The Duty We Owe: Foetal Alcohol Spectrum Disorder, Indigenous Imprisonment and Churnside v Western Australia [2016] WASCA 146

The criminal justice system does not do justice to the pocket of Indigenous Australians suffering from a foetal alcohol spectrum disorder (FASD) due to prenatal exposure to alcohol. The criminal justice system has a duty to consider alternatives to incarceration for Indigenous Australians, particularly those with FASD, because many of the policy reasons for incarceration, such as deterrence and punishment, are not appropriate for someone suffering from FASD. This analysis considers that the judgment in Churnside v Western Australia [2016] WASCA 146 sets an important precedent in not only acknowledging the court's duty to consider alternatives to incarceration for non-violent crimes, but by positively acting upon their duty in making such arrangements.