Appeal T Williams v RIU – Decision dated 23 December 2015 – Chair, Prof G Hall
ID: JCA13200
Decision:
BEFORE AN APPEALS TRIBUNAL OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN MR TIM WILLIAMS, Open Horseman
Appellant
AND RACING INTEGRITY UNIT (RIU)
Respondent
Information: A7436
Appeals Tribunal: Prof G Hall, Chairman - Mr A Dooley, Member
Appearing: Mr R Lawson, lay advocate for the Appellant - Mr S Mulcay for the Respondent
_______________________________________________________________________________________________
DECISION OF APPEALS TRIBUNAL
_______________________________________________________________________________________________
[1] The Appellant, Mr Williams, has filed a Notice of Appeal against the penalty imposed by a raceday Judicial Committee on 11 December last with respect to his breach of r 868(2) in race 10 at the Auckland Trotting Club’s meeting.
[2] A telephone conference was held on 17 December during which the Tribunal indicated it was willing to hear the appeal against penalty at Alexandra Park on 23 December. However, both the appellant and the respondent stated that they believed the matter could be heard on the papers.
[3] After hearing from the parties and having considered the grounds of the appeal, the Tribunal was satisfied that the matter could be determined on the papers. We have now received written submissions.
[4] The raceday Judicial Committee suspended the appellant from driving from the end of the meeting on 11 December up to and including 31 December.
[5] That Committee does not identify a starting point for its calculation of the appellant’s period of suspension. The number of drives encompassed by the period of suspension is not specified, however, the Committee assessed this to be less than 22 drives (11 in the North Island and a lesser but unspecified number in the South).
[6] A complicating factor is that there is no final determination of the average number of drives Mr Williams has per meeting. Mr Mulcay suggests the figure to be 5, but the Committee appears to view 4 drives as being a more accurate figure.
[7] The Judicial Committee correctly identified the need to uphold the integrity of Harness Racing, stating:
This type of charge, if upheld, affects the Integrity of Harness Racing and the Committee is very conscious that this Integrity must be preserved. Racing in general relies on betting turnover and therefore it is important to maintain the confidence of the Betting Public. HAVE FAITH IN ME was a very short priced favourite in this Race and by not finishing in the Dividend bearing places at all there would have been a substantial amount of money lost on the horse.
Appellant’s case
[8] The crux of the appellant’s case is the fact that he believes the Judicial Committee has taken a starting point of 50 drives or $2500, which is the starting point for a breach in a major race. A “major race” is defined in the JCA Penalty Guide as a race with a stake of $40000 or more. The race in question had a stake of approximately $28000.
[9] Mr Lawson submitted this error had led the Committee to impose a manifestly excessive penalty.
[10] Both Mr Mulcay and Mr Lawson agreed that it was not necessary for this Tribunal to view videos of the incident in the presence of the parties, with Mr Lawson stating that Mr Williams now accepted he should have taken the opportunity, which had clearly presented itself, to shift HAVE FAITH IN ME away from the pegs between the 1400 and 1100 metres mark. We have regard of course to the Judicial Committee’s analysis and assessment of the gravity of the breach.
[11] Mr Lawson described the appellant’s actions as a misjudgement. He also submitted the fact that the appellant was driving the hot favourite was irrelevant. We comment on both these matters later in this decision.
[12] The appellant assessed the number of meetings encompassed by the suspension and concludes that this is 9, and a minimum of 25 to 30 drives. In appendix A, filed with his submissions, he identified the potential stake money involved during this period and emphasised the significance of the suspension including 2 Premier days and 1 super-feature day.
[13] Mr Lawson’s final submission is that the penalty should be 5 days’ suspension, together with a modest fine if the Tribunal thought that necessary.
Respondent’s case
[14] The respondent first questioned whether Mr Lawson was correct in his belief that the Committee adopted the starting point applicable to a major race, stating: “If the Committee were under the impression that this was a “major race” then it certainly isn’t reflected by the penalty they settled on of what they believed to be less than that recommended by myself.”
[15] With respect to this matter, we observe that the RIU’s submission to the Judicial Committee as to penalty was that this charge could be dealt with by a suspension for 20-25 drives which they equated to 5 race days on the basis that Mr Williams had 5 drives per race day. The submission was also made that this was a matter that could be dealt with by way of a suspension and a fine, although that was not preferable.
[16] With respect to the issue of the significance of the fact that HAVE FAITH IN ME was the favourite, Mr Mulcay emphasised that favoured runners carry the weight of public expectation and that the market on a race gives a strong indication as to the ability and form of the runners concerned. He acknowledged that “it would be fair to say that drivers of favoured runners do come under closer scrutiny by Stewards in relation to tactics adopted during a race as opposed to drivers of horses that are long in the market but the latter are also likely to face action being taken against them where deemed appropriate.”
[17] The respondent stated that it was widely recognised that the need to maintain public confidence in the integrity of the Harness Racing Industry was paramount and was a significant factor in considering the penalty for serious offences.
[18] Mr Mulcay assessed the number of drives that the respondent would be likely to have or have had at the meetings encompassed by the suspension imposed by the Committee. He concluded it would involve approximately 22 drives, albeit approximately 12 on Premier nights. He submitted that this was “in line with what Stewards sought on the night and would adequately reflect the degree of culpability involved and the Group 3 status of the race.”
[19] The nub of the respondent’s case is best summarised by the submission that the Committee had given the matter of penalty “all due consideration” and that the penalty handed down was “reasonable given the probable number of drives involved”.
Decision
[20] We first make reference to r 1114(2) which states:
In imposing a penalty or affecting any remedy provided in these Rules the Judicial Committee may have regard to such matters as they consider appropriate including:
(a) the status of race;
(b) the stake payable in respect of the race;
(c) any consequential effects upon any person or horse as a result of breach of the Rule;
(d) the need to maintain integrity and public confidence in Harness Racing.
[21] With reference to the gravity of the breach, Mr Lawson describes the appellant’s actions as a misjudgement and this is correct. But some misjudgements are the result of a decision made in a split second; this misjudgement continued, as the respondent has emphasised and the appellant accepted, for some 300 metres. This was plenty of time for Mr Williams to reconsider whether his decision not to shift away from the pegs was wise. We treat the breach as being mid-range and do not adjust for this factor.
[22] The penalty imposed has to hold the appellant responsible for his actions. It must denounce — protection of the image of the Harness Racing industry demands no less — and it must deter the respondent and others who might be similarly like-minded (specific and general deterrence). With that in mind, and in light of the fact the Judicial Committee does not identify the starting point it has adopted (although we see little evidence supporting Mr Lawson’s contention that it was that for a “major race”) we turn to consider the JCA Penalty Guide.
[23] The Guide recommends a starting point of 15 drives or $750 for what we will describe for want of a better term as a “run of the mill race”. It is readily apparent there is a large gulf between the 2 starting points identified in the Guide (50 drives or $2500 v 15 drives or $750).
[24] The race in question was a Group 3 with a stake of approximately $28000. It is not a “major race”, as we have noted above (at [8]). However, neither in our opinion is it a “run of the mill race”. It is somewhere in between. We believe a starting point of 30 drives or $1500 is appropriate in this instance. This is simply in recognition of the status of the race and the stake payable in respect of the race (r 1114(2)(a) and (b)).
[25] Mr Lawson has submitted the fact that the appellant was driving the hot favourite is irrelevant. Every horse, of course, must be driven within the rules, and in this instance a driver must take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place. Mr Mulcay emphasises this point in his submission (see [16]), but he has also acknowledged, realistically, we believe, that drivers of favoured runners do come under closer scrutiny by Stewards in relation to tactics adopted during a race.
[26] The fact that the horse in question was a very well-performed horse and the punters’ elect is relevant, we believe, to the imposition of penalty (r 1114(2)(c)). The integrity of Harness Racing is questioned by any breach of this rule; the more so when the drive of the horse in question will be the subject of scrutiny by an army of investors. Anticipation and legitimate expectation are understandably heightened. We thus view this as an aggravating factor and raise our starting point to 35 drives or $1750.
[27] We then factor in any mitigating circumstances. Mr Williams did not admit the breach so no discount is available on this score. We note he did not vigorously defend the charge. He did not cross-examine the informant’s witness, for example. In his submissions on appeal he has acknowledged his driving error. Ultimately, this is simply a neutral factor.
[28] The most significant mitigating factor is the appellant’s excellent record with respect to this rule. He is aged 27, has no previous breaches, and is a well-regarded participant in the sport of Harness Racing. We give a 7-drive or $350 discount on this account. We add that we believe Mr Lawson is correct when he says Mr Williams is “a rising star in the Harness Racing industry”. But like all horsemen and women, rising stars are to be held accountable for their actions. And we view the appellant’s submissions as being an acknowledgement of this fact. They are very measured submissions.
[29] Adopting this approach, we arrive at a penalty of 28 drives or a fine of $1400. This figure is higher than the number of drives identified by the Judicial Committee, who as we have observed at [5], appear to view the total encompassed by the penalty as being a maximum of 21, and the 25 submitted to be appropriate on the night by Mr Mulcay.
[30] We accept as accurate Mr Lawson’s calculations that when driving for the All Stars team the appellant has averaged 4 drives a meeting.
[31] We are then faced with determining the meetings at which the respondent would have had drives. As did the Judicial Committee on the night, we find this issue is fraught with difficulty. The Committee was placed in an unenviable position in that Mr Williams was unable to give them even an estimation as to the location of and the number of drives he would have in the coming weeks. This was far from satisfactory. Mr Lawson has retrospectively attempted to do this. The appellant’s assessment is that the suspension encompasses 25 to 30 drives; the respondent says 22 (2 of which are Premier days). The Committee, as we have noted, observed it was less than 22 drives. We believe this may have been a slight under-estimation on their part.
[32] We were not informed as to the number of “outside” drives the appellant has had this season or those that he was anticipating to take in the period at issue in this case. This information would have been helpful. Like the Judicial Committee we are cognisant of the need, as identified in Parkes and Johnson, not to include in the suspension days at which the licence-holder would not have driven. For this reason we are not prepared to say the penalty is 7 days’ suspension and that Mr Williams has already served (say) 5 days and to amend his period of suspension from driving up to and including 29 December, and that that would be the 7 days. This, as we have observed, would be an over-estimation of the number of days. And to be fair to the parties, neither has submitted that this is appropriate. We believe Mr Lawson’s submission that a modest fine be considered in addition to suspension is a further tacit acknowledgement of this fact.
[33] So although we have got there by a different and arguably more principled route, we find that the penalty imposed by the raceday Judicial Committee is not manifestly excessive. We thus do not accept the appellant’s submissions in this respect.
[34] The issue remains, however, of whether or not Mr Williams should be allowed to drive at the second Auckland Premier meeting (ie 31 December). We suspect this is the prime if not the sole purpose of his appeal. Having regard to the approach we have outlined and the need to uphold the integrity of Harness Racing where the breach is serious, the only means by which we would permit this is by substituting a fine for some or one of the days of the suspension, as indeed Mr Mulcay submitted, on the night, could be contemplated by the Judicial Committee.
[35] Mr Williams did not address the Committee on this matter. However, it is evident that the Committee in determining penalty was aware the last day of the penalty was a Premier day. The Committee states that it determined to deal with the matter by way of suspension; there is no reference to whether or not a fine plus suspension would be appropriate.
[36] The practice of substituting a significant fine where the last day of a suspension would be a Premier day has been adopted on occasion in Thoroughbred Racing. We are not aware that the issue has been addressed in the Harness Racing context. Thoroughbred examples are Bullard (6 November 2013, where an Appeals Tribunal reduced a suspension for careless riding to 4 days and imposed a $750 fine to allow Mr Bullard to ride on a Premier day); Bosson (28 February 2015 Auckland RC Group 3 race — careless riding — 4 days and $750 fine — 5th day involved a Group 1 ride) and Cameron (13 December 2015 Auckland RC — 5 days and a $750 fine — careless riding in a $50k Listed race – 6th day involved an iconic raceday, 26 December at Auckland RC).
[37] There are only a limited number of Premier days in a Harness season. After due reflection and having regard to these precedents from the thoroughbred code, and the fact the matter was not directly addressed by the Judicial Committee and that their assessment that a suspension to 31 December encompassed less than 22 drives whereas we believe the more accurate figure is 28 drives, we have concluded by a fine margin that a suspension encompassing 2 Premier days and 1 super-feature day is not necessary in the interests of denunciation, deterrence and, significantly in this context, accountability. In reaching this conclusion we have had regard to the fact that the consequence of the lengthy suspension at a busy time of the year, and especially one encompassing 1 Premier day, has resulted in a substantial loss of income for Mr Williams. Were this to include 2 Premier days, this loss would be multiplied and possibly quite substantially.
[38] Drawing perhaps a long bow from Mr Mulcay’s calculations in his appeal submissions and having regard to Mr Lawson’s submissions and their associated appendices, we would estimate, having had regard to the actual, and where appropriate, the proposed, runners at the meetings in question, and the appellant’s driving record, that a suspension up to and including 29 December would equate to 6 days (24 drives).
[39] We reduce Mr Williams’ period of suspension to one of driving from the end of the meeting on 11 December up to and including 29 December and, having regard to the fact that we are reducing the period of suspension in order to permit the appellant to drive at a Premier meeting where, as Mr Lawson has noted, the stakes (and thus percentages) are high and the appellant will have the opportunity to take a number of drives, we impose, in addition, a substantial fine.
[40] Determining the quantum of this fine is also a difficult exercise. Mr Lawson’s submissions made much of the appellant’s loss of potential earnings through his suspension at this time of the year. We have to have regard to the stakes on offer but need also to be fair to Mr Williams in that the sum should not be prohibitive. We are told that Mr Williams, had he not been suspended, would have had 6 drives at the Premier meeting at Auckland on 18 December. We are prepared to accept he would have a similar number of drives on 31 December. However, simply to equate this with the sum of $300 ($50 /drive) fails to give recognition to the need to balance the factors that we have identified. We have determined the sum imposed in the thoroughbred cases of $750 is an appropriate guide.
[41] We impose, in addition, a fine of $750.
[42] The RIU have not sought costs. It is just and reasonable that Mr Williams make a contribution to the costs of the JCA in addition to the filing fee.
[43] Costs are awarded to the JCA in the sum of $350.
Dated at Dunedin this 23rd day of December 2015.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 23/12/2015
Publish Date: 23/12/2015
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: 517870934170378fdeb75b553dbaa5a5
informantnumber:
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 23/12/2015
hearing_title: Appeal T Williams v RIU - Decision dated 23 December 2015 - Chair, Prof G Hall
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE AN APPEALS TRIBUNAL OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN MR TIM WILLIAMS, Open Horseman
Appellant
AND RACING INTEGRITY UNIT (RIU)
Respondent
Information: A7436
Appeals Tribunal: Prof G Hall, Chairman - Mr A Dooley, Member
Appearing: Mr R Lawson, lay advocate for the Appellant - Mr S Mulcay for the Respondent
_______________________________________________________________________________________________
DECISION OF APPEALS TRIBUNAL
_______________________________________________________________________________________________
[1] The Appellant, Mr Williams, has filed a Notice of Appeal against the penalty imposed by a raceday Judicial Committee on 11 December last with respect to his breach of r 868(2) in race 10 at the Auckland Trotting Club’s meeting.
[2] A telephone conference was held on 17 December during which the Tribunal indicated it was willing to hear the appeal against penalty at Alexandra Park on 23 December. However, both the appellant and the respondent stated that they believed the matter could be heard on the papers.
[3] After hearing from the parties and having considered the grounds of the appeal, the Tribunal was satisfied that the matter could be determined on the papers. We have now received written submissions.
[4] The raceday Judicial Committee suspended the appellant from driving from the end of the meeting on 11 December up to and including 31 December.
[5] That Committee does not identify a starting point for its calculation of the appellant’s period of suspension. The number of drives encompassed by the period of suspension is not specified, however, the Committee assessed this to be less than 22 drives (11 in the North Island and a lesser but unspecified number in the South).
[6] A complicating factor is that there is no final determination of the average number of drives Mr Williams has per meeting. Mr Mulcay suggests the figure to be 5, but the Committee appears to view 4 drives as being a more accurate figure.
[7] The Judicial Committee correctly identified the need to uphold the integrity of Harness Racing, stating:
This type of charge, if upheld, affects the Integrity of Harness Racing and the Committee is very conscious that this Integrity must be preserved. Racing in general relies on betting turnover and therefore it is important to maintain the confidence of the Betting Public. HAVE FAITH IN ME was a very short priced favourite in this Race and by not finishing in the Dividend bearing places at all there would have been a substantial amount of money lost on the horse.
Appellant’s case
[8] The crux of the appellant’s case is the fact that he believes the Judicial Committee has taken a starting point of 50 drives or $2500, which is the starting point for a breach in a major race. A “major race” is defined in the JCA Penalty Guide as a race with a stake of $40000 or more. The race in question had a stake of approximately $28000.
[9] Mr Lawson submitted this error had led the Committee to impose a manifestly excessive penalty.
[10] Both Mr Mulcay and Mr Lawson agreed that it was not necessary for this Tribunal to view videos of the incident in the presence of the parties, with Mr Lawson stating that Mr Williams now accepted he should have taken the opportunity, which had clearly presented itself, to shift HAVE FAITH IN ME away from the pegs between the 1400 and 1100 metres mark. We have regard of course to the Judicial Committee’s analysis and assessment of the gravity of the breach.
[11] Mr Lawson described the appellant’s actions as a misjudgement. He also submitted the fact that the appellant was driving the hot favourite was irrelevant. We comment on both these matters later in this decision.
[12] The appellant assessed the number of meetings encompassed by the suspension and concludes that this is 9, and a minimum of 25 to 30 drives. In appendix A, filed with his submissions, he identified the potential stake money involved during this period and emphasised the significance of the suspension including 2 Premier days and 1 super-feature day.
[13] Mr Lawson’s final submission is that the penalty should be 5 days’ suspension, together with a modest fine if the Tribunal thought that necessary.
Respondent’s case
[14] The respondent first questioned whether Mr Lawson was correct in his belief that the Committee adopted the starting point applicable to a major race, stating: “If the Committee were under the impression that this was a “major race” then it certainly isn’t reflected by the penalty they settled on of what they believed to be less than that recommended by myself.”
[15] With respect to this matter, we observe that the RIU’s submission to the Judicial Committee as to penalty was that this charge could be dealt with by a suspension for 20-25 drives which they equated to 5 race days on the basis that Mr Williams had 5 drives per race day. The submission was also made that this was a matter that could be dealt with by way of a suspension and a fine, although that was not preferable.
[16] With respect to the issue of the significance of the fact that HAVE FAITH IN ME was the favourite, Mr Mulcay emphasised that favoured runners carry the weight of public expectation and that the market on a race gives a strong indication as to the ability and form of the runners concerned. He acknowledged that “it would be fair to say that drivers of favoured runners do come under closer scrutiny by Stewards in relation to tactics adopted during a race as opposed to drivers of horses that are long in the market but the latter are also likely to face action being taken against them where deemed appropriate.”
[17] The respondent stated that it was widely recognised that the need to maintain public confidence in the integrity of the Harness Racing Industry was paramount and was a significant factor in considering the penalty for serious offences.
[18] Mr Mulcay assessed the number of drives that the respondent would be likely to have or have had at the meetings encompassed by the suspension imposed by the Committee. He concluded it would involve approximately 22 drives, albeit approximately 12 on Premier nights. He submitted that this was “in line with what Stewards sought on the night and would adequately reflect the degree of culpability involved and the Group 3 status of the race.”
[19] The nub of the respondent’s case is best summarised by the submission that the Committee had given the matter of penalty “all due consideration” and that the penalty handed down was “reasonable given the probable number of drives involved”.
Decision
[20] We first make reference to r 1114(2) which states:
In imposing a penalty or affecting any remedy provided in these Rules the Judicial Committee may have regard to such matters as they consider appropriate including:
(a) the status of race;
(b) the stake payable in respect of the race;
(c) any consequential effects upon any person or horse as a result of breach of the Rule;
(d) the need to maintain integrity and public confidence in Harness Racing.
[21] With reference to the gravity of the breach, Mr Lawson describes the appellant’s actions as a misjudgement and this is correct. But some misjudgements are the result of a decision made in a split second; this misjudgement continued, as the respondent has emphasised and the appellant accepted, for some 300 metres. This was plenty of time for Mr Williams to reconsider whether his decision not to shift away from the pegs was wise. We treat the breach as being mid-range and do not adjust for this factor.
[22] The penalty imposed has to hold the appellant responsible for his actions. It must denounce — protection of the image of the Harness Racing industry demands no less — and it must deter the respondent and others who might be similarly like-minded (specific and general deterrence). With that in mind, and in light of the fact the Judicial Committee does not identify the starting point it has adopted (although we see little evidence supporting Mr Lawson’s contention that it was that for a “major race”) we turn to consider the JCA Penalty Guide.
[23] The Guide recommends a starting point of 15 drives or $750 for what we will describe for want of a better term as a “run of the mill race”. It is readily apparent there is a large gulf between the 2 starting points identified in the Guide (50 drives or $2500 v 15 drives or $750).
[24] The race in question was a Group 3 with a stake of approximately $28000. It is not a “major race”, as we have noted above (at [8]). However, neither in our opinion is it a “run of the mill race”. It is somewhere in between. We believe a starting point of 30 drives or $1500 is appropriate in this instance. This is simply in recognition of the status of the race and the stake payable in respect of the race (r 1114(2)(a) and (b)).
[25] Mr Lawson has submitted the fact that the appellant was driving the hot favourite is irrelevant. Every horse, of course, must be driven within the rules, and in this instance a driver must take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place. Mr Mulcay emphasises this point in his submission (see [16]), but he has also acknowledged, realistically, we believe, that drivers of favoured runners do come under closer scrutiny by Stewards in relation to tactics adopted during a race.
[26] The fact that the horse in question was a very well-performed horse and the punters’ elect is relevant, we believe, to the imposition of penalty (r 1114(2)(c)). The integrity of Harness Racing is questioned by any breach of this rule; the more so when the drive of the horse in question will be the subject of scrutiny by an army of investors. Anticipation and legitimate expectation are understandably heightened. We thus view this as an aggravating factor and raise our starting point to 35 drives or $1750.
[27] We then factor in any mitigating circumstances. Mr Williams did not admit the breach so no discount is available on this score. We note he did not vigorously defend the charge. He did not cross-examine the informant’s witness, for example. In his submissions on appeal he has acknowledged his driving error. Ultimately, this is simply a neutral factor.
[28] The most significant mitigating factor is the appellant’s excellent record with respect to this rule. He is aged 27, has no previous breaches, and is a well-regarded participant in the sport of Harness Racing. We give a 7-drive or $350 discount on this account. We add that we believe Mr Lawson is correct when he says Mr Williams is “a rising star in the Harness Racing industry”. But like all horsemen and women, rising stars are to be held accountable for their actions. And we view the appellant’s submissions as being an acknowledgement of this fact. They are very measured submissions.
[29] Adopting this approach, we arrive at a penalty of 28 drives or a fine of $1400. This figure is higher than the number of drives identified by the Judicial Committee, who as we have observed at [5], appear to view the total encompassed by the penalty as being a maximum of 21, and the 25 submitted to be appropriate on the night by Mr Mulcay.
[30] We accept as accurate Mr Lawson’s calculations that when driving for the All Stars team the appellant has averaged 4 drives a meeting.
[31] We are then faced with determining the meetings at which the respondent would have had drives. As did the Judicial Committee on the night, we find this issue is fraught with difficulty. The Committee was placed in an unenviable position in that Mr Williams was unable to give them even an estimation as to the location of and the number of drives he would have in the coming weeks. This was far from satisfactory. Mr Lawson has retrospectively attempted to do this. The appellant’s assessment is that the suspension encompasses 25 to 30 drives; the respondent says 22 (2 of which are Premier days). The Committee, as we have noted, observed it was less than 22 drives. We believe this may have been a slight under-estimation on their part.
[32] We were not informed as to the number of “outside” drives the appellant has had this season or those that he was anticipating to take in the period at issue in this case. This information would have been helpful. Like the Judicial Committee we are cognisant of the need, as identified in Parkes and Johnson, not to include in the suspension days at which the licence-holder would not have driven. For this reason we are not prepared to say the penalty is 7 days’ suspension and that Mr Williams has already served (say) 5 days and to amend his period of suspension from driving up to and including 29 December, and that that would be the 7 days. This, as we have observed, would be an over-estimation of the number of days. And to be fair to the parties, neither has submitted that this is appropriate. We believe Mr Lawson’s submission that a modest fine be considered in addition to suspension is a further tacit acknowledgement of this fact.
[33] So although we have got there by a different and arguably more principled route, we find that the penalty imposed by the raceday Judicial Committee is not manifestly excessive. We thus do not accept the appellant’s submissions in this respect.
[34] The issue remains, however, of whether or not Mr Williams should be allowed to drive at the second Auckland Premier meeting (ie 31 December). We suspect this is the prime if not the sole purpose of his appeal. Having regard to the approach we have outlined and the need to uphold the integrity of Harness Racing where the breach is serious, the only means by which we would permit this is by substituting a fine for some or one of the days of the suspension, as indeed Mr Mulcay submitted, on the night, could be contemplated by the Judicial Committee.
[35] Mr Williams did not address the Committee on this matter. However, it is evident that the Committee in determining penalty was aware the last day of the penalty was a Premier day. The Committee states that it determined to deal with the matter by way of suspension; there is no reference to whether or not a fine plus suspension would be appropriate.
[36] The practice of substituting a significant fine where the last day of a suspension would be a Premier day has been adopted on occasion in Thoroughbred Racing. We are not aware that the issue has been addressed in the Harness Racing context. Thoroughbred examples are Bullard (6 November 2013, where an Appeals Tribunal reduced a suspension for careless riding to 4 days and imposed a $750 fine to allow Mr Bullard to ride on a Premier day); Bosson (28 February 2015 Auckland RC Group 3 race — careless riding — 4 days and $750 fine — 5th day involved a Group 1 ride) and Cameron (13 December 2015 Auckland RC — 5 days and a $750 fine — careless riding in a $50k Listed race – 6th day involved an iconic raceday, 26 December at Auckland RC).
[37] There are only a limited number of Premier days in a Harness season. After due reflection and having regard to these precedents from the thoroughbred code, and the fact the matter was not directly addressed by the Judicial Committee and that their assessment that a suspension to 31 December encompassed less than 22 drives whereas we believe the more accurate figure is 28 drives, we have concluded by a fine margin that a suspension encompassing 2 Premier days and 1 super-feature day is not necessary in the interests of denunciation, deterrence and, significantly in this context, accountability. In reaching this conclusion we have had regard to the fact that the consequence of the lengthy suspension at a busy time of the year, and especially one encompassing 1 Premier day, has resulted in a substantial loss of income for Mr Williams. Were this to include 2 Premier days, this loss would be multiplied and possibly quite substantially.
[38] Drawing perhaps a long bow from Mr Mulcay’s calculations in his appeal submissions and having regard to Mr Lawson’s submissions and their associated appendices, we would estimate, having had regard to the actual, and where appropriate, the proposed, runners at the meetings in question, and the appellant’s driving record, that a suspension up to and including 29 December would equate to 6 days (24 drives).
[39] We reduce Mr Williams’ period of suspension to one of driving from the end of the meeting on 11 December up to and including 29 December and, having regard to the fact that we are reducing the period of suspension in order to permit the appellant to drive at a Premier meeting where, as Mr Lawson has noted, the stakes (and thus percentages) are high and the appellant will have the opportunity to take a number of drives, we impose, in addition, a substantial fine.
[40] Determining the quantum of this fine is also a difficult exercise. Mr Lawson’s submissions made much of the appellant’s loss of potential earnings through his suspension at this time of the year. We have to have regard to the stakes on offer but need also to be fair to Mr Williams in that the sum should not be prohibitive. We are told that Mr Williams, had he not been suspended, would have had 6 drives at the Premier meeting at Auckland on 18 December. We are prepared to accept he would have a similar number of drives on 31 December. However, simply to equate this with the sum of $300 ($50 /drive) fails to give recognition to the need to balance the factors that we have identified. We have determined the sum imposed in the thoroughbred cases of $750 is an appropriate guide.
[41] We impose, in addition, a fine of $750.
[42] The RIU have not sought costs. It is just and reasonable that Mr Williams make a contribution to the costs of the JCA in addition to the filing fee.
[43] Costs are awarded to the JCA in the sum of $350.
Dated at Dunedin this 23rd day of December 2015.
Geoff Hall, Chairman
sumissionsforpenalty:
reasonsforpenalty:
penalty:
hearing_type: Non-race day
Rules:
Informant:
JockeysandTrainer:
Otherperson:
PersonPresent:
Respondent:
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: