SafeWork NSW v Christopher Turner

District Court of NSW|2020-04-30

Solicitors: SafeWork NSW (Prosecutor) Holman Webb (Defendant) File Number(s): 2018/218107

Judgment

Mr Christopher Turner has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 28(b) of the Work Health and Safety Act 2011 (NSW) (the Act) he failed to comply with that duty and thereby exposed Amelia Khan and John Ghanem to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for the offence is a fine of $150,000.
Section 28(b) of the Act provides that while at work, a worker must take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons.
In assessing whether a worker has failed to take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, the duty of care is necessarily proportionate to the control a worker is able to exercise over his or her work activities and work environment - "Occupational Health and Safety Law NSW", Butterworths looseleaf, Note 2535.15.

Evidence for the Prosecution

The prosecutor tendered a Sentence Tender Bundle (PX1), an Agreed Statement of Facts (PX2) and two medical reports. This material is summarised below.

The Bankstown Lidcombe Hospital

Bankstown Lidcombe Hospital (the Hospital) has been conducted by South Western Sydney Local Health District (SWSLHD) since 1997.
The Hospital had six birthing suites and eight operating theatres. There were 2,261 babies delivered at the Hospital between 1 July 2015 and 30 June 2016. The Hospital used the eight operating theatres for all its surgical purposes, including scheduled and emergency caesarean section deliveries.

Neonates and oxygen supply

From time to time newborn babies (neonates) required medical oxygen immediately after birth. The Hospital had resuscitaire crib units for use in the birthing suites and the operating theatres.
The resuscitaires included portable oxygen canisters which supplied 15 minutes worth of oxygen. In 2013, during the administration of oxygen to a neonate in a resuscitaire in a birthing unit, the oxygen supply ran out, requiring a change of oxygen bottle. The Hospital decided to install gas lines for neonates in the birthing suites.

The 1996 Labelling Error

In 1996 Medical Gas Systems Pty Ltd installed a piped medical gas system at the hospital (the 1996 installation).
During the 1996 installation two gas branch pipelines associated with Operating Theatre 8 were mislabelled as follows: 1. The branch pipeline carrying nitrous oxide was correctly labelled as nitrous oxide at the end closest to the main pipes supplying the branch pipelines; 2. The branch pipeline carrying nitrous oxide was mislabelled as "oxygen" at the end closest to the anaesthetic bay in Operating Theatre 8; 3. The branch pipeline carrying oxygen was correctly labelled as "oxygen" at the end closest to the main pipes supplying the branch pipelines; 4. The branch pipeline carrying oxygen was mislabelled as "nitrous oxide" at the end closest to the anaesthetic bay in Operating Theatre 8.
The distance between the end closest to the main pipes supplying the branch pipelines and the end of the pipes closest to Operating Theatre 8 was six metres.
This labelling error was in existence from the 1996 installation until it was discovered in July 2016.

The 2014 Installation Work

In 2014 the Hospital engaged BOC Limited (BOC) to install neonatal oxygen, medical air and suction lines ("the neonatal outlets") in the birthing suites. BOC engaged a contractor (Innovative Gas) to install the neonatal outlets. The certification documents for the 2014 work record that Ronia Awick witnessed the testing of the 2014 work on behalf of the Hospital. Nurse Awick had been present in the area of the birthing suites by chance, and was asked by the installers if she wanted to "tag along" while they tested the outlets.
The 2014 work was, in all material respects, similar in nature to the work that was performed in 2015, described in more detail below.

Mr Brightwell and arrangements for the installation work in 2015

Mr Paul Brightwell had been employed by NSW Health since 1989. In 2015 he was working for SWSLHD at the Hospital. Mr Brightwell was a trade-qualified fitter and machinist. He did not hold any formal engineering qualifications.
Between 1 January 2015 and 1 August 2016 Mr Brightwell held the position of Assistant Engineer. His role included the overseeing of the running of the Engineering Department of the Hospital and dealing with any issues that arose with any project works. Mr Brightwell received no training in relation to his duties. His hours of work were 7.00am to 3.30pm. In addition, he was on call 24 hours per day unless on annual leave.
In early 2015 Mr Brightwell was instructed by the Hospital to obtain a quote for the installation of new neonatal resuscitation panels supplying medical air, oxygen and suction outlets in the eight operating theatres at the Hospital (the work). On 12 April 2015 Mr Brightwell emailed BOC requesting a quote for the work.

BOC Limited

The business or undertaking of BOC included the installation and maintenance of gas systems, including medical, scientific and industrial gas for its customers. BOC has operated across Australia since 1935. At the time of quoting for the work, BOC had 1,792 employees.
BOC employed Mr Christopher Heasman as a CES Service Technician (Level 3). Mr Heasman's usual hours of work at BOC were nine hours per day within the period between 6.00am and 6.00pm. However his hours of work varied depending on the nature of the particular job he was doing.
When BOC was asked in 2015 to quote for the work, it already had an existing contractual relationship with SWSLHD for the annual testing of medical gas outlets. BOC also serviced medical gas outlets when needed and provided the Hospital with liquid oxygen and bottled medical gas. BOC was well-known throughout the health industry.
On 17 April 2015 BOC provided a quotation (PX1, Tab 1) giving two price options for the work. One option was for a total cost of $18,306.00. The second was for a total cost of $22,356.00. Both options described the work as follows: 1. Tee into existing suction, medical air and oxygen supplies in ceiling space of exit bay of theatre 2. Run supplies to a cavity within each theatre 3. Fit new three gang stainless steel flush mount panels 4. Fit new oxygen, medical air and suction outlets 5. Test and commission 6. Repeat for all theatres
Mr Brightwell did not seek a quotation from any other service provider. This was in accordance with the applicable procurement guidelines at the time.
The written quotation obtained from BOC made no reference to the work being performed in accordance with the Australian Standard applicable to the work, being AS 2896-2011 "Medical Gas Systems - Installation and testing of non-flammable medical gas pipeline systems". However the nature of the work required compliance with that Standard, which is in evidence (PX1, Tab 12).
BOC was awarded the work at the agreed cost of $18,306.00. The General Manager of the Hospital approved the work on 10 June 2015. Purchase Order 23079279 was prepared on 11 June 2015.

Pro-Med Services Pty Ltd and Christopher Turner

Pro-Med Services Pty Ltd (Pro-Med) is a registered corporation. Mr Turner was the sole director and sole employee of Pro-Med. In 2015 BOC required Mr Turner to establish a company through which Mr Turner could provide his services to BOC without being a BOC employee. It was for this sole purpose that Pro-Med was established in April 2015. The arrangement between BOC and Pro-Med was governed by a Services Contract between BOC and Pro-Med (PX1, Tab 2). This Contract was drafted by BOC and was on BOC letterhead.

Preparation for the 2015 installation work

Mr Heasman and Mr Turner were directed to do the 2015 installation by BOC. Mr Bailey Simpson, an apprentice hosted to BOC, was provided by BOC to assist both Mr Heasman and Mr Turner. Mr Heasman's day to day duties involved the maintenance and installation of BOC customer gas systems, including medical, hospitality, scientific and industrial systems. BOC did not issue to Mr Heasman or Mr Turner a Safe Work Method Statement (SWMS) or similar document in relation to the work.
Prior to the commencement of the 2015 installation Mr Turner, Mr Heasman and Mr Simpson were taken on a walk through the operating theatres at the Hospital by Mr Brightwell and the Hospital Nurse Unit Manager (NUM). Mr Brightwell and the NUM showed Mr Turner, Mr Heasman and Mr Simpson where the Hospital wanted the gas outlet panels installed in the operating theatres. They were to be installed vertically, rather than horizontally as was usually the case.
During the walk through, the NUM, Mr Heasman and Mr Turner discussed how the job was to be done and how to minimise the risks from the work. Some of the risks discussed were: 1. Which theatres would be done first to keep away from the emergency operating theatres, to minimise the risk of patient infection; 2. Hot works and minimising the risk of fire or alarm activation, including the requirement to do post-work monitoring; 3. Working at height; and 4. Contamination of the theatres.
The Hospital required the installation work to be done during times when the operating theatres were not in use. This generally meant after around 6.00pm. Overnight work also had to be completed by 7.00am the following day so that the theatres could be cleaned and ready for surgical use by 8.00am.
BOC advised Mr Brightwell that if work took place between 6.00pm and 7.00am, then the work in all eight theatres would take two nights to complete. The work was scheduled by Mr Brightwell and the Theatre Manager for the Hospital to take place over two nights being 14/15 July 2015 and 15/16 July 2015. Work was to be completed on the morning of 16 July 2015.
BOC supplied all the equipment and materials used to do the work at the Hospital, including personal protective equipment. Mr Turner wore a BOC supplied uniform with a BOC logo. BOC determined Mr Turner's hourly rate and provided him with a BOC email address.
Mr Turner and Mr Heasman agreed that Mr Simpson's work would be limited to cutting the holes for the new panels in the walls inside the operating theatres. Mr Simpson was not to cut or join a pipe.
Mr Turner and Mr Heasman were advised by the Hospital to work on four theatres each night, so that some theatres were available to accept surgical cases during the night.
Work was done in Theatres 5-8 on the first night, and Theatres 1-4 were done on the second night.

Carrying out the 2015 installation work

The work was conducted over two nights being 14/15 and 15/16 July 2015, and was completed on 16 July 2015. Mr Turner and Mr Heasman did the pipe work in the ceiling individually in different theatres over the two nights. Mr Simpson worked between the theatres, as required and directed by Mr Turner and Mr Heasman. Mr Turner and Mr Heasman jointly supervised Mr Simpson in the course of the work.
Mr Simpson's work (aside from providing tools and equipment and other items to Mr Heasman and Mr Turner and otherwise assisting in cleaning up) was limited to cutting through the gyprock in the walls of the operating theatres to create the room for the new panels to be mounted. Mr Simpson did not cut into the pipe work and did not enter the roof space of any operating theatre to perform any installation work.
The work in Operating Theatre 8 was performed on the night of 14/15 July 2015. The nitrous oxide pipe in the ceiling space above Operating Theatre 8, which was incorrectly labelled as carrying oxygen, was connected to the oxygen outlet on the new panel installed in Operating Theatre 8. This new outlet in Operating Theatre 8 was labelled "Oxygen" but was dispensing nitrous oxide.
Upon completion of all the work, Mr Turner undertook testing and then filled out Test Certificate Forms T1, T2, T5, T6, T9, and a two-page Medical Gas Outlet Test Form (the certification forms) at 2.00am on 16 July 2015. Mr Turner completed the forms without adequately conducting cross-connection and gas purity/identification tests in Operating Theatre 8.

Australian Standard AS 2896-2011

Australian Standard AS 2896-2011 deals with "Medical gas systems - Installation and testing of non-flammable medical gas pipeline systems".
The Foreword to the Standard commences as follows: "Gas pipeline systems have some characteristic hazards, usually related to their original construction, modification or repair rather than to problems arising during their working life. Medical gas pipelines are a life support system and as such require careful consideration of their design, construction and installation. Hazards include plumbing errors…".
The Foreword also says: "Components of the medical gas system should be obtained and installed under the supervision of a person familiar with proper practices for their construction, installation and use. Construction and installation of central supply systems require great care and should only be undertaken by experienced personnel. In order to establish this, the hospital authority should examine closely the previous experience of any constructor or installer proposing to work on or build a pipeline system. The authority should also determine if the constructor or installer is familiar with the contents of this Standard, which should be specified in the construction agreement."
Section 1.1 of the Standard deals with its scope. It commences: "This Standard sets out requirements for the safety aspects, construction, testing and certification, operation and maintenance of non-flammable medical gas pipeline systems used for patient care…".
Cross-connection is a hazard recognised and dealt with by the Standard. For example, cl 4.13.1 says: "Connections to existing systems shall be undertaken in only one gas system at a time to minimise the risk of cross-connection".
Section 5 of the Standard deals with "Testing And Certification".
Section 5.2 of the Standard is headed "Testing, Verification and Certification". It commences: "The representative of the health care facility shall designate [a] competent person or persons to carry out the tests specified in clause 5.1. Such a person shall certify to the administration that the results of tests are in accordance with the Standard. The designated person or persons shall be competent in medical gas testing and verification of piping systems. With cross-connection testing, a member of the health care facility shall be present to verify the testing. This testing may be carried out in conjunction with the operational test."
Clause 5.4.6 of the Standard deals with "Test for Cross-Connections". Part 2 of Test Certificate - Form T1 was signed by Mr Turner, inter alia, to state that the requirements of cl 5.4.6 had been met.
Section 5.6 of the Standard deals with "filling system with proper gas and final commissioning". Clause 5.6.5 deals with "test for gas identity". It requires tests for gas concentration to be carried out as specified in cl 5.6.5.2. That clause is headed "Tests for Gas Identity". It requires each terminal unit on each system to be checked "to verify the nominal concentration of the gas". It was this test which resulted in the two page "Medical Gas Outlet Test Form" referred to above. Mr Turner signed this form to state that his test showed that 100% oxygen was flowing from the terminal unit labelled oxygen in Operating Theatre 8.
Section 5.7 of the Standard deals with "Certification of Systems". Section 5.7.1 is headed "Operational Test" and says: "Prior to commissioning of medical gas system, testing by a designated person shall be performed to determine that the concentration of the medical gas is correct and that there is no contamination. A member of the health care facility experienced in administration of medical gases to patients, and such other persons as are required by the administration of the health care facility, shall be present and witness the tests."
All the evidence in this case points to there being no member of the hospital present when Mr Turner conducted his commissioning test. Mr Brightwell was not present. Even if he had been, he was not a person "experienced in administration of medical gases to patients". The absence of an experienced hospital person during the testing is the foundation for particular (c) in the Amended Summons.
Section 5.7.1 also requires that "Certificates shall be dated and signed by all who have witnessed the tests".
The Standard in Appendix H sets out the content of test certificates. The form of Certificate T1 is at p 100 of the Standard and the Terminal Unit Test Form is at p 109.

Test Certificate - Form T1

Test Certificate - Form T1 (PX 1, Tab 11 p 24) is referred to in particular (a) in the Amended Summons. The top line reads "BOC Gases AS 2896". The area tested is "Theatres 1-8" and the gases tested are oxygen, breathing air and suction.
Part 1 of the form is headed "Tests for Isolation Valves (Refer Clause 5.4.4)". Mr Turner has signed in the space "Tested by: Installer". Mr Brightwell has signed in the space "Witnessed by: Contractor's Officer". BOC was the contractor and of course Mr Brightwell was not authorised to sign on behalf of BOC. The space for signature labelled "Witnessed by: Client's Officer" was left blank. The client was the Hospital. This is where Mr Brightwell should have signed, but ONLY if he witnessed the testing. The signatures of Mr Turner and Mr Brightwell appear below the words: "All test procedures have been carried out in accordance with the requirements of Australian Standards AS 2896. All Zone Isolation Valves function as specified".
Part 2 of the form is headed "Tests for Cross-Connection". The test pressures are 415 kpa for medical gases and 140 kpa for the vacuum systems. The "test method" includes the statement "all systems were checked and found to be completed and not linked". The test results were said to meet the "requirements of Clause 5.4.6". Mr Turner signed in the space "Tested by: Installer". Mr Brightwell has signed in the space "Witnessed by: Contractor's Officer". The space for signature labelled "Witnessed by: Client's Officer" was left blank. The signatures of Mr Turner and Mr Brightwell appear below the words: "The test procedures have been carried out in accordance with the requirements of Australian Standards AS2896. All Medical Gas Cross Connection tests are satisfactory."

Medical Gas Outlet Test Form

The Medical Gas Outlet Test Form (PX 1, Tab 11, pp 25-26) is referred to in particular (b) in the Amended Summons. The top line reads "BOC Medical Gas Outlet Test Form". The two pages of the form contained entries relating to the eight operating theatres. The test date is said to be "15.7.15". At the bottom of each page of the form it is signed by Mr Turner below the words "Inspected By:" and by Mr Brightwell below the words "Witnessed By:".
In relation to Operating Theatre 8 there are two lines recording testing of oxygen. At a flow rate of 40 litres per minute, the oxygen concentration is recorded in handwriting as "100". At a flow rate of 250 litres per minute the oxygen concentration is also recorded in handwriting as "100". Against both entries, there is a handwritten tick under the column "Pass".

Mr Brightwell signs the certification forms

Mr Turner returned to the Hospital to meet with Mr Brightwell at 6.30am on 16 July 2015. He took the certification forms, which he had already signed, to the meeting.
The Agreed Statement of Facts (PX 2) records that the prosecutor asserts and the defendant disputes that: 1. Mr Turner told Mr Brightwell that Mr Turner and Mr Heasman had done all of the testing; and 2. Mr Brightwell asked Mr Turner if Mr Brightwell should have been present for the testing of the newly installed outlets, and that Mr Turner informed him that the testing had been carried out by Mr Turner and witnessed by Mr Heasman.
The prosecution tendered the answers given by Mr Brightwell to a Notice issued by SafeWork NSW pursuant to s 155 of the Act (PX 1, Tab 6, pp 1-48). The prosecution also tendered a transcript of the sworn evidence-in-chief and cross-examination of Mr Brightwell, who gave evidence in proceedings brought by SafeWork NSW against BOC (PX 1, Tab 6, pp 77-151). Mr Brightwell was not required for cross-examination on this Sentence Hearing. Mr Turner gave no evidence on this Sentence Hearing. In those circumstances I find that when Mr Turner and Mr Brightwell met at 6.30am on 16 July 2015: 1. Mr Turner took the certification forms, which he had already signed, to meet with Mr Brightwell; 2. Mr Turner told Mr Brightwell that Mr Turner and Mr Heasman had done all the testing; and 3. Mr Brightwell asked Mr Turner if Mr Brightwell should have been present for the testing of the newly installed outlets, and Mr Turner informed Mr Brightwell that the testing had been carried out by Mr Turner and witnessed by Mr Heasman.
In the absence of any cross-examination of Mr Brightwell, or any evidence contrary to his s 155 answers and his sworn evidence in other proceedings, those are the only conclusions available.
Mr Brightwell countersigned the forms as "Witness".
Mr Brightwell signed the BOC Test Certification Forms even though he had not actually witnessed the testing.
As a result of the completion of the testing certificates, the neonatal outlets installed in Operating Theatres 1 to 8 at the Hospital were available for use from 6.30am on 16 July 2015.
Prior to completing the certification forms, Mr Turner had a duty to: (a) adequately test for cross-connection of the newly installed neonate oxygen port in Operating Theatre 8 at the Hospital before signing off on Test Certificate - Form 1; (b) adequately inspect the oxygen concentration of the newly installed neonate oxygen port in Operating Theatre 8 at the Hospital before signing off on the Medical Gas Outlet Test Form; and (c) conduct the testing referred to in (a) and (b) above in the presence of a member of the Hospital experienced in the administration of medical gases to patients.

Catastrophic injury to baby Amelia Khan

Operating Theatre 8 was operational after the completion of the work on 16 July 2015. However, there was no cause for the newly installed gas outlet to be used until 20 June 2016 when baby Amelia Khan required resuscitation following delivery. She was administered nitrous oxide from the neonatal medical gas system in Operating Theatre 8, thought at the time by those administering the gas to her to be medical oxygen. Amelia suffered serious injuries, including hypoxic ischaemic encephalopathy (brain damage due to lack of oxygen), symptomatic epilepsy and vision impairment as a result of being administered nitrous oxide, and denied 100% oxygen, from the neonatal gas system in Operating Theatre 8.
The prosecutor tendered the report (PX 1, Tab 22) of Dr Michael Harbord, a paediatric neurologist, which focuses upon the impact the incident has had upon Amelia. Dr Harbord assessed an MRI scan performed on Amelia on 30 July 2016 and was of the opinion that it is highly likely Amelia will have a severe dystonic/spastic quadriplegic cerebral palsy throughout her life. Amelia is likely to have severe developmental delay, an intellectual disability, epilepsy, is unlikely to develop speech, and will require a feeding tube if she is unable to coordinate swallowing without aspirating. She will not be able to walk independently and is unlikely to be able to have functional fine motor skills with her hands, preventing her from doing tasks such as feeding herself or be independent for toileting. Dr Harbord opined that Amelia will remain dependent on the assistance of others for all aspects of her care for the rest of her life.

Death of baby John Ghanem

At 11.54am on 13 July 2016, John Ghanem was born in Operating Theatre 8 and required resuscitation following delivery. John was administered nitrous oxide from the neonatal medical gas system in Operating Theatre 8, thought at the time by those administering the gas to him to be medical oxygen. As a result of being administered nitrous oxide and denied 100% oxygen from the neonatal gas system in Operating Theatre 8, John died of severe hypoxaemia at 12.51pm.

Investigation and discovery of incorrect installation

After the death of John, medical staff at the Hospital discussed what could have caused his death. One staff member recalled an article in a medical journal discussing similar circumstances at a hospital in India. Subsequently, Nurse Awick filed a requisition with the Hospital Engineering Department to check the resuscitaire gas outlets in Operating Theatre 8. The testing was undertaken by an employee of BOC on the morning of 21 July 2016. The testing confirmed that nitrous oxide was being emitted by the neonatal resuscitaire oxygen gas outlet in Operating Theatre 8. Use of Operating Theatre 8 was suspended by the Hospital on 21 July 2016.
On 21 July 2016 testing by Hoslab recorded that in Operating Theatre 8 the "neo-natal resus panel" was delivering 0% oxygen. Inspection of the gas plumbing revealed incorrect connection and labelling of the gas lines to Operating Theatre 8. The outlet labelled "oxygen" was in fact delivering nitrous oxide. This incorrect connection had been present since its installation on the night of 14/15 July 2015.
The death of John Ghanem was notified to SafeWork NSW on 26 July 2016.

The risk

The risk was the risk to other persons, including John and Amelia, of suffering serious injury or death as a result of being administered nitrous oxide instead of oxygen in the course of an emergency resuscitation procedure.
There were 658 Caesarean deliveries undertaken in the operating theatres at the Hospital between July 2015 and July 2016. Of those, 418 were emergency deliveries. Operating Theatre 8 was not used often for emergency deliveries because it was located furthest away from the birthing suites.
There were 36 babies born in Operating Theatre 8 between July 2015 and July 2016. Only two babies, Amelia Khan and John Ghanem, required the administration of oxygen from the wall panel in Operating Theatre 8 that had been installed by BOC and Mr Turner in 2015.

Acts or omissions of Mr Turner

Mr Turner failed to: (a) adequately test for cross-connection of the newly installed neonate oxygen port in Operating Theatre 8 at the Hospital before signing off on Test Certificate - Form 1; (b) adequately inspect the oxygen concentration of the newly installed neonate oxygen port in Operating Theatre 8 at the Hospital before signing off on the Medical Gas Outlet Test Form; and (c) conduct the testing referred to in (a) and (b) above in the presence of a member of the Hospital experienced in the administration of medical gases to patients.

The Offender's Evidence

Mr Turner gave no evidence himself.

Affidavit of Ms Turner

Counsel for Mr Turner tendered the affidavit of Ann Julie Turner sworn on 27 April 2020 (DX 3). She has been married to Mr Turner since 1986. In her affidavit, Ms Turner deposes to the impact of the incident on Mr Turner's health and the couple's financial situation.
Ms Turner explained that she believes the stress of the incident led to Mr Turner experiencing a significant amount of weight loss and contributed to a heart attack Mr Turner suffered in 2019 and the kidney stones he suffered from in early 2020.
In relation to the financial circumstances of the couple, Ms Turner states that she is currently employed part-time and her annual gross salary in the 2018-2019 financial year was $34,677. She explains that following his termination from BOC in August 2016, Mr Turner embarked on a career change into a different industry. He commenced his new job on 24 October 2016, earning $68,000 salary per year plus fuel and car allowance. Ms Turner states that on 6 April 2020, Mr Turner became redundant from his job, due to the effects of the COVID-19 global pandemic, and received $19,259.
Ms Turner expressed concern that Mr Turner will struggle to find work due to his age, the current job market and media attention. Ms Turner stated that she was previously planning to retire from work but now that she is the only person earning an income, she cannot. She is planning to look for more work once the proceedings have concluded. Ms Turner stated that she thought that it is highly unlikely that a bank would lend money to pay a fine, given that Mr Turner is now unemployed and she cannot make repayments on her current salary.
In her affidavit, Ms Turner explains that the current matrimonial home was jointly purchased in December 2017 for $630,000, with a mortgage of approximately $187,000. The house has since dropped in value and several issues were subsequently discovered including bathroom leaks, rotten windows and termite damage. Storms that occurred in February 2020 left further substantial damage to the home.
Ms Turner says that while $40,000 was put away in an offset account back in March 2018 for fine payment and prosecution legal costs, there was a necessity to use some of the funds to make urgent house repairs. Following Mr Turner's redundancy, the redundancy payment of $19,259 was deposited into the offset account which currently has a balance of $50,000. Apart from this fund, Ms Turner stated the only other savings and investments she and Mr Turner have are as follows: $3,280 in a savings account, $2,100 in a holiday account, and 1400 shares which at 24 April 2020 were valued at $4.75 per share.
The other assets owned by the couple are as follows: a quarter share each in a block of land valued at $157,500, bought with a relative of Ms Turner; a 2013 car driven by Ms Turner; and a boat and trailer worth $2,500. Mr Turner drives a ute, for which Ms Turner pays all outgoings. The ute is the only asset of Pro-Med Services Pty Ltd.

Affidavit of Ms Mataere

Counsel for Mr Turner tendered the affidavit of Alicia Carolyne Mataere sworn on 27 April 2020 (DX 1). Ms Mataere is the solicitor for Mr Turner
Ms Mataere deposed that the possibility of a plea of guilty was flagged on 24 April 2019 with the Prosecutor. An offer to enter a plea to the testing particulars was made by letter on 24 September 2019. This approach was rejected by the Prosecutor by email on 15 October 2019. By email dated 12 February 2020, Ms Mataere advised that Mr Turner intended to enter a plea to three particulars. On 13 February 2020, Mr Turner entered his plea to the Amended Summons. SafeWork NSW did not press the remaining particulars and withdrew the prosecution against Pro-Med Services Pty Ltd. Mr Turner agreed to co-operate with the prosecution including appearing as a witness for the prosecution in the case against BOC.

Character References

Character references were supplied in the Defendant's Tender Bundle (DX 2, Tab 10) by Mr Peter Wherritt, Mr Robert Sneddon and Mr Steven Lynch. Mr Wherritt is a Mechanical Biomedical Technician who met Mr Turner at work, as Mr Turner used to work for the medical gas company that provided the contract service work for Mr Wherritt's employer for 18 years. Mr Wherritt states that over the years he developed a friendship with Mr Turner and believes that Mr Turner is honest, reliable and dependable and has found his work to be extremely thorough and of a high standard. Mr Sneddon has known Mr Turner for over 35 years and worked with him for 30 years. In his reference, Mr Sneddon states that Mr Turner was well-liked by all his colleagues, engineering department staff and hospital staff. Mr Sneddon stated that Mr Turner has strong values and he was shocked when he heard about the incident, as he always has known Mr Turner to be passionate and meticulous in the work he provided. Mr Sneddon believes the incident was a one-off and that Mr Turner has expressed to him his deepest regrets about the situation. Mr Lynch is a Chartered Accountant who has known Mr Turner since 1995. Their children used to attend the same school and they became family friends. Mr Lynch states that he has always respected Mr Turner and has found him to be a loving, honest and trustworthy family man.

Consideration

I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
One object to which particular attention must be given in this case is recognition of the harm done to the victims and the community - s 3A(g).

Harm done to the community

As an aspect of harm done to the community, I take into account two psychiatric reports (PX 3 and PX 4) in relation to the parents of John.
Mr Youssef Ghanem was assessed by Dr Parmegiani as suffering from Post-Traumatic Stress Disorder (PTSD). He avoided reminders of John's death and he became over-protective of his other children. He still thinks about John's death but his PTSD is now largely in remission with the repetitive nightmares stopping after a few months. The psychiatrist said in his report that parents do not overcome the loss of a child and Mr Ghanem still feels anger towards the people responsible for his son's death. Mr Ghanem attended psychological treatment but did not find it helpful which is not unusual as psychological treatment cannot restore such a loss. Mr Ghanem returned to working full time four months after John's death but he has not re-established social and recreational activities he used to be involved in prior to the incident.
Mr Ghanem visited John's grave once or twice a week. He felt constantly sad, his energy was low and he slept poorly. Dr Parmegiani diagnosed a Pathological Grief Reaction.
Ms Sonya Ghanem was also assessed by Dr Parmegiani. Following the death and burial of baby John, Ms Ghanem thought about the incident every day and suffered nightmares of John's death once per week for three months. Ms Ghanem had no opportunity to prepare for the loss. She believed that John's death could have been avoided and experienced anger towards the people involved. Reminders of the incident exacerbated her anxiety. Ms Ghanem developed major depression, pathological grief reaction, and chronic PTSD, which was partially in remission at the time the report was written. When Ms Ghanem was taken to an operating theatre to give birth to a daughter in September 2017, memories of the incident leading to John's death flooded back to her. Ms Ghanem underwent psychological treatment, which she found helpful.
Ms Ghanem continues to grieve the death of her son. She refused to dispose of his baby clothes and she thought about John every day. She fantasised about John reaching his developmental milestones, how he would look and how he would speak. Dr Parmegiani diagnosed PTSD (in partial remission) and a Pathological Grief Reaction.

Objective Seriousness of the Offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has recently examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. His Honour Justice Basten at par 34, under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."
Further at par 42 his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At par 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about Mr Turner's level of culpability are based upon the following: 1. The risk of cross-connection of medical gases was known to Mr Turner. He signed forms to state that he had tested for such risk. The risk was clearly spelt out in the Australian Standard. In signing the forms as the installer, Mr Turner was certifying that he had complied with the Standard. I reject the submission of counsel for the defendant that some parts of the Standard were confusing. That part of the Standard which dealt with testing was clear, and there was no evidence that Mr Turner was in any way confused or misled by the wording of the Standard. 2. Sooner or later the risk caused by Mr Turner's breaches of duty was going to cause death or serious injury. Medical personnel in an operating theatre are in an emergency situation when they have to resuscitate a patient, and should not have to think twice about administering a gas clearly labelled "oxygen". I reject the submission of counsel for the defendant that as there was no evidence of any other baby being put at risk, the only two babies at risk were the two to whom nitrous oxide was administered instead of oxygen. Every baby born in Operating Theatre 8 was put at risk, as the need for emergency resuscitation could arise without warning. 3. The potential consequences of the risk were death or serious injury. 4. Steps were available to eliminate the risk. Proper testing for cross-connection and oxygen content were simple steps to carry out, for a suitably experienced and qualified person. Having the testing witnessed in accordance with the Standard really provided a method of ensuring safety. I reject the submission of counsel for the defendant that Mr Turner was not a suitably experienced person to perform the installation and the testing. There was no evidence to suggest this. Further, if he was not qualified to do this work, but did it anyway, that would make his conduct objectively more serious, not less. 5. There was no particular burden or inconvenience of the steps to be implemented. The tests are relatively simple. In any event, Mr Turner was doing this work for reward and the testing mandated by the Standard would have been built into his price. 6. The extent of the harm caused is almost too awful to contemplate. In 43 years as a barrister and then a judge I cannot think of a more tragic case. John Ghanem lost his life and his parents will live with their grief forever. Amelia Khan has been condemned to a terrible existence as set out in the report of Dr Harbord. Her parents will have to provide care and assistance for Amelia, and deal with their own grief arising from the severe disabilities suffered by their daughter, for the rest of their lives. The Court offers its own sympathies to Mr and Mrs Ghanem and to Mr and Mrs Khan and acknowledges the suffering of Amelia and both sets of parents. By his plea of guilty, Mr Turner has acknowledged that he is criminally responsible for the death of John Ghanem and the catastrophic injuries suffered by Amelia Khan. It would be understandable if both families think that the penalty imposed is inadequate. No-one should have to suffer such grief and loss. 7. The maximum penalty for the offence is a fine of $150,000 which reflects the legislature's view of the seriousness of the offence. There is no power to sentence an offender to a term of imprisonment for commission of this particular offence. 8. I accept the submission of counsel for Mr Turner that it is appropriate to have regard to the fact that there were others who failed in their duties under the Act, and that other parties have since improved their own procedures. However, the person who did the testing was Mr Turner. Had he properly carried out tests of no great complexity for a qualified person, which were designed to detect the recognised risk of cross-connection, these two tragedies could not have happened. 9. Counsel for Mr Turner submitted that this was not a case where there was no testing at all. But one asks rhetorically, what was the effective difference between doing no testing and doing testing and recording results in a fashion which completely obscured the very risk the subject of the test? The fact that some testing was done does not on the facts reduce the objective seriousness of this offence.
I reject the submission of counsel for Mr Turner that the objective seriousness falls in the mid range. I also reject the submission of senior counsel for the prosecutor that Mr Turner's level of culpability is "at the very top of the mid range, or towards the bottom of the high range". I find that the offence committed by Mr Turner is objectively very serious and falls in the high range.

Deterrence

The penalty imposed in relation to this offence must provide for general deterrence. The obligations imposed by the Act must be taken very seriously. The community is entitled to expect that everyone in industry will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
While the penalty must take into account the need for specific deterrence, this is not a significant factor in this case. Mr Turner will never again work in the medical gas industry.

Aggravating Factor

I take into account that there is an aggravating factor.
The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

I take into account that there are several mitigating factors.
Mr Turner has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Mr Turner is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. While Mr Turner has made mistakes with tragic consequences, the evidence shows that he is a decent man who has worked hard and led a good life.
Mr Turner is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. He is no longer carrying out work in the medical gases field.
Mr Turner has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. He has provided evidence that he has accepted responsibility for his actions and has acknowledged that the injuries to the two babies were caused by his actions.
Mr Turner entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. Mr Turner did not plead guilty until his trial was due to start. Having regard to the evidence in this case, it can be said that his guilty plea was simply recognition of the inevitable outcome of this prosecution. It is appropriate to give Mr Turner a 15% discount for an early plea.
Mr Turner gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. He co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.
The assistance extended to Mr Turner providing documents and offering to give evidence in relation to the prosecution of other persons involved in the events at the Hospital. Pursuant to s 23(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) a court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the investigation of, or in proceedings relating to, the offence concerned or any other offence.
Section 23(2) requires the court to consider a list of matters including: the significance and usefulness of the offender's assistance; the truthfulness, completeness and reliability of any information or evidence provided by the offender; the nature and extent of the offender's assistance or promised assistance; the timeliness of the assistance or undertaking to assist; and any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist.
By s 23(3) a lesser penalty that is imposed in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
Section 23(4) provides: "A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed; and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason."
I propose to reduce the penalty which I would otherwise impose on Mr Turner by 5%. While he did offer to give evidence in another prosecution, that offer was made late and in the end too late to enable him to be called as a witness. Further, there is no way to judge the worth of any evidence he may have given.

Capacity to pay a fine

I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
Mr Turner has some savings and has significant equity in his home. When he was in alternative employment he earned much less than he did in the medical field. The current economic circumstances mean that he will only have a social security income, at best, for some time. He has savings of $50,000. There is a quarter-interest in a block of land in Queensland which could be used to raise further funds. While he will have difficulty paying a large fine, the high level of objective seriousness of the offence alone means that there will be no reduction because of the capacity to pay issue. Further, I am not satisfied having regard to the sentence I will impose, that Mr Turner does not have the means to pay the fine.

Costs

The prosecutor is entitled to an order for costs, but there was a dispute between the parties as to the appropriate order. The prosecutor has informed the solicitors for the defendant in correspondence that the quantum of costs which will be sought is approximately $150,000. The defendant resisted the usual order for costs to be as agreed or assessed, and invited the court to make an order that the defendant pay $20,000 in costs to the prosecutor, or pay 20% of assessed costs, whichever is the lesser.
I accept the submission by counsel for the defendant that the court has a discretion when making an order for costs. I accept the submission that capacity to pay is relevant to making a costs order for the following reasons: 1. Pursuant to s 6 of the Fines Act in the exercise by a court of its discretion to fix the amount of any fine, the court is required to consider such information regarding the means of the accused as is reasonably and practicably available to the court for consideration. Such information is usually referred to as "capacity to pay" evidence. 2. The word "fine" is defined in s 4(1) to be: "(a) any monetary penalty imposed by a court for an offence…, or … (f) any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer…" 1. The phrase "law enforcement officer" is defined in s 3 to mean a person exercising law enforcement functions in the official capacity of, inter alia, a public servant. 2. By s 230 of the Act proceedings for an offence against the Act may only be brought by, inter alia, "the regulator". Section 4 of the Act defines "regulator" to mean "the regulator established under clause 1 of Schedule 2". 3. Schedule 2 cl 1 of the Act states that the regulator is "the Secretary of the Department of Finance, Services and Innovation". 4. By cl 1.2 in Sch 2, the Secretary of the Department of Finance, Services and Innovation is, as the regulator under the Act, "to be known as SafeWork NSW". 5. The person who is the Secretary of the Department is a public servant.
Thus the discretion to fix the amount of any fine includes a discretion to fix the amount of any costs order.
In the present case, I have no evidence to demonstrate the likely quantum payable under a costs order. While the prosecutor has asserted that it seeks $150,000, I have no evidence as to what the final figure might be on a formal assessment of costs. I do not know whether, in putting forward that figure, there is some double counting having regard to the fact that there were also prosecutions of BOC, Mr Brightwell and the Hospital.
On the other hand, I have no evidence to justify the figures put forward by counsel for the defendant.
If the costs in this matter are a high figure, then in large part that has been due to Mr Turner entering such a late plea of guilty. The original Summons was filed on 12 July 2018. Paragraph 15 of that Summons contained nine particulars of the defendant's failure to comply with a duty under s 28(b) of the Act. Several of those particulars involved failure to carry out testing in an appropriate fashion, as is presently alleged in the Amended Summons. The option was there for Mr Turner to plead guilty to the charge brought by the original Summons, and to contest whether he was guilty of all of the nine particulars pleaded in par 15 of the Summons. It is to be noted that those particulars were pleaded in the alternative, as par 15 commenced: "The defendant failed to take reasonable care in that the defendant failed to take one or more of the following actions."
I can make no comment about the quantum of costs foreshadowed by the prosecutor. However, I find that it is appropriate to make the usual order for costs to be paid by the defendant and that such costs should be as agreed or assessed.

Penalty

My orders are: 1. The offender Christopher Turner is convicted. 2. The appropriate fine is $125,000 but that will be reduced by 15% to reflect the plea of guilty and by 5% to reflect willingness to assist by giving evidence in other proceedings. The total reduction will be 20%. 3. Order the offender Christopher Turner to pay a fine of $100,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. Order the offender Christopher Turner to pay the prosecutor's costs as agreed or assessed

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