SafeWork NSW v Christopher Turner [2020] NSWDC 180

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Christopher Turner [2020] NSWDC 180 Hearing dates: 30 April 2020 Date of orders: 08 May 2020 Decision date: 08 May 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (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. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty

COSTS – prosecution costs

OTHER – existing pipe in hospital carrying nitrous oxide was incorrectly labelled as oxygen — offender was a contractor working in the medical gas industry who failed to take reasonable care — offender did not adequately test for cross-connection of newly installed neonate oxygen port — offender did not adequately inspect the oxygen concentration of the newly installed neonate oxygen port — offender failed to conduct the relevant testing in the presence of a hospital staff member experienced in the administration of medical gases to patients — nitrous oxide mistakenly administered to two newborn babies during emergency resuscitation — offence falls in the high range of objective seriousness Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23 Fines Act 1996 (NSW), ss 3, 4, 6, 122 Health Services Act 1997 (NSW), s 17 Work Health and Safety Act 2011 (NSW), ss 3, 4, 12A, 28, 32, 155, 230, Sch 2 Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian Standard AS 2896-2011 Medical Gas Systems – Installation and testing of non-flammable medical gas pipeline Occupational Health and Safety Law NSW, Butterworths looseleaf, Note 2535.15 Category: Sentence Parties: SafeWork NSW (Prosecutor) Christopher Turner (Defendant) Representation: Counsel: J Agius SC with D Jordan (Prosecutor) P Lowson (Defendant)