14.1 The Commission’s terms of reference require consideration of the “rationalisation and consolidation of current sentencing provisions”.1 This Chapter addresses four questions:
- Should existing statutory provisions be consolidated?
- Should the consolidation state the purposes of punishment?
- Which, if any, common law principles should be incorporated in any consolidated statute (or statutes)?
- Should archaic concepts and terminology be abolished?
CONSOLIDATION OF SENTENCING LAW
Recommendation 82
Statutory provisions relating to sentencing should be consolidated.
Recommendation 83
Statutory provisions relating to sentencing should be consolidated in two separate statutes, a Sentencing Act and a Sentencing Administration Act.
Recommendation 84
Procedural provisions should be removed from the Crimes Act 1900 (NSW) and placed in the Criminal Procedure Act 1986 (NSW).
14.2 Sentencing is based on a mosaic of common law and statute containing principles relating to punishment, the prescription of penalties, and the regulation of procedural aspects of punishment, both custodial and non-custodial. The recent proliferation of legislation2 has exacerbated the difficulties which already exist. The Commission identifies the problems created by the diverse sources of sentencing law as:
- failure to provide easily accessible reference to the statutory provisions relating to the principles and procedures of sentencing; and
- the consequent risk of error in sentencing decisions.3
14.3 To overcome these problems, the Commission proposed in DP 33 that existing statutory provisions relating to sentencing in New South Wales should be brought together into a consolidated form. Legislatures in most Australian jurisdictions have recently adopted consolidated legislation.4 Submissions strongly supported the proposal in principle.5
14.4 It must be emphasised that the consolidation recommended by the Commission is no more than that. The purpose is to collect in an easily accessible legislative form all existing provisions relevant to sentencing. Codification is not proposed. Indeed, the Commission specifically rejects this. The common law principles relating to sentencing remain.
14.5 As to the form of the consolidation, the Commission recommends that there be two statutes, one dealing with sentencing principles and policy, the other dealing with administration of sentences. This follows the Western Australian model of consolidation. It distinguishes all matters relevant to the determination of a sentence and the making of a parole order, which are judicial and quasi-judicial functions respectively, from administration of sentences by the appropriate arm of the executive government. Though it was argued a single statute (but with distinct parts dealing with law and administration) may facilitate subsequent amendment,6 the Commission’s proposal drew no other opposition. Indeed, the Department charged with administration of sentencing options other than fines asserted one act would be unworkable.7
14.6 Provisionally, the Commission proposes the arrangement of existing legislation between the two statutes should be as presented in Table 1. The following considerations apply to the Table:
- Provisions relating to enforcement of sentences are included in the sentencing administration category.
- Provisions are listed notwithstanding the Commission recommends their amendment or repeal in this Report.
- Provisions in any Bills currently before Parliament or unproclaimed Acts referred to in this Report are not included.8
- Provisions dealing with definitions and objects will need to be allocated as appropriate.
- The position relating to fines remains to be resolved in light of the Fines Act 1996 (NSW).9
- Provisions regarding sentencing in specialist jurisdictions remain in the relevant legislation.10
- The Mental Health (Criminal Procedure) Act 1990 (NSW) and the Mental Health Act 1990 (NSW) will continue to apply to “forensic patients”.
- Procedures relating to appeals are not included in either category. These should be within the Acts relevant to the particular court.11
14.7 Implementation of the Commission’s recommendations in relation to legislative arrangement of sentencing legislation will require considerable alteration to many statutes. It would be, in the Commission’s view, the appropriate time to fulfil the intention of the Criminal Procedure Act 1986 (NSW) and relocate to it provisions in the Crimes Act 1900 (NSW) relating to procedure. We recommend accordingly.
14.8 Consolidation should also be used as an opportunity to adopt a style of legislative drafting which makes the Acts readily understood by the community generally, as well as by judicial officers and the legal profession. This includes abandoning the use of archaic terminology, irrelevant to the criminal justice system of the twenty-first century. The Commission makes recommendations about some aspects of terminology below.12
14.9 The form of the consolidation cannot be finally settled until all three phases of this reference have been completed. The Commission’s tentative view, which has general support,13 is that there are both symbolic and practical advantages involved in separating legislative provisions relating to juvenile sentencing,14 however this is properly a matter for investigation in the second phase. The Commission is firmly of the view that legislation relating to prison administration should remain in a separate statute since prison administration is different from sentencing administration.15
Table 1
Statute | Sentencing law | Sentencing Administration |
| Children (Community Service Orders) Act 1987 |
|
|
| Children (Criminal Proceedings) Act 1987 |
Part 2 Div 4, Div 5;
Part 3 Div 4
|
|
| Children (Detention Centres) Act 1987 |
|
|
| Community Service Orders Act 1979 |
Sections 4-12, 19, 25-26D
|
Sections 3A, 13-18, 20-24, 26E-27
|
| Correctional Centres Act 1952 |
Sections 26B(1), (2), (4) & (5), 26D, 26E, 24(2)
|
|
| Crimes Act 1900 |
Section 19A; Part 12;
Sections 476 (7), 476 (7A), 553-555;
Part 15
|
|
| Criminal Procedure Act 1986 |
|
|
| Drug Misuse and Trafficking 1985 |
|
|
| Habitual Criminals Act 1957 |
|
|
| Justices Act 1902 |
Sections 80, 80A, 80AA, 80AB, 83,84A-86
|
Sections 49-50, 82, 86A-97
|
| Periodic Detention of Prisioners Act 1981 |
|
|
| Pre-trial Diversion of Offenders act 1985 |
|
|
| Prisioners (Interstate Transfer) Act 1985 |
|
|
| Sentencing Act 1989 |
|
|
| Summary Offenders Act 1988 |
Sections 10A(2), 10A(3), 10B(2), 10B(3), 33
|
|
[Link to text only version of table 1]
THE RATIONALE OF SENTENCING
14.10 In DP 33 the Commission identified and discussed the several aims and objectives of punishment.16 Reference was made to various legislative statements of the purposes of sentencing recently incorporated in sentencing statutes of other Australian jurisdictions.17 The issues were:
- whether the proposed Sentencing Act should endorse the objectives of punishment to be determined in accordance with its terms; if so
- which objectives should be recognised; and
- should they be placed in a hierarchy.
14.11 The Commission favoured identifying the purposes of punishment in the consolidated sentencing legislation, without attempting to place them in any hierarchy. Submissions generally supported the proposal to include the purposes in legislation,18 although some reservations were expressed. Submissions adverted to the unsuccessful attempts to put such notions in legislation in other places;19 to the dangers of including discredited objectives; and to the contradiction inherent in any proposal not to include common law principles relating to the factors influencing individual sentences.20 Attempting to place the purposes in a hierarchy was universally rejected.
14.12 In our view the rationales for punishment are:
- Retribution - which is the notion that the guilty ought to be accountable for their actions and suffer the punishment which they deserve.21
- Deterrence -
specific deterrence which aims to dissuade the offender from committing further crime; and
general deterrence which aims to dissuade others from committing the crime in question by making them aware of the punishment inflicted upon the offender.22
- Denunciation - which involves the court making a public statement that behaviour constituting the offence is not to be tolerated by society either in general, or in the specific instance.
- Rehabilitation - which relies on the philosophy that the offender’s behaviour can be changed by using the opportunity of punishment to address the particular social, psychological, psychiatric or other factors which have influenced the offender to commit the crime.
- Incapacitation - which involves preventing a person from committing further offences during the period of incarceration, with community protection as the justification.23
14.13 The Commission is of the view that all these purposes are relevant in determining the sentence appropriate to the individual circumstances of the offence and the offender, their weight in any case depending on the circumstances of that offence and of the offender. The sentence process involves a complex and intricate interplay which emerges as a compromise between these overlapping, “distinct and partly conflicting principles”.24 They represent varying philosophical approaches to sentencing. The Commission is unable to identify from among the objectives a dominant rationale. The importance attached to any particular goal or goals of sentencing will vary, not only with the individual circumstances, but also over time, reflecting changes in society and community perceptions. The legislative statement of the purposes of punishment should not place them in a hierarchy. The legislation should make it clear that no priority is assigned, lest it is unintentionally interpreted to this effect.25
INCORPORATION OF COMMON LAW PRINCIPLES
14.14 The other major aspect of consolidation of sentencing law relates to whether the consolidation should incorporate the principles of the common law. In DP 33 the Commission argued strongly that, contrary to the recent trend in sentencing legislation in other jurisdictions,26 it should not.27 Overwhelmingly, submissions supported this position.28
14.15 The Commission does not support the reduction to statutory form of common law principles relating to sentencing for the following reasons:
- It is likely to stultify development of the law. Consolidation can easily be treated as codification, which has inherent difficulties. Sentencing should remain an individualised exercise of judicial discretion in “making the punishment fit the crime, and the circumstances of the offender, as nearly as may be”.29 Inevitably it would be constrained by literal application of the words and purposes of the statute, thus compromising the desirable flexibility and evolutionary nature of the common law discretion and its ability to adapt to changing societal values.
- The common law of sentencing is not generally in need of restatement. Even if it were, an attempt to “reform” it is likely to fail.30
- We are not convinced that recent legislative attempts in other Australian jurisdictions add anything to the common law. An exhaustive list of factors which may be relevant to sentencing for offences and of offenders cannot be drawn up,31 and any statutory list therefore must permit resort to “any other matter”. Of itself, listing can create dangers, for example in relation to whether a matter must be taken into account in aggravation or in mitigation, or what to do when principles are in conflict, or what conclusion is to be drawn from the order in which factors are listed, or the omission of a factor from the list.
- In practice, statutory listing is likely to make sentencing a more time consuming exercise without clear gain. Counterproductively, it may increase the grounds on which the sentence may be appealed, or encourage judicial officers to comply by using a formula such as “I have considered all the relevant matters”.
14.16 Our conclusion is that reducing the common law to statutory form serves no obvious purpose in terms of law reform, and runs the real risk if obfuscating the law. Nor does the Commission consider that the present law contains defects that warrant complete rationalisation and consolidation or codification. Where difficulties exist, the Commission considers that they are better resolved by the development of the common law, free from the constraints of statute.
14.17 In consultations,32 the Commission sought advice on which, if any, specific factors determining individual sentences were in need of reform. Two emerged consistently. The first, the age of the offender,33 is appropriately considered in the context of the second phase of the reference. The second was hardship on the offender’s family caused by his or her imprisonment.34 It was suggested that the common law was unduly harsh and that a more acceptable approach is possible under s 16A(2)(p) of the Crimes Act 1914 (Cth). However, further discussion revealed that, in practice, there is no difference in the treatment of this factor under the Crimes Act 1914 (Cth) and the common law, and that the common law is inherently more capable of dealing with questions of hardship in a flexible and evolutionary manner than would be any attempted statutory form.35
14.18 To the extent that community understanding of sentencing should rest on a greater familiarity with, and understanding of, the principles which apply in determining individual sentences, the Commission does not consider that what must inevitably be imperfect attempts to incorporate those principles in statutory form will achieve that objective. The educative purpose is better achieved by other means.
ABOLITION OF ARCHAIC CONCEPTS AND TERMINOLOGY
14.19 The Commission proposed in DP 33 to abolish archaic distinctions and terminology in legislation concerning criminal offences and punishment.36 Submissions unanimously agreed.37
Penal sentences
14.20 Where a penalty which involves a determinate term of imprisonment is imposed, the court expresses the sentence either as “penal servitude” or “imprisonment”. The distinction rests primarily on whether the offence is a felony or a misdemeanour.38 Sections 432(1) and 554(1) of the Crimes Act 1900 (NSW) give Courts a discretion to order that an offender sentenced to imprisonment be kept to “hard labour” or “light labour”.39
14.21 These anachronistic terms are relics of past eras of sentencing.40 With regard to conditions in which imprisonment is served, they preserve distinctions that are no longer relevant to the administration of a modern correctional system.41 There is no utility in preserving sentences of penal servitude,42 particularly in the light of Recommendation 86 to abolish all distinctions between felonies and misdemeanours. The Commission recommends that legislation dealing with the imposition of sentences of imprisonment should provide only that an offender is sentenced to a “term of imprisonment”, and the terms “penal servitude” “hard labour”, “light labour” should be abolished. It will be necessary to consider the consequential amendment of those Acts under which offences are subject to punishment by imprisonment with hard labour or penal servitude, or Acts which provide for disqualification of members of statutory authorities upon conviction for offences punishable by penal servitude.43
Felonies and misdemeanours
14.22 The Crimes Act 1900 (NSW) reflects the common law classification of offences as felonies or misdemeanours,44 broadly, but sometimes inconsistently, according to their “heinousness”. A felony is an “offence punishable by penal servitude” (s 9), while s 10 states that an offence attracting no greater punishment than imprisonment, or “the imposition of a fine, in addition to or without imprisonment” shall be treated as a misdemeanour only. These distinctions are carried into other legislation by s 21(1) of the Interpretation Act 1987 (NSW), which provides that a felony means “an indictable offence that is punishable by penal servitude” and a misdemeanour means “an indictable offence that is not punishable by penal servitude”.45
14.23 In the past, the consequences of such a distinction related primarily to punishment. A convicted felon was usually subject to the death penalty, later reduced to transportation, and then penal servitude for life;46 suffered “civil death” and was said to be attainted (with the consequences of loss of right to sue, forfeiture of all the felon’s real property to the Crown, and corruption of blood); and was allowed benefit of clergy (a relic of this being the allocutus, where offenders are asked whether they have anything to say before sentence is passed).47 Procedural differences both before and upon trial flowed from the distinction, for example availability of alternative verdicts and requiring the presence of the accused in court during the trial. Offences, both at common law and statute, were constituted by reference to the categorisation, for example compounding, misprision or being an accessory to a felony or misdemeanour.
14.24 Many of the consequences of conviction for felonies and misdemeanour have either been abolished48 or abandoned. Punishment within the contemporary correctional system does not distinguish between offenders imprisoned for different classes of offences. Some procedural distinctions are preserved by statute,49 but it has been held that no difference is recognised with regard to procedure and the practice of the criminal law.50 The most common statutory recognition of the categorisation lies in the disqualifications which apply to persons convicted of a felony from holding public office,51 most notably membership of the Parliament and its associated entitlements.52
14.25 New South Wales is the only jurisdiction which retains the distinction between felonies and misdemeanours. It has been abolished in all places where previously recognised,53 or was never adopted.54
14.26 We consider that there is no rational basis for maintaining the distinction. The terminology is arcane and not readily understood. The concepts are irrelevant to modern criminal law practices, and create unenforceable legal consequences as to the required form of punishment. They have outlived their usefulness. Necessary procedural distinctions have been superseded by reliance on other methods of classification.55 The Commission recommends that the use of the terms “felony” and “misdemeanour” in legislation should be abandoned, and any distinctions between them should be abolished.
Consequential amendments
14.27 In making Recommendation 87, the Commission advises that the consequences of the mere abolition of distinctions between felonies and misdemeanours will necessitate reconsideration of several aspects of the law.56 The first issue which must be determined is whether any categorisation of crimes is necessary, and if so, then, on what basis it is to be made.57 The Commission identifies three areas in which there are potential problems:
- The need either to redraft or repeal criminal provisions which have as an element, the commission of, or intent to commit, a felony or misdemeanour,58 or being an accessory.59
- The need to consider whether, and if so what, civil disabilities should attend conviction for an offence or category of offences. Particular reference is made to the Felons (Civil Proceedings) Act 1981 (NSW) which sought to reverse the ancient rule of common law which extinguished the legal rights of an attainted felon, and which provides that a prisoner convicted of a felony may institute and maintain civil proceedings, but only with leave of the court.60
- The need either to redraft or repeal the provisions of the Crimes Act 1900 (NSW) s 466, the Constitution Act 1902 (NSW) s 13A(e), and various other Acts which disqualify persons from holding offices and positions when they have been convicted for commission of a felony or misdemeanour.61
14.28 Whether to maintain distinctions between categories of crimes for any of the consequences here noted, the basis on which any distinction is to be made, and whether to redraft or repeal the various provisions about crimes which now rely on the distinctions between felonies and misdemeanours are matters of policy generally going beyond the Commission’s current terms of reference. We raise them as matters to which attention must be given.
FOOTNOTES
1. The Commission’s terms of reference are set out at p iv.
2. For example the Community Service Orders Act 1979 (NSW); Periodic Detention of Prisoners Act 1981 (NSW); Pre-trial Diversion of Offenders Act 1985 (NSW); Community Protection Act 1994 (NSW); Home Detention Act 1996 (NSW); Fines Act 1996 (NSW); Children (Criminal Proceedings) Act 1987 (NSW); Children (Community Service Orders) Act 1987 (NSW); and Children (Detention Centres) Act 1987 (NSW).
3. DP 33 at para 2.2.
4. See Crimes Act 1914 (Cth) Part 1B; Crimes Act 1900 (ACT) Part 12 (inserted by Crimes (Amendment) Act (No 2) 1993 (ACT)); Penalties and Sentences Act 1992 (Qld); Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1991 (Vic); Sentencing Act 1995 (NT); Sentencing Act 1995 (WA) and Sentencing Administration Act 1995 (WA).
5. N R Cowdery, Submission (17 June 1996) at 1; NSW Council for Civil Liberties, Submission (28 June 1996) at 1; S Odgers, Submission (7 June 1996) at 1; S Scarlett, Submission (11 June 1996) at 1; M L Sides and Bar Association, Submission (24 June 1996) at 3; Justice Action, Submission (2 July 1996) at 2; Department of Corrective Services, Submission (15 July 1996) at 1; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 2; Legal Aid Commission of NSW, Submission (18 July 1996) at 8; Law Society of NSW, Submission (19 July 1996) at 1; W D T Ward, Submission (25 July 1996) at 1.
6. N R Cowdery, Submission (17 June 1996) at 1.
7. Department of Corrective Services, Submission (15 July 1996) at 1.
8. Note also the Fines Act 1996 (NSW) repeals provisions in other Acts included in this Table.
9. See para 3.52. The Fines Act 1996 (NSW) repeals the Fines and Penalties Act 1901 (NSW).
10. For example, Environmental Offences and Penalties Act 1989 (NSW) s 9: see D Mossop, Submission (19 June 1996) at 1-2; D Mossop, “Sentencing Environmental Offenders in New South Wales” (1996) 13 Environmental and Planning Law Journal 423.
11. For example Criminal Appeal Act 1912 (NSW).
12. Paras 14.19-14.28.
13. S Scarlett, Submission (11 June 1996) at 1; M L Sides and Bar Association, Submission (24 June 1996) at 3; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 2; W D T Ward, Submission (25 July 1996) at 1. But see N R Cowdery, Submission (17 June 1996) at 1; S Odgers, Submission (7 June 1996) at 1.
14. S Scarlett, Senior Children’s Magistrate, Submission (11 June 1996) at 1.
15. See Department of Corrective Services, Submission (15 July 1996) at 2.
16. DP 33 paras 3.2-3.24. One submission took issue with the Commission’s philosophical approach which accepted the primacy of punishment; M W Stevens, Submission (26 July 1996).
17. Crimes Act 1914 (Cth) s 16A(2): Sentencing Act 1991 (Vic) s 5(1); Penalties and Sentences Act 1992 (Qld) s 9(1); Sentencing Act 1995 (NT) s 5(1); Sentencing Act 1995 (WA) s 6; Crimes Act 1900 (ACT) s 429A; Criminal Law (Sentencing) Act 1988 (SA) s 10.
18. N J H Milson, Submission (3 July 1996) at 4; Justice Action, Submission (2 July 1996) at 2; NSW Council for Civil Liberties, Submission (28 June 1996) at 3; N R Cowdery, Submission (17 June 1996) at 1; S Odgers, Submission (7 June 1996) at 2; Law Society of NSW, Submission (19 July 1996) at 3; Legal Aid Commission of NSW, Submission (18 July 1996) at 1; Department of Corrective Services, Submission (15 July 1996) at 3.
19. Law Society of NSW, Submission (19 July 1996) at 3.
20. See M L Sides and Bar Association, Submission (24 June 1996) at 7; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 3.
21. This now tends to find expression in the concept of “just deserts”: see A von Hirsch, Doing Justice: The Choice of Punishments (Hill and Wang, New York, 1976).
22. DPP (Cth) v El Karhani (1990) 21 NSWLR 370. See DP 33 paras 3.6-3.8. Although the effectiveness of general deterrence is almost impossible to measure, there are at least some specific offences for which, and offenders for whom, the Courts consider general deterrence important and the sentence given to one offender is designed to deter the commission of the same offence by others: see generally R N Howie and P A Johnson, Criminal Practice and Procedure NSW (Butterworths, Sydney, 1989) at para 6155.5; B Schurr, Criminal Procedure (NSW) (Law Book Company, Sydney, 1996) at para 24.130. Cf Justice Action, Submission (2 July 1996) at 2.
23. Incapacitation should be distinguished from preventive detention: see paras 10.21-10.28.
24. H L A Hart, Punishment and Responsibility (Clarendon Press, Oxford, 1968) at 1. See also R v Engert (NSW CCA, No 60654/94, 20 November 1995, unreported) at 1-2 per Gleeson CJ.
25. See also S Odgers, Submission (7 June 1996) at 1.
26. See Criminal Law (Sentencing Act) 1988 (SA) especially s 10-11; Crimes Act 1914 (Cth) especially Part 1B Div 2; Sentencing Act 1991 (Vic) especially Part 2; Penalties and Sentences Act 1992 (Qld) especially Part 2; Crimes Act 1900 (ACT) especially Part 12 Div 1; Sentencing Act 1995 (NT) especially Part 2; Sentencing Act 1995 (WA) especially Part 2 Div 1 (to a lesser extent).
27. DP 33 paras 2.7-2.12.
28. N R Cowdery, Submission (17 June 1996) at 2; NSW Council for Civil Liberties, Submission (28 June 1996) at 1; S Odgers, Submission (7 June 1996) at 1; M L Sides and Bar Association, Submission (24 June 1996) at 1; Justice Action, Submission (2 July 1996) at 2; Department of Corrective Services, Submission (15 July 1996) at 2; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 2; Legal Aid Commission of NSW, Submission (18 July 1996) at 1; W D T Ward, Submission (25 July 1996) at 1. But see District Court Judges, Consultation (14 August 1996).
29. Webb v O’Sullivan [1952] SASR 65 at 66 per Napier CJ.
30. The Australian Law Reform Commission’s attempt to exclude general deterrence from the purposes of punishment proved unworkable in practice due to inappropriate legislative drafting: see Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 37; and R v Paull (1990) 20 NSWLR 427; DPP (Cth) v El Karhani (1990) 21 NSWLR 370.
31. DP 33 Chapter 5 identified more than 20 of the most important factors which are taken into account by Courts.
32. See Appendix B.
33. See DP 33 at paras 1.15, 5.43-5.45.
34. See DP 33 at paras 5.111-5.114. See also E G Fearon, Submission (22 July 1996).
35. See R v Adami (1989) 51 SASR 229; R v Sinclair (1990) 51 A Crim R 418.
36. See DP 33 at paras 4.127-4.130. See also New South Wales, Attorney General’s Department, Sentencing Review 1994 (Sydney, June 1994) at 9-10.
37. Confidential, Submission (22 May 1996) at 17; N R Cowdery, Submission (17 June 1996) at 8; M L Sides and Bar Association, Submission (24 June 1996) at para 4.19.1; Department of Corrective Services, Submission (15 July 1996) at 11; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 6; Legal Aid Commission of NSW, Submission (18 July 1996) at 8; Law Society of NSW, Submission (19 July 1996) at 12; W D T Ward, Submission (25 July 1996) at 4; NSW Council for Civil Liberties, Submission (28 June 1996) at 3; Justice Action, Submission (2 July 1996) at 3.
38. See below paras 14.22-14.26.
39. In respect of s 432(2), the usual case turns on whether the offender is male or female.
40. A Select Committee in 1863 concluded that, “of the various forms which are in force in several prisons, the treadwheel, crank and shot-drill alone appear ... properly to merit this designation of hard labour”: P Priestley, Victorian Prison Lives (1985) at 124, quoted in C Harding and L Koffman, Sentencing and the Penal System: Text and Materials (Sweet & Maxwell, London, 1988) at 25. Penal servitude was substituted when the sentence of transportation was no longer available, in England by the Penal Servitude Acts of 1853 and 1857, in New South Wales in 1853. Until 1974, penal servitude for male offenders meant “hard labour on the roads or other public works ... either in or out of irons”: Crimes Act 1900 (NSW) s 453.
41. Department of Corrective Services, Submission (15 July 1996) at 11. See also R v Farlow [1980] 2 NSWLR 166 at 169.
42. These were abolished by the Criminal Justice Act 1948 (Eng) s 1.
43. For example: Banana Industry Act 1987 (NSW) Sch 1; Casino Control Act 1992 (NSW) Sch 1; Noxious Weeds Act 1993 (NSW) Sch 1.
44. Disregarding the further category at common law of treason.
45. See also Justices Act 1902 (NSW) s 4(2).
46. A court could not sentence an offender convicted of a misdemeanour to death, but could order the offender be whipped or pilloried.
47. See L Waller and C R Williams, Brett, Waller and Williams Criminal Law Text and Cases (7th ed, Butterworths, Sydney, 1993) at 39-41.
48. Felons (Civil Proceedings) Act 1981 (NSW).
49. For example Crimes Act 1900 (NSW) s 352.
50. R v McHardie [1983] 2 NSWLR 733 at 742, 745; but see R v Hallocoglu (1992) 29 NSWLR 67 at 71-2 per Hunt CJ at CL.
51. Crimes Act 1900 (NSW) s 466. See below footnote 61.
52. Constitution Act 1902 (NSW) s 13A(e).
53. Criminal Law Act 1967 (Eng) s 1; Crimes Act 1958 (Vic) s 332B(1), inserted by Crimes Classification of Offences Act 1981 (Vic) s 2; Crimes Act 1900 (ACT) s 9, inserted by Crimes (Amendment) Ordinance 1983 (ACT) s 6; Criminal Law Consolidation Act 1935 (SA) s 5D, inserted by Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 (SA) s 4.
54. Crimes Act 1914 (Cth); Criminal Code (Tas) s 1. Different distinctions were adopted in other jurisdictions: Criminal Code (Qld) s 3(1), s 535; Criminal Code (WA) s 3, s 552; Criminal Code (NT) s 3.
55. For example Criminal Procedure Act 1986 (NSW) Part 9A Tables 1 and 2.
56. See, for example, Great Britain, Criminal Law Revision Committee, Seventh Report: Felonies and Misdemeanours (Cmnd 2659, 1965); Victoria, Chief Justice’s Law Reform Committee, Abolition of the Distinction Between Felonies and Misdemeanours (1973); South Australia, Criminal Law and Penal Methods Reform Committee of South Australia (Mitchell Committee), Fourth Report: The Substantive Criminal Law (July 1977) at 383-386; M Goode, The Abolition of Felonies and Misdemeanours: Discussion Paper (Attorney-General’s Department, South Australia, 1994).
57. A method referred to in DP 33, relying on the maximum penalty for an offence, may have unintended and undesirable consequences by including offences in a category of crimes now considered either less or more serious: DP 33 at para 4.128.
58. For example, Crimes Act 1900 (NSW) s 106, 107, 109, 111-114 and 344A(e).
59. Crimes Act 1900 (NSW) s 345-351. The common law misdemeanour, misprision of felony has been abolished: Crimes Act 1900 (NSW) s 316.
60. See DP 33 at para 4.128. In the absence of abolition of all distinctions between felonies and misdemeanours, mere repeal of the Act would not remove any other surviving legal disabilities suffered by convicted felons at common law, and may, in fact, resurrect the position which the High Court held to apply in Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583.
61. For example: Architects Act 1921 (NSW) s 17; Dried Fruits Act 1939 (NSW) s 10; Ethnic Affairs Commission Act 1979 (NSW) s 9; Heritage Act 1977 (NSW) s 11; Wild Dog Destruction Act 1921 (NSW) s 3C(1)(d).
