Director of Public Prosecutions v Figura (No 2)
[2025] ACTSC 233
•5 June 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Figura (No 2) |
Citation: | [2025] ACTSC 233 |
Hearing Dates: | 22 May 2025, 5 June 2025 |
Decision Date: | 5 June 2025 |
Before: | Christensen AJ |
Decision: | See [32] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – review – s 80ZE cancellation of drug and alcohol treatment order – suitable residential rehabilitation program not available – consideration of compliance with treatment order – consequences of noncompliance with a treatment order – imposition of sentence of imprisonment that was suspended – rehabilitation – engagement in Behind The Wheel course – nonparole period set |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 80W, 80ZE, 80ZH |
Cases Cited: | DPP v Figura [2024] ACTSC 358 |
Parties: | Director of Public Prosecutions ( Crown) Ashley Brian Figura ( Offender) |
Representation: | Counsel G Meikle ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 177, 178 of 2024 |
CHRISTENSEN AJ:
Introduction
1․By way of application dated 19 March 2025, the prosecution applied for cancellation of the drug and alcohol treatment order (treatment order) of Mr Figura. The application was brought in accordance with a review of the order per s 80ZH of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Given the issues raised, I was satisfied that it was, and continues to be, in the interests of justice that such a review occur: s 80ZH(1) Sentencing Act.
2․The hearing of the cancellation application was delayed as Mr Figura sought an opportunity to be considered for continuation on the treatment order with entry to a residential rehabilitation program. In fairness to Mr Figura, enquiries were made as to whether any such program could be available for him. The outcome of the treatment team’s enquiries in that regard were that there is no residential rehabilitation program that Mr Figura has been assessed as suitable for. That is, there is no therapeutically recommended rehabilitation program available for Mr Figura.
3․On 22 May 2025, Mr Figura conceded that in the circumstances cancellation of the treatment order was the only appropriate course. Accordingly, the treatment order was cancelled pursuant to s 80ZE(1)(c) and (d) of the Sentencing Act. That is, on a basis that Mr Figura was unlikely to comply with a condition of the order, being that he could not engage in a rehabilitation program, and that the continuation of the order was not likely to achieve the objects of it given the inability to engage in a residential rehabilitation program.
4․It is relevant to emphasise that the cancellation was not on a basis that Mr Figura was unwilling to comply with the treatment order (s 80ZE(1)(c) Sentencing Act). He remained committed to engaging in rehabilitation, evident by his seeking that the treatment team attempt to identify a rehabilitation program for that purpose. However, despite concerted efforts in this regard by the treatment team, this is not an option for Mr Figura under a treatment order.
5․The review now continues to finalisation with determination required as to whether to resentence Mr Figura or to impose the sentence of imprisonment that was suspended under the custodial part of the treatment order: s 80ZE(2) Sentencing Act.
Background
6․On 4 November 2024, Mr Figura was sentenced with respect to three driving offences that occurred on 7 February 2024: DPP v Figura [2024] ACTSC 358 (DPP v Figura). A total term of 21 months imprisonment was imposed, with a treatment order made with respect to one of the offences. This was for the offence of aggravated furious driving (repeat offender) (CAN 2024/2365), for which a 15 month term of imprisonment was imposed.
7․The drug and alcohol treatment order was for a period of 12 months and 12 days, to commence on 4 November 2024 and end on 15 November 2024.
8․Mr Figura’s initial compliance with the treatment order was positive. There were also positive occasions such as Mr Figura having a quiet Christmas that he celebrated with family.
9․A chronology provided by the prosecution, and progress reports produced during the treatment order, reveal that there was a period of some six weeks during which there was positive engagement with the order.
10․However, the progress reports establish that thereafter, there were issues of compliance with the order, namely:
(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. ll(f)Noncompliance with attendance at his drug and alcohol recovery rehabilitation program.
11․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.
12․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.
13․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.
14․I add to this, for completeness, that on 5 March 2025, Mr Figura was arrested for alleged family violence offending committed on 13 and 28 February 2025, an alleged offence of possession of stolen property on 3 March 2025, and for alleged offences of driving a stolen motor vehicle and unlicensed driving on 5 March 2025. These allegations were not made known to this Court until the arrest of Mr Figura on those charges on 5 March 2025.
15․Mr Figura has not been convicted of these offences, and as such the alleged offending does not form part of any contended noncompliance with the treatment order. It is only relevant to note because Mr Figura has been remanded in custody by the Magistrates Court on those charges, since 5 March 2025, with this of relevance in terms of his inability to otherwise continue engagement with the treatment order.
Finalisation of review
16․The treatment order having been cancelled pursuant to s 80ZE of the Sentencing Act, it follows, as said in R v Cook (No 2) [2024] ACTSC 27 at [10], that:
[A] preliminary consideration is the extent to which there was compliance with the treatment and supervision part of the order. Having considered that, the court then turns to consider if it is appropriate in the circumstances to resentence. If it is not, the suspended portion is imposed.
17․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].
18․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.19․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.
20․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.
21․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.
22․It is then appropriate that a nonparole period be set: ss 80ZE(3)(a), 80W(4)(b), (5) Sentencing Act (and see DPP v Stewart (No 2) [2024] ACTSC 163 at [33]-[35]). The prosecution acknowledged this was the appropriate course.
23․On behalf of Mr Figura, it was submitted that leniency in the nonparole period be considered. It was submitted that he remains committed to rehabilitation. Further, a certificate evidencing his recent engagement in a pilot program at the AMC – the Canberra PCYC Behind the Wheel Driver Education Course – was provided. The availability of such a course is a welcome initiative. Mr Figura is expected to complete the course on 11 June 2025, and it is to his credit that he has embraced the opportunity to engage in this course. It is a course that is relevant to addressing a direct criminogenic risk that he has.
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 nonparole period which reflects guarded prospects of rehabilitation, while recognising the role of community protection in the sentencing exercise, will be set.
Imposition
25․In proceeding in accordance with s 80ZE(2)(a) of the Sentencing Act, the Court is to “impose the sentence of imprisonment that was suspended under the custodial part of the treatment order”. Here, that is a period of 12 months and 12 days (see above at [7]).
26․The practice of the Drug and Alcohol Sentencing List in a circumstance of imposition has been 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. This is the most practical and effective manner in which to give effect to the legislative provisions such that the orders appropriately take into account all time spent in custody while maintaining clarity and consistency as to the sentence order imposed. It is the approach that will be taken in this matter.
Time in custody
27․At the time of the original sentencing, Mr Figura had spent a total of 262 days in
presentence custody and the sentences imposed were backdated to reflect this: DPP v Figura at [20]. This meant that the sentence of six months imprisonment imposed for an offence of driving while disqualified that was the subject of that sentence proceeding had been served at the time of sentence imposition.28․Mr Figura has also served periods in custody during the treatment order. I am satisfied that it is appropriate to exercise the discretion that s 80ZE(3)(b) of the Sentencing Act appears to provide to reduce the imposed sentence even though there was noncompliance with the order. There was a level of compliance that justifies such recognition, as well as it being appropriate to recognise any time served in custody when imposing a sentence.
29․It follows that the period in presentence custody that applies at this stage, and that will determine the commencement date of the imposed sentence, is drawn from the following periods in custody:
(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).
30․In addition, Mr Figura has been in custody since he was remanded in custody by the Magistrates Court on 5 March 2025. The nature of this remand relates to both the further charges and the provisional cancellation of the treatment order. Further, following cancellation of the treatment order on 22 May 2025, Mr Figura has been in custody with respect to both the Magistrates Court and the Supreme Court matters. On behalf of Mr Figura it was sought that this entire period be taken into account for the purposes of the imposition. That is, a further period of 77 days, reflecting from 21 March 2025 until the date of imposition, 5 June 2025, is to be taken into account.
31․A total of 182 days in presentence custody applies, resulting in a commencement date of the imposed sentence being 5 December 2024.
Orders
32․For those reasons, the following orders are made:
(1)The cancellation of the drug and alcohol treatment order made on 4 November 2024 is confirmed.
(2)Pursuant to s 80ZE(2) of the Crimes (Sentencing) Act 2005 (ACT), the sentence of imprisonment suspended under the custodial part of the Drug and Alcohol Treatment Order is imposed.
(3)The conviction of Ashley Brian Figura of aggravated furious driving (repeat offender) (CAN 2024/2365) is confirmed and the sentence of 15 months imprisonment is imposed to commence on 5 December 2024 and end on 4 March 2026.
(4)A nonparole period is imposed to commence on 5 December 2024 and end on 27 September 2025.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 5 June 2025 |
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