(2) The court must ensure that the offender has knowledge of, and the opportunity to challenge, the information received by the court under subsection (1).

(3) Subsection (2) does not apply to information furnished by a medical practitioner that the court considers should not, in the interests of the offender, be disclosed to the offender.

(4) If the offender challenges the truth of any information received by the court under subsection (1), the court may require that information to be proved in like manner as if it were to be received at a trial."

1. Section 88 of the Sentencing Act explicitly provides for situations where the whole or any part of a pre-sentence report is disputed:

"88 Disputed pre-sentence and mediation reports

(1) The prosecution or the defence may dispute the whole or any part of a pre-sentence report or mediation report.

(2) If the whole or any part of a pre-sentence report or mediation report is disputed, the court must not take the report or the part in dispute into consideration in determining sentence unless the party disputing the report or the part has had the opportunity to lead evidence on the disputed matters and to cross-examine the author of the report on the disputed matters."

1. It can be seen that the courts are precluded from taking into account the report or part of the report that is disputed, unless the party disputing the report has had the opportunity to lead evidence on the disputed matters and to cross-examine the author of the report on those matters.
2. It is clear that during the sentencing hearing the applicant challenged in broad terms the truth of information contained in the pre-sentence report. The dispute was not resolved as required by s 88(2) of the Act and therefore the report should not have been taken into account in determining sentence. The applicant did not have the opportunity to identify those specific parts of the report that were disputed. Further, absent agreement from the prosecution about the dispute, the applicant had to be given the opportunity to lead evidence on those disputed matters and cross-examine the author of the report.
3. Recently, the Court of Criminal Appeal in Parker v Tasmania [2019] TASCCA 16 has given careful consideration to the Court's obligation to resolve issues of dispute in sentencing hearings, having regard to s 81 of the Sentencing Act, and similar statutory provisions. The law is clear and conveniently set out in that case. The law regarding the onus and standard of proof with regard to disputed facts and sentencing hearings is well established and worth mentioning. If the prosecution seeks to have the applicant sentenced upon a more serious basis of matters, and the applicant did not accept that version of the events, the prosecution would have had to support its version of the facts with evidence and prove that version beyond reasonable doubt in accordance with R v Olbrich (1999) 199 CLR 270. In relation to facts amounting to mitigating circumstances favourable to the applicant, if contested by the prosecution there should be an opportunity for the applicant to establish those facts, in which case the standard of proof is on the balance of probabilities: Parker at [21].
4. The learned magistrate had a clear duty to identify the dispute and make enquiries about resolving it: Parker at [21].
5. If the factual dispute related to matters that were unimportant or not capable of affecting the penalty, then the dispute need not be resolved: Parker at [21].
6. Here, it is apparent that the factual dispute adverted to by the applicant related to substantive matters that would have a bearing on the penalty. At the hearing of the review, I was provided with an affidavit by the applicant which identifies the aspects of the report that are disputed:
   • The applicant disputed that he denied any wrongdoing and that he sought to justify his conduct. The report failed to disclose that the applicant had indicated to Ms Kerrison that he had made a mistake in not disclosing his profile names. He also had indicated that he was fearful of repeating the error and wanted to ensure that he did not offend in this way again.
   • While he did not dispute the first quote attributed to him set out at [14], he denied it was said in justification of his conduct.
   • He disputed the inference drawn by the author that his attitude was consistent with the notion of "women on dating sites deserve it, because they are dysfunctional".
   • He does not accept that "he minimised his intentions of sexually abusing those that he was communicating with".
   • He denies any intention of sexual abuse in accessing the sites mentioned in the facts.
   • His historical abuse was not towards "women and children" but a woman and child.
   • The counselling he had engaged in was not for the purpose attributed to him as efforts to manage the police "targeting" him and feelings of anxiety that arise as a result of this. He has found the counselling assisted him regarding the offences committed and this was not reflected in the pre-sentence report.
7. The affidavit also revealed that the applicant had misunderstood the purpose of the report and thought it was for treatment. He had written a four page letter to the officer after his appointment, but only one page had been attached to the pre-sentence report which gave a skewed impression. It was argued that if any portion of the letter was to be attached, it should have been the letter in its entirety. Additionally, it was submitted that the report was incorrect in stating that there was a lack of insight into the offending.
8. Obviously, the extent of the dispute was not known by the learned magistrate. The point of exploring the areas of dispute on review was to see whether if inquiry had been made by the learned sentencing magistrate, it would have revealed a trivial dispute of no consequence. On review, the Court has a discretion to dismiss the motion if it appears to the Court that "no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant": s 110(ab) of the Justices Act 1959. Having regard to the nature of the dispute, this is not a case where that section should be invoked. If an inquiry had been made, and the dispute resolved, a lesser sentence may have been imposed.
9. To proceed without inquiry was unfair to the applicant. Her Honour imposed sentence on the basis of a pre-sentence report which was disputed, and thus sentence was imposed on the basis of disputed facts. The sentencing of the applicant was the result of a "legally flawed determination" amounting to specific error of the kind described in House v The King (1936) 55 CLR 499 such that the sentencing discretion has miscarried: Parker at [22]; Kentwell at [43]. The review must succeed. The first ground of review as to whether the sentence is excessive is not reached as the factual basis for the sentence must be settled before a sentence can be imposed and before the sentence can be scrutinised. It is noted that after the hearing of the motion to review was heard, and pending this decision, Crown counsel wrote to the Court conceding specific error as asserted in this ground of review. It can be seen from these reasons that that concession was properly made.
10. The applicant should now be sentenced according to law. The question is whether the sentencing hearing should be remitted to a magistrate or should be dealt with by me. If a sentencing hearing is to involve the calling of evidence and the factual disputes have not resolved by agreement, it should be heard in the Magistrates Court. If the factual disputes have resolved and there is an agreed position, it would be expeditious for me to resentence the applicant. I shall hear from the parties before proceeding further.