When exercising the discretion under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) to declare a serious violent offence for sentences between 5 and 10 years, the sentencing court is not required to have primary regard to the risk of future physical harm to the community under ss 9(4)(a) and (b), because those provisions address whether a custodial sentence should be imposed — a question already resolved by the time the s 161B(3) discretion arises. The remaining factors in s 9(4)(c)-(k) and general sentencing principles provide guidance. The declaration is part of the sentence and is penal in nature, so it must be fully warranted in the circumstances. The question was not unanimously resolved — McMurdo P dissented, holding that ss 9(4)(a) and (b) should apply.
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