A Judge’s Plea

In a painstaking and compassionate sentencing decision, a Wellington judge tried to change the course of one man’s life.

Disordered is a multi-part Stuff Circuit investigation into Fetal Alcohol Spectrum Disorder in New Zealand. Watch the documentary or view the full project.

July 2019

The Special Circumstances Court, at the Wellington District Court

Bill Hastings, the Judge
Thomas James Morrison, the defendant

The charges: 

  • 22 theft 
  • 1 assaulting a constable with intent to obstruct 
  • 3 threatening to kill 
  • 2 trespass 
  • 1 assaulting a constable acting in the execution of his duty 
  • 1 failing to supply identifying particulars


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The expert witness

Dr Valerie McGinn, neuropsychologist 

“It seems that the only gaps in his offending, most of which have been petty, has been when he was imprisoned. Thomas told me that in total he had spent about 20 years of his life in prison.” 

“Thomas clearly knows right from wrong but has limited capacity to choose right from wrong. He has a very limited window in which to stop and think before acting. It is known that individuals with FASD have a disconnected sense of ownership due to their brain damage. This leaves them at risk of taking things that are not theirs. They do not make good criminals as they tend to do wrong things in a simplistic way right out in the open.” 

“...he will need to be living in supported accommodation so that any medications can be administered as he lacks the capacity to do this himself.”

— Excerpts from forensic neuropsychological report

Dr McGinn’s recommendations included that Thomas Morrison be referred for a needs assessment so he could receive suitable disability supports in the community, such as supported housing, employment, budgeting, and a disability support worker.

What the judge said:

“Defendants who have foetal alcohol syndrome disorder, or FASD, present challenges for every participant in the criminal justice process. They present challenges that cannot be adequately overcome by a judge alone, sitting at the end of the process.”

“The concern, then, is not to criminalise people with FASD, nor is it to excuse the misconduct of those with FASD. The concern is to figure out what to do about the behaviours that bring people with FASD into the criminal justice system, [and] while they are in the system, to maximise the possibility that they do not return to the system when they leave it.”

“Persons with FASD are likely to be suggestible, have difficulties organising memory, and have diminished capacity to foresee consequences, make reasoned decisions on the spot, and to recognise and learn from mistakes. This is a recipe for frequent collisions with every stage of the criminal justice system.”

“Failure to take FASD into account at all stages of the criminal justice system does not achieve justice for the person with FASD or for the general community. There is little to be gained by holding persons with FASD to standards they cannot achieve, and there is much to be lost by not doing things currently within our reach to address recidivism.”

— Excerpts from sentencing


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The sentence

Nine months’ intensive supervision. 

The conditions

The Judge imposed three conditions including that Thomas Morrison engage with disability support services, as directed by probation. 

He also imposed a judicial monitoring condition, “because I am very interested in how your life turns out following this sentence”.

The outcome

Thomas Morrison did not receive the recommended needs assessment, and therefore was never given disability support services.

Soon after this sentencing, his lifetime pattern of offending continued, and he was back before the courts.

Made with the support of

Irirangi Te Motu: NZ on Air

Disordered is a multi-part Stuff Circuit investigation into Fetal Alcohol Spectrum Disorder in New Zealand. Watch the documentary or view the full project.

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