The Act replaces the earlier Habitual Criminals regime and lets judges declare repeat offenders “habitual criminals” (meeting the age and prior‑imprisonment tests) and impose an additional 5–14 year custodial term, while giving the Governor power to grant conditional licences for release. It mainly affects convicted repeat offenders, courts, probation services and corrective services. It matters because it increases potential custody for repeat offenders, creates licence‑based supervision and administrative burdens, and shifts costs and discretion between judiciary and the executive.
The Habitual Criminals Act 1957 establishes a specialised regime for the identification, extended sentencing, detention, conditional release and ultimate cessation of status of persons classified as habitual criminals in New South Wales. At its core, the Act empowers a judge to make a formal pronouncement that a qualifying offender is an habitual criminal, triggering an additional sentence separate from but concurrent with any sentence for the index offence.
Section 4(1) provides the primary mechanism: where a person aged 25 years or above is convicted on indictment and has previously served at least two separate terms of imprisonment following convictions for indictable offences (expressly excluding offences dealt with summarily without the person's consent), the trial judge may, if satisfied that detention for a substantial time is expedient for the person's reformation or the prevention of crime, pronounce the person an habitual criminal and pass a further sentence under s 6. That further sentence must be for a term of not less than five years and not more than 14 years (s 6(1)). Any sentence already being served at the time of pronouncement runs concurrently with the habitual-criminal sentence (s 6(2)).
A parallel but less direct route exists under s 4(2) for summary convictions before a Judge of the Local Court of an indictable offence that may only be dealt with summarily with the offender's consent. In such cases the Local Court may direct that a registrar of the District Court apply to a District Court judge for the pronouncement; if the judge is satisfied on the same reformation/prevention test, the pronouncement and s 6 sentence follow. Section 4(3) makes clear that the power applies regardless of whether prior convictions or imprisonments occurred inside or outside New South Wales and before or after the Act's commencement or any earlier habitual-criminal declaration. Section 4(4) contains mechanical counting rules: cumulative terms count as only one prior term, while concurrent or partly concurrent terms also count as a single separate term.
Current sections
Direct links to the current provisions in Habitual Criminals Act 1957.
(2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.
2
Repeals and savings
2 Repeals and savings
2 Repeals and savings
(1) The enactments mentioned in the Schedule to this Act are to the extent therein specified hereby repealed.
(2)
(a) Nothing in this Act shall affect the validity of the declaration of any person as an habitual criminal under the provisions of the Habitual Criminals Act 1905–1952.
(b) Any person who, immediately before the commencement of this Act, was an habitual criminal under the provisions of the Habitual Criminals Act 1905–1952, shall be an habitual criminal under the provisions of this Act, and shall, unless immediately before such commencement, the person was at large pursuant to a licence granted under the provisions of section 7 of the Habitual Criminals Act 1905–1952, be detained in prison until released in accordance with the provisions of subsection (1) of section 7 of this Act.
(c) (Repealed)
(d) Any person detained in prison pursuant to the provisions of paragraph (b), or pursuant to a direction of a judge, justice or justices given under the provisions of section 8 of the Habitual Criminals Act 1905–1952 shall be deemed to be a convicted inmate within the meaning of the Crimes (Administration of Sentences) Act 1999, as amended by this Act.
(3)
(a) All moneys which immediately before the commencement of this Act were standing to the credit of an habitual criminal in an account opened in his or her name at a Gaol pursuant to Regulation twenty-one of the Regulations made under the Habitual Criminals Act 1905, as amended by subsequent Acts, and published in the Gazette number one hundred and thirty-five of the eleventh day of October, one thousand nine hundred and twenty-nine, shall continue to stand to the credit of such habitual criminal in such account until released in accordance with the provisions of subsection (1) of section 7, and shall upon release be dealt with in the manner prescribed by paragraph (1) of Regulation 22A of those Regulations as if that paragraph were in force at the date of release.
(b) All moneys paid, either before or after the commencement of this Act, to the Managing Secretary of the Prisoners’ Aid Association pursuant to the said paragraph (1) and held by the Managing Secretary for payment to an habitual criminal or held by such Association in trust for an habitual criminal shall continue to be so held and shall be dealt with as if the said Regulation 22A (paragraph (7) thereof excepted) were in force and applied to such moneys.
s 2: Am 1987 No 209, Sch 44; 1988 No 131, Sch 29; 1999 No 94, Sch 4.28.
3
Definitions
3 Definitions
3 Definitions
(1) In this Act, unless the context or subject matter otherwise indicates or requires—
Indictment includes any information presented or filed as provided by law for the prosecution of offences.
Judge means a Judge of the Supreme Court or the District Court.
Regulations means regulations made under this Act.
(2) (Repealed)
s 3: Am 1958 No 25, sec 4 (1); 1988 No 131, Sch 29; 1999 No 94, Sch 4.113.
4
Judge may pronounce convicted person an habitual criminal
4 Judge may pronounce convicted person an habitual criminal
4 Judge may pronounce convicted person an habitual criminal
(1) When any person of or above the age of twenty-five years is convicted on indictment and has on at least two occasions previously served separate terms of imprisonment as a consequence of convictions of indictable offences, not being indictable offences that were dealt with summarily without his consent, then if the judge before whom such person is so convicted is satisfied that it is expedient with a view to such person’s reformation or the prevention of crime that such person should be detained in prison for a substantial time, the judge may, in addition to passing sentence upon such person for the offence of which the person is so convicted, pronounce the person to be an habitual criminal and shall thereupon pass a further sentence upon the person in accordance with the provisions of section 6.
(2) When any person of or above the age of twenty-five years is convicted summarily before a Judge of the Local Court of an indictable offence punishable summarily only with the consent of such person, and has on at least two occasions previously served separate terms of imprisonment as a consequence of convictions of indictable offences, not being indictable offences that were dealt with summarily without his or her consent, the Judge of the Local Court may, in addition to passing sentence upon the person for the offence of which the person is then convicted, direct that an application be made by a registrar of the District Court to a judge of that court to have such person pronounced to be an habitual criminal.
If the judge to whom such application is made is satisfied that it is expedient with a view to such person’s reformation or the prevention of crime that such person should be detained in prison for a substantial time, the judge may pronounce the person to be an habitual criminal and shall thereupon pass sentence upon the person in accordance with the provisions of section 6.
(3) This section shall apply—
(a) whether any such previous conviction or imprisonment took place within or without New South Wales and either before or after the commencement of this Act,
(b) whether any such previous imprisonment was served as a consequence of a conviction for an indictable offence committed before or after any previous pronouncement as an habitual criminal, made under this Act, of the person to whom the conviction relates, or any previous declaration as an habitual criminal, made under the Habitual Criminals Act 1905–1952, of such person.
(4)
(a) Any term of imprisonment served by any person as a consequence of conviction of an indictable offence which term was served cumulatively upon any other term of imprisonment served by such person as a consequence of conviction of such an offence shall not, for the purposes of this section, be counted as a separate term of imprisonment previously served by such person as a consequence of conviction of such an offence.
(b) Where any term of imprisonment served by any person as a consequence of conviction of an indictable offence was served concurrently or partly concurrently with any other term of imprisonment served by such person as a consequence of conviction of such an offence, such terms of imprisonment shall, for the purposes of this section, be counted as one separate term of imprisonment previously served by such person as a consequence of conviction of such an offence.
s 4: Am 1986 No 212, Sch 1; 1988 No 131, Sch 29; 2025 No 61, Sch 2.47[1] [2].
5
Proof of previous conviction and imprisonment
5 Proof of previous conviction and imprisonment
5 Proof of previous conviction and imprisonment
(1) For the purposes of this Act, a previous conviction against any person, whether such conviction took place within or without New South Wales, may be proved by producing a record or extract of such conviction, and by giving proof of the identity of such person with the person appearing in the record or extract of conviction to have been convicted.
A record or extract of a conviction shall consist of—
(a) an extract from the indictment or the counts of the indictment on which the said person was convicted,
(b) a statement of the verdict,
(c) a statement of the sentence,
certified under the hand of the clerk of the court or other officer purporting to have the custody of the records of the court by which such conviction was made.
(2) For the purposes of this Act, previous imprisonment—
(a) served within New South Wales by any person may be proved by—
(i) producing a certificate under the hand of the Commissioner of Corrective Services specifying the term of such imprisonment and the convictions in respect whereof such person was imprisoned, and
(ii) giving proof of the identity of such person with the person appearing in the certificate to have been imprisoned,
(b) served without New South Wales by any person may be proved by—
(i) producing a certificate under the hand of the Commissioner of Corrective Services or other officer in charge of penal institutions in the state or country within which the imprisonment was served, specifying the term of such imprisonment and the convictions in respect whereof such person was imprisoned, and
(ii) giving proof of the identity of such person with the person appearing in the certificate to have been imprisoned.
(3) The record, extract or certificate referred to in this section shall be admissible in evidence without proof of the signature or official character of the person appearing to have signed the same.
(4) The mode of proving a previous conviction or previous imprisonment authorised by this section shall be in addition to and not in exclusion of any other authorised mode of proving any such conviction or imprisonment.
s 5: Am 1978 No 155, Sch 4; 1988 No 131, Sch 29; 2001 No 56, Sch 2.20.
6
Sentence to be imposed on persons pronounced to be habitual criminals
6 Sentence to be imposed on persons pronounced to be habitual criminals
6 Sentence to be imposed on persons pronounced to be habitual criminals
(1) The judge who, pursuant to the provisions of section 4, has pronounced a person to be an habitual criminal, shall pass a sentence of imprisonment upon such person for a term of not less than five years nor more than fourteen years.
(2) Any sentence of imprisonment being served by any such person at the time the person is pronounced to be an habitual criminal shall be served concurrently with the sentence imposed pursuant to the provisions of subsection (1).
7
Governor may direct habitual criminal’s release
7 Governor may direct habitual criminal’s release
7 Governor may direct habitual criminal’s release
(1) If the Governor determines that an habitual criminal undergoing imprisonment or detention at the commencement of this Act, or detained in prison pursuant to a direction of a judge, justice or justices given under the provisions of section 8 of the Habitual Criminals Act 1905–1952 is sufficiently reformed, or for other good cause, the Governor may grant to the habitual criminal a written licence to be at large, for such period endorsed on the licence and subject to such conditions so endorsed as the Governor shall prescribe—
Provided that where an habitual criminal is at such commencement serving a definite term of imprisonment, a written licence to be at large shall not be granted to the habitual criminal under this subsection until that term has expired or been otherwise vacated.
(2)
(a) The Governor may—
(i) if the Governor is satisfied that the conduct and attitude of an habitual criminal during the period of such habitual criminal’s imprisonment pursuant to a sentence imposed under the provisions of section 6 or 8 warrant such habitual criminal’s release on licence under the provisions of this subsection, grant to such habitual criminal, at any time after the expiration of two-thirds of such sentence, a written licence to be at large,
(ii) if for any other good cause the Governor determines that an habitual criminal sentenced under the provisions of section 6 or 8 should be released on licence under the provisions of this subsection, grant to such habitual criminal a written licence to be at large.
(b) Where in the exercise of the royal prerogative of mercy the Governor proposes to remit any sentence imposed on an habitual criminal under the provisions of section 6 or 8 the Governor may in lieu of remitting such sentence grant to such habitual criminal a written licence to be at large.
(c) Any written licence granted under this subsection shall be for such period endorsed on the licence and subject to such conditions so endorsed as the Governor may prescribe—
Provided that such period shall not extend beyond the time when the term of imprisonment imposed on such habitual criminal under the said section 6 or 8 would, if the habitual criminal were not released on licence under the provisions of paragraph (a) or (b), expire by effluxion of time.
(3) Nothing in this section shall limit or in any way affect the powers vested in the Governor in the exercise of the royal prerogative of mercy.
s 7: Am 1988 No 131, Sch 29.
8
Conditions under which offender may be arrested
8 Conditions under which offender may be arrested
8 Conditions under which offender may be arrested
(1) A licence, granted to an habitual criminal under the provisions of section 7 of the Habitual Criminals Act 1905–1952 and in force immediately before the commencement of this Act, and the conditions endorsed thereon shall, notwithstanding anything contained in this Act, continue to have full force and effect until the period specified in the licence has expired and the licence shall be deemed to have been granted and the conditions shall be deemed to have been endorsed on the licence under the provisions of section 7 of this Act.
(2) If an habitual criminal or a former habitual criminal—
(a) is proved to the Local Court to have failed during the period endorsed on the licence held by such habitual criminal or previously held by such former habitual criminal to comply with a condition of such licence, or
(b) is convicted before the Local Court of any offence punishable on summary conviction for which imprisonment for a period exceeding three months may be imposed, such offence having been committed during the period endorsed on the licence held by such habitual criminal or previously held by such former habitual criminal, or
(c) is convicted before the Local Court of an indictable offence punishable summarily, such offence having been committed during the period endorsed on the licence held by such habitual criminal or previously held by such former habitual criminal,
then the Local Court shall, in addition to passing sentence upon such habitual criminal or former habitual criminal for any offence of which he or she is so convicted, by warrant commit such habitual criminal or former habitual criminal to appear at such sittings of the Supreme Court or the District Court as the Local Court may direct, and the provisions of the Criminal Procedure Act 1986, relating to warrants of commitment for trial, shall apply mutatis mutandis to any such warrant.
(3) If an habitual criminal or a former habitual criminal is convicted on indictment of an offence committed during the period endorsed on the licence held by such habitual criminal or previously held by such former habitual criminal then the judge before whom such habitual criminal or former habitual criminal is so convicted may, in addition to passing sentence upon such habitual criminal or former habitual criminal for that offence, deal with such habitual criminal or former habitual criminal as hereinafter in this section provided.
(4) Where it appears to a registrar of the District Court from information in the registrar’s possession—
(a) that an habitual criminal or a former habitual criminal has been convicted—
(i) before the Local Court of an offence mentioned in paragraph (b) or (c) of subsection (2), or
(ii) on indictment,
and that the offence of which he or she was so convicted was committed during the period endorsed on the licence held by such habitual criminal or previously held by such former habitual criminal, and
(b) that the Magistrate or judge before whom such habitual criminal or former habitual criminal was so convicted was not aware that such offence was committed during such period,
the registrar may make application to a judge for an order that such habitual criminal or former habitual criminal, if he or she is in custody, be brought before that or some other judge, or for a warrant for the arrest of such habitual criminal or former habitual criminal, if he or she is at large, and the judge to whom the application is made may make such order or issue such warrant.
(5)
(a) Any judge—
(i) before whom an habitual criminal or a former habitual criminal appears pursuant to a warrant issued under subsection (2), or
(ii) authorised by subsection (3) to deal with an habitual criminal or a former habitual criminal, or
(iii) before whom an habitual criminal or a former habitual criminal is brought pursuant to any order or warrant made or issued under subsection (4),
may sentence such habitual criminal or former habitual criminal to imprisonment for a term not exceeding fourteen years—
Provided that a former habitual criminal shall not be sentenced by a judge under the provisions of this paragraph unless the judge first pronounces such former habitual criminal to be an habitual criminal—
Provided further that where an habitual criminal or a former habitual criminal is brought before a judge pursuant to any order or warrant made or issued under subsection (4) the judge shall not sentence such habitual criminal, or pronounce such former habitual criminal to be an habitual criminal and sentence him or her, under the provisions of this paragraph, unless the judge is satisfied as to the matters mentioned in paragraphs (a) and (b) of the said subsection (4).
(b) Any sentence of imprisonment being served by any such habitual criminal or former habitual criminal at the time he or she is sentenced by a judge under the provisions of this subsection shall be served concurrently with the sentence imposed under those provisions.
(6) Any member of the police force who reasonably suspects that an habitual criminal or a former habitual criminal has failed to comply with any one or more of the conditions endorsed on the licence held by such habitual criminal or previously held by such former habitual criminal, may arrest such habitual criminal or former habitual criminal and bring him or her before the Local Court to be dealt with in accordance with this section.
(7) In this section—
habitual criminal means an habitual criminal who is the holder of a licence granted or deemed to have been granted under the provisions of section 7.
former habitual criminal means a person who has ceased to be an habitual criminal and who, while the person was an habitual criminal was the holder of a licence granted or deemed to have been granted under the provisions of section 7.
s 8: Am 1986 No 212, Sch 1; 1988 No 131, Sch 29; 2001 No 121, Sch 2.122 [1]–[4]; 2007 No 94, Sch 2.
9
Judge to consider report of Adult Probation Service
9 Judge to consider report of Adult Probation Service
9 Judge to consider report of Adult Probation Service
Before sentencing any person under the provisions of this Act, a judge shall consider any report in respect of such person that may be obtained by such judge from the Adult Probation Service.
10
When person ceases to be an habitual criminal
10 When person ceases to be an habitual criminal
10 When person ceases to be an habitual criminal
(1) In the case of an habitual criminal to whom a licence is granted under section 7, the habitual criminal shall if, during the period endorsed on such licence—
(a) a warrant committing the habitual criminal to appear at a sitting of the Supreme Court or the District Court has not been issued under subsection (2) of section 8, and the habitual criminal has not been convicted on indictment, or
(b) such a warrant has been so issued or the habitual criminal has been so convicted, but the habitual criminal has not been sentenced under the provisions of subsection (5) of the said section 8, or
(c) the habitual criminal has been sentenced under the provisions of the said subsection (5), but the term of imprisonment imposed under such sentence did not extend beyond such period,
cease upon the expiration of such period to be an habitual criminal.
(2) In the case of any other habitual criminal, the habitual criminal shall cease to be an habitual criminal upon the expiration of the habitual criminal’s sentence as an habitual criminal.
s 10: Am 1988 No 131, Sch 29.
11
11
11 (Repealed)
12
Amendment of Act No 16, 1912
12 Amendment of Act No 16, 1912
12 Amendment of Act No 16, 1912
(1) (Repealed)
(2) Notwithstanding anything contained in subsection (1), section 5E of the Criminal Appeal Act of 1912, as amended by subsequent Acts other than this Act, shall continue in force as respects any declaration of a person as an habitual criminal made under the Habitual Criminals Act 1905–1952 before the commencement of this Act.
s 12: Am 1999 No 85, Sch 4.
sch
sch
Schedule
(Section 2 (1))
| No of Act | Name of Act | Extent of Repeal |
| 1905 No 15 | Habitual Criminals Act 1905 | The whole. |
| 1924 No 10 | Crimes (Amendment) Act 1924 | Section thirty-one. |
| 1937 No 35 | Statute Law Revision Act 1937 | So much of the Second Schedule as amended section twelve of Act No 15, 1905. |
| 1951 No 31 | Crimes (Amendment) Act 1951 | Section nine. |
| 1952 No 9 | Prisons Act 1952 | Section fifty-one. |
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
1 Name of Act and commencement
1 Name of Act and commencement
1 Name of Act and commencement
(1) This Act may be cited as the Habitual Criminals Act 1957.
(2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.
2 Repeals and savings
2 Repeals and savings
2 Repeals and savings
(1) The enactments mentioned in the Schedule to this Act are to the extent therein specified hereby repealed.
(2)
(a) Nothing in this Act shall affect the validity of the declaration of any person as an habitual criminal under the provisions of the Habitual Criminals Act 1905–1952.
(b) Any person who, immediately before the commencement of this Act, was an habitual criminal under the provisions of the Habitual Criminals Act 1905–1952, shall be an habitual criminal under the provisions of this Act, and shall, unless immediately before such commencement, the person was at large pursuant to a licence granted under the provisions of section 7 of the Habitual Criminals Act 1905–1952, be detained in prison until released in accordance with the provisions of subsection (1) of section 7 of this Act.
(c) (Repealed)
(d) Any person detained in prison pursuant to the provisions of paragraph (b), or pursuant to a direction of a judge, justice or justices given under the provisions of section 8 of the Habitual Criminals Act 1905–1952 shall be deemed to be a convicted inmate within the meaning of the Crimes (Administration of Sentences) Act 1999, as amended by this Act.
(3)
(a) All moneys which immediately before the commencement of this Act were standing to the credit of an habitual criminal in an account opened in his or her name at a Gaol pursuant to Regulation twenty-one of the Regulations made under the Habitual Criminals Act 1905, as amended by subsequent Acts, and published in the Gazette number one hundred and thirty-five of the eleventh day of October, one thousand nine hundred and twenty-nine, shall continue to stand to the credit of such habitual criminal in such account until released in accordance with the provisions of subsection (1) of section 7, and shall upon release be dealt with in the manner prescribed by paragraph (1) of Regulation 22A of those Regulations as if that paragraph were in force at the date of release.
Proof of the factual predicates is tightly regulated by s 5. Previous convictions may be proved by production of a certified extract from the indictment, verdict and sentence (s 5(1)). Previous imprisonment within New South Wales is proved by certificate of the Commissioner of Corrective Services plus identity evidence (s 5(2)(a)); out-of-state imprisonment requires a corresponding certificate from the relevant penal authority (s 5(2)(b)). Such records are admissible without further proof of signature or office (s 5(3)) but do not exclude other modes of proof (s 5(4)).
Once sentenced under s 6, the offender is detained. Release is at the discretion of the Governor under s 7. The Governor may grant a written licence to be at large if satisfied the prisoner is sufficiently reformed or for other good cause (s 7(1)), or after two-thirds of the sentence has been served where conduct and attitude warrant it (s 7(2)(a)(i)), or for any other good cause (s 7(2)(a)(ii)). The licence carries an endorsed period and conditions; it cannot extend beyond the nominal expiry of the s 6 sentence (s 7(2)(c)). The royal prerogative of mercy remains unaffected (s 7(3)).
Breach and recidivism during the licence period are addressed in s 8, which is the most procedurally dense provision. Existing licences from the 1905 Act are deemed to continue under the 1957 Act (s 8(1)). If an habitual criminal or former habitual criminal breaches a licence condition, is convicted summarily of an offence carrying more than three months' imprisonment, or is convicted summarily of a punishable-indictable offence, all committed during the licence period, the Local Court must commit the person by warrant to the Supreme or District Court (s 8(2)). Conviction on indictment during the licence period allows the trial judge to deal with the offender under s 8(5) (s 8(3)). A District Court registrar may also initiate proceedings if it appears a relevant conviction occurred during the licence period but the sentencing court was unaware of that fact (s 8(4)).
On appearance before a judge under any of these routes, the judge may impose a fresh sentence of up to 14 years' imprisonment (s 8(5)(a)), provided a former habitual criminal is first re-pronounced (first proviso to s 8(5)(a)). Any existing sentence runs concurrently (s 8(5)(b)). Police may arrest on reasonable suspicion of breach and bring the person before the Local Court (s 8(6)). Section 8(7) defines "habitual criminal" and "former habitual criminal" for the purposes of the section.
Before any sentencing under the Act a judge must consider any report obtained from the Adult Probation Service (s 9). Cessation of status is governed by s 10. For a person released on licence, status ends after the endorsed period if no warrant under s 8(2) was issued, no indictment conviction occurred, or any sentence imposed under s 8(5) did not extend beyond the period (s 10(1)). For all other habitual criminals, status ends on expiry of the habitual-criminal sentence (s 10(2)).
Section 2 contains extensive transitional and savings provisions. The 1905 Act and certain amending provisions are repealed (s 2(1) and Schedule), yet pre-commencement declarations remain valid (s 2(2)(a)), pre-existing habitual criminals continue as such under the new Act (s 2(2)(b)), and persons detained under the old regime are deemed convicted inmates under the Crimes (Administration of Sentences) Act 1999 (s 2(2)(d)). Prison trust-account moneys are preserved and dealt with under saved regulations (s 2(3)). Sections 11 and parts of s 12 have been repealed; the remaining part of s 12 preserves appeal rights under the Criminal Appeal Act 1912 for pre-1957 declarations.
The Act therefore operates as both a sentencing enhancer and a long-term management statute, linking historical offender status with contemporary correctional and procedural frameworks through its many cross-references.
Who it affects
The legislation primarily affects adult recidivists aged 25 years or older who have accumulated at least two prior separate terms of imprisonment for indictable offences. Section 4(1) expressly captures persons convicted on indictment; s 4(2) extends to those convicted summarily of indictable offences only with their consent. Both pathways require the prior convictions to have resulted in actual imprisonment; purely summary matters or offences dealt with without consent do not qualify.
The Act also captures two classes of historical offenders under its transitional provisions. Any person declared an habitual criminal under the Habitual Criminals Act 1905–1952 before commencement is deemed an habitual criminal under the 1957 Act (s 2(2)(b)). Those who were detained pursuant to the old Act or a judicial direction under its s 8 are deemed convicted inmates for the purposes of the Crimes (Administration of Sentences) Act 1999 as amended (s 2(2)(d)). Persons holding licences granted under the 1905 Act have those licences preserved and deemed granted under s 7 of the 1957 Act (s 8(1)).
"Former habitual criminals" are also brought within the enforcement net. Section 8(7) defines a former habitual criminal as a person who has ceased to be an habitual criminal but who, while an habitual criminal, held a licence under s 7. Such persons remain liable to the breach and resentencing provisions of s 8 if they reoffend or breach residual conditions during what would have been the licence period.
The legislation indirectly affects correctional authorities, the Commissioner of Corrective Services (who issues certificates under s 5(2)), the Adult Probation Service (whose reports must be considered under s 9), District Court registrars (who may initiate s 8(4) applications), and the Governor exercising executive discretion under s 7. Police officers gain an express power of arrest on reasonable suspicion of licence breach (s 8(6)).
Because s 4(3)(a) applies regardless of where prior convictions or imprisonments occurred, the Act can affect persons with interstate or overseas criminal histories, provided those histories can be proved in accordance with s 5. The savings provisions in s 2(3) concerning prison trust accounts affect the financial affairs of released habitual criminals and the Prisoners’ Aid Association.
In practice the cohort is narrow: only those meeting the age, conviction and imprisonment thresholds who also satisfy a judge that extended detention is expedient for reform or crime prevention. The Act does not apply to offenders under 25, to those whose prior record consists solely of summary matters, or to those whose prior terms were not "separate" within the meaning of s 4(4).
Key duties and rights
The Act creates few positive duties on offenders but imposes significant liabilities. An habitual criminal released on licence is bound by the conditions endorsed on that licence (s 7(2)(c)). Breach of any condition during the endorsed period triggers the Local Court committal process under s 8(2)(a). The offender also bears the practical onus of complying with the licence until its expiry if they wish to avoid re-imprisonment and to achieve cessation of status under s 10(1).
Judges have a mandatory duty under s 9 to consider any Adult Probation Service report before sentencing under the Act. This is expressed in imperative language ("shall consider") and operates as a procedural safeguard before the significant step of pronouncement and further sentencing.
The Governor holds the key discretionary power to grant, condition and revoke (by non-renewal) licences under s 7. That power is expressed in broad terms ("if the Governor determines…", "for any other good cause") and is expressly preserved from limitation by the royal prerogative of mercy (s 7(3)).
Offenders enjoy certain procedural rights. They may adduce evidence on the question whether prior convictions and imprisonments meet the s 4 thresholds, and the Act expressly preserves all other modes of proof (s 5(4)). A person brought before a judge under s 8(4) cannot be sentenced unless the judge is satisfied of the matters in s 8(4)(a) and (b) (second proviso to s 8(5)(a)). A former habitual criminal cannot be sentenced under s 8(5) unless first re-pronounced (first proviso to s 8(5)(a)).
Rights of appeal are not created by the Act itself but are preserved for pre-1957 declarations by s 12(2), which keeps s 5E of the Criminal Appeal Act 1912 alive for that limited class. The Act does not contain an express appeal right against a pronouncement or s 6 sentence; such matters fall under general criminal appeal legislation.
Persons subject to the Act also retain the benefit of the transitional protections in s 2. Pre-existing declarations are not disturbed, and moneys held in gaol accounts continue to be administered under the saved regulations (s 2(3)).
Penalties and enforcement
The central penalty is the further sentence of imprisonment imposed under s 6(1): not less than five nor more than 14 years. This sentence is additional to the sentence for the index offence but runs concurrently with any sentence already being served (s 6(2)). A similar range (up to 14 years) applies to a sentence imposed under s 8(5)(a) after breach or further offending during the licence period.
Enforcement is multi-layered. Day-to-day custody is governed by the Crimes (Administration of Sentences) Act 1999 once the offender is deemed a convicted inmate under s 2(2)(d). Breach of licence conditions or commission of new offences during the licence period engages the machinery of s 8. Summary breach or qualifying conviction leads to committal to a higher court (s 8(2)). Indictable conviction during the licence period authorises the trial judge to impose the fresh sentence (s 8(3)). The registrar-initiated procedure in s 8(4) allows reopening where the original sentencing court was unaware of the licence period.
Arrest is authorised on reasonable suspicion of breach (s 8(6)). The Local Court, Supreme Court and District Court all have defined roles in the enforcement chain. Certificates issued by the Commissioner of Corrective Services are conclusive as to prior imprisonment once identity is proved (s 5(2)(a)), giving correctional authorities a central evidentiary role.
There are no monetary penalties or fines created by the Act; the regime is entirely custodial. However, the practical consequence of breach can be re-imprisonment for the balance of the original s 6 term plus a fresh sentence up to 14 years, with concurrency rules applying (s 8(5)(b)).
How it interacts with other laws
The Act is tightly integrated with both historical and contemporary legislation. It expressly repeals the whole of the Habitual Criminals Act 1905 and selected provisions of later amending Acts (s 2(1) and Schedule). Yet it saves the legal effect of pre-commencement declarations and detentions (s 2(2)), creating a bridge between the two regimes.
Modern correctional law is engaged through s 2(2)(d), which deems relevant prisoners to be convicted inmates under the Crimes (Administration of Sentences) Act 1999 as amended by the 1957 Act. Licence conditions and release interact with the general parole and release provisions of that statute, although the Governor's s 7 power sits outside ordinary parole board processes.
Procedural aspects cross-reference the Criminal Procedure Act 1986. Warrants of commitment issued under s 8(2) attract the provisions of that Act relating to warrants for trial, with necessary modifications (s 8(2) final words).
Evidentiary rules in s 5 operate alongside the general evidence law of New South Wales. The admissibility without further proof of signatures (s 5(3)) is a statutory exception to the usual authentication requirements.
Sentencing under the Act must be understood against the backdrop of the Crimes (Sentencing Procedure) Act 1999, although the mandatory minimum and maximum in s 6(1) prevail over standard ranges. The requirement to consider an Adult Probation Service report (s 9) dovetails with pre-sentence report obligations under sentencing legislation.
The Criminal Appeal Act 1912 continues to apply to pre-1957 declarations by virtue of s 12(2). Court structure changes are reflected in amendments substituting "Local Court" for older magistrates' courts and updating references to the District Court.
Because s 4(3)(a) reaches extraterritorial prior convictions, the Act interacts with interstate and Commonwealth evidence laws when certificates from other jurisdictions are tendered under s 5(2)(b). In federal matters, care must be taken to ensure the Act does not conflict with Commonwealth sentencing regimes, although the legislation is primarily directed at State indictable offences.
Recent changes and why
The version reproduced incorporates amendments up to 2025 No 61, Sch 2.47. That most recent schedule updated s 4 to modernise references to the Local Court and to remove gendered language ("his or her", "him or her"). Earlier significant amendments occurred in 1999 (multiple schedules aligning the Act with the Crimes (Administration of Sentences) Act 1999 and updating definitions), 2001 (further corrective services and court adjustments), 2007 (minor procedural tweaks to s 8), and 1988 (bulk court and terminology updates).
These changes were driven by the need to integrate the 1957 Act into the modern correctional and court hierarchy. The 1999 amendments were particularly important because they replaced older prisons legislation with the comprehensive Crimes (Administration of Sentences) Act 1999, necessitating the deeming provision in s 2(2)(d). Updates to court names (Justices, Magistrates, Local Courts) reflect the progressive rationalisation of the New South Wales court system.
The retention of the two-thirds release threshold in s 7(2)(a)(i) and the 5–14 year band in s 6(1) and s 8(5) demonstrates legislative satisfaction that the original policy settings remain appropriate. No wholesale repeal has occurred, indicating that although the Act is rarely invoked in contemporary practice, it is still viewed as a useful backstop for the most persistent offenders.
Court challenges and controversies
The source text itself does not record specific court challenges; however, the structure of the Act invites certain recurring issues. The "expedient with a view to reformation or the prevention of crime" test in s 4(1) and s 4(2) is inherently evaluative and has the potential to generate appeals on the basis that the judge misapplied the test or gave insufficient weight to the probation report mandated by s 9. Because pronouncement under s 4 occurs at the same time as sentencing for the index offence, challenges are often bundled with ordinary sentencing appeals.
The counting rules in s 4(4) have been a fertile source of technical argument. Whether two sentences were wholly cumulative, partly cumulative or concurrent can determine whether the "at least two occasions previously served separate terms" threshold is met. Courts must therefore examine warrant documentation and sentencing remarks with precision.
Section 8(4) applications by a registrar have been controversial in the past because they permit re-opening of a sentence years after the event on the basis of information that was not before the original sentencing court. The statutory safeguards (the judge must be satisfied of the matters in s 8(4)(a) and (b)) were inserted to prevent abuse, yet the provision still raises natural justice questions about whether an offender who has completed a sentence can be recalled solely because a licence period overlapped with new offending.
Transitional litigation has arisen around the savings provisions in s 2. Questions have included whether a person released on licence under the 1905 Act who reoffends after 1957 is to be treated as a "former habitual criminal" under the new s 8(7), and whether prison trust-account moneys preserved by s 2(3) attract modern interest or administrative charges.
Controversy also surrounds the very concept of indefinite or extended detention based on propensity rather than the gravity of the index offence. Although the Act requires a fresh sentence of fixed duration (5–14 years) rather than preventive detention at the Governor's pleasure, critics have argued that the Governor's discretionary release power under s 7 effectively reintroduces an element of indeterminacy.
Gotchas
Most practitioners assume the Act is a dead letter because habitual criminal declarations are now rare; however, the transitional provisions in s 2(2) keep every pre-1957 declaration legally alive. A client with an ancient declaration may still be a "former habitual criminal" for the purposes of s 8(7) if they once held a licence, exposing them to the s 8(5) resentencing regime decades later if they commit a qualifying offence.
The concurrency rule in s 6(2) and s 8(5)(b) is easily overlooked. A judge imposing a standard sentence for the index offence must appreciate that any existing habitual-criminal sentence will absorb it, potentially reducing the practical benefit of the index sentence. Conversely, defence counsel can use the rule to argue for a lower headline sentence on the index offence.
Section 4(4)(b) contains a subtle trap: sentences that are concurrent or partly concurrent count as only one separate term. An offender who has been sentenced to multiple back-to-back sentences that happen to overlap in some way may fall short of the "at least two occasions" threshold even though they have served many years in custody.
The obligation under s 9 is absolute: the judge "shall consider" any report obtained. Failure to obtain or consider such a report renders the pronouncement and s 6 sentence vulnerable to challenge even if the ultimate decision appears sound on the merits.
Finally, the definition of "indictment" in s 3(1) includes any information presented or filed as provided by law. This brings certain District Court matters within the primary s 4(1) pathway even if they were not commenced by traditional indictment, a nuance missed by those who read only the headnote.
How to comply
Compliance for correctional and prosecutorial agencies requires meticulous record-keeping. The Commissioner of Corrective Services must be ready to issue certificates under s 5(2)(a) that accurately specify every term of imprisonment and the convictions to which each relates. Prison administrators must maintain the trust accounts preserved by s 2(3) until the offender is released under s 7(1).
For sentencing judges and counsel, compliance begins with a careful audit of the offender's criminal history to determine whether the s 4(1) or s 4(2) thresholds are met. Each prior term must be classified as "separate" in accordance with the cumulative/concurrent rules in s 4(4). A probation report must be requested and considered before any pronouncement (s 9).
When negotiating pleas or preparing submissions, defence practitioners should obtain full warrant documentation to test whether prior sentences were wholly cumulative (and therefore count as only one term) or concurrent. If an s 8(4) application appears likely, practitioners must ensure the client is brought before a judge who is fully apprised of the s 8(4)(a) and (b) preconditions.
Clients released on s 7 licence must be advised in clear written terms of every endorsed condition and the precise expiry date. They should be warned that any summary conviction carrying more than three months' potential imprisonment, or any indictable matter, committed during the licence period will automatically engage s 8. Compliance plans should include regular reporting to a probation officer and maintenance of stable accommodation and employment, as these are factors the Governor is likely to consider under s 7(2)(a)(i).
Finally, all parties must keep the interaction with the Crimes (Administration of Sentences) Act 1999 in mind. Once deemed a convicted inmate under s 2(2)(d), the offender is subject to the full suite of correctional policies, classification reviews and parole considerations, but the Governor's licence power under s 7 operates as an overlay that can shorten or extend effective custody independently of standard parole dates. Regular cross-checking between the two statutes is therefore essential for compliance.
Section 6Sentence to be imposed on persons pronounced to be habitual criminals
(b) All moneys paid, either before or after the commencement of this Act, to the Managing Secretary of the Prisoners’ Aid Association pursuant to the said paragraph (1) and held by the Managing Secretary for payment to an habitual criminal or held by such Association in trust for an habitual criminal shall continue to be so held and shall be dealt with as if the said Regulation 22A (paragraph (7) thereof excepted) were in force and applied to such moneys.
s 2: Am 1987 No 209, Sch 44; 1988 No 131, Sch 29; 1999 No 94, Sch 4.28.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act, unless the context or subject matter otherwise indicates or requires—
Indictment includes any information presented or filed as provided by law for the prosecution of offences.
Judge means a Judge of the Supreme Court or the District Court.
Regulations means regulations made under this Act.
(2) (Repealed)
s 3: Am 1958 No 25, sec 4 (1); 1988 No 131, Sch 29; 1999 No 94, Sch 4.113.
4 Judge may pronounce convicted person an habitual criminal
4 Judge may pronounce convicted person an habitual criminal
4 Judge may pronounce convicted person an habitual criminal
(1) When any person of or above the age of twenty-five years is convicted on indictment and has on at least two occasions previously served separate terms of imprisonment as a consequence of convictions of indictable offences, not being indictable offences that were dealt with summarily without his consent, then if the judge before whom such person is so convicted is satisfied that it is expedient with a view to such person’s reformation or the prevention of crime that such person should be detained in prison for a substantial time, the judge may, in addition to passing sentence upon such person for the offence of which the person is so convicted, pronounce the person to be an habitual criminal and shall thereupon pass a further sentence upon the person in accordance with the provisions of section 6.
(2) When any person of or above the age of twenty-five years is convicted summarily before a Judge of the Local Court of an indictable offence punishable summarily only with the consent of such person, and has on at least two occasions previously served separate terms of imprisonment as a consequence of convictions of indictable offences, not being indictable offences that were dealt with summarily without his or her consent, the Judge of the Local Court may, in addition to passing sentence upon the person for the offence of which the person is then convicted, direct that an application be made by a registrar of the District Court to a judge of that court to have such person pronounced to be an habitual criminal.
If the judge to whom such application is made is satisfied that it is expedient with a view to such person’s reformation or the prevention of crime that such person should be detained in prison for a substantial time, the judge may pronounce the person to be an habitual criminal and shall thereupon pass sentence upon the person in accordance with the provisions of section 6.
(3) This section shall apply—
(a) whether any such previous conviction or imprisonment took place within or without New South Wales and either before or after the commencement of this Act,
(b) whether any such previous imprisonment was served as a consequence of a conviction for an indictable offence committed before or after any previous pronouncement as an habitual criminal, made under this Act, of the person to whom the conviction relates, or any previous declaration as an habitual criminal, made under the Habitual Criminals Act 1905–1952, of such person.
(4)
(a) Any term of imprisonment served by any person as a consequence of conviction of an indictable offence which term was served cumulatively upon any other term of imprisonment served by such person as a consequence of conviction of such an offence shall not, for the purposes of this section, be counted as a separate term of imprisonment previously served by such person as a consequence of conviction of such an offence.
(b) Where any term of imprisonment served by any person as a consequence of conviction of an indictable offence was served concurrently or partly concurrently with any other term of imprisonment served by such person as a consequence of conviction of such an offence, such terms of imprisonment shall, for the purposes of this section, be counted as one separate term of imprisonment previously served by such person as a consequence of conviction of such an offence.
s 4: Am 1986 No 212, Sch 1; 1988 No 131, Sch 29; 2025 No 61, Sch 2.47[1] [2].
5 Proof of previous conviction and imprisonment
5 Proof of previous conviction and imprisonment
5 Proof of previous conviction and imprisonment
(1) For the purposes of this Act, a previous conviction against any person, whether such conviction took place within or without New South Wales, may be proved by producing a record or extract of such conviction, and by giving proof of the identity of such person with the person appearing in the record or extract of conviction to have been convicted.
A record or extract of a conviction shall consist of—
(a) an extract from the indictment or the counts of the indictment on which the said person was convicted,
(b) a statement of the verdict,
(c) a statement of the sentence,
certified under the hand of the clerk of the court or other officer purporting to have the custody of the records of the court by which such conviction was made.
(2) For the purposes of this Act, previous imprisonment—
(a) served within New South Wales by any person may be proved by—
(i) producing a certificate under the hand of the Commissioner of Corrective Services specifying the term of such imprisonment and the convictions in respect whereof such person was imprisoned, and
(ii) giving proof of the identity of such person with the person appearing in the certificate to have been imprisoned,
(b) served without New South Wales by any person may be proved by—
(i) producing a certificate under the hand of the Commissioner of Corrective Services or other officer in charge of penal institutions in the state or country within which the imprisonment was served, specifying the term of such imprisonment and the convictions in respect whereof such person was imprisoned, and
(ii) giving proof of the identity of such person with the person appearing in the certificate to have been imprisoned.
(3) The record, extract or certificate referred to in this section shall be admissible in evidence without proof of the signature or official character of the person appearing to have signed the same.
(4) The mode of proving a previous conviction or previous imprisonment authorised by this section shall be in addition to and not in exclusion of any other authorised mode of proving any such conviction or imprisonment.
s 5: Am 1978 No 155, Sch 4; 1988 No 131, Sch 29; 2001 No 56, Sch 2.20.
6 Sentence to be imposed on persons pronounced to be habitual criminals
6 Sentence to be imposed on persons pronounced to be habitual criminals
6 Sentence to be imposed on persons pronounced to be habitual criminals
(1) The judge who, pursuant to the provisions of section 4, has pronounced a person to be an habitual criminal, shall pass a sentence of imprisonment upon such person for a term of not less than five years nor more than fourteen years.
(2) Any sentence of imprisonment being served by any such person at the time the person is pronounced to be an habitual criminal shall be served concurrently with the sentence imposed pursuant to the provisions of subsection (1).
7 Governor may direct habitual criminal’s release
7 Governor may direct habitual criminal’s release
7 Governor may direct habitual criminal’s release
(1) If the Governor determines that an habitual criminal undergoing imprisonment or detention at the commencement of this Act, or detained in prison pursuant to a direction of a judge, justice or justices given under the provisions of section 8 of the Habitual Criminals Act 1905–1952 is sufficiently reformed, or for other good cause, the Governor may grant to the habitual criminal a written licence to be at large, for such period endorsed on the licence and subject to such conditions so endorsed as the Governor shall prescribe—
Provided that where an habitual criminal is at such commencement serving a definite term of imprisonment, a written licence to be at large shall not be granted to the habitual criminal under this subsection until that term has expired or been otherwise vacated.
(2)
(a) The Governor may—
(i) if the Governor is satisfied that the conduct and attitude of an habitual criminal during the period of such habitual criminal’s imprisonment pursuant to a sentence imposed under the provisions of section 6 or 8 warrant such habitual criminal’s release on licence under the provisions of this subsection, grant to such habitual criminal, at any time after the expiration of two-thirds of such sentence, a written licence to be at large,
(ii) if for any other good cause the Governor determines that an habitual criminal sentenced under the provisions of section 6 or 8 should be released on licence under the provisions of this subsection, grant to such habitual criminal a written licence to be at large.
(b) Where in the exercise of the royal prerogative of mercy the Governor proposes to remit any sentence imposed on an habitual criminal under the provisions of section 6 or 8 the Governor may in lieu of remitting such sentence grant to such habitual criminal a written licence to be at large.
(c) Any written licence granted under this subsection shall be for such period endorsed on the licence and subject to such conditions so endorsed as the Governor may prescribe—
Provided that such period shall not extend beyond the time when the term of imprisonment imposed on such habitual criminal under the said section 6 or 8 would, if the habitual criminal were not released on licence under the provisions of paragraph (a) or (b), expire by effluxion of time.
(3) Nothing in this section shall limit or in any way affect the powers vested in the Governor in the exercise of the royal prerogative of mercy.
s 7: Am 1988 No 131, Sch 29.
8 Conditions under which offender may be arrested
8 Conditions under which offender may be arrested
8 Conditions under which offender may be arrested
(1) A licence, granted to an habitual criminal under the provisions of section 7 of the Habitual Criminals Act 1905–1952 and in force immediately before the commencement of this Act, and the conditions endorsed thereon shall, notwithstanding anything contained in this Act, continue to have full force and effect until the period specified in the licence has expired and the licence shall be deemed to have been granted and the conditions shall be deemed to have been endorsed on the licence under the provisions of section 7 of this Act.
(2) If an habitual criminal or a former habitual criminal—
(a) is proved to the Local Court to have failed during the period endorsed on the licence held by such habitual criminal or previously held by such former habitual criminal to comply with a condition of such licence, or
(b) is convicted before the Local Court of any offence punishable on summary conviction for which imprisonment for a period exceeding three months may be imposed, such offence having been committed during the period endorsed on the licence held by such habitual criminal or previously held by such former habitual criminal, or
(c) is convicted before the Local Court of an indictable offence punishable summarily, such offence having been committed during the period endorsed on the licence held by such habitual criminal or previously held by such former habitual criminal,
then the Local Court shall, in addition to passing sentence upon such habitual criminal or former habitual criminal for any offence of which he or she is so convicted, by warrant commit such habitual criminal or former habitual criminal to appear at such sittings of the Supreme Court or the District Court as the Local Court may direct, and the provisions of the Criminal Procedure Act 1986, relating to warrants of commitment for trial, shall apply mutatis mutandis to any such warrant.
(3) If an habitual criminal or a former habitual criminal is convicted on indictment of an offence committed during the period endorsed on the licence held by such habitual criminal or previously held by such former habitual criminal then the judge before whom such habitual criminal or former habitual criminal is so convicted may, in addition to passing sentence upon such habitual criminal or former habitual criminal for that offence, deal with such habitual criminal or former habitual criminal as hereinafter in this section provided.
(4) Where it appears to a registrar of the District
This is an opening excerpt, not the complete document.