Appeal J Parkes v RIU – Decision dated 31 August 2015 – Chair, Mr K Hales

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decisiondate: 31/08/2015

hearing_title: Appeal J Parkes v RIU - Decision dated 31 August 2015 - Chair, Mr K Hales

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Decision:

BEFORE AN APPEAL COMMITTEE

At Palmerston North

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

BETWEEN JOHNATHAN PARKES – Licensed Jockey

Appellant

AND RACING INTEGRITY UNIT

Respondent

DECISION OF THE APPEAL COMMITTEE dated 31st of August 2015

PRESENT:

Mr J Parkes – Appellant

Mr B Sweeney – Lay Advocate for J Parkes

Mr J Oatham – Stipendiary Steward – Racing Integrity Unit

Mr N Goodwin – Stipendiary Steward – Racing Integrity Unit

Mr P Williams – Registrar – Judicial Control Authority for Racing

1. Introduction

1.1 As a result of an incident in Race 7 at the Waikato Racing Club’s meeting on Saturday 15th August 2015 (Lisa Chittick Foxbridge Plate), a Group 2 race for a stake of $100,000), the appellant, Mr Johnathan Parkes, was charged with a breach of Rule 638(1)(d) (careless riding). Prior to the charge being heard, there had been a protest hearing. Mr Parkes mount, KAWI which finished second was relegated to 5th position, as a result of interference caused by Mr Parkes to the 5th placed horse, WHOSYOURMASTER.

1.2 Mr Parkes admitted the charge of careless riding and as a consequence, was suspended from race day riding for 6 days in the Central Districts region, which period of suspension encompassed meetings at Taupo, 19th August, Woodville, 20th August, New Plymouth, 22nd August, Hastings, 29th August, Otaki, 3rd September and Wanganui, 5th September, 2015.

1.3 Mr Parkes now appeals against that penalty. His ground of appeal is stated in his Notice of Appeal as “Consistency of application of applicable riding days within penalty period.” Mr Parkes also submitted, although not stated in his Notice of Appeal, that the Judicial Committee could have imposed a fine, in lieu of at least one day’s suspension. He also submitted during the course of the hearing of the appeal, that the penalty was severe and by implication, excessive.

1.4 Prior to submissions being presented, the Appeal Committee was shown the video coverage of the incident which gave rise not only to the protest but also to the charge against Mr Parkes. All camera angles that were shown to the Judicial Committee on race day were shown.

2. Submissions on behalf of the Appellant

2.1 Mr Sweeney, as Lay Advocate for Mr Parkes referred to the publication in the May edition of the “NZ Racing Calendar” of the revised penalty guide to be used by Judicial Committees when considering penalties for breaches of the Rules of Thoroughbred Racing. In particular, he referred to the statement with regard to the calculation of meetings to be included in a suspension period and the fact that Judicial Committees must go on enquiry of the rider and the Stipendiary Stewards as to the rider’s recent riding history to ensure that the period of suspension is genuine.

2.2 Mr Sweeney described this statement as a “seemingly new interpretation”.

2.3 He submitted that Mr Parkes felt “blindsided” by this “seemingly new interpretation” as even though he was essentially a Central Districts rider, he felt that by riding at the Waikato Racing Club’s meeting, on the 15th August that this would qualify him for “Northern Industry” days if he was to be suspended, even though Mr Parkes will only consider riding in the Northern region, if it is financially viable for him to do so. He further said that in the past, Mr Parkes had ridden for numerous Northern Region trainers and therefore he should be considered a “North Island” rider. However, in response to a question from the Chair, Mr Sweeney could not advise the hearing as to how many Northern Region rides Mr Parkes had in the last 12 months. Mr Sweeney considered that there had been a change in interpretation of the way in which days for the purposes of suspension were calculated.

2.4 Mr Sweeney went on to say, that the statement in the Calendar is not indicative of any major change in the way calculations have been done over the previous two years. In his written submission he said :

“There is no mention that riding Saturdays out of your home region does not qualify riders for Northern Industry days as in the past, and there is no mention of any basic guidelines/criteria to be met re riding Industry days out of a jockey’s home area to qualify a jockey to be afforded them in penalty.

The point here is that if Mr Parkes had been made aware that there was a new interpretation, he would have put in place a programme of riding in the preceding two months to qualify for Northern or Southern Industry days to allow him to claim these in case of suspension.”

2.5 Mr Sweeney then drew to the Committee’s attention four recent decisions of Judicial Committees (from 1st May 2015) where riders were given suspensions which included areas where they have not habitually ridden of recent times. He submitted that when the Chairman of the Judicial Committee said that “we have to be consistent” (see page 4 of the transcript of the race day hearing) that their decision was hardly consistent with the decisions that were referred to. Mr Sweeney also referred to a number of other cases where riders had been given 5 day suspensions but had only missed (on average), one Feature or Premier Day of racing. He said that Mr Parkes, would, in his period of suspension, miss two Feature days (Taranaki on 22nd August and Wanganui on 5th September) and a Premier 2 day at Hawkes Bay on 29th August. He submitted that Mr Parkes had been treated severely and inconsistently and should be afforded a reduction in penalty.

2.6 Mr Sweeney submitted that as Mr Parkes understood the effect of a six day period of suspension, that a fine could have been imposed as part of the overall penalty package. In the course of the race day hearing, Mr Parkes had asked for a fine to form part of his penalty, but that was rejected by the Judicial Committee.

2.7 In summary, the thrust of Mr Sweeney’s submissions was that the penalty was excessive, that due consideration was not given to the fact that Mr Parkes would miss two Feature days and one Premier 2 day and that he should also be regarded as a Northern rider so that meetings in the Northern region could be included in the period of suspension.

2.8 Much emphasis was placed by Mr Sweeney in the course of his submissions on the interpretation of the word “genuine” which appears in the penalty guide. More will be said on this later in this decision but suffice it to say that Mr Sweeney’s submissions in relation to the word “genuine” were focussed on whether Mr Parkes could (or should) be classified as a “genuine” Northern (or North Island) rider.

2.9 Mr Sweeney was seeking guidelines as to how days are to be calculated so that jockeys can be prepared to advise a Judicial Committee where he or she rides. He wanted to know what “recent” and “genuine” meant for the purposes of the interpretation as to what meetings are to be included in a period of suspension.

2.10 In response to a further question from the Chair, Mr Sweeney conceded that there was no real challenge to the way in which the Judicial Committee arrived at its decision as to penalty. His concern was which days were taken into account. Having said that, Mr Sweeney said that perhaps a five day suspension could have been imposed, including Matamata on 26th August in the period of suspension and for the fifth day to be converted to a fine. On that basis, Mr Parkes would have been able to ride “Kawi” at Hastings on 29th August.

2.11 The Chair also inquired of Mr Sweeney if Mr Parkes had said that he was expecting rides at a meeting at Matamata on 25th August if he could have produced evidence from trainers that they were requiring Mr Parkes’ services on that day. Mr Sweeney said that he believed that he could have, but conceded that in terms of arranging rides, as a general rule, he looked no further than one week ahead. No rides had been confirmed with any Northern Region meetings in the period of suspension. He said that Mr Parkes' loyalties lay, essentially with the trainers in the Central Districts region, from where he procures his rides.

2.12 Mr Sweeney said that if Mr Parkes had known how the period of suspension would be calculated, then he would have put in place a programme of riding on “industry days” so as to enable him to claim that he was a Northern Region rider should he be facing a period of suspension.

3. SUBMISSIONS ON BEHALF OF THE RACING INTEGRITY UNIT

3.1 Mr Oatham submitted that insofar as the penalty of a six day suspension was concerned, that it was appropriate, if not “on the light side”. He said that on race day, the Stipendiary Stewards were seeking a penalty of 6-8 days. He said that in his submission the Judicial Committee applied the correct principles of sentencing, particularly in relation to Rule 920(2) which requires a Judicial Committee to take into account:

(a) The status of the race;

(b) The stake payable in respect of the race;

(c) Any consequential effects upon any person or horse as a result of the breach of the rule; and/or

(d) The need to maintain integrity and public confidence in racing.

Mr Oatham pointed out that all four elements of Rule 920(2) were properly taken into account by the Judicial Committee in its decision making process. The race carried a stake of $100,000 and was a Group 2 race. Mr Parkes’ mount “Kawi”, was relegated to 5th position, and as a consequence the connection of “Kawi” had their stake return reduced from $20,000 to $5,000. He also observed that the public, who had placed their bets on “Kawi” (or included “Kawi” in their multiple bets) were deprived of their dividends. He also observed that the affected horse “Whosyourmaster”, was running on so strongly prior to the interference and consequential check, that it could conceivably have won the race had it not been for Mr Parkes’ carelessness. Thus, from the point of view of the RIU, the penalty imposed was not onerous. In essence, Mr Oatham submitted that the Judicial Committee applied the correct principles in imposing penalty.

Mr Oatham said with regard to the incident that Mr Parkes was honest about it by saying that he did hear the rider of “Whosyourmaster” call out but unfortunately the damage was done. It was still carelessness which was mid to high range. In any event, Mr Oatham submitted that the appellant was not seriously contesting the penalty – it was his concern for the days which were to be included in the period of suspension that was in issue.

3.2 With regard to the race day calculation, Mr Oatham submitted that Mr Parkes is a Central Districts rider, and that in order for Mr Parkes to be classified otherwise, he had to satisfy the Judicial Committee that he rode regularly in the Northern Region. He drew the committee’s attention to a Jockeys’ Association Newsletter that advised jockeys to keep a careful record of their rides so that if facing a suspension, they would be able to demonstrate to a Judicial Committee where they ride so that penalty days can be calculated accurately. Mr Oatham said he could not be sure if Mr Parkes received the newsletter prior to the 15th August 2015. The newsletter is undated, it simply being referred to as “August 2015”. Mr Oatham also said that he was of the clear understanding that Judicial Committees would look at the last three months of a jockey’s record to see where he or she habitually rode. In any event, the Penalty Guide had been published in the May edition of the NZ Racing Calendar.

3.3 Mr Oatham acknowledged that it was important for penalties to be as consistent as possible but added that it was his understanding that in the cases that Mr Sweeney referred to, that the Judicial Committees satisfied themselves that the riders in question had ridden where they said they had, even if it transpired on the basis of Mr Sweeney’s submission that they may not have ridden where they said they had.

3.4 Whatever the situation, Mr Oatham submitted that the Judicial Committee had gone on enquiry of Mr Parkes as to where he rode, which Mr Parkes responded to honestly. The thrust of his submission was that the Judicial Committee could only conclude that Mr Parkes was a Central Districts rider. With regard to possible forward bookings, Mr Oatham acknowledged that there had been situations where trainers had come forward and said they would give a rider bookings, but that to his credit Mr Parkes did not attempt to do that.

3.5 Mr Oatham was asked to comment on the four cases that Mr Sweeney had referred to where riders seemed to have been given credit for riding in areas where they might not have ridden of recent times. With regard to the Hutchings decision, Mr Oatham could not assist. Insofar as the Coleman case was concerned, Mr Oatham said that he was classified as a “North Island “rider. The McNab case was adjourned and heard on 6th May and by then the interpretation of the period was known, and Mr McNab was only suspended for Northern Region days. The riders suspended on May 2nd, were, as Mr Oatham understood it, regarded as North Island riders, and to all intents and purposes Judicial Committees may not have differentiated between Central Districts and Northern Region on that day. With regard to the Hills decision, Mr Oatham was unable to comment. Insofar as the Spratt decision was concerned, he was of the belief that she had advised the Judicial Committee that she was riding all over the North Island and that her agent had taken bookings for a meeting at Waverley. In summary, he submitted that the Judicial Committees must have been satisfied as to where the jockeys in question rode or were going to be riding. This was by way of contrast to the current case, where it was clear that the Judicial Committee had made thorough enquiries of Mr Parkes as to where he rode. The end result of their enquiries was that Mr Parkes is a Central Districts rider and therefore, the period of suspension could only cover Central District’s days.

3.6 With regard to the submission by Mr Sweeney that a fine could be imposed as part of the penalty, in lieu of a day’s suspension, Mr Oatham said that the RIU did not support the imposition of a fine to replace a suspension. If a fine was to be imposed then it should only be in addition to a suspension. When a fine has been imposed it has only been in exceptional circumstances. He submitted that the period of suspension to include Hastings on the 29th August was always in the mind of the Judicial Committee, as the Judicial Committee was regarding Mr Parkes as a Central Districts rider. The Hastings meeting was always going to be included within the penalty period but not at as the last day of the period of suspension.

3.7 By way of comment about the various other jockeys who had received suspensions since 1st May, where many of the cases only included one Feature or Premier Day, the fact that during the period of Mr Parkes’ suspension he would miss two feature days and a Premier Day was just the way the Racing Calendar was structured. He said that a “race day meant a race day”.

Mr Sweeney’s reply

4.1 Mr Sweeney submitted that there was a difference between an “Industry Day” and “a race day” but did not expand on that submission.

4.2 When asked if Mr Parkes had attempted to claim that he was a South Island rider by virtue of having ridden at the Grand National meeting in August, that the meeting at Timaru on 21st August, should be included in the period of suspension, Mr Sweeney conceded that he would not realistically been able to make such a claim.

Decision and reasons

Even though Mr Parkes has not, in his Notice of Appeal, stated that the penalty imposed was excessive, we have granted him special leave, in terms of Rule1005(4) to argue that the penalty was excessive. Thus, we regard that as his first ground of appeal.

Mr Parkes second ground of appeal is that stated in his Notice of Appeal, namely “consistency of application of applicable riding days within penalty period”.

1. Was the penalty imposed excessive?

In order to determine this ground of appeal was excessive we need to consider the evidence that was put before the Judicial Committee and the method by which it arrived at its decision. Having done that, we must then consider if the Judicial Committee’s decision was excessive and if so, to decide if the penalty should be quashed, and a substitute penalty imposed.

The Judicial Committee took as its starting point, a suspension of 5 days, as recommended in the Judicial Control Authority’s Penalty Guide. It then considered aggravating and mitigating factors.

The first aggravating feature that it considered, was the degree of carelessness, which it assessed, as being mid-range. This assessment was made by two experienced JCA panelists based on their combined views of the riding actions of the Appellant.

Mr Parkes’ carelessness had the effect of interfering with the progress of WHOSYOURMASTER which was checked, and which horse could well have finished in a higher position had it not been for the interference caused to it. WHOSYOURMASTER finished 5th. The consequence of that, was, a protest was upheld, and Mr Parkes’ mount which was second at the post, was relegated behind WHOSYOURMASTER.

The Judicial Committee then considered the matters which it is required to do under the provisions of Rule 920(2) which we have set out above. The incident occurred in a Group 2 race, which carried a stake of $100,000. It is more likely than not, the connections of WHOSYOURMASTER were deprived of higher stake money and as a result of Mr Parkes' carelessness, the connections of KAWI had their stake money reduced markedly. Furthermore, the betting public was deprived of their dividend returns as a result of KAWI being relegated.

The Judicial Committee had due regard to the fact any period of suspension would take include the Premier 2 day at Hastings on 29th August 2015 and stated that had it not been for that day, then it would have imposed a higher penalty.

The mitigating factors present were Mr Parkes early admission of the breach of Rule 638(1)(d) and his good riding record.

The overall effect was that the Judicial Committee provided for an uplift on its starting point of one day, making the period of suspension, six riding days.

Mr Parkes’ submission that a fine should be imposed as part of his penalty was rejected by the Judicial Committee. Because of our findings which follow with regard to the consideration of applicable riding days in the period of suspension, we also reject this submission. Mr Parkes, was seeking a fine because he believed that his period of suspension would end on the Premier Day at Hastings on 29th August and thus he was hoping that he would be suspended for four days and fined so that he could ride KAWI on 29th August.

The Judicial Committee did not expand on their reason for saying that the request for a fine and suspension was not applicable, but suffice it to say that there are no clear guidelines as to when a fine should be imposed as part of an overall penalty. Previous decisions seem to indicate that an indulgence is granted by a Judicial Committee by imposing a fine and therefore enabling a jockey to ride at a Premier meeting if the Premier meeting is effectively on the last day of a potential suspension but such decisions are few, and quite subjective in approach.

Overall, we are satisfied that the penalty imposed was not excessive. The Judicial Committee clearly took all appropriate sentencing considerations into account and considered the penalty in a careful and reasoned manner. Whilst some may regard the penalty imposed as being “severe” that does not of necessity mean, as is often said in appeals against penalty, that it was “manifestly excessive”. Whilst Judicial Committees do aim for consistency, there will always be situations which turn on their own facts and that may mean a departure from the type of penalty that may usually be imposed. Having said that, we do not regard the penalty imposed as being particularly severe or “manifestly excessive”. Therefore, we reject the first ground of appeal that the penalty was excessive.

2. Was the Judicial Committee inconsistent in considering applicable riding days within the penalty period?

In the race day hearing there was a lengthy discussion with Mr Parkes about his riding history of recent times. Mr Parkes said that he rode most of the time “around Central” but that he classed himself as a Northern rider. The race day Chairman pointed out to Mr Parkes that the most recent Penalty guide categorised Northern region and Central Districts riders and asked Mr Parkes if he had been riding at Northern industry days. Mr Parkes conceded that he did not have a record of riding in the Northern region. He said that he had recently ridden for the Rogerson Stable at the Te Teko Trials but that nothing in the way of confirmed rides came from that. Therefore, the only conclusion that the Judicial Committee could realistically reach was that Mr Parkes is habitually a Central Districts rider. Mr Oatham produced to the hearing of this appeal, Mr Parkes’ riding history over the past three months and apart from one day at the Waikato Racing Club’s meeting on 2nd May 2015 (and the day in question, namely 15th August), Mr Parkes had not otherwise ridden in the Northern Region. Of interest is the fact that Mr Parkes rode on two days of the Grand National Carnival at Riccarton on 1st and 8th August 2015, yet Mr Sweeney acknowledged that Mr Parkes could not argue that he was a South Island rider and therefore South Island days should be taken into account.

It was Mr Sweeney’s argument that Mr Parkes will only travel to the Northern region if it is financially viable for him to do so. If, however, Mr Parkes had known that he had to ride at Northern Region days, in order for him to be categorised as a Northern rider, then he would have put in place a programme of riding, in the Northern region, in the event he was to face a suspension at some stage in the future. In such a case he could then safely submit that he was a Northern Region rider so that Northern Region dates were taken into account in the calculation of the period of suspension, even if it meant riding on “industry days” when the stakes and potential returns to a jockey are not as great as weekend racing.

We have to conclude that this argument is disingenuous and is nothing more than “wisdom with hindsight”. It is rejected. The 2015 Penalty Guide was published in the May edition of the NZ Racing Calendar and came into effect on 1st May 2015. Even though the way in which Judicial Committees approach the matter with regard to the categorisation of Northern and Central Districts riders may not have been specifically drawn to the attention of jockeys until the publication of the August Jockeys’ Association newsletter, the fact of the matter is that the Penalty Guide was available and is therefore deemed to have been read by Licence holders.

Mr Sweeney argued that this matter was a “seemingly new interpretation”. We do not accept that there is anything new about the way Judicial Committees consider how to make a penalty “genuine”. For example, South Island Judicial Committees do not take into account Central Districts and Northern region meetings when considering periods of suspension for South Island riders unless there is clear evidence supported by a recent riding history of riding out of the South Island, as well as some evidence of future riding engagements. To make a penalty “genuine” there can be no other way than looking at a jockey’s recent riding history and determining where a jockey habitually rides. “Genuine” means, among other things, for the purposes of penalty, “effective,” or “realistic”. A suspension cannot be considered to be “genuine” if the period includes a day or days at places where a jockey would not ride and has not ridden except on rare occasions. Mr Parkes period of suspension includes race days at Matamata on 26th August, Te Awamutu on 2nd September and Tauranga on 4th September. These days could be classified as “industry days”. On Mr Parkes’ own admission, he does not go to those race courses unless it is financially viable for him to do so. Thus, had the Judicial Committee included those days in the period of suspension, then the penalty would not have been “genuine”.

By way of comment, the expression “industry days” featured with frequency in the submissions made to us. In our opinion, nothing of any significance turns on the use of the word, “Industry”. A race day is a race day.

For the reasons given, we do not consider that the Judicial Committee erred by being inconsistent in its application of applicable riding days within the penalty period. Therefore the second ground of appeal is rejected.

Result

The appeal is dismissed.

Costs

As directed on the day of the hearing when an interim decision was given advising that the appeal was dismissed with reasons to follow, the RIU is to file with the Judicial Control Authority written submissions as to costs within seven days of the 24th August 2015. Mr Parkes is to respond in writing within seven days.

KG Hales                                             N McCutcheon

Appeals Tribunal Chairman                Appeals Tribunal Member

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