Defence Force sentenced over soldier's death

Private Michael Ross. Photo / Supplied

The family of Private Michael Ross, who drowned during an Army training exercise, has welcomed a judge's ruling that slams the Defence Force for systemic safety failings.

Private Ross was only weeks away from being discharged when he took part in Operation Bunny - a training exercise on a choppy Lake Moawhango, near Waiouru on September 25 last year.

The 29-year-old rifleman fell into the lake after freezing water came over the bow of an under-inflated Zodiac.

His life jacket failed to inflate because the gas canister had been used and not replaced.

The NZDF pleaded guilty at Auckland District Court last week to a charge of failing to provide a safe working environment to the soldier.

Today, Judge Stephen O'Driscoll released his sentencing decision, which concludes the NZDF shouldered a high level of culpability for the death.

The law prevented him from imposing a fine on a Crown entity, but coupled with the fact he was satisfied the $241,000 in reparation paid to the Ross family was "fair and appropriate", Judge O'Driscoll convicted and discharged the NZDF.

Judge O'Driscoll said Private Ross was let down by the widespread failures in safety protocols which amounted to a "systemic failure" by the NZDF.

While he acknowledged the NZDF's subsequent action, the judge slammed them for not doing more to prevent Private Ross's death.

"Employers should not wait until a tragedy occurs to review processes and procedures that take place during the course of their business."

The key failure was Private Ross' faulty life jacket but the judge also criticised a lack of safety checks, training, and operational errors.

A Court of Inquiry made 33 recommendations to reduce future risks.

Army head Major General David Gawn said the Army had let down every parent who had entrusted their sons and daughters with the force.

The Ross family commended Judge O'Driscoll for finding provision within the law to make comment around culpability.

"Not just for us, the whanau as victims, but in the general public's interest who want some sense of accountability too," said Private Ross's uncle Charles Hohaia.

"We are very pleased with the findings. It puts the NZDF on notice."

The Ministry of Business, Innovation and Employment's health and safety group, which brought the prosecution, also welcomed Judge O'Driscoll's comments that employers should not wait until a tragedy before reviewing processes and procedures.

Dean of Canterbury University's law school, Dr Chris Gallavin said it was a shame the judge's hands were tied over imposing a fine on the Defence Force.

A similar conviction for a private company would almost certainly would have resulted in a maximum fine of $250,000, he said.

"It seems that the Defence Force have got away with a slap on the wrist, notwithstanding that they've internally taken it very seriously," Dr Gallavin said.

"But if they were a private company, they'd be looking at the imposition of a serious chunk of change I would suggest."

In a statement today, General Gawn said the Army accepted the judge's finding of high culpability.

"As I have previously stated, this incident highlighted a number of areas for improvement, both within NZ Army and the NZ Defence Force, and I was embarrassed by the findings of the NZ Defence Force's Court of Inquiry into Private Ross's death.

"NZ Army has accepted from the outset that our level of responsibility in relation to this incident is high, and that if a number of appropriate safety procedures had been adhered to, Private Ross's death could have been prevented. NZ Defence Force is striving to improve its processes and practices to minimise the risk of an incident of this nature occurring again in the future,'' he said.