A teenager who had undiagnosed brain damage caused by his pregnant mother’s drinking is trying to have his 10-year jail term for killing his three-week-old son reduced in a landmark Supreme Court appeal case.
Submissions in the Court of Appeal yesterday revealed that despite constant contact with welfare authorities since he was aged six, the teenager was not diagnosed with foetal alcohol spectrum disorder until he became involved in a Telethon Kids Institute study while serving his term of detention at Banksia Hill.
The boy was aged 15 when he fatally bashed his infant son at Bunbury Regional Hospital in February 2014.
The boy was initially charged with murder, but pleaded guilty to the lesser charge of manslaughter.
Children’s Court president Judge Denis Reynolds was aware of the teenager’s traumatic and dysfunctional background when he sentenced the boy in March last year, but was not aware he had organic brain damage from birth which had been caused by his mother’s consumption of alcohol.
Yesterday, Chief Justice Wayne Martin commented that the failure to diagnose the disorder despite the boy’s contact with welfare and other authorities, a history of substance abuse by his mother and behavioural issues “did not speak well of the system”.
Justice Martin said even after the boy was charged with the most serious offence known in WA law and interviewed for various reports to the court, “nobody at any point in that process raised the flag about FASD.”
Consultant paediatrician Raewyn Mutch gave evidence yesterday that the boy had cognitive, executive function, language, academic and motor impairment.
Dr Mutch told the court that FASD manifested itself as a child grew, corrupting their ability optimise good things that happened in their lives and to manage noxious events.
The appeal was initially lodged on the ground that the 10-year sentence was manifestly excessive, but was amended to include the failure to take into account the undiagnosed FASD when it was learnt that the teenager was involved in the Telethon Kids Institute study.
The boy’s lawyer, Karen Farley, said expert reports indicated that the boy had been suffering a significant cognitive defect and Judge Reynolds had not been informed of the disorder at the time of sentencing.
State prosecutor Anne Longden said the diagnosis of FASD was not challenged, but the dysfunction and trauma experienced by the boy had been considered by Judge Reynolds and the sentence imposed was appropriate.
The decision of three appeal court judges was reserved.
Disclaimer: The views and opinions in this article are those of the authors and do not necessarily represent the views of Edmonton and Area Fetal Alcohol Spectrum Disorder Network.