R v Turner

Cases Cited: R v Ahmed [no 2] [2023] NSWSC 105
R v Halloun [2014] NSWSC 1705
SafeWork NSW v Christopher Turner [2020] NSWDC 180

Category: Sentence

Parties: Rex;
Christopher Laurie Turner

Representation: Counsel:
Crown: R Kotsis
Defence: A Cook SC
Solicitors:
Crown: Solicitor for Public Prosecutions (NSW)
Defence: Brock Partners

File Number(s): 20122/248800

Publication restriction: S15A Children (Criminal Proceedings) Act 1987 applies, prohibiting publication of the name of child victim/deceased. However, family of the victim and the deceased consent to publication of their names due to public interest issues.

JUDGMENT

1. S15A Children (Criminal Proceedings) Act 1987 applies, prohibiting publication of the name of the victim in count 1 and the deceased in count 2. However, in appreciation of the public interest issues, the family of each victim consent to publication of their names. I acknowledge that this may have been a difficult decision to make by both families. I commend those decisions. To be able to name both Amelia Khan and John Ghanem provides an opportunity to address each with the dignity of being named and to recognise each as individuals who suffered significant harm and that the harm occasioned to them has resounded in a profound harm to each of their families. That suffering should be known and understood not just within the court room but also in the community.

Offences

2. The offender Christopher Turner entered pleas of guilty on 17 October 2025 to the following charges:

3. Count 1: Negligent omission occasioning grievous bodily harm pursuant to s54 Crimes Act 1900 (NSW). The victim is Amelia Khan. The maximum penalty for this offence is 2 years imprisonment. By his plea of guilty the offender has accepted responsibility for:

(a) a negligent omission; and (b) that negligent omission caused grievous bodily harm.

2. Count 2: Manslaughter pursuant to s18(1)(b) Crimes Act 1900 (NSW). The deceased is John Ghanem. The maximum penalty for this offence is 25 years imprisonment. By his plea of guilty the offender has accepted responsibility for:

(a) death; (b) a duty of care; (c) an omission; (d) the omission to cause death. (e) the omission needs to be negligent in that it breached the duty of care; (f) the omission needs to amount to criminal negligence and merits punishment for the offence of manslaughter because:

(i) it fell so far short of the standard of care which a reasonable person would have exercised; and (ii) involved such a high risk that death would have followed as a result.

Facts

3. There are very detailed agreed facts that span 22 pages. I have reviewed those facts and will sentence on the content. I recite key aspects in summary with some comments added.

4. In 2015, Paul Brightwell, an Assistant Engineer at Bankstown Hospital, was instructed to obtain a quote for the installation of fixed neonatal resuscitation outlet panels providing continuous medical oxygen, medical air, and suction in all eight theatres. Although trade-qualified as a fitter and machinist, Mr Brightwell had no formal engineering qualifications or training in commissioning or testing medical gas systems. He contacted BOC Limited, a well-known provider of medical gas services with an existing contract to test and maintain gas outlets at the hospital.

5. BOC subcontracted the installation to Pro-Med Pty Ltd, a company established solely for this purpose by the offender, who was its sole director and employee. The subcontract required the offender to possess appropriate expertise, comply with Australian Standards, and accurately test and certify the work.

6. In July 2015 the offender, then aged 54 years, was engaged as a subcontractor to cut into existing gas pipes servicing eight operating theatres at Bankstown-Lidcombe Hospital and to connect extension gas pipes from those existing pipes to new wall plates with three wall outlets. He was appropriately qualified to undertake this work.

7. Operating theatre 8 (OT8) was one of eight operating theatres where the work was to be done.

8. Although the offender was a qualified gas fitter with experience in medical gas systems, and he completed BOC training modules he did not complete BOC’s training on commissioning medical gas systems. He nevertheless knew that strict testing was required to prevent cross connections between gases such as oxygen and nitrous oxide and that each separate gas line was to be tested. The contract between BOC and the offender’s company relevantly stated;

9. That the Contractor represents to BOC Limited that he has the ‘skills and expertise required for the performance of the services’**;

10. ‘In providing the Services, the Contractor shall exercise a standard of care and perform to a level of skill commensurate with that which would be expected of a qualified expert experienced in the provision of like services’**;

11. ‘In providing the Services, the Contractor must…comply with all applicable Australian Standards’**; and

12. ‘The Contractor shall keep accurate records of the performance of the services’

13. The Australian Standards sets out the requirements for safety, testing and certification as well as operation and maintenance of non-flammable medical gas pipelines used for patient care. The forward of the Australian Standards states “… Medical gas pipelines are a life support system and as such require careful consideration of their design, construction and installation. Hazards include plumbing errors…”

14. The offender worked with a BOC employee, CH, whose day-to-day duties included maintenance and installation of BOC customer gas systems including medical systems. Both CH and the offender were informed their work related to installing new outlets for infant resuscitation.

15. The installation was performed over two nights in July 2015, outside normal hours to avoid closing theatres. It is not known if CH or the offender did the work on OT8. In OT8, the work involved extending existing gas pipes to a new neonatal wall outlet panel. Unknown to the installers, part of the original pipework in the ceiling space had been incorrectly labelled during the hospital’s original construction in the mid-1990s. Although this mislabelling had not previously affected gas delivery, it created a latent risk. The work to OT8 involved cutting into the existing pipes (medical air supply, and the existing suction line) servicing OT8 and adding extension gas pipes leading to a new stainless steel wall plate.

16. During the 2015 works, the pipes connecting nitrous oxide and oxygen were incorrectly labelled. The distance between pipes being correctly labelled and incorrectly labelled was about 4m. This resulted in a dangerous cross connection; whereby nitrous oxide was delivered through the outlet intended to supply oxygen to neonates.

17. Under the Australian Standard, mandatory cross-connection testing and gas identity testing should have been performed, including isolating each gas line and testing each gas one at a time. The offender completed forms purporting to certify that he conducted appropriate tests as required by the Australian Standards. The offender signed the forms. The forms refer to the Australian Standards.

18. Part 2 of Test Certificate Form T1 refers to testing the system for a cross connection. The offender signed Part 2 of Test Certificate Form T1 where the form says, ‘Tested by - Installer’. The offender dated the form 15/7/15. The offender certified that the requirements of Australian Standards 5.4.6 were met and that the test procedures were carried out in accordance with the requirements of the Australian Standards.

19. Australian Standards 5.4.6 is contained within Section 5 of the Australian Standards, which deals with ‘Testing, Verification and Certification’. Australian Standards 5.4.6 requires the following procedure to be done:

20. Pressure in all piping systems under investigation must be reduced to atmospheric pressure. This means turning all gas isolation valves ‘off’ and all gas from all systems is discharged by depressing every wall outlet in OT8 to remove all gas from the pipes between the isolation valve and the wall outlets;

21. Pressure the piping system under investigation. Assuming that one is testing the medical oxygen line for cross connection, the tester is required to turn the valve for medical oxygen ‘on’ at the valve isolation box, so that the medical oxygen supply is the only gas running from the isolation valve box into OT8;

22. Each terminal unit must be checked to determine the test gas is being dispensed only from the terminal unit of the system under investigation; and

23. The above steps must be repeated for each gas system.

24. A compliant cross connection test in OT8 in accordance with the Australian Standards would have taken no more than 10 minutes to perform. Had it been undertaken it would have revealed the error.

25. An isolation of supply test is another way to test for cross connection. It involves turning off the isolation valve for the gas under investigation and testing to see if the line can be depleted by discharging gas from the relevantly marked wall outlet. A cross-connection test as required by Australian Standards 5.4.6 was not done by the offender. Had this test been done as required by Australian Standards 5.4.6 no gas would have been discharged from the gas valve switched off indicating cross-connection.

26. Part 12 of Test Certificate Form T5 relates to testing the system to confirm the identity of the gas being discharged from the wall outlets is correct. Part 12 refers to Australian Standards 5.6.5, which is titled ‘Test for gas identify’. This is the ultimate test to ensure that the correct gas is being discharged from the correct wall outlets.

27. The Australian Standards requires the following procedure:

28. All valves at the isolation box must be turned on and the system should be ‘purged’, that is, pressurised to ensure that gas is flowing from the isolation valve box to all wall outlets;

29. The tester is required to use an oxygen analyser; a handheld device connected to each of the newly installed wall outlets to determine the oxygen concentration of the gas being discharged from the wall outlet under investigation.; and

30. Assuming no cross connection, the correct and appropriate readings on an oxygen analyser should be 95% or over from an ‘oxygen’ wall outlet, and 5% or under from a ‘nitrous oxide’ wall outlet.

31. A gas identity test as required by the Australian Standards test takes less than 30 seconds on each outlet.

32. The offender signed Part 12 of Test Certificate Form T5 where the form says, ‘Tested by - Installer.’ The offender dated the form 15/7/15. The offender certified that the requirements of Australian Standards 5.6.5 were met and that the test procedures were carried out in accordance with the requirements of the Australian Standards.

33. The offender did not test the oxygen concentration of the newly installed oxygen wall outlet in OT8 as required by the Australian Standards.

34. The offender made notations regarding the newly installed oxygen wall outlet in OT8 on the Medical Gas Outlet Test Form purporting to indicate that the offender conducted two gas identify tests, (each test under slightly different dynamic gas pressures). The offender recorded that the oxygen concentration was 100% oxygen on both tests that he purported to have conducted and the offender ticked the column headed ‘Pass’. The recorded values would not have been possible. A value at the stated flow rates should have been close to 0% given the cross connection that had occurred in OT8.

35. Had the offender performed a gas identity test on the newly installed oxygen outlet in OT8 using an oxygen analyser as required by the Australian Standards, it would have identified that the oxygen concentration was at or about 0% so the gas discharging from the newly installed wall outlet labelled ‘oxygen’ must have been nitrous oxide.

36. The offender’s conduct did not merely involve signing a form purporting to have undertaken the required testing. He made multiple false entries for OT8 as to the details and readings obtained from testing that had not occurred.

37. It is not agreed that any other purported testing was in fact conducted by the offender.

38. According to the Australian Standards, an Anaesthetist in Charge or a delegated Anaesthetist, must be present during cross connection testing and gas identity testing to verify the results. That did not occur.

39. The offender nonetheless completed and signed test certificates falsely certifying compliance. Mr Brightwell signed as a witness to the testing despite not having observed any testing. The offender knew that Mr Brightwell did not witness any testing.

40. As a result, the faulty outlet was approved for clinical use from 16 July 2015. Between July 2015 and July 2016, 36 babies were born in OT8. Only two -Amelia and John - required oxygen from the newly installed outlet. The offender breached the duty of care by the following omissions with respect to the newly installed oxygen outlet that he was contracted to install in OT8;

41. Failure to test for cross connection as required by the Australian Standards;

42. Failure to test for oxygen concentration as required by the Australian Standards; and

43. Failure to conduct cross connection testing and oxygen concentration testing in the presence of a member of Bankstown Hospital experienced in the administration of medical gas to patients and an Anaesthetist.

44. The offender breached his duty of care by failing to conduct required testing and falsely certifying the system as safe.

Amelia Khan

31. On 20 June 2016, the newly installed oxygen outlet in OT8 was utilised for the first time by medical staff, and gas from that outlet was administered to baby Amelia following her emergency caesarean delivery. Due to the cross-connection, Amelia was administered nitrous oxide from the newly installed outlet labelled '[medical] oxygen'. After medical staff were attempting to resuscitate Amelia for 66 minutes, a decision was made to move Amelia from the resuscitaire which was connected to the newly installed wall outlet. Amelia was disconnected from the newly installed medical oxygen wall outlet and attached to an anaesthetic machine which had a different oxygen source, so her heartbeat could be more closely monitored. Her oxygen saturation returned to normal. She remained in OT8 for monitoring, until she was then transferred to Nepean Hospital Neonatal Intensive Care Unit for further treatment on life support.

32. Amelia suffered severe brain damage because of exposure to the nitrous oxide which caused birth asphyxia. The facts detail the diverse serious medical issues that required two weeks in intensive care and multi-disciplinary ongoing care. Almost 10 years have passed and much more in known of the harm and the consequential limitations. She requires constant care and this will not improve. Amelia is legally blind, confined to a wheelchair, she is unable to swallow and is fed through a PEG, she in incontinent, she is unable to speak and has limited methods to communicate. Her cognitive ability does not present as being compromised. Her earlier seizures and epilepsy presents as having resolved. It is opined her anticipated lifespan has been diminished. With assistance she has been able to attend school. Her situation evidences the continuing impoverishment she endures consequent to the high level of grievous bodily harm she sustained. Amelia is much loved and her family, with professional assistance, provide her with her essential care requirements.

33. The offender's negligent omissions caused grievous bodily harm to Amelia.

John Ghanem

34. On 13 July 2016, the newly installed oxygen outlet in OT8 was used by medical staff for the second time, during the attempted resuscitation of baby John following his delivery. Due to the cross connection, John was administered nitrous oxide from the newly installed outlet labelled '[medical] oxygen'. He was administered nitrous oxide for around 50 minutes. The direct cause of his death was acute nitrous oxide intoxication.

35. John was much loved during his all too short life and it is evident his death has caused considerable anguish. He is remembered and his absence is deeply felt by his family.

36. The offender's negligent omissions caused the death of John. It is agreed that the conduct of the offender involved such a great falling short of the standard of care which a reasonable person would have exercised, and which involved such a high risk that death or grievous bodily harm would follow that doing the act merits criminal punishment.

37. At around 4:30pm on 13 July 2016, police were notified by Bankstown Hospital of the incident involving baby John. Police attended in connection with a suspected Coronial Investigation. At that stage, police were unaware of the incident involving Amelia.

Investigations after the death of John Ghanem, July 2016

38. After the death of John, medical staff at Bankstown Hospital spoke about what could have caused his death. Discussions took place between a paediatrician and a midwife nursing manager. They noted that both John and Amelia were delivered in OT8 and administered oxygen from the neonatal wall outlets installed in OT8 in July 2015. The paediatrician recalled an incident in India where there had been a cross connection. Following those discussions, the midwife nursing manager completed a request with the Engineering Department for the gas outlets installed in OT8 in July 2015 to be checked.

39. A representative from BOC attended OT8 on 21 July 2016. No cross connections were identified on the wall outlets in OT1-7 installed in July 2015. A cross connection was identified in the wall outlet in OT8 that was installed in July 2015. A gas identification test was conducted in OT8 using an oxygen analyser. The test confirmed that 0.6% oxygen was being discharged from the outlet installed in July 2015 labeled '[medical] oxygen' and that the gas being discharged from that outlet was in fact nitrous oxide.

40. Hoslab Pty Ltd was engaged by South Western Sydney Local Health District to undertake confirmatory testing of the gas outlets installed in July 2015. Those tests confirmed cross-connection.

41. On 23 July 2016, 10 days after John’s death, the Ghanem family had a meeting with members of hospital staff and were formally advised of the cross-connection.

42. On 26 July 2016, at the request of NSW Police, a gas fitter and hydraulic services engineer attended Bankstown Hospital and inspected the gas outlets installed in OT8 July 2015. The tests involved isolating a gas valve and seeing if gas flowed after it was turned off. This indicated immediately that medical nitrous oxide was supplied to the wall outlet labelled '[medical] oxygen' installed in July 2015. The opinion offered was that:

43. The cross-connection test required by the Australian Standards was not completed when the works were completed in 2015. If the cross-connection testing required by the Australian Standards had been performed, the cross connection would have been readily identifiable to the tester;

44. If a gas identification test had been performed during commissioning, it would have been readily identifiable to the tester that the incorrect gas (nitrous oxide) was being discharged from the neonatal oxygen outlet installed in OT8 in July 2015.

45. A biomedical engineer was engaged by South Western Sydney Local Health District to provide an opinion. It was opined that:

46. The cross-connection test required by the Australian Standards was not completed when the works were completed in 2015. If this test was completed it would have highlighted the cross-connection error; and

47. The gas identification test purported to have been performed recorded values that were not possible given the cross connection.

48. Hoslab Pty Ltd were engaged to provide a report in relation to this matter. They opine that:

49. The cross-connection test required by the Australian Standards was not completed when the work was completed in 2015. If the test was completed it would have highlighted the cross-connection error.

50. If a gas identification test had been performed during commissioning, it would have been identified to the tester that the incorrect gas (nitrous oxide) was being emitted from the neonatal oxygen outlet installed in OT8 in July 2015.

Investigations and court proceedings

45. The death of John Ghanem was notified to SafeWork NSW on 26 July 2016.

46. On 27 July 2016 the offender was interviewed by an Engineering Standards Manager of BOC and Maintenance Manager of BOC. The offender said;

47. He could not recall who worked on which operating theatre;

48. He had knowledge of the cross-connection tests. He was able to describe the cross-connection check;

49. He could not remember the commissioning process; and

50. The final copies of the certificates were given to Mr Brightwell.

51. On 14 September 2016, a solicitor representing the offender informed investigators from South Western Sydney Local Health District that the offender was not prepared to participate in an interview in relation to their investigation of this incident.

52. Investigations conducted by the South Western Sydney Local Health District and the Chief Medical Officer of NSW (CMO) concluded that:

53. Incorrect installation of pipes and subsequent flawed testing and commissioning which should have detected the installation error, led to Amelia and John being administered nitrous oxide instead of oxygen;

54. Mr Brightwell was not appropriately qualified or experienced to oversee the project of testing;

55. The installation and commissioning process did not comply with the Australian Standards;

56. South Western Sydney Local Health District had responsibilities which were not met; and

57. There are broader issues about the project planning and risk management of the commissioning of clinical infrastructure at Bankstown Hospital and the governance (both clinical and corporate) of the Hospital that are relevant to this incident.

58. On 21 September 2016, a solicitor representing the offender informed police that he would not be prepared to provide a statement until his legal representatives had an opportunity to appear before the Coroner.

59. On 12 July 2018, a summons was filed by SafeWork for an offence under the Work Health and Safety Act 2011 (NSW). On 30 April 2020, the offender entered a plea of guilty to an offence that, as a person who had a health and safety duty, he failed to comply with that duty and the failure exposed Amelia Khan and John Ghanem to a risk of death or serious injury or illness. On 20 May 2020, the offender was convicted of that offence and was sentenced by way of a $100,000 fine and was also ordered to pay costs of $75,000: SafeWork NSW v Christopher Turner [2020] NSWDC 180.

60. I propose to take into account that the offender was prosecuted for the same omissions informed by the offender being by a person who owed a health and safety duty and his omissions exposed the victims to the risk of death or serious injury. It is a separate and different prosecution but informed by the same facts. The sentencing options are more restrained than exist for the index offending. There was a penalty imposed that reflected the maximum penalty, reduced by the benefit that flowed from the plea and assistance. From the tendered evidence this was a financial impost that eroded savings and had a tangible impact not only upon the offender but his wife who had a shared interest in the offender’s financial position. That there has been a penalty imposed referable to the same conduct is relevant when considering sentence.

61. In 2021 coronial proceedings commenced and were suspended on 30 August 2021. The offender was identified as a person of interest.

62. At some stage there were civil proceedings. These are noted as privileged and referred to in the affidavit of Kevin Rodgers at [21]. In the absence of any information I cannot assume the penalty.

63. On 22 August 2022, just over six years after the consequences of his negligence occurred, the offender was arrested with respect to the instant offences. He was informed of his rights and exercised his right to silence.

Objective seriousness

55. The offender was equipped to fulfill the job he was contracted to undertake. It is not known who made the cross-connection error. The offender is not to be sentenced on the basis it was him. That does not mean there is an acceptance it was CH. It is not known and it does not inform this analysis. There was no obstacle to him performing the required testing and certification. The offender failed to conduct required testing and falsely certified the system as safe. It was not that he undertook substandard testing. He failed to test in OT8 at all, and he entered false entries on test sheets. This limited the chance there would be review of the testing. The cross-connection remained undetected for a year. These failures render him liable for each offence for sentence based on negligent omissions. It is the same negligent omissions that inform both charges. Compliance with what was contractually undertaken, and the applicable Australian Standards would have made the outcome preventable. The ease with which there could have been compliance is intertwined with the assessment of the negligence. The reason the offender is relevantly negligent is that his conduct fell so far short of the standard of care which a reasonable person would have exercised.

56. The offender did not plan the offences and nor did he intend the consequences. If he were to have intended or planned the consequences he may have been exposed to more serious charges.

57. I accept there may have been other failures by individuals or procedures. The offender is not being sentenced for acts or omissions by others and nor can he benefit from seeking comfort in failures by others. I accept that if there was more stringent and consistent adherence by others the offender’s criminal omissions may have not laid dormant for 12 months and the cross-connection should have been detected. That does not make him less liable as I am only assessing his conduct. He will be sentenced for what he failed to do, that it remained undetected for a year and the tragic consequence that occurred before those failures were detected.

58. There are material differences to each charge. The different elements result in distinct maximum penalties. The most significant is the harm nominated; the causing of grievous bodily harm and death. In failing to perform what was required of him, I am cognisant that the offender well knew the work that he contracted to undertake was in a hospital setting providing for infant care. The importance of the provision of oxygen in this environment, through functioning valves and appropriate gas, could not have escaped his awareness.

59. I have considered the extent of the grievous bodily harm caused to Amelia. It is high level harm occasioned to a victim vulnerable due to her age and the perceived need for oxygen. In addition to the extensive physical injuries I consider there is substantial emotional harm connected with the restrictions placed on her by her physical limitations. This is a very serious example of the offence provision.

60. There is no gradation for death. John was a victim vulnerable due to his age and the perceived need for oxygen. Manslaughter captures a broad range of conduct including acts and omissions. It occurs in a myriad of factual situations. Far more serious conduct falls within its scope. It presents as an offence harder to classify beyond reflecting on the individual characteristics. As it entails the loss of life it is inherently serious. Whilst well appreciating that there may be far more serious conduct causing death and enlivening the charge, this offence is serious given the nature of the omissions, a review of how far the offender fell short of the standard of care expected and that his conduct involved such a markedly high risk of death.

Plea

61. On 21 August 2024 the offender was committed for trial.

62. On 20 September 2024 the offender was arraigned and entered pleas of not guilty. The trial was fixed for 13 October 2025 with an estimate of 4-6 weeks.

63. On 17 October 2025 the offender was arraigned and pleaded guilty to the two counts for sentence.

64. The timing of the pleas reflects that they are late pleas. The offender is entitled to a reduction of 5% to sentence to acknowledge the pleas of guilty.

65. It is accepted to the offender’s credit that the pleas of guilty facilitated the course of justice by avoiding the need for a lengthy trial.

Delay

66. There is no explanation for the delay in the police investigation or in the charging. The offender’s omissions occurred in 2015 and the tragic consequences occurred in mid-2016. He was not arrested for a further six years. Thereafter there was a further three-year delay whilst the criminal charges progressed is informed by the offender exercising his right to defend them.

67. The offender is to be sentenced almost 10 years after the victims were harmed. The offender has been aware for most of this period that it was his failures in the performance of his work that caused the tragic outcome. He accepted some liability for his conduct in the SafeWork proceedings and may have anticipated that ended court proceedings. The Coronial inquiry was suspended.

68. A benefit of the delay is that it supports the observation that there has been no repetition of offending and a garnering of evidence to support a positive finding on the risk of reoffending.

69. This period reflects a lengthy delay, most of which was not attributable to the offender. This uncertainty warrants some amelioration to sentence.

Antecedents

70. The offender is a person of previous good character and the absence of antecedents serves to entitle him to leniency that would otherwise not be available.

Bail

71. The offender was in custody for a single day. This will be taken into account.

72. The offender was required to report to police three times per week and he remained compliant with his bail over the years. That he was compliant with a court order is of significance when contemplating resolution of this matter.

73. The offender was restricted in his movements given the need to return to his local police station to report. An example of the impact of this restriction was the practical limitation placed upon his opportunity to visit his mother including being absent when she died. Whilst acknowledging the personal impact I do not regard the conditions as so onerous as to warrant mitigation to sentence.

Remorse

74. The offender prepared a letter of apology. He expressed his ‘deepest and most sincere apology’ for causing both a death and grievous bodily harm. He stated he took full responsibility for his errors and decisions that rendered him responsible. He indicated he continued to carry the weight of what he had done. I do not accede to the Crown’s submission that the reference to the enhanced Australian Standards reflects deflating blame and limited remorse.

75. It is submitted on behalf of the offender that there should be a finding of remorse and reference is made to the extensive expressions of remorse both from the offender and those he has spoken to over many years. There need be a distinction between remorse over his involvement in the circumstances whereby death and grievous bodily harm were caused and remorse over the criminal conduct. Many authors of letters refer to long standing expressions of remorse. This must be evaluated against the belated acceptance of criminal responsibility last year, four years after being charged.

76. I do accept there have been expressions that fall within each category. I accept that the pleas of guilty to the charges support genuine remorse for the criminal conduct rather than an awareness of inevitability. It took a number of years for the offender to voice this guilt and thereby demonstrate remorse, but it was expressed and it continues to be reiterated. The offender has developed insight and he has accepted responsibility for his criminal conduct.

Assistance

77. Senior Counsel for the offender submitted in written submissions that the offender should receive a reduction of 5% to his sentence to acknowledge the offer to assist investigators in the prosecution of Mr Brightwell and BOC. Exhibits C and D were tendered by the Crown and reference was made to reasons in the SafeWork judgment. Nothing is known about the nature of any assistance, and it is impossible to determine the value or reliability. The offender received a reduction of 5% to the financial penalty imposed. He had sought immunity for any criminal conduct beyond that in the SafeWork prosecution. I am unable to determine if conditions in custody would be more onerous. The available information limits an assessment against the factors to be considered in s.23 *Crimes (*Sentencing Procedure) Act, 1999 (NSW).

78. Senior Counsel for the offender recast her submission that it did not warrant a numerical reduction, but it was informative when considering remorse.

79. The Crown tendered correspondence from police indicating there was no offer to assist the police in the conduct of the Coronial investigation. It was indicated the only information of which police were aware was responses provided by the offender to BOC under compulsion.

Personal factors

80. The offender is now aged 64. He remains married and has children and grandchildren. He remains employed, engaged in social sport and has a broad group of friends.

81. Although the offender’s father died when he was young which was said to be a devastating event, his mother re-partnered within a year or two and he had a strong relationship with his step-father. That there is a history including misfortune does not equate with disadvantage to influence sentence.

82. One of the offender’s sister’s suffered developmental delay from birth resulting in her now residing in a group home. The exposure to the difficulties experienced by a person with disability, and the impact on family, has enhanced the offender’s insight into the predicament faced by Amelia and her family.

83. The offender suffers from a constellation of medical issues which are being addressed. His physical conditions include diabetes, hypertension, and coronary artery disease and he has received a number of stents consequent to episodes of acute myocardial infarction. He has suffered from more than one heart attack commencing prior to the index offending. It is believed by some of the offender’s family that the stress of his involvement caused one heart attack. The offender had pre-existing heart issues and although I accept the belief is earnestly held there is no medical opinion supportive of it. The offender continues with podiatry reviews as part of his diabetes risk assessment. In 2025 he received shoulder surgery.

84. The offender advances he experiences stress and anxiety consequent to his offending. This is not surprising given the serious ramifications to him, with the threat of charges and punishment. He also reflects constantly on the harm his conduct caused to the two victims. The level of presentation does not support a DSM 5 diagnosis. I am assisted by the report of Mr Borenstein, psychologist. He reported that the offender disclosed he had spoken to his doctor about psychological treatment but had not followed up on it. In testing conducted for the report, the results reflected the offender’s symptoms of depression, anxiety and stress fell in the normal range.

85. The offender’s health does not deprive him of the opportunity to act as a carer for some of his grandchildren.

Hardship

86. Mr Borenstein opined the offender’s vulnerable emotional state would be compounded by a custodial sentence. It is considered by him to be possible that the impact would thereafter support a diagnosis of severe anxiety and depressed mood.

87. The offender’s wife, Ann Turner, has her own medical conditions that are not atypical for her age. She has symptoms of stress and anxiety. She has written about the impact to her as a result of the incident and the lengthy justice process. She described the emotional and financial impact. Ms Turner described her concern that her family would suffer both emotionally and financially if the offender, as the person providing income, were to be incarcerated.

88. I accept that a custodial sentence would result in circumstances being adversely impacted. The financial harm is as is almost always encountered. Similarly, there is almost inevitably a significant elevation in stress and anxiety to an offender, and family.

89. The offender has shown resilience over the last almost 10 years. I do not doubt that custody would be extremely confronting for an older man and a person of otherwise good character and one well entrenched in a prosocial environment.

90. I accept that custody would elevate stress and anxiety for the offender and his family. His medical needs could be met in custody. There would be a financial impact. These outcomes are not unusual and are what would be expected when any prosocial person with family support entered custody.

Extra-curial punishment

91. There has been media coverage of the offender and his involvement in what occurred at the hospital. The loss and injury of vulnerable children in traumatic circumstances invariably attracts media attention given the community interest. The media exposure is part of how general deterrence operates effectively.

92. Examples of the media reporting were tendered on behalf of the offender. I have reviewed those articles. The offender is identified by name and image. The content of the reporting does not serve to inflame.

93. I accept the evidence in various letters that the offender, and his family, were adversely impacted by this exposure. The concern caused the offender and his wife to sell their home and relocate.

94. Despite the publicity, the evidence establishes that the offender was able to make new supportive friends who were aware of the then allegations. Those people were not cowed by what had been published and a number maintain their firm support of the offender and attest to his highly favourable attributes.

95. The offender lost his employment and sought employment in a different field. He has remained employed although now part-time. The change of career does not necessarily reflect a form of punishment.

96. The offender has been exposed to other court proceedings, and the coronial inquiry will likely resume after the finalisation of this sentence. This will likely result in further media attention. There has been an emotional and financial burden. This will inform sentence.

Prospects of rehabilitation and of not reoffending

97. The offender is well regarded in the community professionally and personally. He is described in glowing terms, and the resounding comment is that the offending conduct is uncharacteristic. It is remarked that as a consequence of accepting his involvement, if not initially his responsibility, he has been serving his own punishment.

98. The nature of the conduct that informs criminal liability is not conduct for which rehabilitation is required. If it was, it has occurred.

99. The offender is fortunate to have the continued support of an extensive group of family members and both old and new friends, all of whom are aware of his offending. He is pro-social. He changed his employment and this type of event could not recur. The offender has been assessed by the Community Corrections officer in the Sentencing Assessment Report as falling in the low risk of reoffending. I endorse this assessment.

D****eterrence

100. It follows from the determination on reoffending that personal deterrence has no continuing role to play.

101. General deterrence and denunciation are of considerable importance. There are so many instances where a failure to perform essential work endangers the community. The risk of death or serious injury from workplace decisions arises with considerable frequency. There is a strong compelling need that others be deterred from making rash or convenient decisions failing to comprehend the enduring repercussions.

Victim Impact statements

102. The Court has been greatly assisted by the carefully expressed victim impact statements. The opportunity to provide such statements gives the victim a presence and a voice in the court room.

103. Ms Ghanem wrote eloquently of the harm to her and her family caused by the loss of John. She described the absence of any diminution of the harm despite almost 10 years transpiring.

104. Mr Khan detailed the incredible change of circumstances to him and his family from addressing Amelia’s outcome including her numerous disabilities. Amelia requires constant care and this will not change when she is an adult. Mr Khan described how every medical complication or hospital visit serves as a reminder of her birth and the subsequent devastation.

Harm to the victim and the community

105. Confined to the death of John, the Crown made an application as to how the Court should approach the content of Ms Ghanem’s victim impact statement under s.30E(3) Crimes (Sentencing Procedure) Act, 1999. Ms Cook SC referred the Court to the decisions of R v Halloun [2014] NSWSC 1705 and R v Ahmed [no 2] [2023] NSWSC 105.

106. The legislation provides that a victim impact statement of the family of a victim may also be taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community.

107. I consider it appropriate that the Court give effect to this legislation. I accept, as with many victim-based offending, the harm occasioned to the family of a deceased should inform the overall harm including that to the community.

108. One of the general purposes of sentencing is to recognise the harm done to the victims of the crime and the community. This operates with respect to both offences for sentence. It is an extension of this purpose to recognise the harm to the family of the deceased and the community and to take this harm into account on sentence.

Sentence imposed in other cases

109. Both the Crown and Senior Counsel for the offender provided a schedule of cases reflecting sentences imposed for manslaughter. The vastly different sentences imposed well highlights the myriad of factual scenarios whereby a person comes to be sentenced for manslaughter. I have reviewed those schedules and the focused submissions by both parties. It is not suggested and nor do I find that any one case stands alone to provide guidance. It is the range of outcomes and the distilling of sentencing principles that are of assistance.

110. I accept that full-time custody is a common outcome but it is not without exception. This case is essentially informed by the offender’s deliberate act of not testing in one operating theatre and then falsifying documents to purport there was testing of essential medical equipment in a hospital setting. To be confident that either he or CH had correctly installed equipment such that testing could be omitted entailed a high-level failure.

Totality

111. The offender has already been sentenced for conduct involving whilst at work, when he was required to take reasonable care, that his acts or omissions did not adversely affect the health and safety or other persons: s.28(b) Work He**alth and Safety Act, 2011 (NSW). The particulars were:

“The defendant failed to take reasonable care in that the defendant failed to take one or more of the following actions:

(a) adequately test for cross-connection of the newly installed neonate oxygen port in OT8 [Operating Theatre 8] at BLH [Bankstown Lidcombe Hospital] before signing off on Test Certificate – Form 1;

(b) adequately inspect the oxygen concentration of the newly installed neonate oxygen port in OT8 at BLH before signing off on the Medical Gas Outlet Test Form;

(c) conduct the testing referred to in (a) and (b) above in the presence of a member of the BLH experienced in the administration of medical gases to patients.”

112. This reflects a particularisation of conduct comprised of common omissions supporting both index offences. Both index offences encapsulate further elements and far more serious criminality. The fact of commonality informs taking this financial penalty into account when considering the overall penalty.

113. It was not submitted that the penalty encapsulated the extent of the criminality of the index offending.

114. The offences for sentence rely upon the same conduct but each entails different elements and a separate victim. It cannot be determined that the sentence for one offence could encapsulate the criminality of the other. Some accumulation is required.

Sentence

115. The offender is convicted of both offences.

116. Sentence will reflect the benefit to the offender of a reduction of 5% to recognise the pleas. The other matters nominated as ameliorating sentence will also be taken into account but not with a numerical reduction.

117. There are many factors that inform sentence as addressed in some detail. Despite being satisfied this conduct reflects an aberration by the offender it was an aberration with dire consequences that were entirely avoidable with limited effort. General deterrence is of considerable importance.

118. I am satisfied that no sentence other than one of full-time imprisonment is appropriate on each offence.

119. I make a finding of special circumstances. I propose to vary the statutory ratio to further reflect the previous punishment. The offender will experience difficulty adjusting to entering custody as a middle-aged man with health issues and being of prior good character. The matter of the greatest import is the considerable delay and its consonant delayed impact. The offender is to be sentenced 11 years after he performed his unsatisfactory work and 10 years after his omission caused the significant harm. He has lived with the responsibility of his conduct for this period, even if for the most part it was without an appreciation it entailed serious criminality. I consider these factors in combination warrant a significant variation.

120. I propose to impose an aggregate sentence. Each indicative sentence is reduced by 5%. I nominate the following indicative sentences, reflecting modest rounding down:

Count 1, by negligent omission causing grievous bodily harm to Amelia Khan: 17 months imprisonment;

Count 2, unlawful killing of John Ghanem: 2 years and 4 months imprisonment.

121. Sentence will be back-dated by one day to reflect the day of pre-sentence custody.

122. The sentence imposed is one of 2 years and 10 months imprisonment with a non-parole period of 10 months to date from 25 February 2026. The offender will be released to parole on 24 December 2026. The variation to the statutory ratio is to 30% to reflect the finding of significant special circumstances.

Further orders

123. The Child Protection (Offenders Registration*) Act**,* 2000 (NSW) applies as the manslaughter count involved a child. This is an ancillary order made upon sentence and is prohibited from being taken into account in mitigating sentence. The making of the order imposes restrictions or obligations upon the offender including restricted overseas travel and reporting child care even of family members. The applicable reporting period is nominated as 8 years.

124. Based on the offender’s guilt for the offence of manslaughter involving a child, I make a Registrable Person Order and order that the offender be placed on the Child Protection Register for a period of 8 years.

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