Non Raceday Inquiry – RIU v WE Higgs – 19 September 2011 – Decision in relation to Penalty and Costs 21 October 2011

hearingid: 261762e61acbb67b7eece2cbf90155d6

informantnumber: 68884 and 68887

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 26/10/2011

hearing_title: Non Raceday Inquiry - RIU v WE Higgs - 19 September 2011 - Decision in relation to Penalty and Costs 21 October 2011

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

NON RACEDAY JUDICIAL COMMITTEE DECISION

Informant: Stipendiary Steward C. J. Allison
Defendant: Mr W. E. Higgs – Open Horseman

Information Nos: 68884 and 68887

Meeting: Gore Harness Racing Club

Date: 28 August 2011

Venue: Gore

Race No. 5: Kubala Seeds Gore Fillies & Mares Mobile Pace

Rule No: 869(3)(d) and (g)

Judicial Committee: J. M. Phelan, Chairman - N. D. Skelt, Committee Member

Pleas: Not Admitted

Also Present: Stipendiary Steward Mr M. R. Davidson (Registrar), Racing Investigator Mr R. D. Scott (Observer), Mr J. V. Douglas – Graduation Horseman (Witness), Mr J. W. Cox – Open Horseman (Witness), Mr K. N. Larsen – Open Horseman (Witness)

Judicial Committee’s decision on penalty and costs:

[1] These matters were heard at Invercargill on 19 September 2011, and subsequently convictions were entered against Mr Higgs on both charges. Submissions on penalty and costs were sought from both parties and these have now been received by this Committee.

Submissions re “diminishing” charge:

[2] Mr Allison’s submissions were as follows. Mr Higgs had 24 drives last season and 38 drives the season before that. The horse “Motu Miss Lilli” was a short priced favourite in this race, and it was televised throughout New Zealand and Australia. As the holder of an Open Horseman’s Licence Mr Higgs’ drive fell well below the required standard, and he had ample opportunity to adopt other tactics during the race. As a result of Mr Higgs’ driving tactics the horse’s chances of winning or even finishing in a dividend bearing place were extinguished, and the public perception of the way the horse was driven had a detrimental impact on the image of harness racing

[3] Mr Allison referred to three relevant cases. The first case was RIU v. Douglas, who was the other person charged over this incident. In that case Mr Douglas admitted the breach and showed remorse, and these mitigating factors were the basis for imposing a 10 week suspension instead of the 12 weeks sought by the Stipendiary Stewards.

[4] In HRNZ v. McK (2010) a 24 day suspension was imposed on a senior driver, and this period included 6 race days. It was accepted the Mr McK usually had a full book of drives at each race meeting.

[5] In HRNZ v. C, the other person involved with Mr McK, Ms C received the same penalty, but she appealed. As a result of this appeal the Appeals Tribunal decided that the part played in the “speed duel” by Ms C was less culpable than that of Mr McK, and believed that a “small reduction in penalty” was appropriate for that reason. The penalty imposed on Ms C was changed to a 3 day suspension plus a fine of $600-00. In our view this reduction in penalty was indeed very small.

[6] In respect of race day drives, it is noted that Mr Douglas had 11 drives and Mr Higgs had 13 drives in the 2010 – 2011 season, and in the season before that Mr Douglas had 15 drives and Mr Higgs had 26 drives. By comparison Ms C and Mr McK had in excess of 440 drives in the season prior to their offending.

[7] It was also submitted that a penalty should be imposed which acts as a deterrent for Mr Higgs and any other licence holder who might consider driving this way in the future.

[8] We also record here that the Penalty Guide recommends a starting point when considering a penalty for a breach of Rule 869(3)(g) where the charge is “diminishing chances – race duelling” as 40 drives or a fine of $2000-00.

[9] Mr Higgs made lengthy submissions on penalty. A big part of these submissions disputed that there had been breaches of the Rules, but Mr Higgs also had some very valid points to raise.

[10] Mr Higgs explained that he had a small number of drives in the 2010 – 2011 season because of a virus which had affected horses in his stable. He said that he had 28 horses which were racing, ready to race, or ready to qualify to race. Mr Higgs produced a list of these horses, and said that he would expect to have around 350 drives with his stable horses in the present season, and that he would also expect to obtain drives from other trainers. Mr Higgs also said that a stable driver was no longer in his employment, and that he intended to take all the drives himself.

[11] Mr Higgs also submitted that the penalty imposed on Mr Douglas will entail him losing 3 drives at the most, based on the fact that he had only 11 drives last season. This submission is related to para. [10] above where Mr Higgs has contended that he might have 350+ drives in this current season.

[12] In relation to penalty Mr Higgs submitted that he would prefer a fine in this case, whereas Mr Douglas sought a suspension.

Reasons re Decision on Penalty:

[13] The main thrust of Mr Higgs’ submissions on penalty for this charge were that he anticipates that he could have about 7 drives per week in the 2011 – 2012 season. Mr Higgs’ evidence on this point is conjecture only. We note that in the 12 full seasons from the 1999 – 2000 season to the 2010 – 2011 season Mr Higgs has had a total of 919 drives. This is an average of 76 drives per season. However over the last three full seasons Mr Higgs has had 159 drives, which is an average of 53 drives per season, or one drive per week.

[14] We are not convinced that there is evidence that Mr Higgs will significantly increase his driving activity this season, and we prefer the statistical evidence that over the last three full seasons he has had one drive per week. If we were to follow the Penalty Guide’s recommended starting point of 40 drives, then we would be considering a 40 week suspension. This is clearly an unreasonable term of suspension, and was a matter which also had a bearing on the 10 week suspension imposed on Mr Douglas.

[15] The only mitigating factor we identified in this case was that Mr Higgs has not recently breached this Rule. While not admitting the charge is not an aggravating feature, and Mr Higgs will not be penalised for that, an admission of the breach is a mitigating factor. As mentioned above Mr Douglas was given a discount because he admitted the breach, and also showed remorse.

[16] We have also taken into account that Rule 1114(2)(d) provides that a Judicial Committee may have regard to such matters as they consider appropriate, including the need to maintain integrity and public confidence in Harness Racing. In this case the race was televised in both New Zealand and Australia, and the incident clearly would have been detrimental to Harness Racing.

[17] We are satisfied that the only appropriate penalty in this case is a suspension of Mr Higgs’ Open Horseman’s Licence.

Decision on Penalty:

[18] There have been arguments in cases dealing with “speed duels” as to whether one party can be seen as less culpable than the other. There is no consensus on this matter, and in the present case we find that both parties were equally culpable.

[19] Our decision is, in relation to the charge under Rule 869(3)(g), that Mr Higgs’ Open Horseman’s licence be suspended for a period of 12 weeks. This suspension is to commence after the completion of racing on 24 October 2011 and end after the completion of racing on 16 January 2012.

Submissions re “dangerous” charge:

[20] Mr Allison made submissions that in this case it was an aggravating feature that the breach took placed after the race had finished, and that Mr Higgs took out his frustration on the race track which is totally unacceptable. It was also submitted that Mr Higgs actions put Mr D and his horse in danger, and also put himself (Mr Higgs) and his horse in danger.

[21] The only other case involving dangerous driving that Mr Allison was aware of was HRNZ v. K (2001) where Mr K had improved on the inside of horses when there were fallen horses on the track. Mr K had received a two months suspension in that case, and he had 119 drives for the previous season. We are not aware of any other cases involving dangerous driving.

[22] Mr Allison sought a cumulative 3 month suspension for this breach of the Rules.

[23] Mr Higgs made submissions that in this case the horses were travelling at about 2 – 5 kmph, whereas in a race they would have been travelling at about 50 kmph. Mr Higgs also said that contact between a horse or cart is quite normal during a race, and not a breach of the Rules. In this case there was no contact.

[24] Mr Higgs also emphasised that Mr D had been vigilant at the time of this incident, and that there was no contact or danger as a result. Mr Higgs also said that his horse had overreacted when he made the turn, and that this had made the incident look worse than it was.

[25] Mr Higgs submitted that this breach of the Rules should be dealt with by way of a fine.

Reasons re Decision on Penalty:

[26] The current Penalty Guide makes no recommendation of a starting point for a breach of this Rule. The previous Penalty Guide recommended, in these circumstances, a starting point of a fine of $1,000-00 and/or a 4 weeks suspension, In the ‘K’ case referred to above a two months suspension was imposed, but we note here that the circumstances of that case were substantially more serious than in this case.

[27] We are satisfied that the circumstances of this breach are at the lower end of the scale of seriousness. The horses were travelling very slowly at the time, and although Mr Higgs’ actions were deliberate, the potential danger to horses and drivers was averted by Mr Douglas taking evasive action.

[28] In the absence of any guidance from the Penalty Guide, we find that in this case a starting point for a breach of this Rule is a 2 months suspension and/or a fine of $1000-00. We also find that the breach was at the lower end of the scale, and using the ‘K’ penalty as a guide we have decided that a one month suspension will be imposed. This suspension will be cumulative to the suspension imposed on the “diminishing” charge.

Decision on Penalty:

[29] Our decision is, in relation to the charge under Rule 869(3)(d), that Mr Higgs’ Open Horseman’s licence be suspended for a period of 4 weeks. This suspension is to commence after the completion of racing on 16 January 2012 and end after the completion of racing on 13 February.
[30] To summarise the two penalties imposed on Mr Higgs, his suspension is to run from 25 October 2011 until 13 February 2012, both dates inclusive.

Costs:

[31] As these matters were adjourned for a non-race day hearing by the JCA there will be no order for costs to either party.

________________             __________________
J. M. Phelan                    N. D. Skelt
Chairman                       Committee Member

sumissionsforpenalty:

reasonsforpenalty:

penalty:

Refer above.

hearing_type: Non-race day

Rules: 869(3)(d) and (g)

Informant: CJ Allison - Stipendiary Steward

JockeysandTrainer:

Otherperson:

PersonPresent: Mr MR Davidsion - Registrar, Mr JV Douglas - Witness, Mr JW Cox - Witness, Mr KN Larsen - Witness

Respondent: Mr WE Higgs - Open Horseman

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: