Non Raceday Inquiry – NZGRA v SC Mann – 3 March 2011 – Decision relating to penalty

hearingid: 92c579e827134f4f5c7fc18bf4fe38a6

informantnumber: 68916 and 68917

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decisiondate: 24/02/2011

hearing_title: Non Raceday Inquiry - NZGRA v SC Mann - 3 March 2011 - Decision relating to penalty

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

NON RACEDAY JUDICIAL COMMITTEE DECISION

Informant: Racecourse Inspector Mr T R Carmichael on behalf of Greyhound Racing New Zealand (GRNZ)
Defendant: Stephen Cecil Mann, Licensed Handler
Information: 68916 and 68917
Meeting: Waikato and Districts Greyhound Racing Club
Date: 24th December 2010. Hearing date 3rd March 2011 at Te Rapa
Venue: Cambridge Raceway
Race: 10
Rule No: 88.1(g), 88.1(o) and 89.1(Penalty rule)
Judicial Committee: B Rowe, Chairman - B Scott, Committee Member
Plea: Not admitted
Also Present: Mr C George, Racing Integrity Unit, Prosecutor, prosecution witnesses Stipendiary Steward Mr R Quirk and Assistant Stipendiary Steward Mr M Austin, Mr T Ryan Counsel for the defendant, Michelle Mann defence witness. Mr Carmichael was not present.

CHARGE(s):

That on the 24th day of December 2010, at Cambridge Raceway, Stephen Cecil Mann committed a breach of rule 88.1(g) in that he verbally threatened Michael Austin, a Deputy Stipendiary Steward, during a verbal altercation following the abandonment of race 10; and that Stephen Cecil Mann is therefore liable to the penalty or penalties that may be imposed pursuant to rule 89.1.

That on the 24th day of December 2010, at Cambridge Raceway, Stephen Cecil Mann committed a breach of rule 88.1(o) in that he misconducted himself following the abandonment of race 10, in that he verbally threatened Michael Austin, a Deputy Stipendiary Steward; and that Stephen Cecil Mann is therefore liable to the penalty or penalties that may be imposed pursuant to rule 89.1. (as amended)

PRELIMINARY MATTERS:
1 On 3rd March 2011 after considering the evidence we gave a brief oral decision on the charges. The following is our full decision on the charges.
2 “Misconduct” is not defined in the rules. We adopted the following interpretation – “conduct which is either (a) improper – not in accordance with accepted rules / standards of behaviour OR (b) unprofessional – contrary to professional standards of behaviour.
3 Information 68917 was amended to include what conduct on the part of Mr Mann is alleged to constitute “misconduct”.
4 Mr George confirmed the charges were in the alternative.
5 Mr George produced a copy of GRNZ documentation showing the defendant is a licensed handler.

EVIDENCE:
Mr Austin said he was on duty at the meeting in question on the 24th December 2010. He said he was standing on the hill at the start of race 10 and the defendant was standing nearby. The dog MORE PORK trained by the defendant’s wife Michelle Mann, was a starter in the race. Mr Austin said the lure broke down after about 150metres, he heard the defendant swear and the defendant then ran across the tracks to where Mrs Mann had retrieved MORE PORK. Mr Austin said he went to the area where the dogs were retrieved. The defendant and his wife were arguing – the defendant took control of the dog. Mr Austin said he twice ordered the defendant to give the dog back to Mrs Mann because he thought there might be a rerun. The defendant refused to do so and said words to the effect “I am going to do you after the last race and I know where to find you”. Mr Austin said the defendant was angry and aggressive towards him. He radioed Mr Quirk, reported the threat made and requested Mr Quirk’s assistance. Mr Austin said he was concerned for his safety – he felt very scared – he thought the defendant might attack him and cause serious damage. He said after finishing duty, he was escorted to his car by Mr Quirk for safety reasons.

In cross examination Mr Austin denied that all that happened was a heated dispute between himself and the defendant. A DVD produced by Mr Ryan was played. It showed the prestart, start, lure breakdown, the defendant running across the infield and the retrieval of the dogs.

Mr Quirk said he was the Stipendiary Steward in charge at the meeting. After the lure broke down he was told there was no power for it and he then declared the race to be “abandoned”. He said he received a radio call from Mr Austin who said he had been abused by the defendant. He said Mr Austin sounded scared. He went to the track and spoke to Mr Austin who said he had been threatened by the defendant. Mr Quirk said he spoke to the defendant, told him about Mr Austin’s complaint and told him his behaviour was unacceptable. He said the defendant said he “would get him (Mr Austin) as soon as he leaves the track”. He said the defendant was very angry. He said he later escorted Mr Austin to his car because he was concerned the defendant might carry out his threat.

In cross examination Mr Quirk confirmed the defendant was angry and upset. He denied that his evidence regarding the threat to Mr Austin by the defendant was only his interpretation of what the defendant said.

Mr George gave evidence responding to some matters that had arisen earlier in the hearing, however this evidence was not directly related to the facts in issue.

The defendant gave evidence. He said he was a licensed handler and MORE PORK was “my dog”. He said he ran across the track when the lure broke down because MORE PORK was temperamental and aggressive and he wanted to avoid trouble. He said he took hold of the dog and then had an argument with Mr Austin about the handling of the dog. He denied threatening Mr Austin. He said as a result of two major head injuries he is hot headed and gets “angry without too much provocation”.

In cross examination the defendant agreed he was angry when the lure broke down and angry when talking to Mr Austin. He acknowledged saying to Mr Quirk “I’ll sort him out outside afterwards” (referring to Mr Austin). He said he meant he would talk to Mr Austin and ask him what his problem was – it was not a threat. He agreed that he wanted to “take it outside” so that he would not be bound by the rules. The defendant’s response to some other questions was that “I can’t remember due to my medical problem”. He produced two documents relating to his medical problem.

In re-examination the defendant said he did not intend to sort out Mr Austin physically.

Mrs Mann gave evidence. She said she was a licensed trainer and trained MORE PORK. She confirmed the defendant has a “short fuse” as a result of head injuries. She did not hear the defendant abuse Mr Austin. After race 10 was abandoned she and the defendant attended to the four dogs they had raced and then left the course.

In summing up Mr George suggested the committee should accept the evidence of the two Stipendiary Stewards as to what the defendant said. He referred to the defendant’s general acceptance of the evidence of Mr Quirk regarding him (the defendant) saying he “would get him as soon as he leaves the track” and the evidence of the defendant that he did not think the rules would apply to conduct by him outside the track.

Mr Ryan said the defendant was justifiably upset and acted in what he thought was the best interests of the dog. He said there was a verbal dispute and the defendant wanted to sort it out later – not sort out Mr Austin. Mr Ryan said the standard of proof was on the balance of probabilities. He said that standard had not been reached – there was a conflict of evidence between the prosecution and defence – the charges should be dismissed. He said if the committee found that a threat had been made it was an empty threat. He suggested it would be more appropriate to find the misconduct charge proven rather than the other charge on the basis the defendant had refused to follow a direction.

REASONS FOR DECISION:
The basis for both charges is that the defendant verbally threatened Mr Austin. The charges are in the alternative. We have considered all of the evidence, some of which had little or no relevance to the basic allegation. There is no dispute the defendant was upset and angry when the lure broke down. There is no dispute he was upset and angry when Mr Austin directed him to hand control of MORE PORK to his wife. There is no dispute the defendant is prone to being readily upset and angered. Mr Austin was clear in his evidence that the defendant verbally threatened him. He immediately reported the threat to Mr Quirk and requested assistance. He impressed us as being a truthful and reliable witness. He responded professionally to robust cross examination. Similarly Mr Quirk impressed us as a truthful and reliable witness. Overall his evidence is confirmatory of the evidence of Mr Austin. Both Mr Austin and Mr Quirk obviously believed the defendant had made a serious threat – Mr Quirk escorted Mr Austin to his car when he was ready to leave the course.

The defendant’s evidence is that he wanted to sort out the problem Mr Austin had – not sort out Mr Austin. Given all of the circumstances, including the defendant’s anger, the clear and consistent evidence of Mr Austin and Mr Quirk and the defendant’s evidence that he believed he was not bound by the rules in relation to what happened outside the course, we reject the defendant’s explanation. We accept Mr Austin’s account of what the defendant said to him and accept that the defendant’s words constituted a threat to Mr Austin. Mr Ryan said the standard of proof is on the balance of probabilities. We can find no reference to standard of proof in the rules. In reaching our decision we are satisfied beyond reasonable doubt.

DECISION:
For the above reasons we find the charge under rule 88.1(g) proven. Having reached that decision we are not required to make a finding in relation to the other charge which is therefore dismissed.

SUBMISSIONS ON PENALTY AND COSTS:
We directed that written submissions be filed. The submissions of Mr George include reference to the following:
• Threatening a Stipendiary Steward is serious misconduct.
• On 14th January 2009 a Judicial Committee imposed a penalty of 3 months disqualification on Mr Mann for misconduct by him on 12th October 2008. The misconduct was abuse of three other licence holders and a threat to one of them. The Judicial Committee took into account previous misconduct breaches by Mr Mann in 2003 and 2004 and advised Mr Mann that a lengthy period of disqualification would follow for any further misconduct breaches on his part.
• On the 6th of May 2009 an Adjudicating Steward imposed a penalty of 5 months disqualification on Mr Mann for misconduct by him on 26th January 2009. The misconduct was improper / insulting / offensive language directed to another licence holder. Mr Mann had defended this charge and part of his defence was that he was not on the racecourse property when he used the language complained of. The Adjudicating Steward told Mr Mann that any further misconduct breach on his part would result in disqualification measured in years and not months.
• In the 19th November 2009 edition of PAW PRINT magazine a letter from the Racing Manager of GRNZ was published. In that letter it was spelt out that “abusive and offensive language, threatening behaviour and on occasions confrontation by licence holders” is totally unacceptable.
• A written warning given to Mr Mann about his “judicial history” when he was granted a handler’s licence on the 19th November 2009.
• Decisions in two Australian cases in which the seriousness of misconduct towards Stewards was emphasised.
• The need for a deterrent penalty.
In summary the submission of Mr George is that Mr Mann should be disqualified for a period of not less than two years and should be ordered to pay costs to GRNZ of $480, those costs relating to the attendance at the hearing of Assistant Stipendiary Steward Mr Austin.

The submissions of Mr Ryan include reference to the following:
• At the relevant time Mr Mann was in a distressed state because of his concern for his dog.
• It was not necessary for Mr Austin to order Mr Mann to hand over the dog to Mrs Mann – this led to the “verbal altercation”.
• The medical history of Mr Mann – in particular head injuries which contribute to the anger problem he has.
• The two year disqualification sought by Mr George is grossly excessive.
• Reference to penalties imposed in other cases including two cases involving Mr Mann when he was not represented by Counsel.
• An acknowledgement by Mr Mann that his behaviour on this occasion was “out of order” and an expression of regret by Mr Mann for the distress caused to Mr Austin.
• Steps being taken by Mr Mann to arrange anger management therapy because his behaviour needs “drastic modification”.
• The potential for a penalty of disqualification to adversely affect Mr Mann’s current employment.
In summary the submission of Mr Ryan is that the penalty should be a suspension coupled with a modest fine. He said that GRNZ should meet the costs in relation to Mr Austin.

REASON(s):
Rule 89.1 provides the following penalties:
a. a fine not exceeding $10,000.00; and / or
b. Suspension; and /or
c. Disqualification; and / or
d. Warning Off

In fixing penalty we have taken into account the detailed submissions of Mr George and Mr Ryan and the “zero tolerance” position of GRNZ in relation to poor behaviour by licensed persons. We have also taken into account previous breaches of the misconduct rule by Mr Mann.

On the 25th June 2003 he was charged with misconduct, no penalty was imposed but he was ordered to pay $750 costs.

On 26th July 2004 he was charged with misconduct and a fine of $750 was imposed.

On the 14th January 2009 he was charged with misconduct, he was disqualified for three months and warned that a lengthy period of disqualification would be imposed for any future breach of the misconduct rule.

On the 6th May 2009 he was charged with misconduct, he was disqualified for five months and warned that any further breach of the misconduct rule would result in a disqualification measured in years and not months. We view the offending on this occasion – which is akin to misconduct - as more serious than the previous breaches involving as it does a threat to physically harm an official. We accept Mr Mann has an anger management problem and that he is taking steps to alleviate it. However, he has been aware for some time that he has this problem and he clearly needs to exercise greater self control in conflict situations. We do not accept that suspension is an appropriate penalty. That would mean imposing a lesser penalty for a more serious breach. There clearly needs to be a deterrent penalty imposed, not only as a deterrent to Mr Mann, but also to others who may be tempted to abuse / threaten an official.

sumissionsforpenalty:

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penalty:

For the above reasons, but with emphasis on the previous breaches, Mr Mann is disqualified for a period of 18months. Mr Ryan has indicated that a penalty of disqualification would result in Mrs Mann relinquishing her Trainers Licence. He has requested that any penalty of disqualification take effect from the 30th April 2011 so as to enable Mrs Mann to place the dogs she trains elsewhere.

Mr George opposes any such deferment.

We note the possible adverse effect of disqualification on Mr Mann’s current employment. A deferment would enable Mr Mann to make the necessary applications to the racing codes. We express the hope that the three racing codes can take steps to prevent any such adverse effect. In all the circumstances we believe a deferment is reasonable.

The period of disqualification will commence on the 30th April 2011 and conclude on the 30th October 2012.

As to costs, Mr Mann is to pay the sum of $650 to the Judicial Control Authority as a contribution towards the costs of conducting the hearing. He is ordered to pay the sum of $300 to GRNZ in relation to the costs incurred in having Mr Austin attend the hearing. In calculating this amount we have taken into account the scale of witness fees applicable to District Court Hearings.
 

B Rowe               B Scott
Chairman           Committee Member
 

hearing_type: Non-race day

Rules: 88.1(g), 88.1(o) and 89.1 (Penalty Rule)

Informant: Mr TR Carmichael - Racecourse Inspector on behalf of NZGRA

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PersonPresent: Mr SC Mann, Mr T Ryan - Counsel for Mr Mann, Mrs M Mann - Defence witness, Mr C George - Prosecutor Racing Integrity Unit, Mr P Quirk - Stipendiary Steward, Mr M Austin - Assitant Stipendiary Steward

Respondent: Mr Stephen Cecil Mann - Licensed Handler

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