Lecosky & Durante [2020]

The matter of Lecosky & Durante was an appeal to the Full Court of the Family Court of Australia from the Magistrates Court of Western Australia.

The Facts

The Court had made Orders for the Husband to be restrained from transferring money out of a cryptocurrency account. The day the Orders were made the Husband started transferring money out of his cryptocurrency account. Over a period of 11 days the Husband transferred $180,000 out of the account. The Husband did this in 18 separate transactions.

The Husband had also been ordered to pay $30,000 to the Wife’s solicitors trust account and provide an undertaking as to disclosure. The Husband did not comply with either of these Orders.

The Husband admitted to the contraventions. The Husband was fined $59,250.

The Appeal

The Husband appealed the decision on a number of grounds.

The first ground of the Husband’s appeal was that the penalty imposed did 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”.

In this ground, and in others he put to the Court, the Husband argued the Court should have consideration for sentencing principles that others Court are required to consider.

In their decision the Full Court noted that the Court was not bound by principles of sentences found in the case law (common law) or from State or Federal laws, other than what is provided for in the Family Law Act 1975.  

The Husband also argued that the Court should have dealt with each of his 18 transfers as one contravention, not 18 separate contraventions. The Full Court dismissed this argument. The Court stated: -

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 [Lecosky & Durante [2020] FamCAFC 179 at 35].

The Court found there was no merit to any of the Husband’s grounds and dismissed the appeal.