A sentencing judge exercising the discretion under s 20B of the Criminal Law (Sentencing) Act 1988 (SA) must give adequate reasons addressing: (1) why the exceptional legislation should be invoked; (2) the threshold question of whether the offender's history of offending warrants a particularly severe sentence to protect the community, based on cogent evidence; and (3) the consequences of the declaration, including its lifelong effect and potential as a barrier to rehabilitation. The discretion is enlivened where the requisite number of separate offences have been committed, regardless of when the offender is convicted. A declaration should only be made on cogent evidence and with a clear appreciation of the exceptional nature of the course being taken. The question whether offences predating the enactment of Division 2A can serve as declaration offences (as distinct from qualifying offences) was left open.
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