Kalgoorlie Consolidated Gold Mines Pty Ltd v Hanekom - [2010] WASC 259

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KALGOORLIE CONSOLIDATED GOLD MINES PTY LTD -v- HANEKOM [2010] WASC 259

CORAM: McKECHNIE J

HEARD: 1 JUNE 2010

DELIVERED : 24 SEPTEMBER 2010

FILE NO/S: SJA 1006 of 2010

BETWEEN: KALGOORLIE CONSOLIDATED GOLD MINES PTY LTD
Appellant
AND
MARIUS HANEKOM
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE F ZEMPILAS
File No  :KA 2634 of 2008

Catchwords:

Mines safety - Owner of mine and contractor failed to remove hazard resulting in death - Whether owner failed to ensure all reasonable steps taken to avoid death - Penalty - Error of fact - Necessity to resentence

Legislation:

Mines Safety and Inspection Act 1994 (WA)

Result:

Appeal against conviction dismissed
Appeal against penalty allowed

Category: B

Representation:

Counsel:

Appellant: Mr A S Derrick SC
Respondent: Mr G T W Tannin SC & Ms D E Quinlan

Solicitors:

Appellant: Norton Rose Australia
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Ausdrill Ltd v Hanekom [2009] WASC 307

McKECHNIE J:

The background to this appeal

KCGM is the owner of the Fimiston Mine and had an enviable safety record until it was shattered in the dark early morning hours of 14 February 2006 when Mr Harris drove his light truck into drill rods protruding from the back of an unlit truck parked in the wrong place. Mr Harris was killed. His employer, Ausdrill, had a marked work area within the Fimiston Mine. It was the operator of the truck parked without lights or any warning next to where the drill bits were usually unloaded.
After trial for a serious breach of mine safety arising from the accident, KCGM was convicted and fined $160,000. It has appealed against both the conviction and penalty.

Appeal against conviction

The issues

1.Should a reasonable person in the position of the appellant have appreciated or foreseen the hazard and risk of injury it created? Yes.
2.Did KCGM fail to adopt two practicable measures thereby failing to provide and maintain a safe working environment? Yes.
3.Should KCGM have provided a flashing light to be affixed to the unlit truck? No.

The prosecution notice and particulars

The prosecution notice under the Mines Safety and Inspection Act 1994 (WA) (MSI Act) s 15A, s 9(1) and s 9A(2) asserted that KCGM failed, so far as it was practicable, to provide and maintain at a mine a working environment in which the workers of the contractor were not exposed to hazards, being a matter over which the accused had capacity to exercise control, and by that contravention caused the death of Mathew Harris:
The notice was particularised:
…
2.Hazard
Large, heavy, items, such as drill rods, stored on a vehicle such that the item protrudes over the back of the vehicle.
3.Practicable Measures
a.Ensuring its contractors, including Ausdrill Limited, had in place and enforced a system of work requiring any protruding items stored on a vehicle to have a lit beacon attached at all times, including when the vehicle is not in use, in order to enhance visibility of the end point of the protruding item(s); and/or
b.Ensuring its contractors, including Ausdrill Limited, had in place and enforced a system of work whereby any vehicle that has one or more protruding items stored on it must, when not in use, be parked in such a way that employees cannot inadvertently come into close proximity with the protruding items; and/or
c.Ensuring its contractors, including Ausdrill Limited, had in place and enforced a system of work whereby any vehicle that has one or more protruding items stored on it must, when not in use, be parked in a designated location of which all employees are aware, so as to minimise the risk of employees inadvertently coming into close proximity with the protruding items stored on the vehicle; and/or
d.Ensuring its contractors, including Ausdrill Limited, had in place and enforced a system of work requiring that when any vehicle that has one or more protruding items stored on it is to be parked, a physical barrier or traffic cones ('witches hats') are placed to prevent employees from coming into contact with the protruding item(s) or at least clearly indicate that employees should not enter into the area of protrusion.

The magistrate's findings

There was no great dispute as to the evidence which was summarised by the magistrate who made findings beyond reasonable doubt. She found that the hazard as alleged was a hazard under the MSI Act. There was a risk that Mr Harris, driving up to the rear of the rod truck, having gathered the items he needed to take down to the pit on his night shift from nearby sea containers and storage areas 20 ‑ 35metres away, would collide with the overhanging rods and cause injury to himself.

Failed as far as practicable to provide and maintain a safe working environment (s 9(1)(a))

The magistrate found that it was an infrequent event that the rod truck would be parked in that location with overhanging rods (8).
This must, however, be balanced against the severity of the harm that potentially could be caused by the hazard and does not render the harm unforeseeable (8). The magistrate posed the question:
Could an accident by which an employee driving a vehicle in the Ausdrill yard drives into an overhanging load conceivably happen? (9)
The KCGM driving rules is a recognition by KCGM of the potential for adverse interaction between a vehicle and an overhanging load. The risk of such an event occurring in the pit was therefore appreciated by KCGM.
An event that is reasonably foreseeable in the pit must also be reasonably foreseeable elsewhere at the Fimiston site where there is interaction between vehicles, for example in the Ausdrill workshop area (9).
The duty is not an absolute duty (10) but employers must allow for inattention and misjudgement on the part of employees.
Long before the accident occurred the driving rules had sought to control a similar hazard in the pit. It was artificial to suggest the nature of this hazard changed upon entry to the Ausdrill yard and became one exclusively within the expertise of Ausdrill. KCGM sought to regulate other issues of safety within the Ausdrill workshop area and with Ausdrill employees (11).
Russell Cole, General Manager of KCGM Operations at the Superpit, said that parking is a very important issue at the site, that KCGM had a traffic management plan for their own areas and the contractors had to submit their own plan for KCGM approval.
Phillip Welten, Mining Manager KCGM (2005 ‑ 2007), said in relation to workshop areas that Ausdrill had their own designated processes for parking and driving: 'their backyard is their responsibility'. These processes were clearly the subject of review and ultimate approval by KCGM (12).
Trevor Jones, Senior Mining Engineer (2000 ‑ 2006), stated that breach of the driving rules would leave any employees open to disciplinary process including contractors (13).
Mr Welten said that the hazard had not been identified by KCGM that trucks would be parked with overhanging loads. He said it was assumed loads were being removed when vehicles were parked and there was no policy about that. He agreed it was a high risk practice and, if it had been seen, would have been identified as a hazard and action taken. He also said he was not aware of the practice of Ausdrill using red flags on overhanging loads instead of orange lights and stated if he had been aware of it, he would have taken steps to correct it.
The magistrate was satisfied that KCGM did have the ability and did in fact regulate other issues of safety within the Ausdrill workshop area and with Ausdrill employees. KCGM did not have exclusive responsibility for safety within that area, or even predominant responsibility, but they did share in that responsibility with Ausdrill.
The hazard presented by an overhanging load in the Ausdrill workshop area was not one that required expert knowledge to avoid, exclusively within the province of Ausdrill as the drilling contractor (13).
The magistrate posed the question:
Would a reasonable person in the position of KCGM have appreciated or foreseen the risk of injury occurring?
In answer to these questions the magistrate made the following findings:
1.There was no evidence that KCGM actually knew overhanging loads were being left infrequently on the rod truck in the Ausdrill yard.
2.KCGM had already acknowledged via the driving rules that overhanging loads generally on moving vehicles were a hazard in the pit.
3.KCGM also had the ability to control and regulate aspects of safety within the Ausdrill workshop area.
4.It is a matter of common sense and within the knowledge of KCGM that vehicles which moved within the pit will ultimately be parked somewhere.
5.That those vehicles with overhanging loads will have to be parked, even for a short time, with an overhanging load until it is removed.
6.During that period of time, whenever it may occur and whether it was for two minutes, two hours or overnight, there existed a risk to other employees of collision with the overhanging load.
The magistrate concluded:
I am therefore satisfied beyond reasonable doubt that the accused ought to have appreciated or foreseen the risk of injury occurring by which an employee driving a vehicle in the Ausdrill yard drives into an overhanging load.
The magistrate then posed the question:
[The] means of removing or mitigating the potential injury or harm to health and the availability, suitability and cost of those means?
She found there is evidence that KCGM had put in place certain processes to address the risk posed by overhanging loads (the driving rules 5.5).
That period of time when a load will have to be parked, wherever it may occur and regardless of its duration, was not governed by a safety policy except that, when moving, the vehicle required a flashing orange light (15).
The KCGM witnesses all said they were not aware of the Ausdrill practice of using a red flag instead of a orange flashing light.
The magistrate turned her attention to the three practicable measures the prosecution particularised and was satisfied beyond reasonable doubt KCGM ought to have adopted the practical measures outlined by the prosecution and in particular (18):
•they ought to have had a procedure specifically addressing the need to park vehicles with protruding loads, which they did not, and
•they ought to have made available to all contractors the means with which to comply with the procedure they did have in place, ie flashing orange lights.
The magistrate found beyond reasonable doubt that KCGM failed, so far as was practicable, to provide and maintain a working environment in which Ausdrill's workers were not exposed to the hazard of large, heavy items such as drill rods stored on a vehicle such that the item protrudes out the back of the vehicle (18).
Whether that failure caused the death of the deceased the magistrate held (20):
The irrefutable inference from those facts is that the deceased was still travelling at some speed when he collided with the rods. …The problems with the brakes and steering may then have slowed his emergency response, however the substantial cause of the deceased's death was the blow to his head by the overhanging 35ft drill rod on the back of the rod truck.

The submissions

KCGM does not really challenge the evidence but does challenge the conclusions drawn, contending at the least there is a reasonable hypothesis consistent with innocence that should be drawn. The appellant's submissions particularised the practical measures of the prosecution as:
1.A light.
2.Parking safely.
3.A physical barrier or cones.
The appellant submits that in determining if a reasonable person would have appreciated or foreseen the risk of injury occurring the learned magistrate was required to avoid hindsight bias; that is, by looking forward from a time before the accident rather than backward from the time of the accident. However, the magistrate expressly acknowledged the need to avoid hindsight bias and there is no basis to conclude from her reasons that she suffered from hindsight bias.

The alleged error by the magistrate

KCGM concedes that the magistrate's finding enabled her to conclude that it did in fact appreciate overhanging loads on a vehicle were capable of constituting a hazard. For my own part, I would have thought such a finding was inescapable.
However, it is submitted those findings did not provide a basis to conclude that a reasonable person in KCGM's position ought to have appreciated or foreseen the risk of injury occurring by reason of the hazard; that is, the storage of drill rods on the rod truck such that the drill rods protruded over the back of the rod truck. It was submitted that although it is one thing to say it was foreseeable that a vehicle with an overhanging load would have to be parked, even for a short time, it is another thing entirely to conclude that because KCGM had this knowledge it ought to have appreciated or foreseen the existence of the hazard constituted by Ausdrill's storage of the overhanging drill rods on the rod truck.
KCGM submits that there are a number of facts established by the evidence which were not referred to by the magistrate in the reasons which should have caused her to conclude that a reasonable person in KCGM's position could not have appreciated or foreseen the existence of the hazard and the risk of the injury created, or at least that the prosecution had failed to prove beyond a reasonable doubt that a reasonable person could not. Those facts were:
•The contract between KCGM and Ausdrill required the appellant's policies and procedures to operate in the Ausdrill yard.
Comment
There was no parking policy.
•Ausdrill had day to day control of its yard and the responsibility for it.
Comment
While this is accepted it was part of the Fimiston mine site over which KCGM had and exercised overall authority.
•Overhanging loads driving in the operational areas of the mine had to display an orange flashing light.
Comment
This may be accepted but it did not excuse the lack of a policy for safe parking of hazardous loads at times when power source for a light, namely a running engine, may be unavailable. There was no requirement to place a light on loads parked in the Ausdrill yard.
•Senior KCGM staff did not know that Ausdrill was not complying with the driving rules or did not know what was taught at induction to place an orange flashing light on all overhanging loads.
•Regulations provided under the heading 'Surface Mining Operations' required that a person must not leave a motor vehicle unattended at a mine unless it is parked in a safe manner with the controls in the correct position for parking and the parking brakes fully applied.
Comment
This did not ensure that employees would do so nor did it say where a vehicle should be parked.
•It was an infrequent occurrence for the rod truck to be parked overnight with overhanging drill rods left on it.
Comment
The occurrence was infrequent but foreseeable. Ausdrill had a designated parking area for heavy vehicles such as the rod truck.
•Heavy vehicles, even if they had overhanging loads left on them, could be parked safely in the area.
Comment
KCGM did not expressly require vehicles with such loads to be parked in this area and there was evidence that loads were parked near the sea containers from time to time for loading purposes.
•Welten knew of Ausdrill's designated parking area and assumed the rod truck was being parked in this area as that is the only place he had ever seen it parked.
Comment
Nevertheless, there was a reasonable possibility that the rod truck might be parked elsewhere from time to time, particularly when loading and unloading.
•Ausdrill gave monthly reports to Welten and 'Front of Workshop' parking areas were demarcated and the vehicles parked safely in designated areas. These reports stretched over a year.
•In October and November 2005 Ausdrill reported to Welten that staff were told that all vehicles had to be parked in designated areas and not in front of the workshop.
Comment
The magistrate did not find that KCGM knew of the hazard but found that a reasonable person in its position ought to have known.
•The appellant was exceptionally safety conscious through inductions, hazard reporting, procedures.
•Prior to 1996 personnel working at the mine had reported thousands of hazards and safety incidents. Not one of them concerned items protruding from the rear of a moving or parked truck.
•KCGM carried out time audit approximately eight to ten times a year. During these audits the rod truck was not parked in front of the sea containers with overhanging rods left on it.
Comment
Although the appellant styled these points as evidence which were not referred to by the magistrate in her reasons, in fact many were.
The appellant argues that a reasonable person in the appellant's position could:
30.The significance of the facts stated in paragraph 29(3) above is that a reasonable person in the appellant's position could not be expected to appreciate or foresee that an orange flashing light placed, in compliance with clause 5.5, on an overhanging load which was being transported on a truck to the Ausdrill yard might be removed from the end of the load once the truck had been parked in the yard but prior to the unloading of the overhanging load. In such circumstances there would simply be no reason for the light to be removed. Similarly, a reasonable person in the appellant's position could not be expected to foresee or appreciate that despite the existence of clause 5.5 an overhanging load placed on a truck in the Ausdrill yard for transportation to the pit would not have an orange light placed on the end of the load from the moment that the load was placed on the truck. To put it another way, no reasonable person in the appellant's position could be expected to appreciate or foresee that despite compliance with clause 5.5 overhanging loads might be stored on a parked truck without an orange flashing light being attached to the overhanging load.
However, the conclusion does not follow. KCGM clearly understood the hazard of overhanging loads. Hence the driving rules and the need for such loads to be lit. Despite the undoubted emphasis on safety described by some witnesses as a mantra, KCGM overlooked the situation that might arise if a load, instead of being moving, was parked for a time, especially in a mine that worked both day and night. The points raised that KCGM did not know that Ausdrill was not complying with the instruction to put an orange flashing light on all overhanging loads begs the question whether a reasonable person in the position of the owner of the mine ought to have known bearing in mind the frequency of Ausdrill truck journeys carrying overhanging loads around the mine and the pit.
The magistrate acknowledged the evidence that KCGM employees did not recall ever seeing the rod truck with or without overhanging rods parked by the sea containers. None had been made aware that it was a practice adopted by Ausdrill staff.
However, balanced against the severity of the harm the magistrate found that the infrequent event might conceivably happen. While the she did not find that KCGM knew overhanging loads were left infrequently on the rod truck she found the accused ought to have foreseen the risk. This finding is not only open on the evidence, but one I consider is inevitable on the evidence.
KCGM also submits that, in effect, there was a safe parking area and the appellant's Mining Manager knew of it and the only place he had ever seen the rod truck parked was in the safe parking area. That is the area designated for heavy vehicles. Had it been parked there, of course, the accident would not have occurred because the rods would have been protruding safely towards an embankment not accessible to other vehicles. This does not solve the problem that the magistrate identified, namely, that it is inevitable that from time to time the truck would be parked, even if for a short time, to offload rods.

I have reviewed all the evidence and accept that the evidence set out in the submissions quoted earlier was available to the court. That said, however, and taking it into account, I reach the same conclusion on liability as did the magistrate.
The hazard was obvious. KCGM knew of the hazard and took steps to prevent it when loads were moving through its SOP Driving Rules. The hazard was reasonably foreseeable, yet KCGM did not ensure that Ausdrill had a procedure for dealing with it. Practicable measures to minimise the hazard were obvious but KCGM did not ensure they were taken. While KCGM received regular safety reports from Ausdrill, it did not take sufficient steps to ensure that a hazard caused by an overhanging load would be minimised on the occasions when it was necessary for the load to be parked other than in a designated bay, whether by day or by night.
The essence of the prosecution case was a 'failure to ensure'. The evidence of Ausdrill employees as to the use of a red flag on loads, and the non‑use on occasions of a flashing light when moving around the wider mine site, is eloquent evidence that KCGM failed to ensure compliance with its driving rules. It did not have express rules for parking loaded vehicles.
The fact that KCGM was aware, through its officers, that Ausdrill had a parking area for large vehicles did not go any way to ensuring that Ausdrill had a process for protecting employees from the hazard of overhanging loads. It was not reasonable to assume that vehicles with overhanging loads would always be parked in the large vehicle area. KCMG did not ensure that Ausdrill had a system of work which would have protected its employees from the very sort of accident that happened.
Grounds 1 and 2 fail and, as a consequence the appellant concedes, ground 3 fails also.
KCGM did have a procedure for the attachment of an orange flashing light at least while vehicles were moving. This was part of the induction and part of the driving instructions. KCGM acknowledged it did not have a written procedure for fixing an orange flashing light to parked loads.
The orange flashing light needed a power source. When the engine was switched off an alternate power source needed to be supplied. Most of the Ausdrill employees were either unaware of the requirement of an orange flashing light or did not use one and used a red flag instead. There is no evidence that KCGM had adopted a practical measure which would have ensured that Ausdrill employees used a light for parked vehicles to illuminate protruding rods.
Inspector Hanekom accepted that, given the existence of Ausdrill's designated parking area for heavy vehicles, KCGM had a system in place for trucks to be parked in designated parking bays. He also accepted that if the rod truck had been parked in Ausdrill's designated parking area for heavy vehicles the accident would not have occurred: (ts 40, 27/10/09). This fact was also demonstrated by the evidence of the appellant's witness Mr Russell Cole (ts 48 ‑ 49, 28/10/09). However, there was no written policy about the parking of vehicles that were a hazard. The potential of this hazard was what KCGM failed to ensure against.

Ground 4

Ground 4 is made out. It was not part of the prosecution's particularised case at trial that KCGM was required to make flashing lights available. A case should be confined to its particulars. However, it does not lead to any substantial miscarriage of justice. The reasoning was not critical to the other findings and the other findings are sufficient to establish a conviction.

Appeal against sentence

The appellant was fined $160,000 following trial. Ausdrill was fined $130,000 having pleaded guilty following a successful appeal against penalty: Ausdrill Ltd v Hanekom [2009] WASC 307.
In sentencing the magistrate said:
[The] accused failed in respect of two fairly obvious, in my view, aspects of its duty.
Firstly the policy for parking vehicles with overhanging or protruding rods, either short or long term, and the absence of any policy for that, and the absence of provision of lights pursuant to its one policy that it had to contractors so they could comply with that policy at all times.
I note that both of these failures would have been fairly simple to rectify and fairly cheap and, in fact, have been remedied since that time fairly quickly.
For the same reason as ground 4 in the appeal against conviction, the finding that KCGM failed to provide lights is an error. It is impossible to say if the penalty would have been the same without the error because the magistrate highlighted it as one of two failures of duty. For that reason alone the appeal on sentence should be allowed and the appellant resentenced.
The second ground of appeal on sentence alleges that the sentence was manifestly excessive is particularised:
The sentence imposed was outside the range of a sound exercise of the sentencing discretion having regard to the following matters:
(i)The appellant was the principal of Ausdrill rather than the direct employer of the deceased;
(ii)Although the appellant had the capacity to exercise control over safety issues within the Ausdrill yard, it did not have the predominant responsibility for doing so. Predominant responsibility for safety in the Ausdrill yard rested with Ausdrill. Ausdrill had the day to day control of the Ausdrill yard;
(iii)The use and operation of the rod truck and the way in which it was loaded, driven and parked was under the direct control of Ausdrill;
(iv)In relation to vehicles being driven in the operational areas of the mine albeit not in the Ausdrill yard, SOP 4 required the appellant's employees and the employees of its contractors to place an orange flashing light on loads on vehicles with an overhang exceeding 1 metre up to 3.5 metres. In addition, during the appellant's induction process its employees and the employees of its contractors were instructed to place a flashing light on all overhanging loads whether stationary or in transit. Further, SOP 4 also required the appellant's employees and the employees of its contractors to park all vehicles in a safe manner. Accordingly, the appellant did take steps to ensure that the hazard did not arise;
(v)The appellant did not know of Ausdrill's practice of driving and parking the rod truck without attaching a flashing light to overhanging drill rods stored on the rod truck;
(vi)It was an infrequent occurrence for the rod truck to be parked with overhanging drill rods left on it in the location in which it was when the deceased drove his vehicle into the rods.
(vii)The appellant did not know about Ausdrill's practice referred to in sub‑paragraph (vi) above.
(viii)The appellant knew of the designated parking area. Furthermore, during the period July 2005 to January 2006 Ausdrill reported to the appellant on a number of occasions that in relation to the Ausdrill yard parking areas were demarcated and vehicles were parked safely and in designated areas.
(ix)Given the matters referred to in sub-paragraphs (iv) to (viii) above, the appellant's contravention of the Act was not deliberate, flagrant or calculated. The appellant did not act in deliberate disregard of the risk of injury or harm created by the hazard;
(x)The appellant placed (and continues to place) great emphasis on the safety of all workers at the mine and the need for workers to report all hazards and safety issues no matter how minor;
(xi)The appellant had (and continues to have) in place extensive procedures aimed at ensuring that hazards and safety issues generally at the mine were detected and managed appropriately;
(xii)Since the incident the appellant has made changes to its safety systems so as to eliminate or at least minimise the risk of injury being caused by the hazard;
(xiii)The appellant's remorse for the consequences of the offence as demonstrated by the monetary assistance that it has provided to the family of the deceased since the incident
(xiv)The appellant has no prior convictions;
(xv)The appellant has an exemplary safety record;
(xvi)The appellant is an exemplary corporate citizen; and
(xvii)The sentence imposed was outside the range of sentences customarily imposed for offences of the type of which the appellant was convicted.
The appellant is entitled to have those particulars taken into account with the exception of (xvii). However, there are other matters as well. In 2005 the maximum penalty was doubled to $400,000, indicating that Parliament intended significant consequences would flow from a breach of the MSI Act leading to death. The offence is analogous to criminal negligence. The purpose of the Act is to promote safety and penalties are required to reflect both personal and general deterrence.
In approaching this matter, I consider that Ausdrill's breach of the MSI Act and its overall responsibility to Mr Harris, who was after all its direct employee, was more serious and greater than that of KCGM. The difference in responsibility was noted by the magistrate in her reasons for conviction.
KCGM exercised its right to a trial and cannot receive any reduction in penalty consequent on an early (or any) plea of guilty.
However, KCGM did cooperate substantially with the prosecution making a series of admissions that narrowed the issues and probably shortened the trial. There is a utilitarian value in such cooperation that should be reflected in some moderation of penalty.
I digress to deal with an intriguing submission by the respondent that whilst the magistrate did find the starting point for the appellant was in the middle of the sentencing range, as it was for Ausdrill, the mitigatory factors then taken account of and the sentence imposed, means that the magistrate has effectively imposed a lesser sentence than that imposed on Ausdrill. As a simple comparison, if the guilty plea reduction range of between 20% and 35% is applied to the sentence imposed by the magistrate on KCGM then the fine imposed would be in the vicinity of $104,000 to $128,000 which is less than the $130,000 imposed on Ausdrill. Perhaps, but that is not the actual result. KCGM was fined $30,000 more than Ausdrill. The facile submission escapes me. The principal quantifiable difference between Ausdrill and KCGM is that Le Miere J, in determining the penalty for Ausdrill, specifically allowed a reduction for a plea of guilty.
For the purpose of resentencing it is necessary to ignore the one breach of policy, namely the absence of provision of lights. KCGM is not entitled to a reduction for a plea of guilty although, of course, the proper penalty is not increased because of a plea of not guilty.
Exercising the discretion afresh and taking account of the matters raised by KCGM, as particularised earlier, together with the effect of the offence on the victim and the victim's family, and the need for general and specific deterrence, I consider that the appropriate penalty is a fine of $100,000.

Conclusion

Appeal against conviction dismissed.
Appeal against sentence allowed.
Penalty imposed by the magistrate set aside and a fine of $100,000 imposed in lieu.