The power to make a serious repeat offender declaration under s 20B(3) of the Criminal Law (Sentencing) Act 1988 (SA) is conditioned on the sentencing court forming the opinion that a disproportionate sentence is required for the offences before the court to protect the community; the declaration cannot be made merely to constrain future sentencing exercises where a proportionate sentence adequately protects the community. An error as to the applicable maximum penalty vitiates the sentencing discretion without need to demonstrate materiality of the error. The question of whether the s 20B power can be exercised independently of the need for a disproportionate sentence remains the subject of a dissenting view (Vanstone J).
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