Appeal C A Gately v RIU – Reserved Decision of Appeals Tribunal dated 4 February 2019 – Chair, Mr G Jones
ID: JCA13550
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 Thoroughbred Racing
BETWEEN
Mr C A GATELY
Licensed Track Work Rider
Appellant
AND THE RACING INTEGRITY UNIT
Respondent
APPEALS TRIBUNAL: Mr G Jones (Chairman), Mr N McCutcheon (Member)
APPEARING: Mr Dollimore (Counsel for the Appellant), Mr O Westerlund (RIU), for the respondent
RESERVED DECISION OF APPEALS TRIBUNAL DATED 4 FEBRUARY 2019
Introduction
[1] This is the Appeals Tribunal reserved written decision of the appeal against the sentence imposed on Mr Gately (“the Appellant”) following the penalty hearing at the Te Rapa racecourse on 6 December 2018.
[2] By way of guilty plea, the Appellant admitted a charge of misconduct pursuant to Rule 340 of the New Zealand Thoroughbred Rules (NZTR) of Racing.
[3] As the Appellant admitted the breach, the charge against him was deemed proved (R 915 (1)(d)) refers.
[4] In accordance with the available sentencing options contained within Rule 803(1), the Judicial Committee (“the Committee”) issued its reserved written decision on 17 December 2018 and imposed a 4 month disqualification, commencing on Monday 24 December 2018, and concluding on 24 April 2019.
[5] The Appellant filed a Notice of Appeal, which is dated 28 December 2018.
[6] At the hearing on 6 December 2018 the Appellant was represented by Mr P Cornege. His counsel for this appeal hearing was Mr W Dollimore, (hereafter referred to as “counsel for the Appellant”)
[7] At a teleconference convened at 1.05 pm on Monday 14 January 2019 a number of issues were raised and resolved concerning the conduct of this appeal. These included; (a) confirmation of the scope of the appeal; (b) that the summary of facts was confirmed and agreed; and (c) it was also confirmed that the various relevant documents have been disclosed except for the hearing transcript. This was subsequently documented and made available to all parties prior to this appeal hearing.
Scope of appeal
[8] The grounds and scope of this appeal are:
a) That the penalty was manifestly excessive; and / or;
b) That the penalty was wrong in principle; and
c) That the JCA assumed the role of prosecutor (subsequently rescinded)
[9] During the teleconference referred to above [7] the Appellant agreed to submit written submissions in support of his appeal and the respondent also agreed to provide written submissions in response. These were both made available to the tribunal prior to the hearing.
The Rules
[10] As Mr Gately is the holder of a Track Work Riders Licence issued by NZTR he is bound by NZTR Rules. He was charged with breaching Rule 340 which relates to misconduct. Rule 803(1) provides the range of penalties that may be imposed for breaching Rule 340.
[11] Rule 340 (misconduct) provides that:
A Licensed Person, Owner, lessee, Racing Manager, Official or other person bound by these Rules must not misconduct himself in any matter relating to the conduct of Races or racing.
[12] The charging document – (Information No A8469) alleged that:
On Wednesday the 17th October 2018 at the Racing Te Aroha race meeting, did misconduct himself when he assaulted Licenced Class B –Track Work Rider <Name Suppressed> in breach of Rule 340 of the New Zealand Rules of Thoroughbred Racing and is therefore subject to the penalty or penalties which may be imposed pursuant to Rule 803(1) of the said Rules.
[13] Rule 803(1) – (the penalty provisions) provide that:
”A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere in these Rules shall be liable to:
(a) be disqualified for a period not exceeding 12 months; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or
(c) a fine not exceeding $20,000.00.”
Appeals procedure
[14] Rule 1001 (3) (b) provides than an appeal may be against:
(i) the findings of the Judicial Committee;
(ii) if applicable, the order for or the penalty ordered, or both; and/or
(iii) if applicable, the order or the amount of the costs ordered to be paid, or both.
[15] Rule 1005 empowers the Appeals Tribunal:
(1) To conduct the hearing of an appeal in such manner as it thinks fit”…….. and
(2) At (3) provides that All appeals shall, except when and to the extent that the Appeals Tribunal otherwise directs, be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.
[16] As this is an appeal against penalty Rule 1007 (2) applies. This Rule provides that in the case of an appeal against penalty the Appeals Tribunal may:
(a) confirm the penalty and dismiss the appeal;
(b) if the penalty (either in whole or in part) is one which the Tribunal imposing it had no jurisdiction to impose, or is one which is inadequate or inappropriate or manifestly excessive, either:
(i) quash the penalty and impose such other penalty permitted by these Rules (whether more or less severe) in substitution therefore as the Appeals Tribunal considers ought to have been imposed or deal with the Appellant in any other way that such Tribunal could have dealt with him or it on finding the information or charge proved;
(ii) quash any invalid part of the penalty that is separable from the residue; or
(iii) vary, within the limits imposed by these Rules, the penalty or any part of it or any condition imposed in it;
Comment
[17] Although the Rules do provide some guidance in terms of an Appeals Tribunal’s range of resolution options; they essentially afford some discretion for Tribunals to establish their approach in terms of the conduct of the hearing. This very point has been highlighted in a number of Appeals Tribunal (precedent) decisions. This Tribunal has taken cognisance of the approach adopted by the Tribunal in the appeal decision RIU v Breslin (2017) (Appeal Tribunal decision RIU v Breslin (2017) at para [4] and [5]) where it emphasised at paragraphs [4] and [5] that:
[4] The Rules are silent as to the applicable approach on appeal. Were the appeal one against sentence in the ordinary courts, an appeal court should only intervene if:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
In any other case, the court must dismiss the appeal (Criminal Procedure Act 2011, s 250).
[5] On an appeal against sentence by the prosecutor, the court is concerned with whether the sentence imposed can be said to be manifestly inadequate. This is to be assessed by reference to the maximum sentence available for the particular offence, a consideration of comparable sentences, and the totality of the offending and the offender’s culpability: R v Wilson [2004] 3 NZLR 606 (CA) at [41]. The court will be reluctant to interfere in borderline cases; it must be clear that the sentence was manifestly inadequate or based on a wrong principle.
[18] We note that the appeal referred to above was lodged by the prosecution (the informant) which is in contrast to this appeal. However, we believe that the Appeals Tribunal commentary is still nonetheless helpful to the extent that it provides this Tribunal with a useful decision making framework for us to consider and reference in terms of our approach.
[19] Given that this is a rehearing this Tribunal is aware of our responsibilities to make a fresh assessment of the facts, the evidence and the submissions and then form our own conclusions as to an appropriate penalty. In doing so we must also have due regard for the decision of the Judicial Committee; particularly their decision making criteria in determining and arriving at the penalty they imposed.
Standard of Proof
[20] It is well settled the standard of proof to be applied by tribunals of this nature is (on) the balance of probabilities, which simply means more probable than not.
[21] The decision of the Supreme Court Z v Dental Complaints Assessment Committee SC 22/2007 [2008] NZSC 55 is the leading authority. In the joint judgment of Blanchard, Tipping and McGrath JJ it determined that the standard of proof to be applied by the Tribunal when hearing the disciplinary charges is the civil standard of balance of probabilities as opposed to the criminal standard of beyond reasonable doubt.
[22] And at paragraph [97] it was stated
“…..the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure that appropriate standards of conduct are maintained in the occupation concerned”.
[23] In thoroughbred racing, the standard of proof in judicial proceedings is said to be met when the Judicial Committee is satisfied, on the basis of credible evidence, that the charge has been proved.
Background facts
[24] The summary of facts, which was prepared and submitted by the RIU, has been agreed. This, as well as submissions from both parties were extensively canvassed in the Committee’s reserved decision. We do not propose to repeat in full the summary of facts.
The incident (salient points summarised)
[25] The incident that gave rise to the charge against the Appellant occurred at the Te Aroha Racecourse on Wednesday the 17th October 2018. It involved Mr Gately and a female staff member (“the victim”) employed by Mr Tony Pike’s racing stable.
[26] The Pike racing stables had five horses engaged to race at Te Aroha race meeting. The horses concerned were a colt, two geldings and two fillies.
[27] The stable staff, which included Mr Gately and the victim, was responsible for the care of the horses and their safe transportation to and from the races.
[28] Mr Gately, who was the more experienced stable hand, was responsible for leading the animals onto the truck and for driving them back to the stables safely.
[29] At about 3.20pm Mr Gately issued instructions that the horses can be loaded and stressed that the colt and a gelding be loaded first as one of them could become fractious and difficult to handle. The two fillies were to be loaded next with the other gelding last.
[30] The victim assisted in loading the horses onto the truck and she loaded the horses in contradiction to Mr Gately’s instructions. She loaded the colt and a gelding first and was about to load the second gelding on when Gately challenged her failure to heed his instructions. The fractious gelding which was being led onto the truck started to play up.
[31] At that time, Mr Gately became quite angry and directed obscene language at her.’ An argument ensued and voices were raised. Abusive and obscene language was used by both parties during the argument.
[32] Mr Gately then grabbed the victim by the collar and pushed her against the side of the truck. He clenched his fist and was about to punch her. She escaped his grip and ran to the swabbing officials nearby and reported the incident.
[33] As a result of the assault she was frightened and upset.
[34] Mr Gately was spoken to on the 21st October 2018. He freely admitted his involvement in the incident and in explanation stated that he was angry because the victim did not follow his instructions regarding the loading of the horses in the order that he had instructed. He further stated that the victim does not seem to take instructions and orders kindly and probably thought that she knew better. He has had previous words with her regarding her behaviour.
[35] Mr Gately was apologetic for his actions and regretted that the incident ever occurred. He indicated that he would apologise to the victim and to his employer Mr Pike.
[36] The victim did not suffer any significant injury and did not seek medical treatment.
[37] Mr Gately has been in the racing industry for 30 years in New Zealand and has no previous Rule breaches for this type of occurrence.
[38] He has had a previous Rule breach for a drug related matter, namely cannabis.
Penalty – written submissions for the Appellant
[39] Prior to this hearing Mr Dollimore provided the Tribunal with an extensive synopsis of the Appellant’s submission. Appellate submissions are set out below:
Introduction
[40] The Appellant, Mr Carl Gately, is a Class B Track Work Rider pursuant to the Rules of the New Zealand Rules of Thoroughbred Racing.
[41] The Appellant pleaded guilty to Information number A8469, namely on 17 October 2018 at Racing Te Aroha race meeting, did misconduct himself when he assaulted Licensed Class B Track Work Rider in breach of Rule 340 of the New Zealand Rules of Thoroughbred Racing and is therefore subject to the penalty or penalties which may be imposed pursuant to Rule 8031 of said Rules.
[42] The offence creating penalty provision is contained in Rule 8031. The penalty provisions are repeated elsewhere in this decision and are not required to be repeated (our words).
[43] The Appellant pleaded guilty at the first opportunity and cooperated with the authorities. An agreed Summary of Facts was filed and read to the Judicial Control Authority.
[44] The decision of the Judicial Control Authority was to impose an end disqualification sentence for a total period of four months. The period of disqualification commenced from 24 December 2018.
[45] The Appellant appeals against that sentence. The Appellant contends that:
(a) The penalty was excessive and/or inappropriate;
(b) The penalty was wrong in principle and that the JCA Panel assumed the role of prosecutor. [This ground of the appeal was subsequently rescinded].
The facts
[46] The Appellant has admitted the breach of the Rules in relation to the incident at the Racing Te Aroha meeting on 17 October 2018 at the first opportunity. There was cooperation with the Racing Integrity Unit.
[47] The background offending is contained in the Summary of Facts which has been presented to the Judicial Control Authority at the first penalty hearing.
[48] The penalties which may be imposed are fully detailed in the Charge Rule and provisions documents which have been previously filed.
[49] The Informant, the Racing Integrity Unit, at the Judicial Control Authority hearing presented helpful and accurate penalty submissions.
[50] The Appellant's position at the penalty hearing was that a fine is the appropriate penalty, albeit at a lower level than what the Informant was seeking. The Informant submitted that a fine in the range of $2,000 would be appropriate.
[51] The Appellant contends that a fine in the range of $500 to $750 would be the appropriate penalty in this case. This was the position of counsel for the Appellant at the penalty hearing.
[52] The Racing Integrity Unit correctly identified the aggravating features and acknowledged the mitigating features.
[53] The case precedents filed in support of the penalty submissions included the following cases:
a) RIU v D Crozier – misconduct himself by acting in a disorderly manner. Total fine imposed of $2,000.
b) RIU v Peter Rudkin – misconduct himself by acting in a disorderly manner. Total fine imposed of $2,000.
c) RIU v McNab – misconduct, assaulting another jockey. One month disqualification.
d) RIU v T Cowan – misconduct, involved in a physical altercation with a security guard. Total fine imposed of $450.
e) RIU v V.
[54] In counsel's submission the five cases submitted in support of the penalty submissions are apposite and are relevant to the present offending. Counsel contends that in fact the offending is less serious than the cases cited by the Racing Integrity Unit.
[55] Counsel refers to the appeal decision of D Dwyer, an appeal decision of the Judicial Control Authority. That case involved Mr Dwyer, a licensed trainer, assaulting the Plating Inspector. He was found guilty following a defended hearing before the Judicial Control Authority and was found guilty of breaching Rule 304, namely that a licensed trainer did assault a Plating Inspector. That person was officiating at the meeting as an official.
[56] On appeal it was noted that the defendant defended the charge. The evidence was that Mr Dwyer assaulted the race day official by elbowing him with some force into his kidney region. It was also argued that the original fine of $750 imposed at the first hearing by the Judicial Control Authority was excessive. It was determined that the actions of a Licensed Trainer barging in or sideswiping a race day official who is going about his legitimate business is unacceptable and was a serious offence.
[57] The Chairman, Murray McKechnie, an experienced Appeal Judge, reviewed the penalty and found that the Judicial Control Authority's first penalty of a fine of $750 was excessive. The starting point advanced was a fine of $1,000. The Chairman found that a fine of $400 would have been appropriate. It is respectfully submitted that the Dwyer case is more serious because it involves a serious assault against a race day official at a race meeting. The level of violence was higher. The defendant defended the charge. The decision of Murray McKechnie, Chairman, was that the finding of misconduct was upheld. The fine of $750 was substituted with a fine of $400. There was no Order as to costs.
[58] The penalty submissions advanced by the Racing Integrity Unit correctly identified the principles of sentencing:
"Penalties are designed to punish the offender for his wrongdoing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence but the offender must be met with punishment.
In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.
A penalty should also reflect the disapproval of the JCA for the type of offending in question.
The need to rehabilitate the offender should be taken into account."
[59] Those principles were correctly identified by the Racing Integrity Unit.
Mitigating Features
[60] Counsel for the Appellant respectfully refers to the following:
(a) That the Appellant pleaded guilty at the first opportunity, cooperated with the authorities.
(b) That he fully cooperated throughout the process.
(c) That he was remorseful for his actions and regretted the incident had ever occurred.
(d) He has offered his apologies to the fellow worker and to his employer, Mr Pike.
[61] Counsel respectfully submits that the least restrictive outcome was a fine. Counsel, at the first hearing, submitted a fine in the range of $1,000.
[62] This was a very short and brief incident. The Appellant on the day in question was the truck driver. It has to be recorded that he wasn't a Foreman. The incident was said to be brief. The incident happened on the back of a truck. It did not take place in a public area.
[63] The Appellant sought to arrange a meeting to apologise.
[64] The whole issue arose because the victim was not following the instructions that the Appellant had issued regarding which horses were to be loaded onto the truck first. The Appellant perceived that potentially there was risk to the horses and his co-worker due to the order that she was placing the horse on the truck. The incident happened very quickly. There was an exchange of abusive language both ways for a matter of seconds in the range of 20 seconds at most. The purpose of pushing the victim by the collar was to move the victim out of the way so he could take control of a horse that was being led and then take it off the truck, so that he could put the horse on the truck in the correct, safe order.
[65] It is submitted that the Appellant's actions were not to grab, then shove against the wall as the way intended as an attack or an assault. It was to move her out of the way for the purposes of taking control of the relevant horses. At the time the horses were fractious and not all the horses were going to the same location and that's why there had been a sequenced loading direction. Put briefly, he had simply pushed her out of the way and taken the horses off the truck.
[66] Her perception may have been that he was clenching his fist and about to punch her, but counsel for the Appellant submits that the Appellant had a brace on.
[67] The Appellant refers the Committee to the fact that the Appellant was suspended from his duties at Pike Stables as soon as he arrived back to the stables and continued to be suspended.
[68] It is noted at paragraph 31 of the decision of the Judicial Control Authority that Mr Westerlund, who is the prosecutor, with full knowledge of the matter, maintained "I still believe that the circumstances in Crozier and Rudkin were in parallel with the Gately matter". That is a submission counsel for the Appellant agrees with.
[69] Counsel for the Appellant submits that this incident was at the lower end of the scale. It is at a very minor level. It is respectfully submitted that this appeal Committee needs to focus on what had occurred and then compare that with the circumstances of the other cases. In the Crozier and Rudkin cases it is contended that there was a physical fight and it was plainly more serious than the current matter.
[70] Counsel for the Appellant emphasises the very brief length of the incident.
[71] The Appellant has more than 30 years in the industry. It is acknowledged that he should have dealt with the matter better.
[72] Counsel submits that the victim impact statement is understandable but most of the concerns seem to relate to how others reacted to the incident which is nothing to do with the Appellant's responsibility.
[73] The Appellant has been apologetic and remorseful. He was willing to apologise to the victim. He would have been keen to attend any mediation or restorative process. It is respectfully submitted that the Appellant has shown genuine remorse. The Committee can be assured that this mistake will not happen again.
[74] The Judicial Control Authority at paragraph 46 sought to introduce cases which obviously had been obtained before the hearing started. The Committee referred to three cases – B, Thornton and Bothamley. Those cases were raised by the Judicial Control Authority. Unfortunately these cases were not circulated and provided to counsel or the Informant. It follows that unfortunately counsel were not able to distinguish three cases that the Committee had obtained prior to the hearing. That is unfortunate because having now read the three cases relied upon and referred to in paragraph 46, they are materially different. The facts are distinguishable. Counsel now for the first time wishes to illustrate that point. The opportunity to read these cases was not carried out.
[75] The Committee referred to the case of B which is a far more serious case with a punch to the owner's head in the context of a race meeting.
[76] The case of T D Thornton has been relied upon. The case is plainly more serious than the present case. Jockey Thornton was charged with a breach of Rule 304, the misconduct charge. The senior Licensed Jockey seriously assaulted an apprentice jockey, Corey Parish. Of note, Ms Thornton denied the allegations and the matter proceeded to a defended hearing where witnesses were called. The defendant physically grabbed Mr Parish with both hands in the region of his neck, swearing and abusing him as she forced him back into the Males' Jockey Room, up against a locker. There was no retaliation. An independent witness observed the defendant come to the Males' Jockey Room, grabbed the apprentice, Corey Parish, around the neck area, using obscenities directed at Parish and saw her force Parish inside the jockey room up against the locker. An independent witness also observed a punch being thrown. The JCA found the charge proved. There was clear evidence there was an unprovoked assault by the defendant upon an apprentice jockey at the Males' Jockey Room. There was abuse and obscene language.
[77] Counsel observes that the factual assault was far more serious. The charge was defended. There was no remorse shown. Of significance, the defendant had a previous misconduct in 1992 for which the defendant received three months' disqualification. The end sentence was two months' disqualification. That decision was not appealed. The Thornton decision is plainly and materially more serious.
[78] Counsel refers to the decision of Daniel Bothamley. This case is plainly more serious than the present case. The defendant pleaded not guilty initially and later changed his plea to guilty. This case involved a serious assault where there was an attack to the head. Mr Cameron George, representing the Informant, sought a four to six week disqualification. After balancing all factors he was disqualified for one month.
[79] Again, plainly the facts are far more serious than the present case. At paragraph 63 of the Judicial Control Authority's decision, they refer to the decision of Thornton. It is not acknowledged that the allegations were more serious than the present case. It is not acknowledged or appreciated that the defendant denied the charge and a defended hearing proceeding. There was no cooperation with the authorities. The JCA did not appreciate plainly that she had a previous serious, relevant aggravating feature in that she had been disqualified for three months for serious offending.
[80] It is respectfully submitted that the Judicial Control Authority failed to carefully consider the relevant authorities. Counsel for the Appellant contends that a fine was the least restrictive outcome and appropriate.
[81] At paragraph [67] of the decision, the Judicial Control Authority (the Committee) has arbitrarily determined a starting point of six months' disqualification as the appropriate starting point. Such a starting point is not supported by any of the decisions that the Chairman referred to.
Conclusion
[82] It is respectfully submitted that the sentence of four months' disqualification is excessive and wrong. The least restrictive outcome in counsel's submission was a fine in the range of $1,000.
[83] It is noteworthy that the Informant/Investigator, who was well aware of all the circumstances of the case, fairly submitted that a fine was appropriate.
[84] The appeal should be allowed and the Disqualification Order should be substituted with a fine.
Penalty –written submissions for the respondent
[85] The respondent (RIU) filed the following sub
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 04/02/2019
Publish Date: 04/02/2019
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: 4453c5d41aba5ca047e1206dcbaea2bb
informantnumber:
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 04/02/2019
hearing_title: Appeal C A Gately v RIU - Reserved Decision of Appeals Tribunal dated 4 February 2019 - Chair, Mr G Jones
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 Thoroughbred Racing
BETWEEN
Mr C A GATELY
Licensed Track Work Rider
Appellant
AND THE RACING INTEGRITY UNIT
Respondent
APPEALS TRIBUNAL: Mr G Jones (Chairman), Mr N McCutcheon (Member)
APPEARING: Mr Dollimore (Counsel for the Appellant), Mr O Westerlund (RIU), for the respondent
RESERVED DECISION OF APPEALS TRIBUNAL DATED 4 FEBRUARY 2019
Introduction
[1] This is the Appeals Tribunal reserved written decision of the appeal against the sentence imposed on Mr Gately (“the Appellant”) following the penalty hearing at the Te Rapa racecourse on 6 December 2018.
[2] By way of guilty plea, the Appellant admitted a charge of misconduct pursuant to Rule 340 of the New Zealand Thoroughbred Rules (NZTR) of Racing.
[3] As the Appellant admitted the breach, the charge against him was deemed proved (R 915 (1)(d)) refers.
[4] In accordance with the available sentencing options contained within Rule 803(1), the Judicial Committee (“the Committee”) issued its reserved written decision on 17 December 2018 and imposed a 4 month disqualification, commencing on Monday 24 December 2018, and concluding on 24 April 2019.
[5] The Appellant filed a Notice of Appeal, which is dated 28 December 2018.
[6] At the hearing on 6 December 2018 the Appellant was represented by Mr P Cornege. His counsel for this appeal hearing was Mr W Dollimore, (hereafter referred to as “counsel for the Appellant”)
[7] At a teleconference convened at 1.05 pm on Monday 14 January 2019 a number of issues were raised and resolved concerning the conduct of this appeal. These included; (a) confirmation of the scope of the appeal; (b) that the summary of facts was confirmed and agreed; and (c) it was also confirmed that the various relevant documents have been disclosed except for the hearing transcript. This was subsequently documented and made available to all parties prior to this appeal hearing.
Scope of appeal
[8] The grounds and scope of this appeal are:
a) That the penalty was manifestly excessive; and / or;
b) That the penalty was wrong in principle; and
c) That the JCA assumed the role of prosecutor (subsequently rescinded)
[9] During the teleconference referred to above [7] the Appellant agreed to submit written submissions in support of his appeal and the respondent also agreed to provide written submissions in response. These were both made available to the tribunal prior to the hearing.
The Rules
[10] As Mr Gately is the holder of a Track Work Riders Licence issued by NZTR he is bound by NZTR Rules. He was charged with breaching Rule 340 which relates to misconduct. Rule 803(1) provides the range of penalties that may be imposed for breaching Rule 340.
[11] Rule 340 (misconduct) provides that:
A Licensed Person, Owner, lessee, Racing Manager, Official or other person bound by these Rules must not misconduct himself in any matter relating to the conduct of Races or racing.
[12] The charging document – (Information No A8469) alleged that:
On Wednesday the 17th October 2018 at the Racing Te Aroha race meeting, did misconduct himself when he assaulted Licenced Class B –Track Work Rider <Name Suppressed> in breach of Rule 340 of the New Zealand Rules of Thoroughbred Racing and is therefore subject to the penalty or penalties which may be imposed pursuant to Rule 803(1) of the said Rules.
[13] Rule 803(1) – (the penalty provisions) provide that:
”A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere in these Rules shall be liable to:
(a) be disqualified for a period not exceeding 12 months; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or
(c) a fine not exceeding $20,000.00.”
Appeals procedure
[14] Rule 1001 (3) (b) provides than an appeal may be against:
(i) the findings of the Judicial Committee;
(ii) if applicable, the order for or the penalty ordered, or both; and/or
(iii) if applicable, the order or the amount of the costs ordered to be paid, or both.
[15] Rule 1005 empowers the Appeals Tribunal:
(1) To conduct the hearing of an appeal in such manner as it thinks fit”…….. and
(2) At (3) provides that All appeals shall, except when and to the extent that the Appeals Tribunal otherwise directs, be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.
[16] As this is an appeal against penalty Rule 1007 (2) applies. This Rule provides that in the case of an appeal against penalty the Appeals Tribunal may:
(a) confirm the penalty and dismiss the appeal;
(b) if the penalty (either in whole or in part) is one which the Tribunal imposing it had no jurisdiction to impose, or is one which is inadequate or inappropriate or manifestly excessive, either:
(i) quash the penalty and impose such other penalty permitted by these Rules (whether more or less severe) in substitution therefore as the Appeals Tribunal considers ought to have been imposed or deal with the Appellant in any other way that such Tribunal could have dealt with him or it on finding the information or charge proved;
(ii) quash any invalid part of the penalty that is separable from the residue; or
(iii) vary, within the limits imposed by these Rules, the penalty or any part of it or any condition imposed in it;
Comment
[17] Although the Rules do provide some guidance in terms of an Appeals Tribunal’s range of resolution options; they essentially afford some discretion for Tribunals to establish their approach in terms of the conduct of the hearing. This very point has been highlighted in a number of Appeals Tribunal (precedent) decisions. This Tribunal has taken cognisance of the approach adopted by the Tribunal in the appeal decision RIU v Breslin (2017) (Appeal Tribunal decision RIU v Breslin (2017) at para [4] and [5]) where it emphasised at paragraphs [4] and [5] that:
[4] The Rules are silent as to the applicable approach on appeal. Were the appeal one against sentence in the ordinary courts, an appeal court should only intervene if:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
In any other case, the court must dismiss the appeal (Criminal Procedure Act 2011, s 250).
[5] On an appeal against sentence by the prosecutor, the court is concerned with whether the sentence imposed can be said to be manifestly inadequate. This is to be assessed by reference to the maximum sentence available for the particular offence, a consideration of comparable sentences, and the totality of the offending and the offender’s culpability: R v Wilson [2004] 3 NZLR 606 (CA) at [41]. The court will be reluctant to interfere in borderline cases; it must be clear that the sentence was manifestly inadequate or based on a wrong principle.
[18] We note that the appeal referred to above was lodged by the prosecution (the informant) which is in contrast to this appeal. However, we believe that the Appeals Tribunal commentary is still nonetheless helpful to the extent that it provides this Tribunal with a useful decision making framework for us to consider and reference in terms of our approach.
[19] Given that this is a rehearing this Tribunal is aware of our responsibilities to make a fresh assessment of the facts, the evidence and the submissions and then form our own conclusions as to an appropriate penalty. In doing so we must also have due regard for the decision of the Judicial Committee; particularly their decision making criteria in determining and arriving at the penalty they imposed.
Standard of Proof
[20] It is well settled the standard of proof to be applied by tribunals of this nature is (on) the balance of probabilities, which simply means more probable than not.
[21] The decision of the Supreme Court Z v Dental Complaints Assessment Committee SC 22/2007 [2008] NZSC 55 is the leading authority. In the joint judgment of Blanchard, Tipping and McGrath JJ it determined that the standard of proof to be applied by the Tribunal when hearing the disciplinary charges is the civil standard of balance of probabilities as opposed to the criminal standard of beyond reasonable doubt.
[22] And at paragraph [97] it was stated
“…..the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure that appropriate standards of conduct are maintained in the occupation concerned”.
[23] In thoroughbred racing, the standard of proof in judicial proceedings is said to be met when the Judicial Committee is satisfied, on the basis of credible evidence, that the charge has been proved.
Background facts
[24] The summary of facts, which was prepared and submitted by the RIU, has been agreed. This, as well as submissions from both parties were extensively canvassed in the Committee’s reserved decision. We do not propose to repeat in full the summary of facts.
The incident (salient points summarised)
[25] The incident that gave rise to the charge against the Appellant occurred at the Te Aroha Racecourse on Wednesday the 17th October 2018. It involved Mr Gately and a female staff member (“the victim”) employed by Mr Tony Pike’s racing stable.
[26] The Pike racing stables had five horses engaged to race at Te Aroha race meeting. The horses concerned were a colt, two geldings and two fillies.
[27] The stable staff, which included Mr Gately and the victim, was responsible for the care of the horses and their safe transportation to and from the races.
[28] Mr Gately, who was the more experienced stable hand, was responsible for leading the animals onto the truck and for driving them back to the stables safely.
[29] At about 3.20pm Mr Gately issued instructions that the horses can be loaded and stressed that the colt and a gelding be loaded first as one of them could become fractious and difficult to handle. The two fillies were to be loaded next with the other gelding last.
[30] The victim assisted in loading the horses onto the truck and she loaded the horses in contradiction to Mr Gately’s instructions. She loaded the colt and a gelding first and was about to load the second gelding on when Gately challenged her failure to heed his instructions. The fractious gelding which was being led onto the truck started to play up.
[31] At that time, Mr Gately became quite angry and directed obscene language at her.’ An argument ensued and voices were raised. Abusive and obscene language was used by both parties during the argument.
[32] Mr Gately then grabbed the victim by the collar and pushed her against the side of the truck. He clenched his fist and was about to punch her. She escaped his grip and ran to the swabbing officials nearby and reported the incident.
[33] As a result of the assault she was frightened and upset.
[34] Mr Gately was spoken to on the 21st October 2018. He freely admitted his involvement in the incident and in explanation stated that he was angry because the victim did not follow his instructions regarding the loading of the horses in the order that he had instructed. He further stated that the victim does not seem to take instructions and orders kindly and probably thought that she knew better. He has had previous words with her regarding her behaviour.
[35] Mr Gately was apologetic for his actions and regretted that the incident ever occurred. He indicated that he would apologise to the victim and to his employer Mr Pike.
[36] The victim did not suffer any significant injury and did not seek medical treatment.
[37] Mr Gately has been in the racing industry for 30 years in New Zealand and has no previous Rule breaches for this type of occurrence.
[38] He has had a previous Rule breach for a drug related matter, namely cannabis.
Penalty – written submissions for the Appellant
[39] Prior to this hearing Mr Dollimore provided the Tribunal with an extensive synopsis of the Appellant’s submission. Appellate submissions are set out below:
Introduction
[40] The Appellant, Mr Carl Gately, is a Class B Track Work Rider pursuant to the Rules of the New Zealand Rules of Thoroughbred Racing.
[41] The Appellant pleaded guilty to Information number A8469, namely on 17 October 2018 at Racing Te Aroha race meeting, did misconduct himself when he assaulted Licensed Class B Track Work Rider in breach of Rule 340 of the New Zealand Rules of Thoroughbred Racing and is therefore subject to the penalty or penalties which may be imposed pursuant to Rule 8031 of said Rules.
[42] The offence creating penalty provision is contained in Rule 8031. The penalty provisions are repeated elsewhere in this decision and are not required to be repeated (our words).
[43] The Appellant pleaded guilty at the first opportunity and cooperated with the authorities. An agreed Summary of Facts was filed and read to the Judicial Control Authority.
[44] The decision of the Judicial Control Authority was to impose an end disqualification sentence for a total period of four months. The period of disqualification commenced from 24 December 2018.
[45] The Appellant appeals against that sentence. The Appellant contends that:
(a) The penalty was excessive and/or inappropriate;
(b) The penalty was wrong in principle and that the JCA Panel assumed the role of prosecutor. [This ground of the appeal was subsequently rescinded].
The facts
[46] The Appellant has admitted the breach of the Rules in relation to the incident at the Racing Te Aroha meeting on 17 October 2018 at the first opportunity. There was cooperation with the Racing Integrity Unit.
[47] The background offending is contained in the Summary of Facts which has been presented to the Judicial Control Authority at the first penalty hearing.
[48] The penalties which may be imposed are fully detailed in the Charge Rule and provisions documents which have been previously filed.
[49] The Informant, the Racing Integrity Unit, at the Judicial Control Authority hearing presented helpful and accurate penalty submissions.
[50] The Appellant's position at the penalty hearing was that a fine is the appropriate penalty, albeit at a lower level than what the Informant was seeking. The Informant submitted that a fine in the range of $2,000 would be appropriate.
[51] The Appellant contends that a fine in the range of $500 to $750 would be the appropriate penalty in this case. This was the position of counsel for the Appellant at the penalty hearing.
[52] The Racing Integrity Unit correctly identified the aggravating features and acknowledged the mitigating features.
[53] The case precedents filed in support of the penalty submissions included the following cases:
a) RIU v D Crozier – misconduct himself by acting in a disorderly manner. Total fine imposed of $2,000.
b) RIU v Peter Rudkin – misconduct himself by acting in a disorderly manner. Total fine imposed of $2,000.
c) RIU v McNab – misconduct, assaulting another jockey. One month disqualification.
d) RIU v T Cowan – misconduct, involved in a physical altercation with a security guard. Total fine imposed of $450.
e) RIU v V.
[54] In counsel's submission the five cases submitted in support of the penalty submissions are apposite and are relevant to the present offending. Counsel contends that in fact the offending is less serious than the cases cited by the Racing Integrity Unit.
[55] Counsel refers to the appeal decision of D Dwyer, an appeal decision of the Judicial Control Authority. That case involved Mr Dwyer, a licensed trainer, assaulting the Plating Inspector. He was found guilty following a defended hearing before the Judicial Control Authority and was found guilty of breaching Rule 304, namely that a licensed trainer did assault a Plating Inspector. That person was officiating at the meeting as an official.
[56] On appeal it was noted that the defendant defended the charge. The evidence was that Mr Dwyer assaulted the race day official by elbowing him with some force into his kidney region. It was also argued that the original fine of $750 imposed at the first hearing by the Judicial Control Authority was excessive. It was determined that the actions of a Licensed Trainer barging in or sideswiping a race day official who is going about his legitimate business is unacceptable and was a serious offence.
[57] The Chairman, Murray McKechnie, an experienced Appeal Judge, reviewed the penalty and found that the Judicial Control Authority's first penalty of a fine of $750 was excessive. The starting point advanced was a fine of $1,000. The Chairman found that a fine of $400 would have been appropriate. It is respectfully submitted that the Dwyer case is more serious because it involves a serious assault against a race day official at a race meeting. The level of violence was higher. The defendant defended the charge. The decision of Murray McKechnie, Chairman, was that the finding of misconduct was upheld. The fine of $750 was substituted with a fine of $400. There was no Order as to costs.
[58] The penalty submissions advanced by the Racing Integrity Unit correctly identified the principles of sentencing:
"Penalties are designed to punish the offender for his wrongdoing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence but the offender must be met with punishment.
In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.
A penalty should also reflect the disapproval of the JCA for the type of offending in question.
The need to rehabilitate the offender should be taken into account."
[59] Those principles were correctly identified by the Racing Integrity Unit.
Mitigating Features
[60] Counsel for the Appellant respectfully refers to the following:
(a) That the Appellant pleaded guilty at the first opportunity, cooperated with the authorities.
(b) That he fully cooperated throughout the process.
(c) That he was remorseful for his actions and regretted the incident had ever occurred.
(d) He has offered his apologies to the fellow worker and to his employer, Mr Pike.
[61] Counsel respectfully submits that the least restrictive outcome was a fine. Counsel, at the first hearing, submitted a fine in the range of $1,000.
[62] This was a very short and brief incident. The Appellant on the day in question was the truck driver. It has to be recorded that he wasn't a Foreman. The incident was said to be brief. The incident happened on the back of a truck. It did not take place in a public area.
[63] The Appellant sought to arrange a meeting to apologise.
[64] The whole issue arose because the victim was not following the instructions that the Appellant had issued regarding which horses were to be loaded onto the truck first. The Appellant perceived that potentially there was risk to the horses and his co-worker due to the order that she was placing the horse on the truck. The incident happened very quickly. There was an exchange of abusive language both ways for a matter of seconds in the range of 20 seconds at most. The purpose of pushing the victim by the collar was to move the victim out of the way so he could take control of a horse that was being led and then take it off the truck, so that he could put the horse on the truck in the correct, safe order.
[65] It is submitted that the Appellant's actions were not to grab, then shove against the wall as the way intended as an attack or an assault. It was to move her out of the way for the purposes of taking control of the relevant horses. At the time the horses were fractious and not all the horses were going to the same location and that's why there had been a sequenced loading direction. Put briefly, he had simply pushed her out of the way and taken the horses off the truck.
[66] Her perception may have been that he was clenching his fist and about to punch her, but counsel for the Appellant submits that the Appellant had a brace on.
[67] The Appellant refers the Committee to the fact that the Appellant was suspended from his duties at Pike Stables as soon as he arrived back to the stables and continued to be suspended.
[68] It is noted at paragraph 31 of the decision of the Judicial Control Authority that Mr Westerlund, who is the prosecutor, with full knowledge of the matter, maintained "I still believe that the circumstances in Crozier and Rudkin were in parallel with the Gately matter". That is a submission counsel for the Appellant agrees with.
[69] Counsel for the Appellant submits that this incident was at the lower end of the scale. It is at a very minor level. It is respectfully submitted that this appeal Committee needs to focus on what had occurred and then compare that with the circumstances of the other cases. In the Crozier and Rudkin cases it is contended that there was a physical fight and it was plainly more serious than the current matter.
[70] Counsel for the Appellant emphasises the very brief length of the incident.
[71] The Appellant has more than 30 years in the industry. It is acknowledged that he should have dealt with the matter better.
[72] Counsel submits that the victim impact statement is understandable but most of the concerns seem to relate to how others reacted to the incident which is nothing to do with the Appellant's responsibility.
[73] The Appellant has been apologetic and remorseful. He was willing to apologise to the victim. He would have been keen to attend any mediation or restorative process. It is respectfully submitted that the Appellant has shown genuine remorse. The Committee can be assured that this mistake will not happen again.
[74] The Judicial Control Authority at paragraph 46 sought to introduce cases which obviously had been obtained before the hearing started. The Committee referred to three cases – B, Thornton and Bothamley. Those cases were raised by the Judicial Control Authority. Unfortunately these cases were not circulated and provided to counsel or the Informant. It follows that unfortunately counsel were not able to distinguish three cases that the Committee had obtained prior to the hearing. That is unfortunate because having now read the three cases relied upon and referred to in paragraph 46, they are materially different. The facts are distinguishable. Counsel now for the first time wishes to illustrate that point. The opportunity to read these cases was not carried out.
[75] The Committee referred to the case of B which is a far more serious case with a punch to the owner's head in the context of a race meeting.
[76] The case of T D Thornton has been relied upon. The case is plainly more serious than the present case. Jockey Thornton was charged with a breach of Rule 304, the misconduct charge. The senior Licensed Jockey seriously assaulted an apprentice jockey, Corey Parish. Of note, Ms Thornton denied the allegations and the matter proceeded to a defended hearing where witnesses were called. The defendant physically grabbed Mr Parish with both hands in the region of his neck, swearing and abusing him as she forced him back into the Males' Jockey Room, up against a locker. There was no retaliation. An independent witness observed the defendant come to the Males' Jockey Room, grabbed the apprentice, Corey Parish, around the neck area, using obscenities directed at Parish and saw her force Parish inside the jockey room up against the locker. An independent witness also observed a punch being thrown. The JCA found the charge proved. There was clear evidence there was an unprovoked assault by the defendant upon an apprentice jockey at the Males' Jockey Room. There was abuse and obscene language.
[77] Counsel observes that the factual assault was far more serious. The charge was defended. There was no remorse shown. Of significance, the defendant had a previous misconduct in 1992 for which the defendant received three months' disqualification. The end sentence was two months' disqualification. That decision was not appealed. The Thornton decision is plainly and materially more serious.
[78] Counsel refers to the decision of Daniel Bothamley. This case is plainly more serious than the present case. The defendant pleaded not guilty initially and later changed his plea to guilty. This case involved a serious assault where there was an attack to the head. Mr Cameron George, representing the Informant, sought a four to six week disqualification. After balancing all factors he was disqualified for one month.
[79] Again, plainly the facts are far more serious than the present case. At paragraph 63 of the Judicial Control Authority's decision, they refer to the decision of Thornton. It is not acknowledged that the allegations were more serious than the present case. It is not acknowledged or appreciated that the defendant denied the charge and a defended hearing proceeding. There was no cooperation with the authorities. The JCA did not appreciate plainly that she had a previous serious, relevant aggravating feature in that she had been disqualified for three months for serious offending.
[80] It is respectfully submitted that the Judicial Control Authority failed to carefully consider the relevant authorities. Counsel for the Appellant contends that a fine was the least restrictive outcome and appropriate.
[81] At paragraph [67] of the decision, the Judicial Control Authority (the Committee) has arbitrarily determined a starting point of six months' disqualification as the appropriate starting point. Such a starting point is not supported by any of the decisions that the Chairman referred to.
Conclusion
[82] It is respectfully submitted that the sentence of four months' disqualification is excessive and wrong. The least restrictive outcome in counsel's submission was a fine in the range of $1,000.
[83] It is noteworthy that the Informant/Investigator, who was well aware of all the circumstances of the case, fairly submitted that a fine was appropriate.
[84] The appeal should be allowed and the Disqualification Order should be substituted with a fine.
Penalty –written submissions for the respondent
[85] The respondent (RIU) filed the following sub
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: