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Safeguard OSH Solutions - Thomson Reuters

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OSH Tracker

Ministry of Business, Innovation and Employment v New Zealand Defence Force (DC, 02/08/13)

OSH Tracker

Defendant:
New Zealand Defence Force
Judge slams NZDF failures 
The New Zealand Defence Force has been slated for “systemic failure” after a soldier drowned during a training exercise near Waiouru in September 2012 when he fell into icy water from an under-inflated Zodiac. 
Private Michael Ross’s personal flotation device (PFD) did not inflate because the gas canister was empty, and he was not able to manually inflate it. With more than 20kg of equipment on him, he sank before he could be rescued. 
No fine was payable because the defendant is a Crown entity, and no reparations order was sought in light of the $240,000 already paid to the man’s family, but Judge Stephen O’Driscoll said the defendant’s culpability was high. 
The NZDF had failed to identify the water temperature as a hazard; to ensure the victim’s machine gun was secured to the boat; to provide adequate training in the use of PFDs; to ensure that staff were competent to check that the PFDs were operational; to inspect the Zodiacs to ensure they were fully inflated; to ensure the crewmen operating them had been trained to recognise the hazard of under-inflation; to ensure the rescue boat’s outboard motor was fitted with a propeller guard (which may have been a factor in Ross releasing a rescue line as he drifted close to the propeller); to prevent Ross riding on the bow of the Zodiac; and to ensure the safety boat was fit for purpose, manned by at least three people, equipped with sufficient communication devices, and immediately able to perform a rescue. 
The judge said the NZDF had adequate resources but lacked implementation processes. In particular, only two out of 15 engineers were available to check the Zodiacs before the operation, and no one on staff had been trained to inspect and service the PFDs. 
“Identifying the empty canister is a task that every engineer involved in the exercise should have been familiar with.” 
The current state of knowledge about the risks associated with lake crossings and the means available to address them were well established, he said. 
The operation of the safety boat was also in breach of required standards in that it had only a single person on board, did not have the necessary life saving equipment, and was not idling its motor during a man overboard event. 
Industry:
Government Administration and Defence
Sub-Industry:
Defence
Risk:
Engulfment/drowning
Harm:
Death
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 142

Judgment Text

RESERVED JUDGMENT OF JUDGE S J O'DRISCOLL 
Judge S J O'Driscoll
The Charge 
[1]
The charge the New Zealand Defence Force faces is, on or about 25 September 2012, at Lake Moawhango, Waiouru Military Area, committed an offence against: 
“Section 6 and 50(1)(a) of the Health and Safety in Employment Act 1992, in that it, being an employer, failed to take all practicable steps to ensure the safety of its employees while at work, in that it failed to take all practicable steps to ensure that Michael Victor ROSS was not exposed to the hazard of drowning while at work. ”
[2]
The defendant pleaded guilty to one charge of failing to take all practicable steps to ensure the safety of its employees while at work, under the Health and Safety in Employment Act 1992 (HSE Act 1992). The charge relates to the fatal accident involving the drowning of Private Michael Ross on 25 September 2012, at Lake Moawhango, Waiouru Military Area. 
[3]
The maximum penalty is a fine not exceeding $250,000. 
[4]
On 25 July 2013 I heard submissions from counsel and reserved my decision until this week to consider and reflect on the submissions of counsel. 
Facts 
[5]
This Health and Safety prosecution relates to a drowning accident at Lake Moawhango which led to the death of Private Michael Victor Ross. Private Ross drowned after falling off an under-inflated Zodiac, on the way back from a live-firing exercise. His body was recovered from the lake's floor a week later. An examination of his un-deployed life jacket found that the jacket's canister had been empty and the jacket would not have deployed if Private Ross had attempted to do so before drowning. It is believed the cold water temperature and the equipment carried by Private Ross were among the factors which contributed to his death. I have set out below some material from the Summary of Facts which was read to the Court last week. 
Background 
[6]
Private Ross was a rifleman in an Enhanced Infantry Company (EIC) which trained with a wider range of skills, allowing it not only to operate as a regular infantry company but also to undertake some more demanding tasks and, if needed, support Special Forces operations. The unit (hereinafter “the Unit”) is known as Alpha Company EIC of the First Battalion Royal New Zealand Infantry Regiment (1RNZIR). The Unit includes two platoons assisted by enabler units, in particular engineers from the 2nd Field Squadron, Royal New Zealand Engineers (hereinafter “2 Field Squadron”), based at Linton. 
[7]
One of the Unit's additional areas of operations is amphibious operations. As part of enhancing the Unit's skill-set in amphibious operations, it underwent in 2012 a series of amphibious training exercises in various locations nation-wide, which culminated in live firing from seaborne platforms (primarily Zodiacs). Special equipment for amphibious operations - including personal floatation devices, Zodiac boats and an aluminium safety boat — is assigned to the engineers of 2 Field Squadron who are responsible for maintaining and providing it to the training Unit. 
[8]
The accident happened on the way back from an amphibious training exercise, which was part of Exercise Bunny 1. The exercise was scheduled to take place between 24 and 26 September 2012 on Lake Moawhango, a lake fed by tributaries running off the slopes of Mt Ruapehu, located inside the NZDF restricted access Waiouru Military Training Area. 
Personal Floatation Devices in use by the Unit 
[9]
During 2012, the Personal Floatation Devices (PFDs, colloquially known as “life jackets”) used by the Unit for its amphibious training were replaced twice. The Unit had initially used the New Zealand Army standard PFD “Mustang MD4020NZ”, which is designed to deploy automatically when the user enters the water. The model was removed from service by the Unit's water safety officer, after events in which the PFDs either did not fully inflate or had faulty activations. At first, the Unit borrowed PFDs from the Special Forces, but when they had to be returned, the Unit arranged to borrow 50 PFDs from the Navy. 
[10]
The PFDs on loan from the Navy were of an older model (the RFD 60B) which had been superseded by the Mustang model. These PFDs were retained by the Navy for embarked forces use while on board HMNZS Canterbury. Unlike the “Mustang”, the RFD 60B is manually operated and requires the user to pull a toggle located on the right hand side. Pulling the toggle punctures a CO2 canister which then inflates an air tight bladder which supplies the buoyancy and shape to the PFD. The PFD is also fitted with a blow valve on the left hand side, used to blow up the PFD in the event of failure to deploy or if the jacket needs “topping up”. It is also fitted with a battery operated light and a whistle. When packed, the PFD fits into a horseshoe shape. Checking the CO2 canister requires the opening of a nylon cover or valise, which is held in shape by Velcro fastening. 
[11]
The Navy arranged for a Maintenance Support Squadron based at Whenuapai to service and certify 50 PFDs of the model RFD 60B. They were certified on 3 August 2012 and then transferred by the Navy to 2 Field Squadron in Linton. 
[12]
The Unit started using the RFD 60Bs in an amphibious exercise in Wellington, in August 2012. During that exercise a number of the PFDs were activated either intentionally or accidentally. As the 2 Field Squadron engineers were not certified to maintain this model of PFDs, it was arranged for the activated units to be returned to the Navy for servicing. The remaining PFDs were taken by 2 Field Squadron engineers back to Linton. While usually a Unit Preventative Maintenance Checklist procedure will be carried out to all PFDs, the engineers were not trained or qualified to inspect or service this model. The engineers washed the PFDs, coiled up the leg straps, hung them to dry and later inspected them visually only. 
The Zodiacs 
[13]
On the day of the accident, the Unit was using eight Zodiacs of a model known as FC470. The Zodiacs were assigned to the engineers of 2 Field Squadron. Six of them were fitted with outboard motors and the remaining two were initially intended as floating platforms for the live firing activities. Each Zodiac is crewed by a minimum of two persons — a coxswain who sits at the rear left hand side and operates the outboard motor, and a bowman who is positioned in the bow and who keeps watch for hazards. A boat commander may also be present and is usually the senior ranking member of the crew. 
[14]
As a matter of course, Zodiacs are inspected after each exercise by the host unit. Small repairs and patches are carried out by the engineers. Vessels requiring more extensive repairs are sent to the New Zealand agent for Zodiac. 
[15]
For Exercise Bunny 1, the vessels were not assigned to an individual coxswain or boat commanders. In the week prior to the Exercise, the safety officer directed his engineers to prepare the boating items for the exercise. Usually 12 to 15 engineers would be available to check off and service the boats. In this instance, only two staff were available. 
[16]
It is not known exactly which Zodiac was involved in the incident as post incident all vessels were returned to the water to carry out the search for Private Ross. 
Water temperature 
[17]
On Monday 24 September 2012 (the day before the accident), a group of organisers - including the safety officer and the medic - crossed the lake in an aluminium safety boat to set up targets for the live firing exercises. While doing so, one of the targets accidently rolled into the lake. Two soldiers volunteered to retrieve it and jumped into the water. Neither man could stay in the water for more than 10 seconds due to the cold temperatures. This event alerted the safety officer to the water temperature of the lake. He then identified it as a hazard and altered the Man Overboard procedures to require the closest boat available to rescue any person in the water rather than the boat the person had fallen out of being responsible. 
[18]
The exact temperature of the water on the day of the accident is unknown. It is however known that the Police dive squad recorded the water temperature on the following day, 26 September 2012, as 6 degrees Celsius. 
The Incident 
[19]
Exercise Bunny 1 was scheduled to take place between 24 September and 6 October 2012. 
[20]
The 2nd platoon commenced swim tests and capsize drills at the Waiouru Camp swimming pool on 24 September 2012. The following morning, 25 September, the 2nd platoon moved to Lake Moawhango to practice blank ammunition drills on the western shores of the lake, while the 1st platoon practiced at the swimming pool. After lunch, the 1st platoon moved onto the blank firing exercise area at the lake, and the 2nd platoon was carried by Zodiacs across the lake, to practice live firing from the Zodiacs on the eastern shore. Whilst some water safety briefs were given, they were not given to all personnel embarking on the water, as required by NZ Army Orders. Water Safety briefs are supposed to cover information such as man overboard procedures, securing weapons and wearing of life jackets. 
[21]
Later in the afternoon, the two platoons completed their exercises. Five Zodiacs headed across the lake to uplift the soldiers of the 2nd platoon from the eastern side, and bring them back to the trucks which were waiting for them on the western side. This was treated as an administrative, and not a tactical move. Each of the five Zodiacs was operated and commanded by engineers from 2 Field Squadron. The engineers were not expecting to carry out this task. When the Zodiacs reached the location of the 2nd platoon, the waiting soldiers boarded the Zodiacs and were issued with their PFDs. 
[22]
The Zodiac involved in the incident was crewed by three engineers- a coxswain, a bowman and a boat commander. The three travelled across the lake to the eastern shore, with no issues reported with vessel. On the eastern shore, five soldiers from the 2nd Platoon boarded the Zodiac. Some of them later described the Zodiac as being “soft” or underinflated. One of them later said that in usual circumstances he would not have boarded the boat, but the soldiers were too tired and just wanted to get back across the lake at the end of the training session. 
[23]
The soldiers were carrying their weapons which were either Steyr Rifles or C9 Minimi machine guns. Private Ross was wearing his C9 across his front with the sling around his neck. This action was inconsistent with Army Orders which require personnel on small vessels to secure their weapons to the vessel. 
[24]
The vessel then remained in a sheltered bay for up to 10 minutes before the other boats were loaded. When the platoon was ready for the return trip, the aluminium safety boat left first, towing two motor-less Zodiacs. The five remaining Zodiacs then started the return trip. 
[25]
The Zodiac carrying Private Ross encountered choppy water and the occupants noticed it started to flex at the bow. It was also noted that although the engine was running at full throttle, the vessel was slower than all the other craft. 
[26]
At one point, the vessel flexed to the extent that water flowed over the middle of the side pontoons. The occupants rearranged themselves in the boat to try and stop the boat from flexing any further. Private Ross was on the bow on the left hand side. He was leaning forward, trying to push the bow down. A second soldier moved to the bow on the right hand side, and a third moved to sit on top of the boat box near the centre of the bow. 
[27]
At that stage, one of the other Zodiacs overtook Private Ross' boat. The wake created by the other Zodiac caused the bow to kick back even further. The soldiers asked the coxswain (the boat driver) to slow down. As he slowed down the bow came back down and Private Ross was dislodged overboard. 
[28]
The soldiers on the boat carried out the “Man Overboard” procedure, which included calling out “man overboard” and pointing to the location of the person in the water. Eyewitnesses described Private Ross as not looking panicked at this stage. The soldiers yelled at him to deploy his PFD. The coxswain turned the Zodiac around to uplift Private Ross. 
[29]
Meanwhile, the safety boat (operated by the water safety officer) had just dropped off two towed Zodiacs and unloaded all passengers, including the medic, who had been stationed on the safety boat all day. Safety boats are required under Defence Force Orders to operate with a crew of three persons. It was on its way back across the lake to rendezvous with the Zodiac when the safety officer noticed the soldiers carrying out the Man Overboard procedure. The safety officer then intervened and drove in to collect Private Ross, due to his concerns about the water temperature. 
[30]
As the safety boat reached Private Ross, the safety officer reached out to him with a boat hook. Private Ross made contact with the boat hook pole and started drifting towards the rear end of the safety boat. He got closer to the boat's propellers, and then became separated from the boat hook. Although the boat's propellers were unguarded, it is believed that Private Ross did not come into contact with the propellers. The NZ Army standard operating procedure was to put the engine into neutral in the event of a recovery. He started drifting away from the safety boat, and was now bobbing up and down in the water, going under the surface and then popping back up, treading water. 
[31]
Private Ross was wearing equipment which weighed 15.185 kg and was carrying a weapon which unloaded weighs 6.48 kg making a total weight of 21.665 kg. It is not known if the weapon was unloaded at the time of the incident. 
[32]
The safety officer then directed the Zodiac's coxswain to bring his boat in to assist in picking up Private Ross. As the Zodiac approached Private Ross' last position, he sank below the water. The soldiers on the left hand side of the zodiac all tried to reach and grab Private Ross. The coxswain managed to grab Private Ross' helmet but it became dislodged from Private Ross who was sinking deeper. 
[33]
The safety officer then directed the soldiers on the Zodiac to jump in the water and get Private Ross. Three soldiers dived into the lake from Private Ross' Zodiac in a valiant attempt to rescue him, but due to the cold they were not able to dive very deep or for very long. 
[34]
The safety officer drove the safety boat back to shore to raise the alarm. He picked up a qualified diver, a dive mask and a pair of flippers located on shore, and returned with the safety boat to the location of the Zodiac. The diver attempted to dive in the lake using the mask and flippers. Visibility was very poor and the water extremely cold. The safety officer marked the location on the GPS, and the two boats returned to the lake shore. 
[35]
Police and Navy dive teams were brought to the site and commenced a search, using sonar equipment. Members of the Unit remained on site carrying out water and land searches. 
[36]
Private Ross' body was located at the bottom of the lake, on 2 October 2012, at a depth of approximately 42 metres. His body was recovered by Navy divers. 
[37]
A post mortem examination concluded that the cause of death was drowning and that there was no underlying health or medical issues that could be identified. The toxicology examination showed no signs of any prescription, recreational drugs or alcohol. 
[38]
The PFD that Private Ross wore was forwarded by the Informant to the importer's experts (Survitec Group) for inspection and testing. The findings were that (i) the PFD was in its “packed” stage and had not been deployed; however (ii) the canister was empty and had previously been punctured and deployed. The conclusion was that the jacket had been deployed at some time before the incident and was subsequently deflated. The jacket was then folded and re-closed without the canister being replaced, and at that point would have appeared to be in an operational condition. The PFD is rated as having 23.5 kg of buoyancy. 
Jurisdiction and applicability of the HSE Act 1992 to the NZDF 
[39]
There are two preliminary matters I should mention. First, the HSE Act 1992 applies to places of work. Section 6 of the Act imposes a general duty on employers with regards to the safety of their employees. 
[40]
Defence Force personnel serve under an oath of allegiance and not an employment agreement. The Employment Relations Act 2000 does not apply to the conditions of service of members of the armed forces (s 45, Defence Act 1990). 
[41]
However, as a Government-Related Organisation (as that term is defined in the Crown Organisations (Criminal Liability) Act 2002), the NZDF is liable for breaches of ss 49 or 50 of the HSE Act, which encompass the duties of employers under Part 2 of that Act (refer s 6 of the Crown Organisations (Criminal Liability) Act 2002). While not an “employer” in the full legal sense of the word, the NZDF is still generally required to comply with the HSE Act 1992 (subject to some exceptions) and with the duties imposed on employers, principals and persons who control a place of work. 
[42]
For that reason, in this prosecution the NZDF is considered an employer for Health and Safety purposes, and its personnel (including the deceased, Private Ross) are considered NZDF's employees. 
[43]
The second preliminary matter is that the Crown Organisations (Criminal Liability) Act 2002 deals with the imposition of fines. Like all other Crown Organisations, the NZDF cannot be ordered to pay fines in respect of an offence (refer s 8(4) of that Act). 
[44]
There appears to be only one other similar case - Police v NZDF DC Marton CRI 2006-034-484, 14 February 2007(the Unimog accident) involving a Health and Safety public prosecution against the NZDF. That decision also refers to the Crown Organisations (Criminal Liability) Act 2002, and confirms the HSE Act 1992's applicability to the NZDF. 
[45]
The NZDF accepts and does not challenge the jurisdiction of the informant to bring this charge against the defendant. Both parties also accept that as a result of the Crown Organisations (Criminal Liability) Act 2002 this Court cannot make an order of a fine against the defendant; the Court can however make an order for reparation under s 12 of the Sentencing Act 2002 (SA 2002). 
Reparation 
[46]
Quantifying emotional harm to family members who lost their loved ones is an extremely difficult task. In Sir Edmund Hillary Outdoor Pursuits Centre of New Zealand DC Auckland CRI-2008-068-000565, 20 March 2009 Judge Kiernan noted the difficulty of trying to assess reparation: 
“[85]
Reparation in this case is a difficult issue to quantify. Obviously no price can be put on a life lost. It would be abhorrent to calculate in dollar terms the cost to each family of a loved one … Reparation orders in other fatality cases are really of little assistance. ”
[47]
The range of reparation orders varies significantly. For example, in the above decision, Judge Kiernan ordered $6000 reparation to be paid to each family of a deceased and $5,000 reparation to each of the survivors, whereas in the more recent Pike River decision, Judge Farish awarded reparation of $110,000 for each of the 31 victims of the mining disaster (two survivors and families of the 29 deceased): Department of Labour v Pike River Coal Ltd DC Greymouth CRI-2012-018-000822, 5 July2013
[48]
Other cases involving a fatality provide limited assistance to the sentencing Judge: Department of Labour v Fletcher Concrete and Infrastructure Limited DC Nelson CRI-2009-042-001043, 20 August 2009, Zohrab DCJ, reparation $125,000.00; Department of Labour v TransDiesel Limited DC CHCH CRI-2012-009-001590, 13 June 2012, Strettell DCJ, reparation $60,000 for emotional harm; Department of Labour v Fulton Hogan Limited DC Greymouth CRN 1018500058, 3 September 2010, P Moran DCJ, reparation $100,000; Ministry Of Business Innovation And Employment v Mainfreight Limited DC Invercargill CRI-2012-025-001156, 31 August 2012, reparation of $140,000 to widow and $60,000 in trust for the deceased's children. These decisions provide an indication of the range of reparation in fatality cases. 
[49]
As matters transpired during the hearing, the informant accepted that NZDF had paid Private Ross's family $240,000. This consisted of various amounts including life insurance held by NZDF over Private Ross's life, payments to cover funeral expenses, a payment from the Army Central Welfare Fund and an offer of amends by NZDF. 
[50]
As a result of Clutha Chain Mess Products Ltd v Department of Labour (2004) 2 NZELR 261Has Litigation History which is not known to be negative[Blue]  the informant did not seek for the Court to make a reparation order. Ronald Young J held at para [19]: 
“ … where an offer of amends exceeds any reparation that could be properly payable, a Judge is likely to conclude that no reparation order should be made because the special circumstances of the offer of amends would make it inappropriate. ”
[51]
I agree with both counsel for the informant and NZDF that I should not make a reparation order and according I made no order. I think that it is proper to record that I believe the amount paid by NZDF was fair and appropriate, and I also think NZDF should be commended for making the payment in a timely way without waiting for a court to order reparation. 
The real issue in this case 
[52]
The informant's original submissions were directed towards the Court making an order for reparation in favour of the deceased's family and a desire to have the Court make a determination of the defendant's culpability in their offending. 
[53]
Once the issue of reparation was disposed of, I was left with the informant's submission that I should make a determination of the culpability of NZDF. 
[54]
The informant submitted that I had jurisdiction to make a determination on the culpability of NZDF. It was argued there was nothing in the leading case of Department of Labour v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  that prevented such a determination; there was nothing in HSE Act 1992 that prevented such a determination; and it was in the interests of the victims family, the public and NZDF that such a determination be made. 
[55]
The defendant's view was that I should not make a determination of culpability. The argument was that in principle such a determination should not be made. If the Court had jurisdiction to impose a fine, the Court would have been required to make a finding of culpability; since the Court had no jurisdiction to order a fine, the defendant's submission is that a finding of culpability was not necessary. It was submitted a culpability finding had no relevance to the quantum of reparation and as I have said the informant was not seeking a reparation order. 
Discussion 
[56]
I have considered whether I should make a culpability determination in this case. I have considered whether I have jurisdiction to make a finding and then if I answered that in the affirmative whether I should make a finding. 
[57]
I have decided that I do have jurisdiction to comment on the culpability of NZDF and I should make a determination. 
Jurisdiction 
[58]
There are three reasons why I believe I have jurisdiction to comment on the defendant's culpability in circumstances where I cannot order the defendant to pay a fine and I am not being asked to make an order for reparation. 
[59]
First, HSE Act 1992 does not contain any provision prohibiting a Judge from making a comment about a defendant's culpability. 
[60]
Second, the leading case Hanham and Philp does not prohibit a Judge from commenting on a defendant's culpability. I would have been expected, and indeed required to make a finding of culpability if it had not been for s 8(4) Crown Organisations (Criminal Liability) Act 2002. 
[61]
Third, and most significantly, I believe I must take the defendant's culpability into account in my decision as to how I am ultimately going to deal with this case. In fact, a defendant's culpability must be taken into account by a Judge in every criminal case that comes before the Court. In some cases a Judge may make an express finding of culpability; in other cases an express finding may not be made. 
[62]
Under SA 2002, I am required to take the defendant's culpability into account. I am specifically required to take SA 2002 into account by virtue of s 51A(2) HSE Act 1992. 
[63]
Section 8(a) SA 2002 states: 
“8
Principles of sentencing or otherwise dealing with offenders 
In sentencing or otherwise dealing with an offender the court— 
(a)
must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and ”
[64]
The phrase “otherwise dealing with an offender” is defined in s 4(3)(a) SA 2002 and states: 
“(3)
For the purposes of this Act, otherwise dealing with an offender or other means of dealing with an offender— 
(a)
means dealing with the offender in relation to an offence following a finding of guilt or a plea of guilty, instead of imposing a sentence; and ”
[65]
There are other provisions in the SA 2002 that have particular relevance to victims of offending. Section 3 (d) SA 2002 provides that one of the purposes of the SA 2002 is to “provide for the interests of the victims”. One of the purposes of sentencing or otherwise dealing with an offender under s 7(1)(c) SA 2002 is “to provide for the interests of the victim”
[66]
Hence, as a result of the reasons I have referred to above I do have jurisdiction to comment on the culpability of a defendant in the circumstances that are currently before the Court. 
Why I should make a finding on culpability 
[67]
Having decided I do have jurisdiction to comment on the defendant's culpability the next issue is whether I should. There are four reasons why I am going to comment. 
[68]
The first reason why I am going to comment on the defendant's culpability is the legislative requirement that when sentencing or otherwise dealing with an offender the Court “must” take into account the gravity of the offending in the particular case, including the culpability of the offender: s 8(a) SA 2002. 
[69]
Second, I do believe it is in the interests of the victims that I make an assessment of culpability. At para [13] of Mr Ruane's written submissions the following comment is made: 
“NZDF accepts that Private Ross' family may find closure by understanding the level of culpability in the scope of identified failures. ”
[70]
Third, I appreciate NZDF have taken this matter extremely seriously, but I do not think that their immunity from paying a fine equates with NZDF having an immunity from scrutiny for their breach of the HSE Act 1992. While remedial steps have already been implemented to ensure that similar breaches will not occur I believe it is appropriate to comment on NZDF's culpability for this breach. 
[71]
Judges frequently comment on the culpability of other defendant's that come before the Court. Where a defendant's culpability is significant a Judge will be more likely to comment on that culpability. Such comment must be made in an open and public court. Openness and transparency are important concepts in a criminal court and the public can then make up their own mind about the matters that have occurred in Court. 
[72]
Finally, I have been referred by counsel to a number of sections in the Coroners Act 2006 (CA 2006). Section 4 (1)(e)(i) CA 2006 relates to the coroner's role and s 57 CA 2006 relates to the purposes of an inquiry. In both sections the purposes of the coroner and the purpose of an inquiry is stated not to be to determine civil, criminal, or disciplinary liability. 
[73]
In this case criminal liability has been determined by the entry of a plea of guilty to the charge before the Court. Criminal liability and culpability are two distinct concepts. 
[74]
I have also been referred to s 58(1) CA 2006 which provides that a coroner may, in the course of, or as part of the findings of, an inquiry, comment on the conduct, in relation to the circumstances of the death concerned, of any person. An opportunity must be given to any person or organisation to be heard on the matter. While arguably a coroner may decide to comment on NZDF's role in this tragedy and give the NZDF an opportunity to heard, I do not think that that means the District Court cannot comment on culpability. In any event there is no guarantee a coroner will comment on culpability issues as opposed to simply finding the cause of death, and if appropriate, making recommendations to reduce a similar event occurring in the future. 
[75]
In my view a sentencing Judge has a wide discretion on what matters they can and should comment on when sentencing an offender. Whether a Judge will comment on any particular aspect of a case will depend on a variety of circumstances such as the nature of the offence, or the existence of particular characteristics of a defendant or victim. Sometimes it is in the public interest to comment, while in other cases it is not. In this case I believe it is appropriate and in the public interest to comment. 
Assessment of Culpability 
[76]
Under the Hanham and Philp methodology there is an assessment of a defendant's culpability which then results in culpability being categorised into one of three bands — low, medium or high. In the great majority of cases, this assessment will be the basis for fixing the starting point of the fine. 
[77]
With respect to assessing culpability and while considering s 51A of the HSE Act 1992, the High Court in Hanham and Philp commented at para [54] that the following factors are relevant: 

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