Non Raceday Inquiry RIU v MJ Smolenski – Reserved Decision of Judicial Committee on Penalty dated 21 December 2015 – Chair, Mr RG McKenzie

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hearing_title: Non Raceday Inquiry RIU v MJ Smolenski - Reserved Decision of Judicial Committee on Penalty dated 21 December 2015 - Chair, Mr RG McKenzie

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BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Information No. A6410

BETWEEN KYLIE ROCHELLE

WILLIAMS, Racing

Investigator for the Racing

Integrity Unit

Informant

AND MARK JOHN SMOLENSKI, Licensed Public Trainer

Respondent

Date of Hearing: Friday, 18 December 2015

Venue: Judicial Room, Addington Raceway, Christchurch

Judicial Committee: R G McKenzie (Chairman) – G J Clapp (Committee Member)

Present: Mrs K R Williams, the Informant

Mr M J Smolenski, the Respondent

Mr N G McIntyre, Registrar

Date of Decision: 21 December 2015

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY

The Charges

[1] Information No. A6410 alleges that Mr Smolenski committed a breach of Rule 411 (1) & (3) of the New Zealand Rules of Harness Racing in that:

On the 29th November 2015, [he] being a licensed trainer with Harness Racing New Zealand started two horses at the Mount Hutt TC workouts under names other than their registered names. This is in breach of Rule 411 (1) and (3) of the New Zealand Rules of Harness Racing.

[2] Mrs Williams produced a letter from Mr M R Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 1103 (4) (c) authorising the filing of the information.

[3] The information was served on Mr Smolenski on 15 December 2015. He signed the Statement by the Respondent on the information form indicating that he admitted the breach.

[4] Mr Smolenski was present at the hearing of the information and he confirmed that he admitted the charge. The charge was found proved accordingly.

The Rule

[5] Rule 411 provides as follows:

(1) No person shall use as the name of a horse any name other than its registered name.

(2) No person shall start, or permit to be started in a race, a horse under a name other than its registered name.

Summary of Facts

[6] Mrs Williams presented the following Summary of Facts:

1. The Respondent Mark John Smolenski is a licensed trainer under the New Zealand Rules of Harness Racing and was first licensed in 1983.

2. Mr Smolenski nominated three horses for the workouts held by the Mount Hutt Trotting Club on the 29th of November 2015, ROI DE GITANS - Race 4, CHIP GANASSI - Race 7 and ASTRAPI - Race 8.

3. On the day, Mr Smolenski brought two more horses that contested the learner’s races, ANGUS and RIVER. Mr Smolenski wrote the two names on the Secretary’s programme.

4. ANGUS started in Race 1 and RIVER started in Race 2. ANGUS again started in Race 3 after missing away in Race 1. RIVER finished third in Race 2 while ANGUS finished 4th in Race 3.

5. The Mount Hutt Trotting Club could not enter either ANGUS or RIVER in the HRNZ results as there were no horses by that name on the computer system. These horses do not appear on the results on the HRNZ website.

6. Mr Smolenski was interviewed by Racing Investigator, Kylie Williams, at the Methven TC meeting on 6 December 2015.

7. Mr Smolenski confirmed that he wrote the names ANGUS and RIVER on the Secretary’s programme.

8. Mr Smolenski confirmed that the names were the horses’ stable names and not their registered names.

9. ANGUS is the qualified 3-year-old gelding ONE YANKEE ANGUS trained by Mr Sam Smolenski. According to the HRNZ records ONE YANKEE ANGUS has contested two official trials, qualifying on its second attempt on 24 November 2015, five days prior to the Mount Hutt Trotting Club workouts.

10. RIVER is the qualified 5-year-old mare CHIVILCOY trained by Mr Mark Smolenski. The mare qualified pacing on 24 February 2014 and trotting on 28 October 2015. CHIVILCOY has had 7 workouts, 3 trials and 1 race as a pacer and 3 trials and 2 races as a trotter. CHIVILCOY raced on the 6th of December at the Methven TC meeting finishing 5th, one week after the workouts.

11. Mr Smolenski has been involved in the racing industry for over 40 years and was fined $500 on 6 February 2001 for intending to start a horse in a workout at Rangiora when another horse had been nominated.

Submissions of the Respondent

[7] Mr Smolenski said that he accepted the Summary of Facts as presented by Mrs Williams.

[8] He said that he did not nominate the two horses initially and they did not appear in the fields in the Harness Racing New Zealand website. He asserted that what he did was not, in any way, intended to deceive. He suggested that he had been accused of “cheating punters”

[9] He said that he nominated four horses for the meeting, not three as stated in the Summary of Facts. Those horses were all trotters and there were only two trotting races.

[10] He took two other horses with him in the float intending, he said, to “give them a run” and if it was a nice day and if he had time he would give them a “trot round”. He enquired if it would be in order for him to put a couple of horses in the learners’ heats and, he told us, he was informed that that would be in order. The two horses “followed them round” in their respective heats, he said.

[11] When asked by the Committee why he had entered the two horses under their stable names and not their registered names, Mr Smolenski said that he had done this “all his life”. He accepted that it constituted a breach of the Rules but, he suggested, worse things happened at workouts. For example, he said, there was no check on whether the correct horses were lining up and there was no swabbing.

Penalty Submissions of the Informant

[12] Mrs Williams presented the following submissions in relation to penalty:

1. Mr Smolenski has pleaded guilty to a breach of Rule 411 (1) (3) after starting ONE YANKEE ANGUS and CHIVILCOY at the Mount Hutt TC workouts under their stable names, ANGUS and RIVER respectively.

2. A breach of Rule 411 is declared to be a Serious Racing Offence as per Rule 411 (5). The penalty provisions that apply in this case are outlined in Rule 1001 (2).

Rule 1001(2)

Every person who commits a serious racing offence shall be liable to the following penalties:

(a) a fine not exceeding $30,000; and/or

(b) suspension from holding or obtaining a Licence, for any specific period or for life; and/or

(c) disqualification for a specific period or for life.

3. Rule 714 confirms that the New Zealand Rules of Harness Racing also apply to Workouts.

Rule 714

(1) These Rules so far as they are applicable shall apply to all trials meetings and workouts.

(2) A Stipendiary Steward or Racecourse Inspector may exercise any power or duty of a Stipendiary Steward or Racecourse Inspector in respect of any matter arising at or in connection with a workout.

4. Sentencing Principles –

The four principals of sentencing can be summarised briefly

• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

• In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offences.

• A penalty should also reflect the disapproval of the J.C.A for the type of behaviour in question.

• The need to rehabilitate the offender should be taken into account.

The first three principles are particularly important here.

5. Relevant Precedents –

In addition to the sentencing principles, the Judicial Committee should have regard to relevant precedents. Similar offences have been brought against trainers under Rule 411(3) for starting a horse under a name other than its registered name.

HRNZ v N A Chilcott – 27 July 1999
Subject: Rule 411(1)(3) Starting a horse under an assumed name at workouts. Fined $1,200.

HRNZ v M P Edmonds – 14 June 2007
Subject: Rule 411(3) Started a horse under a name other than its registered name. Fined $1,200.

HRNZ v B A O’Meara – 12 October 1997
Subject: Rule 411(3) In conjunction with D Campbell entered a horse under another horse’s name. Fined $1,250.

HRNZ v J J Clementson – 6 January 2001
Subject: Rule 502(A) Started incorrect horse at Hororata workouts. Fined $2,500.

6. Aggravating Features –

Mr Smolenski has been licenced for over 30 years and should be aware of the rules, especially after having been fined in 2001.

Mr Smolenski entered his other three horses at the workouts with their correct registered names. Mr Smolenski wrote the names on the Secretary’s programme. He should and could have written the horses registered names.

There were 108 horses at the workouts that all raced in their correct name. The workouts try to assist trainers where they can but it is unreasonable and unprofessional for trainers to expect to turn up with horses and put them in any heat they like using stable names.

Learner’s heats at workouts are primarily for horses that have not qualified or raced. Both of these horses are qualified and CHIVILCOY has raced and had numerous workout and trial starts.

CHIVILCOY started the following week at the Methven TC meeting. Anyone who was at the workouts looking for horses that would be starting the following week were not privy to the knowledge that RIVER that finished third in Race 2 would be racing the following week under the name CHIVILCOY. The results were and still are incorrect on the HRNZ website that is viewed by people both in New Zealand and overseas.

Thirty of the 100 horses that started at the workouts raced the following week. Of those two won, two ran second, two third and one fourth. The punters when making their selections would have seen that they had started at the workouts on the same track the previous week.

Of consideration to a punter is whether a horse has had a start on a grass track before. They would have been able to see that CHIVILCOY had started at Geraldine on the grass as a pacer on 24 November 2014, but not that it had started on the grass as a trotter at the workouts the week before.

7. Mitigating Factors –

Mr Smolenski admitted the breach at the first opportunity and has co-operated fully throughout the investigation.

Mr Smolenski raced the horses in their stable names; they were not given the name of another registered horse.

8. Conclusion –

The Racing Integrity Unit seeks a monetary penalty of a fine of $1,000 to $1,200.

Credit has to be given for the manner in which Mr Smolenski has conducted himself during this enquiry and admitting the breach at the first opportunity.

The R.I.U. are not seeking to recover any costs in this matter.

Penalty Submissions of the Respondent

[13] Mr Smolenski did not wish to make any submissions in relation to penalty. He did, however, question whether all of the other horses that started at the workouts that day had done so under their correct names.

Reasons for Decision:

[14] A breach of Rule 411 (1) and (3) is categorised as a Serious Racing Offence. However, the circumstances of this particular breach of that Rule, while still serious, place the breach at the lower end of a scale of seriousness involving, as it did, a workouts meeting.

[15] Mr Smolenski entered two horses on the day, one in each of two learners’ heats for maiden trotters. Neither horse could properly be described as a “learner”. For reasons known only to himself, he entered both of those horses under their stable names rather than their registered names, and we find this puzzling. He did not satisfactorily explain to us his reasons for doing so.

[16] Mr Smolenski was vehement in his denial that this involved any deception which, in any event was not alleged by the Informant, and he did not seem to accept that this matter was anything other than trivial. We do not agree that the offending was trivial. It is a fundamental requirement, and integrity demands, that horses race under their registered names. This is particularly the case in a totalisator race and a breach in a totalisator race would be serious indeed. It is nevertheless important also at trials and workouts because, we believe, the results are studied by conscientious punters who are entitled to rely on the results of such events as published. There was an element of deception, whether or not this was intended by Mr Smolenski.

[17] Mr Smolenski showed no remorse for what he had done and this was an aggravating factor which we have taken into account in determining penalty.

[18] Mitigating factors that we took into account were Mr Smolenski’s admission of the breach and his record, which we regarded as good. We did not take into account the previous similar breach in 2001, given its historical nature.

[19] We gained some assistance from the previous cases to which Mrs Williams referred us. In the Edmonds case, the horse ran in a totalisator race. We understand that the Chilcott and O’Meara cases involved a trial or a workout and, in that respect, the present case is similar, and the fines in those cases were $1,200 and $1,250 respectively. Since those cases were heard, the penalties for a serious racing offence have increased (2011) and any penalty imposed by this Committee needs to reflect that. The Committee was not aware of the circumstances of the Clementson case.

[20] The Committee is satisfied that a fine of $1,500 will suffice to satisfy the general principles of sentencing which are well-established – to hold the offender accountable for his actions, to promote in the offender a sense of responsibility, to denounce the conduct of the offender and to deter the offender or other persons from committing the same or a similar offence. Mrs Williams referred to these principles in her penalty submissions. The Committee has also had regard, as always, to the need to maintain integrity and public confidence in harness racing.

[21] Having regard to the above matters, the Committee considers that an appropriate penalty is a fine of $1,500.

Penalty

[22} Mr Smolenski is fined the sum of $1,500.

Costs

[23] There will be no order for costs.

R G McKenzie          G J Clapp

Chair                       Panellist

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