Public Defenders

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Fetal Alcohol Spectrum Disorders (FASD)

Executive Summary

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Fetal Alcohol Spectrum Disorders ('FASD') are the largest cause of non-genetic, at birth brain damage in Australia.1

FASD is associated with a range of birth defects and the average life expectancy for a child with FASD is only 34 years of age.2

The causes of excessive drinking extend well beyond the circumstances of the individual and are a product of a complex mix of interrelated socio-economic and cultural factors, including dispossession, trans-generational grief, isolation, poverty and trauma.3

Neurodevelopmental impairments due to FASD can predispose young people to interactions with the law.4

Brain damage from prenatal exposure to alcohol can increase involvement in criminal activity due to the following characteristics of FASD:5

  • lack of impulse control;
  • trouble identifying future consequences of current behaviour;
  • difficulty planning and connecting case and effect;
  • difficulty empathising with others and taking responsibility for actions;
  • difficulty delaying gratification or making good judgments;
  • a tendency towards explosive episodes; and
  • vulnerability to social influences such as peer pressure.
The potential relevance of evidence of FASD in sentencing proceedings includes an assessment of moral culpability; moderating the weight to be given to general deterrence; and determining the weight to be given to specific deterrence and protection of the community. There may also be issues relating to the likelihood of hardship in custody, a finding of special circumstances and the shaping of conditions to enhance prospects of rehabilitation.


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[1] House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Prevention, Diagnosis and Management of Fetal Alcohol Spectrum Disorders (2012) ch 1 [1.2].

[2] Australian Medical Association, Fetal Alcohol Spectrum Disorder (FASD) – 2016, 24 August 2016.

[3] Stephen Ralph, 'Fetal Alcohol Spectrum Disorder in Indigenous Adults and the Role of Psychology' (2017) 39(2) InPsych: The Bulletin of the Australian Psychological Society Ltd 14–15.

[4] The Judicial Commission of New South Wales, Equality Before the Law Bench Book, 18 July 2016, Section 5: People with Disabilities [5.2.2.8].

[5] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Value of a Justice Reinvestment Approach to Criminal Justice in Australia (2013) 36 [4.42].