Non Raceday Inquiry – RIU v M McNab – 29 June 2016 – Chair, Mr R Seabrook

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decisiondate: 29/06/2016

hearing_title: Non Raceday Inquiry - RIU v M McNab - 29 June 2016 - Chair, Mr R Seabrook

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NON RACEDAY INQUIRY BEFORE THE JUDICIAL CONTROL AUTHORITY

JUDICIAL COMMITTEE: Mr Richard Seabrook – Chairman, Mr Adrian Dooley – Committee Member

VENUE: Cambridge Jockey Club

DATE: 29 June 2016

INFORMATION NUMBER: A7135

INFORMANT: Racing Integrity Unit – Mr A Cruickshank, RIU Investigator

RESPONDENT: Mr M McNab, Licensed Class A Jockey

ALSO PRESENT: Mr C McNab, Licensed Trainer

RULE: Rule 340

PLEA: Admitted

CHARGE

INFORMATION A7135
On 7 June 2016 at the Cambridge Jockey Club in Cambridge, did misconduct himself when he assaulted Licensed Class D Jockey Shaun Phelan in breach of Rule 340 of the New Zealand Rules of Thoroughbred Racing and is therefore subject to the penalty or penalties which may be imposed pursuant to Rule 803(1) of the said Rules.

RULE Rule 340
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.

PENALTY 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.

Mr McNab confirmed to the committee that he had been served a copy of the charge and the relevant rule both of which he understood.
Mr Cruickshank produced a letter from Mr Godber authorising the charge against Mr McNab.

SUMMARY OF FACTS BY MR A CRUICKSHANK:
Mr Michael McNAB holds a Class A Riders licence issued by New Zealand Thoroughbred Racing. He has been involved in the racing industry most of his adult life.

Mr Shaun PHELAN holds a Class D Riders licence issued by New Zealand Thoroughbred Racing.

On Monday 6 June 2016 at the Auckland Racing Club meeting at Ellerslie there was a minor incident involving Mr McNAB and Mr Matthew CROPP, who is an associate of Mr PHELAN. Mr CROPP and Mr PHELAN later had their jockey bags interfered with.

Mr PHELAN believed that Mr McNAB was involved and whilst travelling back to Cambridge Mr PHELAN’s partner Ms Emily FARR phoned Mr Harley CUSHING, an associate of Mr McNAB, who was travelling with him in the same vehicle.

It was suggested by Ms FARR that Mr CUSHING pull his car over so that the issue could be discussed and resolved. Mr CUSHING however did not pull his vehicle over nor did he tell Mr McNAB who had called.

At about 10.20am on Tuesday 7 June 2016 Mr McNAB was at the Cambridge Jockey Club Trials on Racecourse Road, Cambridge.

Mr PHELAN arrived at the Cambridge Trials with Ms FARR. Mr McNAB saw Mr PHELAN and approached him in a purposeful manner.

There was an exchange of words and the conversation became heated.

Mr PHELAN said to Mr McNAB that this is not an appropriate place for the argument to be conducted so suggested that they walk out the front gate of the racecourse. Mr McNAB agreed.

Mr PHELAN then turned to hand a sandwich which he had just purchased to Ms FARR.

As he turned away Mr McNAB punched him twice in the jaw with a closed fist. The first punch with his right hand, the second punch with his left hand.

A short struggle ensued but no further punches were thrown.

Mr McNAB and Mr PHELAN were separated by several others who had seen the struggle and came to intervene.

As a result of Mr McNAB’s actions Mr PHELAN suffered two small cuts to the inside of his bottom lip. He did not require medical treatment but expressed concern with the actions of Mr McNAB as he has suffered breaks to his jaw on 2 previous occasions.

Mr MCNAB admitted the facts as outlined and in explanation stated that he had had enough of Mr PHELAN spreading rumours about him and he wanted it to stop. He further stated that he completely regretted what he had done and would take it back if he could. He felt that he has let himself and his family down.

Mr McNAB is engaged with a young family. He is currently 30 years of age. He has no previous Rule breaches for similar occurrences but does have a breach for making a false or misleading declaration several years ago.

SUBMISSIONS BY Mr M McNab:
Mr McNab advised the committee that there had been some provocation by Mr Phelan several months ago. He said that he had been accused by Mr Cropp and Mr Phelan for interfering with their riding gear on the 6th of June. He said this was not true and a produced a signed letter from a fellow Jump rider supporting this fact.

Mr McNab produced character references from Mr N Tiley, Mr A Rodley and Sir Patrick Hogan.

I am currently enjoying the most success that I have ever had as a licensed jockey. This is down to the dedication, commitment and hard work that I've shown to my riding over the last few years.

I currently sit 19th on the Jockey Premiership ladder, but my strike rate is amongst the highest of all the riders.

As at 22 June 2016

1st       2nd       3rd       Stakes        Rides       G&L      S/Rate

47        64         37        $991,402  499          3          10.62

I have no previous history under the NZTR Rules for similar offending. I don't have a criminal background either.

I have tried to live a good life with good morals, and be a role model for my son.

I am devastated to find myself in this position, but I will rise above it for the sake of my family. I take full responsibility.

I will fix it.

I want the Committee to understand that this was not a premeditated act, but was something that occurred after I felt threatened and provoked. Mr Phelan had stated that he wanted to go outside the gate … which I took to mean that he was preparing to fight me.

I didn't want to fight him because Mr Phelan is significantly bigger than I am. I guess the thought I had going through my head was that if

I am going to get beaten up I might as well get in first.

I am not trying to downplay my actions because they were clearly wrong and inappropriate, rather I am trying to show how things escalated in my mind, probably because of the lack of sleep and the stress that I have been going through in my personal life.

As soon as it happened I regretted what I had done. If I could take back that moment I would. I knew that I had let myself and my family down. I think it is probably the biggest regret that I have since I have been riding.

I would like to apologise to the RIU, the Judicial Control Authority and the entire industry, for my actions.

I can promise that I will not allow myself to make the same mistake again.

DECISION:
As the breach was admitted we find the charge proved.

PENALTY SUBMISSIONS by Mr A Cruickshank:
1. The respondent Mr McNAB is a Licensed Class A Jockey. He has been involved in Thoroughbred Racing all his adult life. He is 30 years of age with a date of birth of 28 December 1985.

2. Mr McNAB has admitted a breach of the rules in relation to a charge of misconducting himself when he assaulted Licensed Class D Jockey Mr Shaun PHELAN at the Cambridge Jockey Club Trials on 7 June 2016.

3. The facts are set out in the Summary of Facts and these are not disputed.

4. The penalties which may be imposed are also fully detailed in the Charge Rule Penalty provisions document.

5. Aggravating Factors

a. That the assault occurred on a Racecourse.

b. Mr McNab is an experienced rider who should be aware of acceptable and unacceptable behaviours.

6. Mitigating factors

a. Mr McNAB has fully co-operated with Investigators.

b. Mr McNAB has admitted the facts, apologised unreservedly and expressed remorse.

c. The R.I.U are aware of personal family problems outside of racing which may have impacted and affected Mr McNAB’s judgement.

d. Mr NcNAB has no previous rule breaches for violence or assault.

7. The RIU is seeking a penalty of 2 months disqualification.

8. The following cases are precedent for this type of offending and may be of some assistance to the Committee.

NZTR v R. BLACK (20 July 2011)
Subject: Misconduct, Trainer and Amateur Rider assaulted owner with a plastic fence standard with steel points causing a “deep gash to an arm”.

BLACK had her trainers and amateur rider’s licences suspended for 6 months, fined $500 and JCA costs $100.

NZTR v T. THORNTON (June 2008)
Subject: Misconduct, Assaulted another rider in Jockey’s room after a race.

THORNTON was disqualified for 2 months, NZTR Costs of $750 and JCA Costs $800.

NZTR v D. R. BOTHAMLEY (30 September 2008)
Subject: Misconduct, Assaulted another rider in the Jockey’s room after a race.
BOTHAMLEY was disqualified for 1 month, NZTR Costs of $150 and JCA Costs $250.

9. The RIU is not seeking costs.

PENALTY SUBMISSIONS by Mr M McNab:
I am a Licensed Class A Jockey and have been involved in the industry all my adult life.

I am engaged to my fiancée and we have a young five-year-old child together. We have recently purchased a house in Cambridge.

I am the sole income provider for my family.

I have very recently learned that my mother has been diagnosed with a serious illness. This has caused me a significant amount of stress which has resulted in broken sleep, moody behaviour, and a genuine feeling of hopelessness in that I cannot do anything to help her situation. My mother and I are extremely close, and I was with her when she was told of the news regarding her health.

I am the oldest child and feel that that entails additional stress and responsibility.

I only learned of my mother's health issues the week before the incident with Mr Phelan. I have only been averaging four hours sleep per night since I learned of the serious illness.

I live in a modest house in Cambridge and have a mortgage which I service.

My partner does not work she looks after our son.

If these facts were in front of a District Court I would be looking at a $500 fine – tops, but this is a JCA hearing and different Rules apply.

Two months suspension would cost me approximately $16,000. I can pay a fine, but that comes out of our savings. I will also lose rides when I get back from suspension because other jockeys swoop on your rides while you are out of action. A two-month disqualification would be career threatening, and would be manifestly wrong, and certainly cost me any chance of a Singapore contract which has been discussed.

Mr McNab provided the committee with 4 incidents regarding assault which mainly occurred last century.

REASONS FOR PENALTY:
The committee has carefully considered all the submissions and evidence as presented. In mitigation Mr McNab has admitted the breach and has a clear record under this rule. Added to this he has expressed genuine remorse and co-operated fully with the RIU investigators. Mr C McNab also brought to the attention of the committee the personal family problems explaining the stress and pressures they have had to deal with. The committee accepts this may well have had a bearing on Mr M McNAB’s state of mind at the time of the incident. Obviously there were several provoking factors leading up to the incident on June 7th at the Cambridge Trials which the committee does give some weight to.

However, these factors must be balanced against the known aggravating factors. It is not in dispute that Mr McNab punched Mr Phelan twice on his face. The committee is disappointed that Mr McNab decided to take matters into his own hands and told him that in future he must ignore rumours by listening to other parties and concentrate on being the talented rider he is. Even with the provocation already mentioned such aggravating behaviour cannot be condoned nor can it be tolerated. It has no place amongst licensed persons within the racing industry.

In assessing penalty, the committee has referred to previous comparable cases under this rule. Given that a breach of this kind is a rarity we took guidance from the penalties which were imposed. It is noteworthy that of the two most recent cases, one was of an unprovoked nature and the other was a second breach by the rider. The committee also referred to the JCA Penalty Guide which states for a misconduct charge the penalty is fact dependent. However, because of the serious nature of this charge a suspension was not appropriate and any penalty must act as a deterrent to all in the industry.

The committee has had regard to the character references supplied by Mr M McNab which spoke highly of him both as a person and a rider. The committee also had regard for the financial impact this penalty will have on Mr McNab.

PENALTY:
After taking all the above factors into account the committee finds the appropriate penalty to be a one-month disqualification. Therefore, Mr McNab’s license is disqualified from 29 June until 27 July 2016 (inclusive).

COSTS:
The RIU has not sought any costs. However, the JCA has incurred costs and accordingly Mr M McNab is ordered to pay a percentage of these, namely $400.

R Seabrook        A Dooley
Chairman          Committee Member
 

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