Sentencing — failure to take reasonably practicable steps to ensure safety of workers — exposing individual to risk of death or serious injury — PCBU — diving death — gas trick — Health and Safety at Work Act 2015, ss 36(1)(a), 48(1)&(2)(c) — Sentencing Act 2002 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020 — WorkSafe New Zealand v Cathedral Cove Dive Ltd [2016] NZDC 14661 — R v New Zealand School of Outdoor Studies Ltd, Tony Te Ripo [2016] NZDC 3081 — WorkSafe New Zealand v Tree & Forest Ltd [2019] NZDC 25406 — WorkSafe New Zealand v Nutrimetics International [2018] NZDC 4972. The defendant had pleaded guilty to contravening the Health and Safety at Work Act ("HSWA") by failing in its duty to take reasonably practicable steps to ensure the safety of its workers. Six trainee divers of the New Zealand Defence Force had been undertaking a nighttime dive exercise. The victim had been found unresponsive on the seabed by one of the other divers and later died in hospital from a brain injury due to oxygen deprivation to the brain. The approach to sentencing in HSWA cases is well-established: assess reparation to be paid; fix the amount of fine; determine whether further orders are required; and make an overall assessment of the proportionality and appropriateness of the sentence. Reparation was not sought. In fixing the fine, the Court had to assess the defendant's culpability. The Defence Force had adequate procedures in place but on the day of the incident these had not been followed: there were too few supervisory staff present and the victim (and standby diver) did not have the relevant certificates. The danger to all six trainee divers was increased by the fact it was a nighttime dive. On the day of the incident, the victim had been doing an unauthorised "gas-switch trick" whereby his intake of oxygen was temporarily stopped. The Court assessed the culpability of the defendant as at the top of the medium band, which carried a starting point for fine of $500,000. This was uplifted by 5 per cent for previous convictions. In mitigation, the defendant received discounts for co-operation, pleading guilty, participating in restorative justice and voluntary reparations made. The Court declined to grant a discount for remedial steps taken, noting that had the procedures in place been followed, the incident would not have occurred. A final final of $288,750 was ordered along with costs of $2,629. Judgment Date: 16 October 2020