Assessment and Evaluation of Fetal Alcohol Spectrum Disorder (FASD) and its Potential Relevance for Sentencing: A Clarion Call from Western Australia

Abstract

LCM was a child of 15 whose diagnosis of FASD was not made prior to his being sentenced for the senseless and brutal manslaughter of his infant son. The diagnosis arrived at by a multidisciplinary team shortly before his appeal to the Western Australian Court of Appeal in LCM v The State of Western Australia [2016] WASCA 164 resulted in a significant reduction in his sentence. It also prompted the Court to undertake a foundational and internationally informed analysis of the relevance of FASD to the sentencing process and to call for improved awareness of the need for early and accurate diagnosis of the disorder.

Notes

1. H Douglas, ‘The Sentencing Response to Defendants with Foetal Alcohol Spectrum Disorder’ (2010) 34(4) Criminal Law Journal 221, 223–25.

2. See e.g. Northern Territory Legislative Assembly Select Committee on Action to Prevent Foetal Alcohol Spectrum Disorder, The Preventable Disability (2015) https://parliament.nt.gov.au/__data/assets/pdf_file/0005/363254/Final_FASD_Report.pdf; Western Australian Legislative Assembly Education and Health Standing Committee, Foetal Alcohol Spectrum Disorder: The Hidden Disability (Report No 15) (2012) http://www.parliament.wa.gov.au/Parliament/commit.nsf/%28Report+Lookup+by+Com+ID%29/1740F63B37A1314A48257A7F000766DD/$file/Final+FASD+Report+with+signature.pdfl; The Lilliwan Collaboration: Inquiry into Fetal Alcohol Spectrum Disorders (FASD): Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs (2012) https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0ahUKEwiI-oG1ueDUAhXKGZQKHelrATcQFggwMAI&url=http%3A%2F%2Fwww.aph.gov.au%2Fparliamentary_business%2Fcommittees%2Fhouse_of_representatives_committees%3Furl%3Dspla%2Ffasd%2Fsubs%2Fsub%2520022.pdf&usg=AFQjCNEhSiPHRBB3dPZxIIKa9re2bhcpbQ; House of Representatives Standing Committee on Policy and Legal Affairs, Report of the Inquiry into Fetal Alcohol Spectrum Disorders: The Hidden Harm (2012) http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=spla/fasd/report.htm

3. See Centers for Disease Control and Prevention ‘Fetal Alcohol Spectrum Disorders (FASDs)’ https://www.cdc.gov/ncbddd/fasd/facts.html.

4. See I Freckelton, ‘Expert Evidence in Fetal Alcohol Spectrum Disorder Cases’ (2016) 2 Ethics, Medicine and Public Health 59.

5. See too I Freckelton, ‘Sentencing Offenders with Foetal Alcohol Spectrum Disorder (FASD): The Challenge of Effective Management’ (2016) 23 PPL 815.

6. See too S Ali, KA Kerns, BP Mulligan, MC Osborn and SJ Astley, ‘An Investigation of Intra-Individual Variability on Children with Fetal Alcohol Spectrum Disorder (FASD)’ (2017) Child Neuropsychology https://doi.org/10.1080/09297049.2017.1302579.