The West Australian court of appeals published its judgement on Thursday to better explain why a Bunbury boy who brutally bashed his baby son to death in 2014 had his sentence reduced.
The boy, who was 15 years old at the time, attacking his one-month-old son causing critical head injuries that later claimed the baby’s life on February 15, 2014.
The prematurely-born baby was assaulted by his father, after the baby boy's mother went to heat up some food.
The baby was airlifted to Princess Margaret Hospital that night and was on life support for more than a week but died on February 24, 2014.
The baby was due to be discharged from Bunbury Regional Hospital two days after he was assaulted.
In March 2015, the 16-year-old boy was sentenced to 10 years in prison for manslaughter by the Perth Children's Court and was eligible for parole after five years.
The Mail reported in April 2016, that the court of appeal reduced the sentence from 10 years to seven after the 15-year-old was diagnosed with foetal alcohol spectrum disorder.
The Chief Justice noted in the appeal judgement that a pre-sentence report along with psychological and psychiatric reports were prepared that all remarked upon the appellant’s highly dysfunctional background, but did not refer to any mental impairment or brain injury.
“After the appellant had been sentenced, he was diagnosed by a research team from the Telethon Kids Institute with Foetal Alcohol Spectrum Disorder,” the judgement said.
“An essential element of this disorder is that the person has suffered a prenatal, permanent, organic brain injury as a result of maternal alcohol consumption in pregnancy.
“The existence of this condition was not known to anyone at the appellant’s sentencing.”
The court noted the boy had been exposed to serious neglect in his 15 years including being exposed to illicit drug use, being left along for long periods without adult care and a failure to provide food.
“He commenced using illicit substances at the age of 11 in the context of a family system in which substance abuse was normalised,” the judgement said.
“The appellant became a regular user of cannabis and, on occasions, amphetamines and alcohol.
“His criminal history is relatively brief but includes an incident where he threw a knife at the mother of his child which missed and injured an innocent bystander.
“At the time of the baby’s death, the appellant was subject to a nine-month conditional release order.”
During the appeal process Clinical Associate Professor Dr Raewyn Mutch provided the court with expert evidence about the affects of FASD.
“Brain damage caused by prenatal alcohol exposure continues through life and … those who have the disorder are diagnosed only when it is noticed that their behaviours become difficult,” she said.
The court noted FASD involves a spectrum of disorders and a blanket proposition about how a diagnosis of FASD bears on the sentencing process should be avoided.
Rather, attention must be directed to the details of the particular diagnosis of FASD, including the nature and extent of the specific disabilities and deficits, and how they bear upon the considerations relevant to sentence.
With time already served, the boy will be eligible for release in August 2017.