In Lescosky & Durante [2020] FamCAFC 179 (28 July 2020) Strickland J, sitting in the appellate division of the Family Court of Australia, heard a case where the husband breached an injunction 18 times, purchasing $180,000 of cryptocurrency, for which he was fined $54,000.
The husband appealed, arguing that the magistrate had not taken into account the “totality principle”. Strickland J said (from [13]):
“…[I]t is not the case that the court … must apply any so-called principle of sentencing … apart of course, from what appears in the Family Law Act 1975 (Cth) (…)
[15] 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 s6 of the Sentencing Act 1995 (WA) or s16A of the Crimes Act 1914 (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 (…)
[17] The task for her Honour was to fix a sanction or sanctions that her Honour considered to be the most appropriate in the circumstance (s112AD). (…)
[21] What … her Honour did was impose a fine of $3000 for each of the 18 contraventions, and aggregate those fines, arriving at a total fine of $54,000. (…)
[25] … [H]er Honour did what the husband said the sentencing principles and the decided cases required her to do. … [S]he identified the maximum allowable fine for each contravention … 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’ (…)
[26] That approach accords with what the husband has described as the ‘totality principle’ ( … )”
The husband’s appeal was dismissed.
Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).
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