​The Issues Paper entitled 'Sentencing Review 1994' released by the NSW Attorney-General's Department in June 1994 poses the question, "Should the Habitual Criminals Act 1957, and Sections 115 and 443 of the Crimes Act 1900, be repealed or strengthened?". The Issues Paper considers some of the arguments on both sides and seems to prefer the option of referring what it describes as the modernisation of the habitual criminals legislation to the Law Reform Commission. It further suggested that the amended legislation would be concerned solely with offenders with histories of convictions of violence. The Issues Paper went on to propose that sections 115 and 443 of the Crimes Act 1990 should be repealed in any event.

This briefing note begins with an historical overview of the legislation relating to persistent offenders, followed by a account of the main provisions of the Habitual Criminals Act 1957 (NSW). Considered next are the different approaches to the sentencing of persistent offenders, the contrasting claims of protection and proportionality, as well as the problems of definition and prediction in this area of the law. A review of the approaches adopted in other selected jurisdictions is then presented.

In this briefing note the terms habitual criminal and persistent offenders are used interchangeably with reference to the problem of recidivism.