be convicted of not giving particulars to police (CAN 2024/2366) and no penalty is imposed.
(4) On the breach of the Good Behaviour Order in CAN 2023/3207, I find the breach proved and resentence Ashley Brian Figura to the rising of the Court.
(5) A total term of imprisonment of 21 months be imposed, to commence on 16 February 2024 and end on 15 November 2025.
The sentences for the offences were backdated to take the appellant’s presentence custody into account. The effect of the sentences imposed by the primary judge was that the sentence for the offence of drive whilst disqualified was fully served at the time of sentence, and approximately three months of the sentence for the offence of aggravated furious driving had been served, with the balance (12 months and 12 days) suspended upon the appellant entering into the DATO under s 12A of the Crimes (Sentencing) Act 2005 (ACT). The DATO commenced on 4 November 2024, and was to end on 15 November 2025. The custodial part of the DATO was suspended under s 80W of the Crimes (Sentencing) Act until 15 November 2025, and the treatment and supervision part of the DATO was to be for a period of 12 months and 12 days, expiring on 15 November 2025. Various conditions to facilitate the appellant’s treatment were also imposed. The cancellation of the DATO
On 19 March 2020, the prosecution applied for a cancellation of the DATO. That application was brought pursuant to a review of the DATO under s 80ZH of the Crimes (Sentencing) Act: DPP v Figura (No 2) [2025] ACTSC 233 (Figura (No 2)) at [1].
The hearing of the cancellation application was delayed so as to enable the appellant an opportunity to secure a place in a residential rehabilitation program. However, when it became apparent that there was no suitable rehabilitation program, the appellant conceded that cancellation of the DATO was the only appropriate course: Figura (No 2) at [2]. The DATO was accordingly cancelled by the primary judge on 22 May 2025.
The decision to reimpose the sentence
As the DATO had been cancelled, it was necessary for the primary judge to consider whether to impose the sentence, or to resentence the appellant: s 80ZE of the Crimes (Sentencing) Act.
The primary judge recorded that there had been a period of approximately 6 weeks during which the appellant positively engaged with the DATO: DPP v Figura (No 2) at [9]. However, there were issues with compliance with the order after that time, including:
(a) A positive urinalysis result for alcohol use in mid December 2024. Mr Figura’s explanation was that he had eaten beer-battered ribs at a barbeque.
(b) A non-attendance for urinalysis testing on 30 December 2024.
(c) A positive urinalysis result for methylamphetamine in early January 2025, which was admitted, along with non-attendance for urinalysis and a breach of a curfew condition.
(d) Further substance use and a curfew breach during January, which led to provisional cancellation of the order and a return to custody for a period of seven days.
(e) Some two weeks after the release from custody, there were occasions of noncompliance with urinalysis testing and further substance use admitted.
(f) Noncompliance with attendance at his drug and alcohol recovery rehabilitation program. See Figura (No 2) at [10].
The primary judge also recorded (at [11] – [13]) that: Mr Figura reported to the treatment team that he was finding external pressures challenging and was experiencing being overwhelmed by his obligations. He had some occasions of illness. He also ceased use of pharmacotherapy which had a detrimental effect on his ability to remain abstinent from substances. He reported that the initial provisional cancellation of the order, and the return to custody for a period of seven days, provided him with an opportunity for a ‘reset’. Upon his release, he recommenced pharmacotherapy, reengaged with his rehabilitation program, and participated in prosocial activities such as attending the gym. Arrangements were made for Yeddung Mura to provide support to Mr Figura. Unfortunately, this commitment to rehabilitation was not maintained. Mr Figura reported injuring himself in a motorbike accident and he came to engage again in substance use and he disengaged from the rehabilitation program and the treatment team. On 4 March 2025, Mr Figura failed to appear at court for a scheduled review. A warrant was issued for his arrest, which was executed the following day.
Finally, the primary judge noted that the appellant had been arrested for alleged family violence offences on 5 March 2025, in relation to offending that was alleged to have been committed on 13 and 28 February 2025, an alleged offence of possession of stolen property on 3 March 2025 and alleged offences of driving a stolen motor vehicle and unlicensed driving on 5 March 2025: Figura (No 2) at [14]. The primary judge noted that the appellant had not been convicted of these offences, and that the alleged offending did not form any part of the alleged noncompliance with the treatment order. However, the fact that the appellant had been remanded in custody on those charges was relevant to the appellant’s continued inability to otherwise continue engagement with the DATO: Figura (No 2) at [14] – [15].
The primary judge then continued (at [17] – [22]): It was observed at the original sentence hearing that Mr Figura had indicia for rehabilitative success with protective factors available and a motivation to rehabilitate: DPP v Figura at [63]. It was also observed that his history of noncompliance with community based orders gave pause as to his prospects on the order: DPP v Figura at [63]. Nonetheless, it was recognised that a treatment order provides a mechanism of oversight that does not allow scope for disingenuous efforts at rehabilitation and that noncompliance with such an order is able to be rapidly addressed, and, if appropriate, responded to by a return to custody: DPP v Figura at [58]. This matter has become an example of that. Mr Figura’s compliance with the order was mixed, albeit mostly involving negative compliance. While there were short periods of compliance and substance abstinence, there were also numerous occasions of noncompliance resulting in accrual of sanction points, and two occasions of provisional cancellation of the order. There was then a failure to commit and engage with the requirements of the order. The Court does recognise the non-linear nature of rehabilitation, this plainly being the nature of the recovery journey that Mr Figura grapples with. While Mr Figura did not have a lengthy period of time on the order to demonstrate his ability to comply and to achieve the order’s objects, there was nonetheless sufficient time, and examples of noncompliance, to conclude that the treatment order opportunity was not the occasion on which Mr Figura would succeed in his rehabilitation. He failed to demonstrate the commitment to his rehabilitation, and the treatment order, that was necessary to achieve the objects of the order. The extent of this noncompliance is such that it is not appropriate in the circumstances to resentence. Further, there has not been compelling changes in his subjective circumstances that would tend towards a basis to enliven a resentence exercise. This is not to say that there has not been some positive action taken by Mr Figura in recent times. I will return to this. But I do not accept it is a circumstance that is sufficiently compelling to enliven the resentence exercise that was sought on his behalf. Imposition is the only appropriate course. Participants on a drug and alcohol treatment order must expect that there are significant consequences, through imposition of the sentence of imprisonment that was suspended, where there is not a demonstrated and genuine commitment to the privilege that a treatment order provides.
(a) 16 August 2024 to 4 November 2024: 81 days (prior to original sentence imposition);
(b) 4 February 2025 to 11 February 2025: 8 days (during treatment order); and
(c) 5 March 2025 to 20 March 2025: 16 days (during treatment order). See Figura (No 2) at [28].
In addition, the primary judge noted that the appellant had been in custody since he was remanded by the Magistrates Court on 5 March 2025 (that custody relating to both the further charges and the provisional cancellation of the treatment order) and that, following cancellation of the treatment order on 22 May 2025, the appellant had been in custody with respect to both the Magistrates Court and the Supreme Court matters: Figura (No 2) at [30].
The primary judge concluded that a total of 182 days in presentence custody should be applied, resulting in a commencement date of the imposed sentence of 5 December 2024: Figura (No 2) at [31]. Her Honour set a non-parole period of 9 months and 22 days, which represented approximately 65 per cent of the overall term.
Determination
Error in imposing the whole of the original sentence
In accordance with his duty to the Court, counsel for the respondent identified an error in the sentence imposed on 5 June 2025.
Section 80ZE(2) of the Crimes (Sentencing) Act states that: (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).
In Allred v DPP [2025] ACTCA 25, this Court held that a decision to “impose the sentence of imprisonment that was suspended under the custodial part of the treatment order” under s 80ZE(2) requires that the Court only impose “that part of the sentence that had been suspended under the Treatment Order”: Allred at [35], [45]. In Allred, the primary judge had, “instead of imposing only that part of the sentence that had been suspended under the Treatment Order (three years and four months) imposed the whole of the sentence three years and 10 months)”: Allred at [45]. However, the Court noted that the error “gave rise to no adverse consequence so far as the appellant was concerned” because the primary judge backdated the sentence so as to take account of the additional six month period that had already been served: Allred at [45]. Indeed, as the non-parole period in Allred was arrived at by the application of a percentage (55 percent) of the overall sentence, the non-parole period was substantially shorter than would have been the case if the suspended portion of the sentence had been imposed: Allred at [47] – [48].
This error was not pleaded in the Notice of Appeal in Allred, and the Court held that leave should be refused in circumstances where the error had not given rise to any practical consequence to the appellant, but in fact had conferred a benefit upon him, and where the Director did not contend that any adverse alteration to the non-parole period should be made: Allred at [50] – [51].
Similarly, in the present case, the “part of the sentence that had been suspended under the Treatment Order” was a period of imprisonment of 12 months and 12 days. It is that period which should have been imposed when a decision was made to impose the sentence of imprisonment under s 80ZE(2)(a). However, the primary judge, in accordance with the then practice of the Drug and Alcohol List, instead imposed the full period of 15 months’ imprisonment, which was then backdated by 182 days.
The decision to impose the sentence suspended under the custodial part of the DATO
As outlined above, on 5 June 2025, the primary judge had two options available to her after cancelling the DATO. Her Honour could have either “impose[d] the sentence of imprisonment that was suspended under the custodial part of the treatment order” or she could have resentenced “the offender for each offence in relation to which the treatment order was made…”: s 80ZE(2) of the Crimes (Sentencing) Act.
As counsel for the respondent submitted, where there has been a cancellation of a DATO pursuant to s 80ZE, the extent of the offender’s compliance with the DATO will be a significant consideration when determining whether to impose the suspended sentence, or to resentence.
In the present matter, the appellant’s non-compliance with the DATO included repeated substance use, as demonstrated by positive urinalysis and admissions over a period of some weeks and failure to attend drug and alcohol rehabilitation. This non-compliance occurred against the background of a period of only six weeks of positive compliance with the DATO.
In his oral submissions, the appellant submitted that the primary judge had failed to give weight to the rehabilitation that he had undergone, and the struggles that he had had in complying with the DATO. He acknowledged that he had had some “slip ups”, but said that this is common in overcoming addiction.
However, it is clear that the sentencing judge took these matters into account. Her Honour expressly recognised “the non-linear nature of rehabilitation, this plainly being the nature of the recovery journey that [the appellant] grapples with”: Figura (No 2) at [19]. Nonetheless, she continued, there had been “sufficient time, and examples of non-compliance, to conclude that the treatment order opportunity was not the occasion on which [the appellant] would succeed in his rehabilitation. He failed to demonstrate the commitment to his rehabilitation, and the treatment order, that was necessary to achieve the objects of the order”: Figura (No 2) at [19].
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 sentence imposed on 4 November 2025
The only sentence that was imposed on 4 November 2025 which has continuing effect is that which was imposed for the offence of aggravated furious driving.
As outlined above, the facts leading to this charge were that on 7 February 2023, in the morning, the offender was driving, in excess of the speed limit, on a residential street. The police endeavoured to apprehend the appellant when his vehicle was stationary. Rather than surrender to the police the offender reversed his vehicle, a black Holden Commodore (a large sedan), into a Suzuki Jimney (a tiny SUV). The Suzuki was thrust into a garden bed. Fortunately, the Suzuki was unoccupied and did not strike any person in its transfer to the garden bed.
The appellant then set off, away from the police, and drove in a reckless manner, including failing to give way at a roundabout. A police pursuit was brought to a halt, no doubt for fear of further damage or injury. The appellant was finally arrested about two weeks later.
The appellant pleaded guilty to the offences leading to a 25% reduction to his sentence. The appellant had a significant criminal history which included numerous driving offences. The primary judge noted that the appellant had been disqualified from driving on six prior occasions. He also had a previous conviction for furious driving. The primary judge correctly described him, in relation to driving offences as a “recidivist offender”.
The offender had a background which was characterised by disadvantage such as to enliven Bugmy principles. However, the reduction in the offender’s moral culpability was largely offset by the need to protect the community.
The appellant was 30 years old and could no longer rely on youth as a mitigating factor. As the prosecutor submitted, the appellant’s criminal history was “littered with breaches of community-based orders”, and his prospects of rehabilitation were rightly described by the primary judge as “guarded”: Figura (No 2) at [24].
Particularly when viewed in the light of the offender’s prior criminal history, the offending was such as to require that significant weight be given to the need for general and specific deterrence, denunciation and protection of the community.
The sentence imposed, namely, of 15 months imprisonment for this offence, was well within the bounds of the sentencing discretion. There is no error in this decision.
The non-parole period set on 5 June 2024
The circumstances which gave rise to the cancellation were not such as to allay any concerns about the offender’s risk of re-offending, or as to mitigate the weight to be given to denunciation, deterrence or protection of the community in determining the appropriate non-parole period.
In determining the appropriate non-parole period, her Honour appropriately took into account the appellant’s recent engagement in a pilot program in custody (the Canberra PCYC Behind the Wheel Driver Education Course), which he was expected to complete within a week of the date of sentence. However, her Honour expressed concern about the appellant’s prospects of rehabilitation in light of his non-compliance with the DATO, and, as observed above, correctly described the appellant’s prospects of rehabilitation as “guarded”.
The non-parole period imposed by the primary judge, namely, a period of 9 months and 22 days, was also well within the bounds of the sentencing discretion.
Orders
I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 17 November 2025
Figura
DPP [2025] ACTCA 48
Appeal dismissed. The Court held that the error in imposing the whole original sentence did not enliven resentencing because it could only have operated in the appellant’s favour. The sentence and non-parole period were not manifestly excessive.
At the time of the offences, the appellant was serving a suspended sentence of imprisonment imposed by the Magistrates Court for an offence of aggravated assault occasioning actual bodily harm and a parole order: DPP v Figura [2024] ACTSC 358 (Figura (No 1)) at [22] – [27].
The primary judge noted that s 80ZE of the Crimes (Sentencing) Act required that the Court “impose the sentence of imprisonment that was suspended under the custodial part of the treatment order”, which was, in the present case, a period of 12 months and 12 days.
As to the appropriate non-parole period to be set, her Honour held (at [24]): I am satisfied that this is informative as to Mr Figura having prospects of rehabilitation. Nonetheless, his engagement with the treatment order does not give confidence as to his ability to sustain compliance with a community based order. A non-parole period which reflects guarded prospects of rehabilitation, while recognising the role of community protection in the sentencing exercise, will be set.
The primary judge noted that the “practice of the Drug and Alcohol Sentencing List” where a sentence is imposed is to confirm the original sentence, and then to reduce that period by any applicable time spent in custody prior to the original sentence being imposed. Her Honour also reduced the imposed sentence so as to take account of the following periods of custody:
The effect of this error was a custodial sentence which ended on 4 March 2026, rather than 7 March 2026. The three-day discrepancy arises for two reasons: 1. First, in calculating the period of backdating for the sentence imposed on 5 June 2025, the date of the imposition of the sentence was included as a day spent in custody. In effect, this meant that the sentence was backdated by one day longer than it should have been; and 2. Second, by imposing the full period of 15 months’ imprisonment, and subsequently backdating the sentence by 182 days, the sentence included two months of February (February 2025 and February 2026). In contrast, if a period of 12 months and 12 days’ imprisonment were imposed, and backdated by 101 days (which does not count the 81 days spent in custody prior to the original sentence imposition), only February 2026 would be wholly included in the sentence. The ‘extra February’ creates a two-day difference.
The respondent submitted that, as in Allred, this error also worked to the advantage of the appellant in the calculation of the non-parole period, in that: … had her Honour imposed the sentence of 12 months and 12 days to commence on 24 February 2025, and maintained the same ratio of approximately 65% for the non-parole-period (or approximately 8 months commencing on 24 February 2025), the appellant would have been eligible for release on 24 October 2025. By ‘imposing’ a sentence of 15 months from 5 December 2024 and commencing the non-parole period from this same date, the appellant is eligible for release on 27 September 2025, almost a month earlier. To the extent her Honour erred in the imposition of the sentence it produced a favourable outcome to the appellant as he is now eligible for release at an earlier date.
As can be seen from the above, implicit in the respondent’s further submission is an assumption that, in setting the non-parole period, the primary judge was guided by a 65% ratio, rather than by the actual periods of imprisonment with, and without parole. There is no indication in the judgment that the primary judge was so guided. The primary judge made no reference to the ratio of the non-parole period to the head sentence. Rather, the reasons indicate that she was guided by the need to reflect the offender’s “guarded prospects of rehabilitation, while recognising the role of community protection in the sentencing exercise”: Figura (No 2) at [24]. In these circumstances, it may be that the error in imposing the whole sentence, backdated to take into account presentence custody, rather than the part of the sentence which was suspended, has had no effect on the calculation of the non-parole period.
It is not necessary to determine whether a different non-parole period would have been set if the primary judge had correctly imposed the suspended part of the sentence, rather than the whole sentence, backdated to take into account the appellant’s presentence custody. As can be seen from the above, the error in the primary judge’s approach can only have operated to the advantage of the appellant.
The duty to resentence following a finding of error only arises where the error is “material”, in the sense that it has the capacity to influence the sentence imposed: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42]; Benn v R [2023] NSWCCA 24; 305 A Crim R 550 at [82]. It has been suggested in some authorities that an error which is favourable to an appellant may nonetheless “trigger” the resentencing discretion: see, for example, R v Czerniawsky [2009] VSCA 2 at [22]; Gordon v Tasmania [2020] TASCCA 17 at [56]. Other authorities have suggested that, in order for the resentencing discretion to be enlivened, the error must have had the capacity to operate to the prejudice of the appellant: see Wilson v R [2025] NSWCCA 86 at [75]; Hughes v R [2024] SASCA 110 at [15]; Singh v R [2018] NSWCCA 60 at [47].
We consider that the latter approach should be preferred. The purpose of a sentence appeal is to correct errors that have had a material effect upon the sentence imposed upon an appellant. For this reason, as noted above, the duty to resentence is not enlivened upon any finding of error, but only where the error has the capacity to influence the sentence imposed. An error that can only have operated in favour of the appellant should not result in this Court undertaking the sentencing discretion afresh.
Of course, care must be taken in concluding that a demonstrated error only has the capacity to have operated to the benefit of an appellant. Some errors of principle may indicate that other latent aspects of the sentencing process may have miscarried.
That is not so in the present case. The error is discrete in nature, and has clearly only operated to the advantage of the appellant. The respondent does not contend that the sentence imposed is manifestly inadequate and does not seek an increase in either the head sentence or the non-parole period. In these circumstances, the duty to resentence is not enlivened. Manifest excess Introduction
The principles to be applied where there is an allegation of manifest excess have been summarised in numerous decisions of this Court: see, for example, Tracey v The Queen [2020] ACTCA 51 at [37] – [38]; Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 at [51] – [52].
As those authorities make clear, a sentence appeal alleging manifest excess “calls into question what is a quintessentially discretionary decision”: Zdravkovic at [51]. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence. Error may be inferred if the sentence is manifestly excessive in the sense that it is “unreasonable or plainly unjust”: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6].
There are three components of the sentence that was imposed in the present case which were potentially challenged in the appellant’s Notice of Appeal: first, the primary judge’s determination to reimpose the sentence on 5 June 2025; second, the sentence that was originally imposed on 4 November 2024; and third, the setting of the non-parole period on 5 June 2025.
As explained in Allred, the imposition of a sentence under s 80ZE(3)(b) involves only a limited exercise of judicial power, namely, the determination of the appropriate non-parole period and the determination of whether to reduce the sentence by any period served in custody under the treatment and supervision part of the Treatment Order: Allred at [40]. Accordingly, an appellant who wishes to challenge the original sentence as manifestly excessive (or on the ground of any other House error) must seek leave to appeal out of time against the original sentence: Allred at [42].
In the present case, the appellant did not seek leave to appeal out of time against the original sentence that was imposed on 4 November 2024. In his oral submissions, the appellant confirmed that his primary complaint was against the decision to impose the original sentence, rather than to determine to resentence him.
However, the appellant was unrepresented. The formal distinction between the original sentence and the decision to impose that sentence is not one which should readily be appreciated by an unrepresented litigant, and the appellant’s Notice of Appeal sought orders which indicated a desire to challenge to the sentence originally imposed, as well as the decision to impose that sentence. For this reason, it is appropriate to consider whether the sentence originally imposed was manifestly excessive, as well as considering whether it was open to the primary judge to impose the sentence that was suspended under the custodial part of the DATO, and to impose the non-parole period that was ordered.
It was well open to the primary judge to determine that imposition of the sentence previously suspended was appropriate. There was no error in this decision.