Non Raceday Inquiry RIU v H A Wiki – Reserved Decision dated 17 October 2016 – Chair, Mr P Williams
ID: JCA14884
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Thoroughbred Racing
BETWEEN
RACING INTEGRITY UNIT (RIU) - Informant
AND
HETA ANDREW WIKI - Respondent
Judicial Committee: Mr P Williams (Chairman), Mr T Utikere (Committee Member)
Appearing:
Mr S Irving, Investigator, as the Informant
Mr H Wiki, Class B Miscellaneous Trackwork Rider, as the Respondent
Venue: Palmerston North
Date of Hearing: 13 October 2016
Date of Decision: 17 October 2016
RESERVED DECISION OF JUDICIAL COMMITTEE
1] Mr Wiki appears before this Judicial Committee on the following charge:-
THAT on the 9th September 2016 being a Class B Miscellaneous Licence holder did misconduct himself by directing his mother Sandra Fowler to scratch the horse ‘Pleasure Palace’, trained and managed by Tennielle Bishop, from Race 4 of the Marton Jockey Club meeting at Awapuni on the 10th September 2016 without authority to do so. An alleged breach of the New Zealand Thoroughbred Racing Rule 340.
2] Rule 340 states:-
“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”
3] Rule 803(1) states:-
“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”
4] At the start of the hearing, Mr Wiki confirmed he understood the Rule under which he had been charged and also that he admitted the charge. He acknowledged all the relevant documents from the RIU had been disclosed to him and consented to them being admitted as evidence.
5] Prior to the hearing commencing Mr Irving produced a signed authority from the General Manager of the Racing Integrity Unit (RIU), Mr M Godber, dated 19 September 2016 authorising the filing of the Information pursuant to Rule 903(2)(d).
SUMMARY OF FACTS BY THE INFORMANT AND FOLLOW UP DISCUSSION
6] Mr Irving provided the following Summary of Facts:-
7] “The respondent Heta Andrew Wiki is a Licensed Class B - Miscellaneous Trackwork Rider under the Rules of New Zealand Thoroughbred Racing. He is 26 years old and has been involved in the industry for all of his working life
8] Mr Wiki has been in a defacto relationship with NZTR Licensed Trainer Tennielle Bishop for a number of years. In the last few months they have separated which has caused further domestic issues, some of which have involved police.
9] The pair race three horses together with other syndicate members including ‘Pleasure Palace’ which was entered to start at the Marton Jockey Club’s meeting at Awapuni on Saturday 10th September 2016. Mr Wiki owns 5% of ‘Pleasure Palace’ and Ms Bishop 50% in addition to her being the trainer and syndicate manager.
10] On Friday morning, the day before the race, Mr Wiki instructed his mother Sandra Fowler to ring the racing bureau and request ‘Pleasure Palace’ be scratched. At 11.39am Mrs Fowler made the call and the horse was duly scratched.
11] Mrs Fowler, who is not a licensed person, believed the instruction to scratch the horse was genuine and done with the consent of Ms Bishop.
12] About 15 minutes later Mr Wiki rang Ms Bishop and eventually informed her that he had scratched ‘Pleasure Palace’. Ms Bishop rang the racing bureau and approximately 30 minutes after the official scratching, the horse was re-instated in the field. She believes Mr Wiki’s reason for having the horse scratched is because he is now on bail conditions that prevent him from associating with her and therefore he is unable to go to the races to see the horse race.
13] When interviewed on the 13th September Mr Wiki admitted to asking his mother to scratch the horse and stated that he knew it was the wrong thing to do. In explanation, he stated that he is a part owner and had told Ms Bishop that he can’t afford to race his share of the horse and also that due to their domestic situation he did it to ‘get at her’.
14] Mr Wiki has one previous offence under the Rules - being a rider who provided a sample positive to Cannabis in 2011.”
15] Mr Wiki was asked whether there was anything in Mr Irving’s Summary of Facts he did not agree with and he said there was. Specifically, he said he scratched the horse for financial reasons and not because he could not go to the races, as in fact he never went to the races, nor to get at her. He said he was under the impression he owned 30% of “Pleasure Palace” and because he had a financial interest in 2 other horses he had decided he could no longer afford to continue in the ownership of all 3. He said he was surprised when Mr Irving informed him that he only had a 5% share in “Pleasure Palace” but reiterated that at the time of getting his mother to scratch the horse he thought his share was much larger.
16] To a question from the Committee Mr Irving said that the actions of Mr Wiki/Mrs Fowler did not have any adverse consequences as a betting market had not been framed, no trainer of a horse on the ballot had been advised they had got back in the field and the horse was reinstated back into the field within 30 minutes of it initially being scratched. He said he had discussed at length with Mr Aldridge from NZTR the events surrounding the scratching and reinstatement of “Pleasure Palace” but had been advised it was not NZTR’s intention to alter the current scratching processes.
17] Mr Irving confirmed that if Mr Wiki had rung the Bureau himself and scratched the horse he would not have been in breach of the Rules and Mr Wiki confirmed he was aware of this as he had previously scratched horses on behalf of Ms Bishop.
SUBMISSIONS BY THE RESPONDENT AND FOLLOW UP DISCUSSION
18] Mr Wiki provided a hand-written letter to the Committee saying as follows:-
19]“I Heta Wiki stand before you today not to make up excuses for my actions, as I see now looking back that the way things were handled are not acceptable or correct protocol of the industry. But I do stand here today to ask for leaneancy (sic) as I feel at the time of this offence I genuinely didn’t think I was doing anything wrong. I let mine (sic) Tenneille Bishops personal problems effect the industry and for that I am sorry. I can only ask that before making your decision on appropriate punishment you take into account my version of events that took place which are as stated below.
20] I was at the understanding the Tennielle Bishop gave me permission to scratch the horse “Pleasure Palace” after a conversation that took place days prior to when the horse in question was meant to start. In this conversation, I made it clear to Tennielle that I could not afford to start the horse and for financial reasons due to our change of recent circumstances that we needed to scratch the horse and to that statement she responded with do what you have to do Heta. Although I know Tennielle should have been the one to scratch the horse I genuinely didn’t think I couldn’t as many times before she has got me to do so with others in the past so I thought nothing of it at the time and proceeded to get my mother to scratch “Pleasure Palace”. I then called Tennielle and let her know that I had scratch our horse which turned into a toxic verbal disagreement where she told me I couldn’t do that and she would be reporting me which is not what I got from her in prior days. I be (sic) our personal problems have played a huge part in what has happened and feel there is blame on both sides but I need you to understand that at the time I did not do this out of spite but because of financial hardship. I have since signed my shares of all horses we shared over to other parties so this will never happen again.
21] The racing industry is my life it is all I have and I feel in me doing the right thing and giving up my shares so this never happens again should be punishment enough. My future in the industry remains in your hands. Thank you for taking the time to hear and consider my side”.
22] After the Committee and Mr Irving had read the letter Mr Wiki was asked whether he wished to expand on anything contained in the letter. He said that prior to a recent race meeting at Hastings he had discussed the scratching of a horse with Ms Bishop and she told him to “do what you gotta do”. He said he took that to mean he could scratch the horse and he rang the Bureau and did so with no consequential objections from Ms Bishop. He said he had a similar conversation with Ms Bishop on Wednesday 7 September 2016 about “Pleasure Palace” and she again told him to “do what you gotta do”. He interpreted this as meaning he could scratch the horse as he done that on a previous occasion after being told so and had not got into trouble for it.
23] Mr Wiki was asked why he had not scratched the horse on Wednesday 7 September 2016 and chose to wait until late morning on Friday 9 September 2016. He said he had forgotten to do so after talking to Ms Bishop and only remembered 2 days later. When asked why he had not rung the Bureau himself but had his mother make the call he said he was busy on other things and also his phone was dead. He said after his mother scratched the horse he texted Ms Bishop to confirm what he had done but she did not reply. He then sent several more texts which were not acknowledged so finally rang her and told her what had happened.
24] Mr Wiki emphasised that the sole reason for arranging for the scratching of “Pleasure Palace” was because he could not afford to pay his share of costs of racing the horse and that he thought he had a 30% share in the horse and not the 5% he in fact had.
25] Mr Irving asked Mr Wiki why he had not rung the Bureau himself to scratch the horse given that he would have had to explain the process required to his mother and give her the number to ring and in that time, could have made the call himself. Mr Wiki said he was too busy chopping wood away from the house and his phone was dead. He confirmed he rang Ms Bishop on is mother’s phone 15 minutes after the scratching and told her what he had done.
26] Mr Irving said he had been told by Ms Bishop that she never gave the go ahead for the horse to be scratched and that Mr Wiki had deliberately done so to get back at her because of their personal difficulties. He said this was confirmed by the fact that immediately after being told about the scratching she contacted the Bureau to have the horse reinstated back into the field. Mr Wiki denied that was the case and said because she had told him to “do what you gotta do” he interpreted that as being the OK to scratch “Pleasure Palace”.
DECISION
27] As Mr Wiki has admitted the breach the charge is found to be proved.
SUBMISSIONS ON PENALTY BY THE INFORMANT
28] “The respondent Heta Andrew WIKI is a Licensed Class B – Miscellaneous Trackwork Rider under the Rules of New Zealand Thoroughbred Racing (NZTR).
29] He is 26 years old and is currently employed as a ‘freelance’ track rider at Awapuni Racecourse.
He has been involved in the racing industry all his working life.
30] The details of Wiki’s offending are contained in the Racing Integrity Unit (RIU) Summary of Facts.
31] The penalty provisions for this matter are contained under Rule 803(1):
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.
32] The four principles of sentencing can be summarised briefly:
• Penalties are designed to punish the offender for his / her wrong doing. They are not meant to be retributive in the sense 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 similar 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.
33] All four principles apply in this matter.
34] Enquires with the RIU and a search of the JCA website can offer no similar fact or relevant previous cases in New Zealand.
35] The following NZTR Non Raceday Inquiry charges of ‘Misconduct’ have resulted in fines ranging from $350 - $2000:
• T JOHNSON (25.07.2015) – Apprentice jockey attempted to cheat the scales by weighing out without his safety vest. $400 fine
• G VILE (25.06.2014) – Trainer abusing a NZTR Handicapper during a telephone conversation. $350 fine
• M WALKER (28.03.2009) – Jockey used insulting and threatening language to another jockey in the weighing area post inquiry. $2000 fine.
• E DALLEY (31.01.2009) – Apprentice jockey failed to comply with a NZTR directive in riding a horse at the trials without a safety vest. $750 fine.
Aggravating Factors
36] WIKI has been involved in the racing industry, including as an apprentice jockey, for several years and knows the importance of maintaining integrity in racing.
37] His actions abused the NZTR scratching process and compromised the scratching system as a whole.
38] WIKI clearly knew what he was doing was wrong, demonstrated by requesting his mother to make the call to the bureau, presumably to utilise a female voice as the trainer is also female.
39] While it is acknowledged that there are serious domestic issues between the pair it is unacceptable that WIKI has effectively used the racing industry as a ‘vehicle’ to remonstrate with BISHOP.
Mitigating Factors
40] WIKI has been fully co-operative with RIU staff throughout the investigation and prosecution process.
41] He has admitted the breach at the earliest possible stage.
42] A short time after his mother had scratched the horse WIKI spoke to BISHOP and during that conversation he admitted to her that he had scratched the horse.
43] As a result the horse was able to be reinstated in the field with no detrimental effect to participants, the TAB or the public.
44] WIKI has now relinquished his share in ‘Pleasure Palace’ and two other horses he co-owns with BISHOP.
45] WIKI is about to commence ‘Anger Management’ counselling and has commenced track-riding at Awapuni Racecourse to distance himself from BISHOP who trains at Foxton Racecourse.
Conclusion
46] The RIU have discussed the scratching process with NZTR and although this incident is cause for concern the system is generally robust with a possible review incorporating the Rules around who is in fact permitted to scratch a horse.
47] With no precedent for such a breach of the ‘Misconduct’ rule the RIU are only guided by the range of previous fines.
48] The RIU therefore seek a fine of $1000”.
49] Mr Irving was asked what the justification was for a fine of $1000. He said that the cases he detailed above covered a range of offending and penalties and that he believed the severity of this offence lay somewhere in between the penalties imposed on Messrs Johnson and Walker. He conceded the case today was the first of its kind and as such there was no “guidance” to be had from previous similar cases as to what an appropriate penalty might be.
SUBMISSIONS ON PENALTY BY THE RESPONDENT
50] Mr Wiki referred the Committee back to the letter provided earlier to the Committee and in particular that he genuinely believed he was given the go ahead to scratch “Pleasure Palace”. He said his sole reason for his actions was because he could not afford to race horses any more. He confirmed he was now riding work at Awapuni 5 days a week and being paid for that work.
DISCUSSION AND PENALTY
51] Mr Wiki has admitted to getting his mother to scratch “Pleasure Palace” from Race 4 of the Marton Jockey Club’s meeting at Awapuni on the 10th September 2016. It is the position of the RIU that he did so without authority.
52] Whilst the charge against Mr Wiki has been brought under the misconduct Rule 340 Rules 518 (Entries Acceptances and Withdrawals) and 534 (Scratching Horses) describes the process to be followed when scratching a horse. In particular, Rule 518(1) states:-
“Only the Trainer or Owner or lessee of a horse or his Agent acting on behalf, including a Racing Manager, shall enter a horse for, or withdraw or scratch it from, a Race or declare the Rider of such horse for that Race
53] Whilst Mr Wiki has a share in the ownership of “Pleasure Palace” his mother, Mrs Fowler, does not and she is not a license holder in terms of “Part III Licensed Persons and Licences” of the NZTR’s Rules of Racing. This further reinforces the fact that the scratching of “Pleasure Palace” was not carried out in accordance with the Rule 518(1).
54] Mr Wiki told the Committee that he was familiar with NZTR’s scratching process and had contacted the Bureau on previous occasions to scratch horses from races. It is difficult to understand therefore why Mr Wiki, as a part owner of “Pleasure Palace” and feeling under financial pressure through his part owning of 3 racehorses, did not immediately contact the Bureau on the Wednesday before the Marton race meeting and scratch the horse from its race given he had a conversation with Ms Bishop that day and believed he had been given the authority to do so. Had he done so himself Ms Bishop may still have requested the horse be re-instated into the field but Mr Wiki’s actions would not have been in breach of Rule 518 although we do not know what follow up action may have been undertaken by NZTR or the RIU.
55] It is also difficult to understand why, when he decided to scratch the horse the day before the race meeting, that he did not do so himself given he was familiar with the process. Despite the fact that he said he was too busy to make the call he had the time to tell his mother what to do and give her the number to call. The Committee has to accept that Mr Wiki’s phone was dead but given he contacted Ms Bishop on his mother’s phone (initially by text and then by calling her) after his mother had scratched the horse to advise her what had happened why didn’t he use his mother’s phone to action the scratching himself?
56] Mr Irving said that in talking to Ms Bishop she made it very clear to him that she had not told Mr Wiki he could scratch the horse and believed he had done so to get at her because of the difficulties in their personal relationship. The Committee is inclined to accept that view given Ms Bishop’s actions to immediately have the horse reinstated into the field upon hearing from Mr Wiki that he had arranged for the horse to be scratched.
57] The Committee believes Ms Bishop’s alleged use of the term “do what you gotta do” could be inferred to an outsider as the reaction of a person who doesn’t care. Whether she did or didn’t say it is open to conjecture given she did not personally provide evidence to the hearing. Given the difficulties in Mr Wiki’s and Ms Bishop’s relationship it is understandable that such a phrase could be interpreted by Mr Wiki in a manner not intended by Ms Bishop.
58] The Committee has carefully considered the evidence and the submissions presented. The facts around the actual scratching of “Pleasure Palace” as described by Mr Irving have not been disputed by Mr Wiki. It is Mr Wiki’s position that he genuinely believed he had been given the go ahead by Ms Bishop to scratch the horse by her use of the words “do what you gotta do” which she had also allegedly used previously when authorising Mr Wiki to scratch a horse from a race meeting at Hastings.
59] The mitigating factors in this case are that Mr Wiki contacted Ms Bishop soon after the horse was scratched and told her what he had done which meant Ms Bishop was able to contact NZTR and have the horse re-instated into the field. As a result, there were no adverse consequences as a betting market had not been framed, no trainer of a horse on the ballot had been advised they had got back in the field and the horse was reinstated back into the field within 30 minutes of it initially being scratched. The Committee also notes Mr Wiki admitted the breach at the first opportunity and has cooperated with the Racing Integrity Unit throughout the investigation.
60] There are several aggravating factors that must be taken into consideration. Mr Wiki, whilst being familiar with NZTR’s scratching process, has abused that process by asking his mother to scratch “Pleasure Palace” from its race. It is very fortunate that those actions did not compromise the integrity of the scratching process operated by NZTR. However, such behaviour cannot be condoned nor can it be tolerated. It has no place amongst licensed persons within the racing industry.
61] After “Pleasure Palace” was scratched Mr Wiki made several urgent attempts to contact Ms Bishop to tell her what he had done. The Committee believes those actions lend weight to the argument that he did not have permission from Ms Bishop to scratch the horse and perhaps panicked when he realised the probable implications of his actions. We also note the conflicting comments in his own statement - “..... I know Tennielle should have been the one to scratch the horse.....” and “.....I genuinely didn’t think I couldn’t (scratch it)......”.
62] The JCA’s Penalty Guidelines do not state a starting point for a breach of the Misconduct Rule as each case is fact dependant. The Committee is also aware that in recent years there have been a small number of cases of horses being scratched contrary to the respective Rules of Thoroughbred and Harness Racing but none of those cases are seen in any way as similar to this case. The Committee believes a fine is an appropriate penalty in this case and has therefore had to address the issue of what is the starting point for a breach of this nature.
63] In the Johnson case referred to by Mr Irving Mr Johnson admitted he deliberately attempted to “cheat the scales”. He was fined $400. We believe Mr Wiki’s decision to use his mother to scratch “Pleasure Palace” was a deliberate decision to deceive and more serious than the actions of Mr Johnson. We have therefore decided that the starting point for the financial penalty is $700. From that starting point we are prepared to reduce it by $200 to take into account the mitigating factors above. However, the significant aggravating factors justify an increase to that figure and we have decided to increase the $500 to a figure of $700 which we also believe should have the effect of deterring others from committing similar offences.
64] Mr Wiki is fined $700.
65] Because this hearing took longer to complete than expected Mr Wiki was unable to be present when it was intended to announce our decision – hence the decision was reserved. The Committee was advised of Mr Wiki being unable to attend by Mr Irving who had received a text from Mr Wiki telling him that family commitments meant he could not return to the hearing.
COSTS
66] The RIU has not sought costs and as this hearing was held on a race day there are none payable to the RIU or the JCA.
Paul Williams Tangi Utikere
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 17/10/2016
Publish Date: 17/10/2016
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.
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decisiondate: 17/10/2016
hearing_title: Non Raceday Inquiry RIU v H A Wiki - Reserved Decision dated 17 October 2016 - Chair, Mr P Williams
charge:
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appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Thoroughbred Racing
BETWEEN
RACING INTEGRITY UNIT (RIU) - Informant
AND
HETA ANDREW WIKI - Respondent
Judicial Committee: Mr P Williams (Chairman), Mr T Utikere (Committee Member)
Appearing:
Mr S Irving, Investigator, as the Informant
Mr H Wiki, Class B Miscellaneous Trackwork Rider, as the Respondent
Venue: Palmerston North
Date of Hearing: 13 October 2016
Date of Decision: 17 October 2016
RESERVED DECISION OF JUDICIAL COMMITTEE
1] Mr Wiki appears before this Judicial Committee on the following charge:-
THAT on the 9th September 2016 being a Class B Miscellaneous Licence holder did misconduct himself by directing his mother Sandra Fowler to scratch the horse ‘Pleasure Palace’, trained and managed by Tennielle Bishop, from Race 4 of the Marton Jockey Club meeting at Awapuni on the 10th September 2016 without authority to do so. An alleged breach of the New Zealand Thoroughbred Racing Rule 340.
2] Rule 340 states:-
“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”
3] Rule 803(1) states:-
“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”
4] At the start of the hearing, Mr Wiki confirmed he understood the Rule under which he had been charged and also that he admitted the charge. He acknowledged all the relevant documents from the RIU had been disclosed to him and consented to them being admitted as evidence.
5] Prior to the hearing commencing Mr Irving produced a signed authority from the General Manager of the Racing Integrity Unit (RIU), Mr M Godber, dated 19 September 2016 authorising the filing of the Information pursuant to Rule 903(2)(d).
SUMMARY OF FACTS BY THE INFORMANT AND FOLLOW UP DISCUSSION
6] Mr Irving provided the following Summary of Facts:-
7] “The respondent Heta Andrew Wiki is a Licensed Class B - Miscellaneous Trackwork Rider under the Rules of New Zealand Thoroughbred Racing. He is 26 years old and has been involved in the industry for all of his working life
8] Mr Wiki has been in a defacto relationship with NZTR Licensed Trainer Tennielle Bishop for a number of years. In the last few months they have separated which has caused further domestic issues, some of which have involved police.
9] The pair race three horses together with other syndicate members including ‘Pleasure Palace’ which was entered to start at the Marton Jockey Club’s meeting at Awapuni on Saturday 10th September 2016. Mr Wiki owns 5% of ‘Pleasure Palace’ and Ms Bishop 50% in addition to her being the trainer and syndicate manager.
10] On Friday morning, the day before the race, Mr Wiki instructed his mother Sandra Fowler to ring the racing bureau and request ‘Pleasure Palace’ be scratched. At 11.39am Mrs Fowler made the call and the horse was duly scratched.
11] Mrs Fowler, who is not a licensed person, believed the instruction to scratch the horse was genuine and done with the consent of Ms Bishop.
12] About 15 minutes later Mr Wiki rang Ms Bishop and eventually informed her that he had scratched ‘Pleasure Palace’. Ms Bishop rang the racing bureau and approximately 30 minutes after the official scratching, the horse was re-instated in the field. She believes Mr Wiki’s reason for having the horse scratched is because he is now on bail conditions that prevent him from associating with her and therefore he is unable to go to the races to see the horse race.
13] When interviewed on the 13th September Mr Wiki admitted to asking his mother to scratch the horse and stated that he knew it was the wrong thing to do. In explanation, he stated that he is a part owner and had told Ms Bishop that he can’t afford to race his share of the horse and also that due to their domestic situation he did it to ‘get at her’.
14] Mr Wiki has one previous offence under the Rules - being a rider who provided a sample positive to Cannabis in 2011.”
15] Mr Wiki was asked whether there was anything in Mr Irving’s Summary of Facts he did not agree with and he said there was. Specifically, he said he scratched the horse for financial reasons and not because he could not go to the races, as in fact he never went to the races, nor to get at her. He said he was under the impression he owned 30% of “Pleasure Palace” and because he had a financial interest in 2 other horses he had decided he could no longer afford to continue in the ownership of all 3. He said he was surprised when Mr Irving informed him that he only had a 5% share in “Pleasure Palace” but reiterated that at the time of getting his mother to scratch the horse he thought his share was much larger.
16] To a question from the Committee Mr Irving said that the actions of Mr Wiki/Mrs Fowler did not have any adverse consequences as a betting market had not been framed, no trainer of a horse on the ballot had been advised they had got back in the field and the horse was reinstated back into the field within 30 minutes of it initially being scratched. He said he had discussed at length with Mr Aldridge from NZTR the events surrounding the scratching and reinstatement of “Pleasure Palace” but had been advised it was not NZTR’s intention to alter the current scratching processes.
17] Mr Irving confirmed that if Mr Wiki had rung the Bureau himself and scratched the horse he would not have been in breach of the Rules and Mr Wiki confirmed he was aware of this as he had previously scratched horses on behalf of Ms Bishop.
SUBMISSIONS BY THE RESPONDENT AND FOLLOW UP DISCUSSION
18] Mr Wiki provided a hand-written letter to the Committee saying as follows:-
19]“I Heta Wiki stand before you today not to make up excuses for my actions, as I see now looking back that the way things were handled are not acceptable or correct protocol of the industry. But I do stand here today to ask for leaneancy (sic) as I feel at the time of this offence I genuinely didn’t think I was doing anything wrong. I let mine (sic) Tenneille Bishops personal problems effect the industry and for that I am sorry. I can only ask that before making your decision on appropriate punishment you take into account my version of events that took place which are as stated below.
20] I was at the understanding the Tennielle Bishop gave me permission to scratch the horse “Pleasure Palace” after a conversation that took place days prior to when the horse in question was meant to start. In this conversation, I made it clear to Tennielle that I could not afford to start the horse and for financial reasons due to our change of recent circumstances that we needed to scratch the horse and to that statement she responded with do what you have to do Heta. Although I know Tennielle should have been the one to scratch the horse I genuinely didn’t think I couldn’t as many times before she has got me to do so with others in the past so I thought nothing of it at the time and proceeded to get my mother to scratch “Pleasure Palace”. I then called Tennielle and let her know that I had scratch our horse which turned into a toxic verbal disagreement where she told me I couldn’t do that and she would be reporting me which is not what I got from her in prior days. I be (sic) our personal problems have played a huge part in what has happened and feel there is blame on both sides but I need you to understand that at the time I did not do this out of spite but because of financial hardship. I have since signed my shares of all horses we shared over to other parties so this will never happen again.
21] The racing industry is my life it is all I have and I feel in me doing the right thing and giving up my shares so this never happens again should be punishment enough. My future in the industry remains in your hands. Thank you for taking the time to hear and consider my side”.
22] After the Committee and Mr Irving had read the letter Mr Wiki was asked whether he wished to expand on anything contained in the letter. He said that prior to a recent race meeting at Hastings he had discussed the scratching of a horse with Ms Bishop and she told him to “do what you gotta do”. He said he took that to mean he could scratch the horse and he rang the Bureau and did so with no consequential objections from Ms Bishop. He said he had a similar conversation with Ms Bishop on Wednesday 7 September 2016 about “Pleasure Palace” and she again told him to “do what you gotta do”. He interpreted this as meaning he could scratch the horse as he done that on a previous occasion after being told so and had not got into trouble for it.
23] Mr Wiki was asked why he had not scratched the horse on Wednesday 7 September 2016 and chose to wait until late morning on Friday 9 September 2016. He said he had forgotten to do so after talking to Ms Bishop and only remembered 2 days later. When asked why he had not rung the Bureau himself but had his mother make the call he said he was busy on other things and also his phone was dead. He said after his mother scratched the horse he texted Ms Bishop to confirm what he had done but she did not reply. He then sent several more texts which were not acknowledged so finally rang her and told her what had happened.
24] Mr Wiki emphasised that the sole reason for arranging for the scratching of “Pleasure Palace” was because he could not afford to pay his share of costs of racing the horse and that he thought he had a 30% share in the horse and not the 5% he in fact had.
25] Mr Irving asked Mr Wiki why he had not rung the Bureau himself to scratch the horse given that he would have had to explain the process required to his mother and give her the number to ring and in that time, could have made the call himself. Mr Wiki said he was too busy chopping wood away from the house and his phone was dead. He confirmed he rang Ms Bishop on is mother’s phone 15 minutes after the scratching and told her what he had done.
26] Mr Irving said he had been told by Ms Bishop that she never gave the go ahead for the horse to be scratched and that Mr Wiki had deliberately done so to get back at her because of their personal difficulties. He said this was confirmed by the fact that immediately after being told about the scratching she contacted the Bureau to have the horse reinstated back into the field. Mr Wiki denied that was the case and said because she had told him to “do what you gotta do” he interpreted that as being the OK to scratch “Pleasure Palace”.
DECISION
27] As Mr Wiki has admitted the breach the charge is found to be proved.
SUBMISSIONS ON PENALTY BY THE INFORMANT
28] “The respondent Heta Andrew WIKI is a Licensed Class B – Miscellaneous Trackwork Rider under the Rules of New Zealand Thoroughbred Racing (NZTR).
29] He is 26 years old and is currently employed as a ‘freelance’ track rider at Awapuni Racecourse.
He has been involved in the racing industry all his working life.
30] The details of Wiki’s offending are contained in the Racing Integrity Unit (RIU) Summary of Facts.
31] The penalty provisions for this matter are contained under Rule 803(1):
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.
32] The four principles of sentencing can be summarised briefly:
• Penalties are designed to punish the offender for his / her wrong doing. They are not meant to be retributive in the sense 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 similar 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.
33] All four principles apply in this matter.
34] Enquires with the RIU and a search of the JCA website can offer no similar fact or relevant previous cases in New Zealand.
35] The following NZTR Non Raceday Inquiry charges of ‘Misconduct’ have resulted in fines ranging from $350 - $2000:
• T JOHNSON (25.07.2015) – Apprentice jockey attempted to cheat the scales by weighing out without his safety vest. $400 fine
• G VILE (25.06.2014) – Trainer abusing a NZTR Handicapper during a telephone conversation. $350 fine
• M WALKER (28.03.2009) – Jockey used insulting and threatening language to another jockey in the weighing area post inquiry. $2000 fine.
• E DALLEY (31.01.2009) – Apprentice jockey failed to comply with a NZTR directive in riding a horse at the trials without a safety vest. $750 fine.
Aggravating Factors
36] WIKI has been involved in the racing industry, including as an apprentice jockey, for several years and knows the importance of maintaining integrity in racing.
37] His actions abused the NZTR scratching process and compromised the scratching system as a whole.
38] WIKI clearly knew what he was doing was wrong, demonstrated by requesting his mother to make the call to the bureau, presumably to utilise a female voice as the trainer is also female.
39] While it is acknowledged that there are serious domestic issues between the pair it is unacceptable that WIKI has effectively used the racing industry as a ‘vehicle’ to remonstrate with BISHOP.
Mitigating Factors
40] WIKI has been fully co-operative with RIU staff throughout the investigation and prosecution process.
41] He has admitted the breach at the earliest possible stage.
42] A short time after his mother had scratched the horse WIKI spoke to BISHOP and during that conversation he admitted to her that he had scratched the horse.
43] As a result the horse was able to be reinstated in the field with no detrimental effect to participants, the TAB or the public.
44] WIKI has now relinquished his share in ‘Pleasure Palace’ and two other horses he co-owns with BISHOP.
45] WIKI is about to commence ‘Anger Management’ counselling and has commenced track-riding at Awapuni Racecourse to distance himself from BISHOP who trains at Foxton Racecourse.
Conclusion
46] The RIU have discussed the scratching process with NZTR and although this incident is cause for concern the system is generally robust with a possible review incorporating the Rules around who is in fact permitted to scratch a horse.
47] With no precedent for such a breach of the ‘Misconduct’ rule the RIU are only guided by the range of previous fines.
48] The RIU therefore seek a fine of $1000”.
49] Mr Irving was asked what the justification was for a fine of $1000. He said that the cases he detailed above covered a range of offending and penalties and that he believed the severity of this offence lay somewhere in between the penalties imposed on Messrs Johnson and Walker. He conceded the case today was the first of its kind and as such there was no “guidance” to be had from previous similar cases as to what an appropriate penalty might be.
SUBMISSIONS ON PENALTY BY THE RESPONDENT
50] Mr Wiki referred the Committee back to the letter provided earlier to the Committee and in particular that he genuinely believed he was given the go ahead to scratch “Pleasure Palace”. He said his sole reason for his actions was because he could not afford to race horses any more. He confirmed he was now riding work at Awapuni 5 days a week and being paid for that work.
DISCUSSION AND PENALTY
51] Mr Wiki has admitted to getting his mother to scratch “Pleasure Palace” from Race 4 of the Marton Jockey Club’s meeting at Awapuni on the 10th September 2016. It is the position of the RIU that he did so without authority.
52] Whilst the charge against Mr Wiki has been brought under the misconduct Rule 340 Rules 518 (Entries Acceptances and Withdrawals) and 534 (Scratching Horses) describes the process to be followed when scratching a horse. In particular, Rule 518(1) states:-
“Only the Trainer or Owner or lessee of a horse or his Agent acting on behalf, including a Racing Manager, shall enter a horse for, or withdraw or scratch it from, a Race or declare the Rider of such horse for that Race
53] Whilst Mr Wiki has a share in the ownership of “Pleasure Palace” his mother, Mrs Fowler, does not and she is not a license holder in terms of “Part III Licensed Persons and Licences” of the NZTR’s Rules of Racing. This further reinforces the fact that the scratching of “Pleasure Palace” was not carried out in accordance with the Rule 518(1).
54] Mr Wiki told the Committee that he was familiar with NZTR’s scratching process and had contacted the Bureau on previous occasions to scratch horses from races. It is difficult to understand therefore why Mr Wiki, as a part owner of “Pleasure Palace” and feeling under financial pressure through his part owning of 3 racehorses, did not immediately contact the Bureau on the Wednesday before the Marton race meeting and scratch the horse from its race given he had a conversation with Ms Bishop that day and believed he had been given the authority to do so. Had he done so himself Ms Bishop may still have requested the horse be re-instated into the field but Mr Wiki’s actions would not have been in breach of Rule 518 although we do not know what follow up action may have been undertaken by NZTR or the RIU.
55] It is also difficult to understand why, when he decided to scratch the horse the day before the race meeting, that he did not do so himself given he was familiar with the process. Despite the fact that he said he was too busy to make the call he had the time to tell his mother what to do and give her the number to call. The Committee has to accept that Mr Wiki’s phone was dead but given he contacted Ms Bishop on his mother’s phone (initially by text and then by calling her) after his mother had scratched the horse to advise her what had happened why didn’t he use his mother’s phone to action the scratching himself?
56] Mr Irving said that in talking to Ms Bishop she made it very clear to him that she had not told Mr Wiki he could scratch the horse and believed he had done so to get at her because of the difficulties in their personal relationship. The Committee is inclined to accept that view given Ms Bishop’s actions to immediately have the horse reinstated into the field upon hearing from Mr Wiki that he had arranged for the horse to be scratched.
57] The Committee believes Ms Bishop’s alleged use of the term “do what you gotta do” could be inferred to an outsider as the reaction of a person who doesn’t care. Whether she did or didn’t say it is open to conjecture given she did not personally provide evidence to the hearing. Given the difficulties in Mr Wiki’s and Ms Bishop’s relationship it is understandable that such a phrase could be interpreted by Mr Wiki in a manner not intended by Ms Bishop.
58] The Committee has carefully considered the evidence and the submissions presented. The facts around the actual scratching of “Pleasure Palace” as described by Mr Irving have not been disputed by Mr Wiki. It is Mr Wiki’s position that he genuinely believed he had been given the go ahead by Ms Bishop to scratch the horse by her use of the words “do what you gotta do” which she had also allegedly used previously when authorising Mr Wiki to scratch a horse from a race meeting at Hastings.
59] The mitigating factors in this case are that Mr Wiki contacted Ms Bishop soon after the horse was scratched and told her what he had done which meant Ms Bishop was able to contact NZTR and have the horse re-instated into the field. As a result, there were no adverse consequences as a betting market had not been framed, no trainer of a horse on the ballot had been advised they had got back in the field and the horse was reinstated back into the field within 30 minutes of it initially being scratched. The Committee also notes Mr Wiki admitted the breach at the first opportunity and has cooperated with the Racing Integrity Unit throughout the investigation.
60] There are several aggravating factors that must be taken into consideration. Mr Wiki, whilst being familiar with NZTR’s scratching process, has abused that process by asking his mother to scratch “Pleasure Palace” from its race. It is very fortunate that those actions did not compromise the integrity of the scratching process operated by NZTR. However, such behaviour cannot be condoned nor can it be tolerated. It has no place amongst licensed persons within the racing industry.
61] After “Pleasure Palace” was scratched Mr Wiki made several urgent attempts to contact Ms Bishop to tell her what he had done. The Committee believes those actions lend weight to the argument that he did not have permission from Ms Bishop to scratch the horse and perhaps panicked when he realised the probable implications of his actions. We also note the conflicting comments in his own statement - “..... I know Tennielle should have been the one to scratch the horse.....” and “.....I genuinely didn’t think I couldn’t (scratch it)......”.
62] The JCA’s Penalty Guidelines do not state a starting point for a breach of the Misconduct Rule as each case is fact dependant. The Committee is also aware that in recent years there have been a small number of cases of horses being scratched contrary to the respective Rules of Thoroughbred and Harness Racing but none of those cases are seen in any way as similar to this case. The Committee believes a fine is an appropriate penalty in this case and has therefore had to address the issue of what is the starting point for a breach of this nature.
63] In the Johnson case referred to by Mr Irving Mr Johnson admitted he deliberately attempted to “cheat the scales”. He was fined $400. We believe Mr Wiki’s decision to use his mother to scratch “Pleasure Palace” was a deliberate decision to deceive and more serious than the actions of Mr Johnson. We have therefore decided that the starting point for the financial penalty is $700. From that starting point we are prepared to reduce it by $200 to take into account the mitigating factors above. However, the significant aggravating factors justify an increase to that figure and we have decided to increase the $500 to a figure of $700 which we also believe should have the effect of deterring others from committing similar offences.
64] Mr Wiki is fined $700.
65] Because this hearing took longer to complete than expected Mr Wiki was unable to be present when it was intended to announce our decision – hence the decision was reserved. The Committee was advised of Mr Wiki being unable to attend by Mr Irving who had received a text from Mr Wiki telling him that family commitments meant he could not return to the hearing.
COSTS
66] The RIU has not sought costs and as this hearing was held on a race day there are none payable to the RIU or the JCA.
Paul Williams Tangi Utikere
Chairman Committee Member
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