A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.
40 One matter on which the parties joined issue may now be disposed of. That concerned whether the Henry guideline was intended to apply to offenders who, by reason of their age, are "children" within the meaning of the Act. Counsel for the applicant argued that the Henry guideline was not intended to, and does not, apply to juvenile offenders. Senior counsel for the Crown argued that, because the guideline specifically incorporated youthfulness as one of the features in the category to which it is expressed to apply, it should be taken to have been intended to encompass "children" as defined in the Act. In my opinion the Crown argument elevates the use of the phrase "young offender" beyond what was intended. As I interpret the judgment, the phrase "young offender" was not intended to include "children" so defined. Support for that view is to be derived from the fact that of the seven offenders whose cases were considered in conjunction with the guideline, only one was a "child" within that definition. All others were young adults. It was offenders in this latter category to whom the consideration of the court was principally directed. The reference to "young offender" has nothing to do with "children" as it appears in the Act. That does not mean that the guideline is of no relevance to offenders under the age of eighteen years. Like all guideline judgments, Henry is to be applied flexibly. There will be cases in which greater weight is to be given to particular facts. For example, a plea of guilty where the Crown case is not strong will attract a greater discount than may otherwise be the norm.
41 The youth of an offender may also, in particular circumstances, attract a measure of leniency not extended to older offenders. In this regard it is necessary to bear in mind the well established principle that offenders who engage in very serious crimes, or crimes more commonly associated with older individuals, may forfeit all or some of their claims to leniency: R v Pham and Ly (1991) 55 A Crim R 128.
42 When it is remembered that the guideline sentence promulgated in Henry is non prescriptive and has inbuilt a high degree of elasticity, the applicant's argument, it seems to me, evaporates. The youth of an offender is a relevant factor in the sentencing consideration, to be given the appropriate weight, together with all other relevant factors.
43 To the extent that it may be thought that the court either in Sua or RLS intended to exclude the application of guideline sentences (whether in relation to offences of armed robbery, or any of the other offences which have been the subject of guideline judgments) to children, I respectfully consider them to have overstated the position. It is, in any event, to be borne in mind that each was a judgment of a bench of this court constituted by two judges in accordance with s 6AA of the Criminal Appeal Act 1912, sub s 2 of which envisages that disputed issues of general principle will not be decided by the court so constituted. In my opinion neither of the benches in question intended to state any general principle as to the applicability or non-applicability of guideline judgments to juvenile offenders and should not be read as having done so.
44 I am, accordingly, satisfied that no error in principle has been demonstrated by reason alone of the fact that, in an indirect way, the sentence imposed on the applicant derived from the Henry guideline.
45 That does not finally dispose of the application. On behalf of the applicant it was submitted that, even taking Henry as a starting point, the weight given to certain mitigating factors was inadequate. These factors were identified as the applicant's youth, his level of involvement in the planning of and preparation for the offence, his guilty plea and the circumstances in which it came to be entered, and the remorse that was evident from those circumstances. The fact that the guideline extends the sentencing of children does not mean that it would not be proper in appropriate cases to impose a sentence below the range stated.
46 The pre-Henry authorities that are directed to sentencing of young offenders are readily adaptable to the application of guideline judgments. The principles have been so frequently stated that little is to be gained from further exposition: youth is a factor that may operate to reduce the emphasis to be placed on considerations of general deterrence and retribution; but that principle itself is counterbalanced where the offence is one more commonly expected of an adult offender: Pham and Ly; R v Hearne [1999] NSWCCA 605 at para 76, and the cases there cited; R v Hearne [2001] NSWCCA 37, and the cases there cited.
47 Armed robbery is classically an offence of the kind in which the leniency otherwise attracted by youth may be diminished. The applicant could therefore gain little comfort from his youth in this sentencing process.
48 I have mentioned above the circumstances of the applicant's involvement, his prior almost clear record, and the circumstances in which he entered his plea of guilty. These are matters that were expressly taken into account by the sentencing judge; there is nothing in the remarks on sentence to suggest that they were given inadequate weight. The thrust of the submission made on behalf of the applicant was that, from the ultimate sentence itself, it should be inferred that insufficient attention was given to one or more of these factors.
49 Having considered all of these matters, I am unpersuaded that such error has been demonstrated. In my opinion the sentence was, in all the circumstances, fairly heavy, but not outside the range of the sentencing discretion legitimately available. I would grant leave to appeal but dismiss the appeal.