What happened

Lescosky & Durante concerned sanctions for admitted breaches of family law orders made during contested parenting and property proceedings. The appeal was heard by Strickland J in the Family Court of Australia. The appellant, Mr Lescosky, appeared in person on appeal, as did Ms Durante, the respondent. Although Ms Durante opposed the appeal, she did not take an active part in it.

The orders at the centre of the case were made on 7 December 2017. As reproduced in the judgment, paragraph 2 restrained the husband from selling, transferring, encumbering or otherwise disposing of an asset worth more than $1,000, except in the ordinary course of business. Paragraph 3 required at least seven days’ written notice to the wife's solicitors before dealing with such an asset, together with details of how any proceeds would be applied. The orders also required payment of $30,000 towards the wife's legal expenses within 14 days, and required the parties to update disclosure and file an undertaking within 42 days.

The husband transferred money to cryptocurrency accounts in 18 separate transactions between 7 and 18 December 2017. The total transferred was $180,000 over 11 days. The judgment records that the husband admitted the transfers were not in the ordinary course of business, that he had not given the required notice or particulars, and that he acted knowingly without reasonable excuse. He also admitted not paying the ordered $30,000 within the required period and not filing an undertaking as to disclosure.

The $30,000 was later paid following separate enforcement proceedings and the sale of a boat. The Magistrate imposed a fine of $54,000 for the 18 transfers and $5,250 for the failure to pay the $30,000 when required. No further sanction was imposed for the disclosure breach. The fines were to be met from the husband's property entitlements after the property case was determined. If those entitlements were insufficient, the husband had 90 days after final property orders to pay the shortfall.

The husband appealed the fines on six grounds. In substance, he argued that the aggregate penalty was disproportionate, that alternative sanctions had not been considered, that the transfers were one course of conduct, that the Magistrate should have compared other cases, and that the Magistrate had not adequately considered his ability to pay, contrition or asserted early plea. Strickland J dismissed the appeal, concluding there was no merit in any ground.

Why the court decided this way

The court's starting point was the statutory framework. Strickland J stated that Part XIIIA of the Family Law Act 1975 (Cth) provides an exclusive code for dealing with breaches of orders under that Act. The Magistrate's task was therefore to select the sanction or sanctions considered most appropriate under s 112AD, rather than to apply a separate State or Commonwealth sentencing regime as if it governed the contraventions.

That conclusion answered much of the challenge based on the totality principle and the Sentencing Act 1995 (WA) and Crimes Act 1914 (Cth). The Court did not say that considering the overall conduct was irrelevant. Rather, it rejected the claim that the Magistrate was legally obliged to apply an external sentencing principle or statutory framework. It also found that, in substance, the Magistrate had assessed the aggregate fine against the overall conduct. The Magistrate identified the maximum fine for each contravention, considered the number of breaches and the total amount transferred, and chose fines below the maximum for each individual breach. The reasons described the $54,000 total as significant while also explaining that the individual fines were at the lower end of the range.

The treatment of each transfer as a separate breach was also upheld. The Court accepted that all 18 transfers formed part of an overall course of conduct: the husband transferred $180,000 over 11 days to buy cryptocurrency. But the transactions were separate and discrete, and each was admitted to breach the orders. The fact that the money could hypothetically have been moved in one transaction did not change what actually occurred. On the facts, the Magistrate was entitled to impose a separate fine for each contravention.

On the alternative-sanction ground, the Court relied on the husband's position at the hearing below. His counsel had sought a fine rather than imprisonment. The Court held that, in those circumstances, the Magistrate did not need to consider the other options under s 112AG(1) that the husband later argued should have been considered.

The Court also rejected the argument that the Magistrate had to use earlier cases as a guide to the amount of the fine. It said comparisons with sanctions in other cases are of limited assistance because the assessment depends on the particular facts. The Magistrate had referred to Hay v Hay in considering whether imprisonment was appropriate, but Strickland J found that case did not provide a tariff or guideline for the fine on these different facts.

Finally, the Court found that the Magistrate had considered the husband's circumstances. The outcome of the property settlement was not known, but the Magistrate directed that the fines be met from the husband's property entitlements and allowed 90 days to pay any shortfall after final orders. The Court described that additional period as a precaution. It also found that the Magistrate had taken contrition into account. The asserted early plea was disputed as having been made only on the day of the hearing, and the husband did not dispute that timing on appeal.

Before and after state of the law

The judgment applied, rather than amended, the statutory framework in Part XIIIA of the Family Law Act. Its principal clarification is about how that framework operated in this appeal. Strickland J treated the statutory provisions as the governing and exclusive code for sanctions for contraventions of orders under the Act. The judgment therefore rejected the premise that a Magistrate had to apply sentencing provisions from the WA Sentencing Act or the Commonwealth Crimes Act when fixing a sanction for these family law contraventions.

The judgment also clarified that rejecting a mandatory external totality principle did not mean the overall conduct should be ignored. The Magistrate had assessed the total fine in light of the whole course of conduct, including the number of admitted breaches, their duration and the total amount involved. The Court considered this sufficient in the circumstances. The decision does not establish that every repeated breach must be fined separately. It holds that separate treatment was open here because the 18 transactions were discrete and each was admitted to be a breach.

The judgment also reiterates that sanctions in other cases are not necessarily a useful comparator. A prior decision may inform a particular issue, as Hay v Hay informed the Magistrate's consideration of imprisonment, but the Court rejected the idea that it supplied a penalty guideline for materially different facts. The judgment does not disapprove of the cited authorities. It refers to them in explaining the statutory approach, the limited role of case comparisons and the assessment of multiple contraventions.

Nothing in the supplied judgment indicates a change to the text of Part XIIIA or a broader alteration to the law after 28 July 2020. Nor does the source provide subsequent legislative amendments or later judicial treatment. Any assessment of the law after this decision would require materials beyond the judgment supplied here.

Key passages with plain-English translation

The Court stated: “Part XIIIA of the Act provides an exclusive code for dealing with breaches of orders under the Act.” In plain English, the sanctions for these breaches were to be determined under the family law legislation's own contravention provisions, not by importing a different sentencing statute as the controlling regime.

Strickland J described the Magistrate's task as fixing “a sanction or sanctions” considered “most appropriate in the circumstance” under s 112AD. That formulation focuses the inquiry on the statutory discretion and the facts of the individual matter. It does not mean the discretion is unstructured: the judgment refers to the need for transparent exercise of the discretion in light of the circumstances.

The Court's explanation of the separate transfers was: “It was certainly one course of conduct” involving $180,000, “but he did it in 18 separate and discrete transactions, each in breach of the relevant orders.” The plain-English point is that an overall objective does not necessarily merge separate acts into a single contravention. Here, each transfer was separately prohibited by the orders and admitted to be a breach.

On comparisons with other cases, the Court held that the Magistrate “was not obliged to make comparisons with any other authorities”. The point is not that prior decisions can never be relevant. The Court discussed Hay v Hay, but distinguished its relevance: it related to the appropriateness of imprisonment and did not establish a fine amount for this case.

The Magistrate's approach to payment was also important. The fines were to be met from the husband's property entitlements, with 90 days to pay any shortfall after final property orders. The appeal court considered this responsive to uncertainty about what those entitlements would be. The source does not state what the eventual property division was.

What fact patterns trigger this precedent

The decision is most directly relevant where a person admits multiple breaches of orders made under the Family Law Act and challenges the sanction on the basis that general sentencing principles or another statute should control. In this case, the breaches involved repeated transfers of funds contrary to injunctions, and the failure to make a payment required by the orders.

It is also relevant where a party argues that several transactions should be treated as a single contravention because they furthered one overall objective. Lescosky & Durante supports the proposition that a court may treat each transaction as a separate breach where the transactions were discrete and each independently contravened the relevant order. The result remains tied to the facts: the Court noted both the overall course of conduct and the distinct transactions.

The decision may also be relevant to arguments that a court must use a past case as a fine-setting benchmark, or must consider alternative sanctions despite the position taken at the hearing. The Court's reasoning depends on the statutory setting and the submissions made below. It should not be read as establishing that case comparisons are always immaterial or that alternative sanctions can never be relevant.

Finally, it addresses a situation where payment capacity is uncertain because the person's property entitlements have not yet been determined. The Magistrate linked payment to those entitlements and allowed time for any shortfall. The judgment found no error in that approach on the record before it, but does not decide how capacity should be assessed in every different financial situation.

How later courts have treated it

The supplied source is the 2020 judgment itself and contains no later decisions citing or applying Lescosky & Durante. It is therefore not possible, on this material alone, to state how later courts have treated the decision, whether they have followed or distinguished it, or whether subsequent legal developments have affected its reasoning.

Within the judgment, Strickland J relied on earlier authorities including Abduramanoski and Abduramanoska, Myers and Myers, and Schwarzkopff and Schwarzkopff for propositions about the statutory approach to contraventions. The Court also referred to Australian Securities and Investments Commission v Michalik, Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith, Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Others, Johnson v The Queen and Mill v The Queen in considering the arguments about multiple contraventions and totality. These are the relationships expressed in this judgment; they do not establish how later courts treated Lescosky itself.

Hay v Hay was considered in relation to imprisonment and the husband's proposed comparison of fine levels. Strickland J noted that its facts differed and did not treat it as a guideline for the fine in this case. That is the Court's treatment of Hay, not evidence of subsequent treatment of Lescosky.

Still-open questions

The judgment does not set out a general test for when repeated acts are sufficiently separate to be treated as individual contraventions rather than as one breach. It resolves the issue on the admitted facts: 18 separate transfers, each in breach of the orders. Other patterns involving a single transfer, continuous conduct or closely connected steps are not addressed in the supplied reasons.

Nor does the judgment specify how a court should quantify an appropriate fine in every case under s 112AD. It records the Magistrate's assessment of the maximum available fine, the number of transactions, the amount transferred, knowledge, contrition and prior contraventions. It does not establish a formula or tariff, and it expressly cautions against treating penalties in other cases as directly comparable.

The case also does not determine the full scope of the relationship between s 112AD and each possible sanction in Part XIIIA. The appeal concerned the grounds raised, including the argument about alternatives under s 112AG(1). The Court's conclusion about that ground was tied to the husband's counsel having sought a fine below.

The judgment provides no later legislative history or subsequent authorities. Questions about whether statutory amendments or later appellate decisions have qualified this reasoning remain outside the supplied source. This analysis is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.

Judgment (56 paragraphs)

[1]

Lescosky & Durante [2020] FamCAFC 179; (28 July 2020)

[2]

[2020] FamCAFC 179

[3]

FAMILY LAW - APPEAL - CONTRAVENTIONS - Where all of the contraventions were admitted by the appellant - Where it is not the case that the court below in imposing sanctions for contraventions must apply any so-called principle of sentencing - Where Pt XIIIA of the Family Law Act 1975 (Cth) provides an exclusive code for dealing with breaches of orders under that Act - Where the task for the Magistrate was to fix a sanction or sanctions her Honour considered to be the most appropriate in the circumstances (see s 112AD of the Family Law Act 1975 (Cth)) - Where the appellant himself sought that the sanction imposed be a fine and not a term of imprisonment - Where in fixing the fines the Magistrate balanced the total fine against the criminality involved and the circumstances of the case including the appellant's personal circumstances - Where the appellant misguidedly sought to rely on the Sentencing Act 1995 (WA) - Where the Magistrate was not obliged to make comparisons with any other authorities - Where the Magistrate proceeded on the basis that the appellant's entitlement to any property settlement proceeds would be sufficient to meet the fines imposed but in the event of a shortfall out of abundant caution her Honour ordered that the appellant have 90 days to make the payment required - Where there is no merit in any of the grounds of appeal - Appeal dismissed.

[4]

Family Law Act 1975 (Cth) Pt XIIIA, ss 112AD, 112AG(1)

[5]

Sentencing Act 1995 (WA) s 6

[6]

Crimes Act 1914 (Cth) s 16A

[7]

Abduramanoski and Abduramanoska [2005] FamCA 88; (2005) FLC 93-215

[8]

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Others [1997] FCA 450; (1997) 145 ALR 36

[9]

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 246 ALR 35

[10]

Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259

[11]

Hay v Hay [1998] FamCA 95; (1998) FLC 92-819

[12]

Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346

[13]

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

[14]

Myers and Myers [2006] FamCA 1182; (2006) FLC 93-291

[15]

Schwarzkopff and Schwarzkopff (1992) FLC 92-303

[16]

Note: The form of the order is subject to the entry of the order in the Court's records.

[17]

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lescosky & Durante has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

[18]

Note: This copy of the Court's Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

[19]

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

[20]

By Amended Notice of Appeal filed on 17 February 2020, Mr Lescosky ("the husband") appeals against orders made by a Magistrate of the Magistrates Court of Western Australia on 16 October 2019. The appeal is opposed by Ms Durante ("the wife"), although she did not take any active part in the same.
The orders appealed against impose fines on the husband in respect of admitted contraventions, made without reasonable excuse, of orders made on 7 December 2017.

[21]

The parties are engaged in contested parenting and property settlement proceedings.
In late November 2017, the husband commenced investing in cryptocurrency.
On 4 December 2017, the husband set up two new [bank] accounts and thereafter transferred funds to those accounts in order to make purchases of cryptocurrency. The total sum transferred was $180,000 over an 11 day period.
On 7 May 2018, the wife filed an Application Alleging Contravention by the husband without reasonable excuse, of orders made on 7 December 2017. She filed a further application on 27 June 2018, and two further Amended Applications Alleging Contravention on 13 November 2018.
The orders the subject of the alleged contraventions were as follows:

[22]

...

2. The respondent be restrained by an injunction and in (sic) injunction his (sic) hereby granted restraining him from selling, transferring, encumbering or otherwise disposing of any asset in which he has an interest of whatsoever nature exceeding $1000.00 in value, save in the ordinary course of business.

3. Prior to selling, transferring, encumbering or otherwise disposing of any asset of whatsoever nature exceeding $1000.00 pursuant to the preceding order, the respondent shall course (sic) to be provided to the applicant's solicitors not less than seven days written notice of this (sic) intention to deal with such asset and particulars of how the proceeds (if any) are to be applied.

...

5. The respondent pay or cause to be paid to the applicant solicitors (sic) trust account the sum of $30,000.00 within 14 days of the date of these orders to meet her legal expenses and the characterisation of the payment be adjourned for determination by the Trial Judge.

6. Within 42 days from the date of these orders, the parties update their disclosure and file an undertaking as to disclosure in the form required by the rules annexing a copy of the disclosure list.

...

[23]

On 20 December 2017, the husband's parent's home was broken into and his laptop, the ledger Nano wallet containing details of the purchased cryptocurrency, and the packaging box for the Nano wallet which contained the password to access the cryptocurrency, if the Nano wallet was ever lost or stolen, were stolen.
The alleged contraventions were that:

[24]

On 7 December 2017 the husband caused the transfer of separate amounts of $7,000 and $8,000 from an ZC account into the AQ cryptocurrency account; 2. On 7 December 2017 the husband caused the transfer of $10,000 from the ZC account into the SL cryptocurrency account;

[25]

On 8 December 2017 the husband caused the transfer of $8,000 from a P account into the AQ cryptocurrency account, and $10,000 from the P account into the SL cryptocurrency account;

[26]

On 11 December 2017 the husband caused the transfer of two separate amounts of $8,000 from the P account into the AQ cryptocurrency account, and $30,000 from the P account into the SL cryptocurrency account; 2. On 12 December 2017 the husband caused the transfer of $10,000 from the P account into the SL cryptocurrency account and $8,000 from the P account into the AQ cryptocurrency account; 3. On 13 December 2017 the husband caused the transfer of $10,000 from the P account into the SL cryptocurrency account and $8,000 from the P account into the AQ cryptocurrency account; 4. On 14 December 2017 the husband caused the transfer of $10,000 from the P account into the SL cryptocurrency account and $8,000 from the P account into the AQ cryptocurrency account; 5. On 15 December 2017 the husband caused the transfer of $10,000 from the P account into the SL cryptocurrency account and $8,000 into the AQ cryptocurrency account; 6. On 18 December 2017 the husband caused the transfer of $8,000 from the P account into the AQ cryptocurrency account and $10,000 from the P account into the SL cryptocurrency account; 7. On 21 December 2017 the husband failed to pay the sum of $30,000 into the wife's solicitor's trust account; 8. On 18 January 2018 the husband failed to file an undertaking as to disclosure.
In relation to the contraventions set out in [9] above, the transfers detailed in a) - i) were not in the normal course of business, prior to causing the transfers the husband did not give notice and did not give particulars of how the funds were to be applied, and the husband's actions were conducted knowingly in breach of orders 2 and 3 made on 7 December 2017.
In relation to the contravention detailed in [9] j) above, which was in breach of paragraph 5 of the orders, the wife took separate enforcement proceedings, and on 5 June 2018 orders were made which required the sale of a boat. That sale took place, and in September 2018 the funds were provided to the wife's solicitors in satisfaction of paragraph 5 of the orders.
All of the contraventions were admitted by the husband, and the orders as to penalty which are the subject of this appeal are as follows:
1. The Respondent, MR LESCOSKY, be and is hereby fined:

[27]

(a) the sum of $54,000.00 in respect of his admitted contraventions without reasonable excuse of paragraphs 2 and 3 of the orders made 7 December 2017 ("the orders"); and

(b) the sum of $5,250.00 in respect of his admitted contravention without reasonable excuse of paragraph 5 of the orders;

(collectively "the sums").

[28]

The sums are to be paid from the Respondent's property entitlements as determined by the Trial Judge following the trial listed to commence not before 22 October 2019.
In the event that the respondent's entitlements as determined by the Trial Judge are insufficient to meet the sums, then the sums be paid within 90 days of final orders being made.

[29]

The total effective sentence/penalty does not bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety and having regard to the circumstances of the case, including those referrable to the [husband] personally. In other words, the total effective sentence breached the first limb and second limb of the totality principle.**

[30]

The first point to note about this ground of appeal, and the husband's summary of argument in support of it filed on 17 February 2020, is that it is not the case that the court below in imposing sanctions for contraventions, must apply any so-called principle of sentencing, whether that comes from the common law or from any State or Federal statute, apart of course, from what appears in the Family Law Act 1975 (Cth) ("the Act") (Abduramanoski and Abduramanoska [2005] FamCA 88; (2005) FLC 93-215; Myers and Myers [2006] FamCA 1182; (2006) FLC 93-291 ("Myers")).
Part XIIIA of the Act provides an exclusive code for dealing with breaches of orders under the Act (Schwarzkopff and Schwarzkopff (1992) FLC 92-303 ("Schwarzkopff")).
Thus, it is not open for the husband to assert error by the Magistrate in failing to follow the "Totality Principle", or failing to apply s 6 of the Sentencing Act 1995 (WA) or s 16A of the (Cth). Further, there is ample authority to the effect that "review of the punishments in other cases is of limited assistance, as each case really depends upon the Court's assessment of the relevant facts" ( at , cited with approval in at 80,978).

[31]

112AD(2) The sanctions that are available to be imposed by the court are:

(a) to require the person to enter into a bond in accordance with section 112AF; or

(b) to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or

(c) to fine the person not more than 60 penalty units; or

(d) subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.

[32]

The wife submitted that the husband's conduct was of such a serious nature that the imposition of a prison sentence was appropriate. Thus, her Honour was first required to address that submission, and she did that taking into account the circumstances of not only the contraventions, but the effect of the same, the likelihood of recovery of the funds, the impact of imprisonment of the husband upon the children of the relationship, and the fact that the trial of the matter was yet to be heard. Her Honour then concluded as follows:

[33]

31 On reflection, I do not consider that in all the circumstances of this case a term of imprisonment is appropriate It is clear from the provisions of section 112AE that imprisonment should be considered as the punishment of last resort.

32 I consider that the husband's admitted contraventions with respect to the transfer of funds to purchase cryptocurrency should be dealt with by way of fine rather than in any other way.

[34]

As to the imposition of a fine, it is important to note that that was the sanction sought by counsel for the husband, namely that a term of imprisonment was inappropriate, and instead a fine should be imposed (Transcript 1 July 2019, p.14 lines 13-22).
However, and this is the principal issue in relation to this ground, the submission of counsel was not a fine for each contravention, but one fine for all of the contraventions, on the basis that they comprised one action, and the fine should be at the upper end of the permissible limit for one contravention, namely $12,200 (sic).
What of course her Honour did was impose a fine of $3,000 for each of the 18 contraventions, and aggregate those fines, arriving at a total fine of $54,000. Despite the submissions by the husband's counsel at the hearing below, it is not now suggested that her Honour was not able to do that under s 112AD. Indeed, her Honour correctly proceeded on the basis that s 112AD(2)(c) "is read as applying to an individual contravention" (at [33]).
What is contended is that in fixing the fines, her Honour should have balanced the total fine against the criminality involved, and the circumstances of the case, including the husband's personal circumstances. However, that is precisely what her Honour did. Her Honour said this:

[35]

33 Section 112AD(2)(c) of the Act allows a court to fine a person not more than 60 penalty units. That provision is read as applying to an individual contravention. Currently a penalty unit is the equivalent of $210.00 meaning that the maximum allowable for each contravention without reasonable excuse is $12,600.00. Generally, fines at the top end of the range are reserved for the most serious of contraventions. The husband concedes that any fine imposed could be at the upper end of the range.

34 The size of the fine in respect of the transfers of funds should be fixed taking into account, amongst any other relevant considerations:

[36]

the fact that the contraventions were conducted knowingly; and
the maximum penalty available being 60 penalty units for each contravention;
that there are 18 transfers of funds in breach of orders over an 11 day period with the total amount transferred being $180,000.00;
that the husband has expressed contrition with respect to his admitted conduct and these are the first contraventions for which he is to be sanctioned.

[37]

35 A fine of $12,600.00 being at the maximum prescribed limit for each contravention is not appropriate given the number of admitted contraventions and the quantum of funds involved. A fine of that amount could not be characterised as appropriate. On balance, I am of the view that a fine should be imposed of $54,000.00 for the admitted breaches to paragraphs 2 and 3 of the orders. I am mindful that the fine is at the lower end of the spectrum for each individual breach, however the total is a significant sum.

36 For reasons set out above, I do not consider a term of imprisonment is appropriate for the husband's failure to comply with the order that he provide $30,000.00 to the wife's solicitors on account of the wife's legal fees.

37 The relevant order has been complied with, albeit following enforcement proceedings commenced by the wife the wife was put to expense and inconvenience as a result of the husband's breach. In the circumstances a fine of 25 penalty units, being $5,250.00 will be imposed.

38 The husband did not put evidence before the court with respect to his failure to file an undertaking as to disclosure. In any event, this admitted breach is the less serious of all of those for which the husband is to be sanctioned. In the circumstances, and noting that for reasons set out above the respondent is to be find (sic) a significant sum, I do not intend to impose a further sanction for the husband's failure to comply with a requirement that he file an undertaking as to disclosure.

39 I will order that the fines imposed upon the husband are to be met from his entitlements as might be determined by the Trial Judge, so as not to reduce amounts that might be payable to the wife as and by way of property settlement.

[38]

As can be seen, there her Honour also dealt with the other contraventions, and it is important to record that, as well as, how her Honour proposed that payment of the fines be made by the husband, namely from his entitlement in the property settlement proceedings.
Thus, I am not persuaded of any error by her Honour as asserted in this ground of appeal.
Indeed, as it happened, her Honour did what the husband said the sentencing principles and the decided cases required her to do. For example, she identified the maximum allowable fine for each contravention (at [33]), and gave consideration to what each fine should be (at [35]), concluding "that the maximum prescribed limit for each contravention is not appropriate given the number of admitted contraventions and the quantum of funds involved". Her Honour added that she was "mindful that the fine is at the lower end of the spectrum for each individual breach, however the total is a significant sum" (at [35]).
That approach accords with what the husband has described as the "Totality Principle" (husband's summary of argument filed on 17 February 2020, paragraph 3), with the quote relied on by the husband from the decision of Gummow, Callinan and Heydon JJ in the High Court case of Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346, namely at [18] where their Honours quoted from the case of Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63 that:

[39]

...when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.

[40]

There is also what was said by Grey J in the decision of the Full Court of the Federal Court of Australia in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 246 ALR 35 at [23]:

[41]

...What the magistrate was required to do in the present case was to determine an appropriate level of penalty for each contravention, as if it were a separate offence, and then to look at the aggregate of those penalties in the light of the overall conduct of the appellant, to form a view as to whether that aggregate was out of proportion to that overall conduct.

[42]

And further, there is what Goldberg J said in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Others [1997] FCA 450; (1997) 145 ALR 36 at 53:

[43]

The totality principle is designed to ensure that overall an appropriate sentence or penalty is appropriate and that the sum of the penalties imposed for several contraventions does not result in the total of the penalties exceeding what is proper having regard to the totality of the contravening conduct involved...

[44]

In these circumstances there is no merit in this ground of appeal.

[45]

The Magistrate did not give any or proper consideration to the sentencing alternatives available pursuant to 112AG(1) of the Family Law Act including a Community Service Order or a work Order.**

[46]

This is not a ground of appeal that can be sustained. As referred to above, the husband's own counsel submitted that the appropriate sanction was a fine. Thus, her Honour did not need to look at any alternative sanctions.
There is no merit in this ground of appeal.

[47]

That the magistrate failed to give proper consideration to the fact that the 18 contraventions relating to the transfer of funds comprised essentially "one course of action" and her reference to the maximum penalty for each individual contravention indicates that she considered that that number of contraventions, as opposed to their overall impact, were foremost in the Magistrate's mind when applying the penalty.**

[48]

Again, the husband has misguidedly sought to rely on the Sentencing Act 1995 (WA), and a comparison with sentences imposed in other cases.
Plainly, her Honour determined to treat each transfer of money by the husband as a discrete breach of the relevant orders. That was open to her Honour, there being no denying that each transfer was in fact a breach of the orders.
It is also not to the point to suggest, as the husband did, that the amounts could have been transferred in one amount. That did not happen, and it must not be forgotten that each transfer was done with a specific and deliberate purpose, namely to purchase separate amounts of cryptocurrency.
It was certainly one course of conduct in that ultimately the husband transferred a total of $180,000 over 11 days to purchase cryptocurrency, but he did it in 18 separate and discrete transactions, each in breach of the relevant orders. Further, it matters not why he did it that way, because he has admitted that each transfer was in breach of the relevant orders, and was done without reasonable excuse.
Again, there is no merit in this ground of appeal.

[49]

That the magistrate failed to consider authorities in sentencing including the total monetary value involved in the contravention in comparison to the case of Hay v Hay [1998] FamCA 95; (1998) FLC 92-819 where the sentence differs significantly in severity between cases and their monetary values of contravention and fines.**

[50]

This is another ground of appeal that cannot be sustained. As referred to above, Pt XIIIA of the Act provides an exclusive code for dealing with breaches of orders under the Act, and a comparison of penalties imposed in other cases is of limited assistance, given that each case depends on the court's assessment of the facts.
Her Honour was not obliged to make comparisons with any other authorities, and no error is demonstrated by her Honour not doing so to the extent suggested by the husband.
Her Honour did refer to the decision of the Full Court in Hay v Hay [1998] FamCA 95; (1998) FLC 92-819, being a case cited to her, and relied on by the husband. The relevance of that case though was that the Full Court set aside a penalty of imprisonment for contravening an injunction, and in re-exercising the discretion, the Full Court imposed a fine. Thus, her Honour took that into account in determining that a sentence of imprisonment was not appropriate in this case.
The husband went further though and submitted that her Honour should have used that case as a guideline for what fine to impose. However, the facts were quite different, as one would expect, and there was no warrant for her Honour to do as suggested by the husband.
There is no merit in this ground of appeal.

[51]

That the Magistrate failed to give adequate consideration to the [husband's] capacity to meet the fine imposed and within the time frame proposed with his unemployed status and in circumstances, where, when adding back the funds that are the subject of the contravention (which are unrecoverable) any tangible assets to be retained by the [husband] in the final property settlement are likely to have been insufficient to meet the fine imposed.**

[52]

The difficulty with this ground of appeal is that despite what is asserted by the husband, it was not known to her Honour what the outcome of the property settlement proceedings would be (at [28]). Her Honour though proceeded on the basis that the husband's entitlement would be sufficient to meet the fines she was imposing, but out of abundant caution her Honour also ordered that if there was a shortfall, the husband had 90 days to make the payment required.
Thus, her Honour was acutely aware of the capacity of the husband to pay the fines imposed.
Her Honour also noted in detailing the husband's case, and again, unlike what is now asserted by the husband, "that [the husband] considers that he can make good any loss" (at [14]).
Again, the husband misguidedly suggests that her Honour failed to comply with the Sentencing Act 1995 (WA), but to repeat, that Act had no application here.
There is no merit in this ground of appeal.

[53]

The penalty imposed by the Magistrate does not reflect to an early guilty plea and contrition expressed by the [husband], as her Honour has made note in her Reasons for Decisions, in comparison with sanctions from other cases.**

[54]

Certainly, "expressions of contrition" and "entering an early guilty plea" are relevant matters for a sentencing judicial officer to take into account.
However, it has not been demonstrated that her Honour failed to take such matters, if present, into account.
As to the suggestion of an early plea, that was disputed by the wife on the basis that the plea was only made on the day of the hearing (at [17]). That timing was not disputed by the husband, and thus that would not be a mitigating factor as suggested by him.
As to the expression of any contrition, her Honour not only referred to that, but clearly took it into account in imposing penalty (at [34]).
Again, in support of this ground, the husband misguidedly attempts to suggest that her Honour erred by failing to have regard to other authorities. However, I do not propose to repeat what I have said above about that submission.
There is no merit in this ground of appeal.

[55]

There being no merit in any of the grounds of appeal, the appeal must be dismissed.
The wife took no part in the appeal, and thus there is no issue of costs that arises consequent upon the dismissal of the appeal.

[56]

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 28 July 2020.

Lescosky & Durante [2020] FamCAFC 179 (28 July 2020)

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