Non Raceday Inquiry RIU v S Lawson – Reserved Decision on Penalty (Reasons) dated 5 March 2019 – Chair, Prof G Hall

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decisiondate: 05/03/2019

hearing_title: Non Raceday Inquiry RIU v S Lawson - Reserved Decision on Penalty (Reasons) dated 5 March 2019 - Chair, Prof G Hall

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Decision:

BEFORE A JUDICIAL COMMITTEE OF

THE JCA AT HAMILTON

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN-RACING INTEGRITY UNIT (RIU)

Informant

AND-MR SIMON LAWSON

Open Horseman/ Licensed Public Trainer

Respondent

Informations: ---A8707 and A8708

Judicial Committee: ---Prof G Hall, Chairman

Mr D Jackson, Member

Appearing: -Mr S Symon, and Ms E Smith, for the Informant

Mr R Lawson, for the Respondent

RESERVED DECISION OF THE JUDICIAL COMMITTEE ON PENALTY (REASONS)

[1]-At a hearing at Te Rapa racecourse on Tuesday 19 February Mr S Lawson confirmed his earlier admission of two breaches of r 505(1) of the New Zealand Rules of Harness Racing. Rule 505(2) declares these breaches to be serious racing offences.

[2]-Information No A8707 alleges “on Friday the 25th May, 2018, at the Auckland Trotting Club race meeting, held at Alexandra Park, being a horseman (Open Driver) you did bet on a horse, namely MR NATURAL in a race, namely Race 10, the “Book An ATC Bus to The Jewels” Mobile Trot, in which you drove the horse MY ROYAL ROXY having placed a futures option win bet for $50 @ $35 and place bet for $50 @ $6 earlier on the 25th May 2018, on MR NATURAL in breach of Rule 505(1) and (2) which is declared to be a Serious Racing Offence and you are therefore liable to the penalties which may be imposed in accordance with Rule 1001(2)(a)(b) and (c) of the New Zealand Rules of Harness Racing.”

[3]-Information No A8708 alleges that “on Friday 20 July 2018, at the Auckland Trotting Club race meeting, held at Alexandra Park, being a horseman (Open Driver) you did bet on a horse, namely MADAM CONNOISTRE in a race, namely Race 1, the “Owners Night 10th August @Alex Park” Mobile Pace, in which you drove the horse ZIYAD having placed a futures option win bet for $100 @ $21 and place bet for $100 @ $3.50 on the 19 July 2018, on MADAM CONNOISTRE in breach of Rule 505(1) and (2) which is declared to be a Serious Racing Offence and you are therefore liable to the penalties which may be imposed in accordance with Rule 1001(2)(a)(b) and (c) of the New Zealand Rules of Harness Racing.”

[4]-The penalty for such an offence is to be found in r 1001(2) which provides: (a) a fine not exceeding $30,000; and/or (b) suspension from holding or obtaining a licence, for any specific period or for life; and/or (c) disqualification for a specific period or for life.

[5]-Authorisation dated 14 January 2019, by Mr N McIntyre, General Manager of Stewards, to lodge the two informations was before us.

[6]-After receiving written submissions and hearing from counsel for the RIU and the lay advocate for the respondent we reserved our decision as to penalty and indicated that we would deliver a result decision that would be followed in due course by a full written decision. 

[7]-This result decision was delivered on 21 February. As there was a related matter still to be heard, we ordered that this decision be disseminated only to the parties in the respective cases.

[8]-Mr Lawson’s Open Horseman’s licence was suspended from 15 January 2019 (the date upon which he was stood down by the RIU from race driving pursuant to r 226) up to and including 31 July 2020. He was also fined the sum of $8,000. These are the reasons for that decision.

Summary of facts

[9]-A summary of facts was placed before us. There was disagreement with respect to a number of matters and these were addressed by the parties at the commencement of the hearing.

[10]-We set out the summary of facts as prepared by the informant and identify the matters in dispute.

The Respondent Mr Simon Lawson is a Licensed Public Trainer and Open Horseman under the Rules of New Zealand Harness Racing. He is 27 years of age and has been involved in the racing industry his entire life. Mr Lawson trains in partnership with his father Mr Rob Lawson.

Last year the RIU had cause to investigate Race 10 at the Auckland Trotting Club meeting on 25 May 2018. The indications were that the result of this race may have been fixed.

A detailed investigation into betting records was undertaken by the RIU Betting Analyst. This analysis confirmed that there were some potential betting irregularities.

At the time police were undertaking a covert operation involving various HRNZ licence holders. This operation has subsequently become known as Operation INCA.

The following are details obtained from the betting analyst investigation.

24 May 2018

At 2.02.29pm on 24 May 2018 at the Patumahoe Hotel a $100 cash bet was placed. Any 3, all 5 multi @ $9.09

Manawatu Harness on 24 May 2018

Race 1 Final Field Win #1 @ 6.00

Race 2 Final Field Place #9 @ 3.50

Race 4 Final Field Win #2 @ 6.80

Race 7 Final Field Win #7 @ 3.70

Race 8 Final Field Place #4 @1.95

Result Race 1 #1-12th

Race 2 #9 -3rd

Race 4 #2 -1st

Race 7 #7 -1st

Race 8 #4 -4th

Bets on races 2, 4 and 7 were winning bets. There was a late scratching in race 7 which resulted in deduction from $9.09 to $8.45 for a winning payout of $744.40.

At about 12.58pm on Friday 25th May 2018 the Respondent Mr Lawson and licensed Harness Racing Public Trainer and Trials Horseman Mr Gareth Dixon went to the Pukekohe TAB in Auckland.

Between 1.00:14pm and 1.06:53pm they made the following transactions.

Pukekohe TAB

1.00:14pm

Mr Lawson collected the Manawatu multi bet from the previous day via a self-service terminal. He created a voucher for $744.70 (There was a 30 cents credit outstanding in this terminal).

1.04:43pm

Mr Gareth Dixon used the voucher via a self-service terminal to place $40 2 leg Multi on the Auckland Trotting Club meeting later that evening.

Race 6 - Final Field Place #9 @ 3.80                 #9 “La Prix”

Race 10 Final Field Place #8 @ 6.00               #8 “Mr Natural”

Voucher returned for 704.70

1.05:29pm

Mr Lawson then used the voucher via a self-service terminal to place the following bets at the Auckland Trotting Club meeting later that evening.

Race 6 $50 Final Field Place #9 @ 3.80                  #9 “La Prix”

Race 6 $50 Final Field Win #9 @ 18.00

Race 10 $50 Final Field Place #8 @ 6.00                #8 “Mr Natural”

Race 10 $50 Final Field Win #8 @ 35.00

Voucher returned for 504.70

1.06:53pm

Mr Dixon via self-service terminal used $50 cash to place the following bets at the Auckland Trotting Club meeting later that evening.

Race 10 $20 Final Field Win #8 @ 35.00                #9 “Mr Natural”

Race 10 $30 Final Field Place #8 @ 6.00

Patumahoe Hotel – 25 May 2018

At 3.57:12pm Mr Dixon used the voucher to place the following bets at the Auckland Trotting Club meeting later that evening.

Race 10 $25 Final Field Place #8 @ 4.50               #9 “Mr Natural”

Race 10 $25 Final Field Win #8 @ 25.00

Voucher returned for 454.70.

At the time all bets were placed on “Mr Natural” Mr Lawson had accepted an offer from Licensed Trainer Mr Ival Brownlee to drive “My Royal Roxy” in Race 10. Mr Dixon was also fully aware that Mr Lawson was driving “My Royal Roxy” in Race 10…. [Disputed]

26 May 2018 - Pukekohe TAB

At 11.53:14am Mr Dixon using a self-service terminal collected the winning bets from the previous day as follows

Race 10 $50 Final Field Win #8 @ $35.00 amount paid $1330

Race 10 $50 Final Field Place #8 @ $6.00 amount paid $237

Race 10 $25 Final Field Place #8 @ $4.50 amount paid $112.50

Race 10 $25 Final Field Win@ #8 @$25.00 amount paid $625.0

Note: The odds differ due to a late scratching in Race 10.

The Patumahoe Hotel Voucher for $454.70 was added to these wins and a new voucher for $2759.20 was created.

At 11.54:44am Mr Dixon via a counter transaction collected the following bets made the previous day. He had to wait for the operator to unlock the central cash storage to collect these winnings.

Race 10 $20 Final Field Win #8 @ 35.00 amount paid $532.00

Race 10 $30 Final Field Place #8 @ 6.00 amount paid $142.20

Total paid in cash $674.20.

1 June 2018 – Alexandra Park

At 6.38pm the above voucher of $2759.20 was used in a self-service terminal at Alexandra Park to place a $200 futures bet on New Zealand Thoroughbred Racing.

The bet was on Wiremu Pinn to win the Winter Apprentice Challenge @ $3.50. This ran from 1 June to 31 August.

Voucher was then $2559.20.

At about 12.40pm on Tuesday 5 June 2018 Mr Lawson entered the Pukekohe TAB. He presented the voucher for $2559.20 to the operator and collected this amount in cash.

Mr Lawson then split the money evenly with Mr Dixon, each receiving approximately $1279.00.

At about 5.39pm on Thursday 19 July 2018 Mr Lawson went in to the Pukekohe TAB. He saw licenced Stable-hand Mr Johannes (Jon) Habraken who was also present.

Mr Lawson approached Mr Habraken and said, “Can you back one for me tomorrow night? Don’t tell anyone”. Mr Lawson explained that he was unable to place the bet as he was driving another horse in the same race. [Disputed.]

Mr Lawson gave Mr Habraken $200 cash and at 5.40:36pm Mr Habraken, with the assistance of Mr Lawson, placed the following bet on one of the self-service terminals.

Auckland Trotting Club meeting on 20 July 2018

Race 1 $100 Final Field Win #8 @ $21.00               #8 Madam Connoistre

Race 1 $100 Final Field Place #8 @ $3.50

At the time the bets were place Mr Lawson had accepted an offer from Licensed Trainer Matthew Salaivao to drive #1 “Ziyad” in Race 1.

“Madam Connoistre” finished second in the nine-horse field. Mr Lawson collected $350.00 for this bet.

As a result of the information obtained in the initial RIU investigation the file was forwarded to Police for consideration regarding possible race fixing. This was to be assessed along with their ongoing Operation INCA inquiry.

On Thursday 6 December Mr Lawson was formally interviewed by the Police. As a result of that interview and other enquiries the Police returned the file to the RIU. This matter is now separate and distinct from Operation INCA and can be treated as a stand-alone prosecution and can proceed on its own merits.

On Tuesday 18 December 2018 Mr Lawson was interviewed by RIU investigators. Mr Lawson admitted he was aware of the betting rules in relation to races that he was driving in. He admitted to placing the fixed odds bets at the Pukekohe TAB on 25 May 2018 in relation to “Mr Natural” after having already accepted a drive on “My Royal Roxy” in the same race.

He also admitted to asking Mr Habraken to place the fixed odds bets on “Madam Connoistre” at the Pukekohe TAB on 19 July 2018 after having already accepted a drive on “Ziyad” in Race 1 on the 20 July 2018.

Mr Lawson admitted that he had been jubilant at the completion of Race 10 on 25 May 2018. This jubilance was observed by the driver of the winner “Mr Natural”, Mr Ben Butcher who, whilst still on the track, asked Mr Lawson if he had backed “Mr Natural” to which Mr Lawson replied “Yes”.

Mr Lawson also admitted that if his horse “My Royal Roxy” had won the race that he would have won approximately $450.00 including driving fees and a share of the stake money, but that when “Mr Natural” won the race he won approximately $1300.00 being a half share of the joint bets made with Mr Dixon.

Mr Lawson stated that the betting voucher he created was for the benefit of himself and Mr Dixon and they usually bet together [disputed]. He also stated that Mr Dixon has previously placed bets for him when he was unable to as he was driving in a race [disputed]. However, he stated that the bet placed by Mr Habraken was the first time that he had asked Mr Habraken to place a bet on his behalf.

Mr Lawson was adamant that despite placing bets on horses that he was not driving, that he always drove his horses as best he could and gave them the best opportunity in the race.

Mr Lawson also stated that he has a gambling problem and was now seeing a Counsellor.

Mr Lawson is a Licensed Public Trainer and Open Horseman. He has no previous betting related rule breaches.

[11]-We have identified the facts that are disputed. Despite Mr Symon submitting some of these matters added another “layer of deception” (involving others while withholding information) to Mr Lawson’s culpability, we are satisfied that none of the disputed facts would impact to such an extent on our assessment of the appropriate penalty to require a disputed facts hearing. The allegation that Mr Dixon had previously placed bets for Mr Lawson when he was unable to as he was driving in a race was not pursued by the informant and we approach penalty solely on the basis of the two charges that have been admitted.

[12]-Ultimately, we concluded that the differences were not material to our conclusion as to the appropriate penalty, that is to say they did not impact on the culpability assessment or otherwise involve aggravating or mitigating factors, and we make no findings with respect to the facts in dispute.

[13]-We received written and oral penalty submissions from each party.

Informant’s submissions

[14]-The informant in both their written and oral submissions sought the disqualification of Mr Lawson for a period of three years, expressing their belief that this was the only penalty available to the Committee that met the interests of both specific and general deterrence. The RIU stated in its written submission that disqualification was necessary to deter not just Mr Lawson but also others who might contemplate committing similar offences, because this kind of conduct has the potential to undermine the entire racing regime. Mr Symon, in his oral submission, emphasised the need for general deterrence, stating this was “very serious misconduct” and was “at the high end”.

[15]-The informant identified the following aggravating features of the respondent’s offending.

Knowing and deliberate breach: Mr Lawson is an experienced horseman who was aware of the betting rules in relation to races in which he was driving. He acknowledged that Mr Dixon placed bets for him, as he was unable to do so when he was driving in the same race. He had already accepted drives in the relevant races by the time of each bet.

Number of breaches: This aggravating factor is reflected in the fact there are two charges. Mr Lawson’s breaches of the betting rules were deliberate and repeated.

Motivation: Mr Lawson had a significant financial interest in the offending. In respect of the race on 25 May 2018, he collected a half-share of $2,559.20, whereas if the horse he was driving had won he would have won approximately $450.

Procuring offending by others or involving others in offending: Mr Lawson has also involved two others, who are also involved in the harness racing industry, in his offending. As a result, both Mr Dixon and Mr Habraken have been charged with serious racing offences. 

Damage to public confidence in the racing industry: Mr Lawson’s actions have severely compromised the integrity of the harness racing industry and the confidence the public can have when betting on races

[16]-The RIU anticipated that Mr Lawson would say that, despite having bet on other horses, he still drove his horses as best he could and gave them the best opportunity in the race. The informant believed it was relatively easy for a driver to make such a claim, but where the Committee is faced with a person who has admitted to betting on other horses in the race, where that person stands to gain much more from those other horses winning than from their own, such a claim should not be readily accepted. Mr Lawson was observed to be jubilant when the horse MR NATURAL won the race in May 2018 and he admitted to another driver on the track that he had bet on MR NATURAL — clearly, the financial benefits of his not winning were on his mind at the time of the race. The detrimental effect on the integrity of racing was not any less just because a driver who had bet on another horse had not obviously taken steps to ensure he or she did not win.

[17]-The informant relied heavily upon the decision of Walker v RIU, 10 December 2014 in the submission that disqualification was appropriate and we should adopt a four and a half year starting point. Mr Symon noted that in Walker an Appeals Tribunal said that “other than in the most exceptional circumstances”, offending of this type will attract a substantial period of disqualification. The Tribunal additionally stated that this type of offending:

[G]oes in a very fundamental way to the heart of the integrity of horse racing, upon which participants and the industry and those associated with it rely. The description of it as match-fixing, in context, is not entirely inapt. On that basis alone such offending must call for a condign response.

[18]-Mr Walker faced two charges and was found to be in breach of two rules of Thoroughbred Racing. He deliberately rode his horse to finish behind another horse in two races. The two horses were subject to a head to head bet by the TAB, and Mr Walker had bet on the opposing horse. Mr Walker took the matter to a hearing and was found guilty in respect of one race, and pleaded guilty in respect of the other race at the hearing. Mr Walker collected approximately $2,050 from the two bets. The two occasions were little more than a fortnight apart and Mr Walker’s conduct was calculated, which the Committee treated as an aggravating factor. The Committee found this to be at the highest level of seriousness, and disqualified Mr Walker for a total of seven years. On appeal, the penalty was revised to five and a half years, on the basis of further material adduced on appeal (that such a lengthy disqualification period would cause hardship to Mr Walker as he would not be able to earn an income over that period).

[19]-Mr Symon argued that on the basis of a seven-year starting point in Walker, after allowing for the fact this included the more serious charge of race fixing, that a four and a half year starting point was appropriate for Mr Lawson and was “a fair comparison”. This starting point had regard to the deliberateness of Mr Lawson’s conduct despite his knowledge of the Rules, his involving other persons, and the additional layer of deception (the failure to advise Mr Habraken and Mr Dixon that he had a drive in the race on which he had requested them to place a bet for him). He did not believe the fact that in Walker it was a head to head bet was significant. Whether it was X v Y or X v field made little difference, as it was the public perception that mattered. It was a fundamental proposition that sports men and women did not bet on the opposition. As the RIU stated in their reply submissions: “The issue is what someone would think about his driving in a race in which he has a bet on another horse. That is, if the public were aware that Mr Lawson had bet on an opposing horse, would they think he would drive his horse as well as he could.”

[20]-A further case highlighted by the informant was RIU v Bull, 4 November 2013. Mr Bull, an amateur horseman, admitted three charges arising from a harness race in April 2013. The charges were that: he was driving the horse KELLYROX, and placed bets on other horses entered in the same race; he then made a false statement to a Steward, denying that he had placed bets on the race; and then intentionally failed to drive KELLYROX on its merits. The Committee disqualified him for a total of 14 months and ordered costs of $350 to be paid to the Committee. This was upheld on appeal.

[21]-The RIU noted that the Appeals Tribunal in Walker referred to Bull and said that the penalty appropriate for his offending was likely substantially greater than the 14 months imposed, and explained this on the basis that Mr Bull was not charged with a serious racing offence.

[22]-The final New Zealand case was RIU v Rasmussen, 18 December 2015. Ms Rasmussen bet on two horses in races in which she was driving and on one occasion she drove a horse other than the one on which she had placed the bet. She was also prohibited from accepting that drive without the approval of a Stipendiary Steward, given that she had bet on the race. The Committee found her actions were the result of an oversight — she placed one of the bets at a time when she did not plan on participating in the race, and forgot to notify the Stipendiary Stewards after she accepted the drive, and she acted in ignorance when she placed a second bet on the horse she was driving in another race. Ms Rasmussen was fined $3,750 in total.

[23]-We did not find the circumstances in the further case cited by the informant, British Horseracing Authority: Eddie Ahern, to be relevant to the case before us in that Ahern was part of a conspiracy to provide information and to place bets, and on one occasion he was found to have ridden his mount deliberately to lose. We note the informant’s observation that the British Horseracing Authority disciplinary panel in this case stated that “all must understand that potentially career-ending penalties will follow from serious breaches”.

[24]-The RIU submitted that Mr Lawson’s case was similar to Walker. Although there was no evidence that Mr Lawson deliberately drove badly, the two cases were comparable as both Mr Walker and Mr Lawson had offended for the purpose of financial gain, and both had offended in a calculated manner. As with Mr Walker, there were two occasions where Mr Lawson had others bet for him on races in which he was driving, and the occasions were just two months apart.

[25]-This case was more serious than that of Mr Bull, which involved an amateur horseman rather than an experienced one like Mr Lawson, who should be held to a high standard of conduct. Further, Mr Lawson placed bets on races in which he was driving on two occasions, whereas Bull involved only one. It was also relevant that Mr Bull was not charged with a serious racing offence; as noted above, an Appeals Tribunal had previously accepted that had Mr Bull been charged with such an offence, the penalty imposed on him would likely have been substantially greater.

[26]-Mr Lawson’s breaches were said to be significantly more serious than those in Rasmussen, which involved an oversight and ignorance of the rule. Unlike Ms Rasmussen, Mr Lawson placed bets after he had accepted drives in the races in question. The RIU stated that Rasmussen was included in their submissions to illustrate the range of penalties available. The informant submitted that a relatively more stern penalty was appropriate in the present case.

[27]-Furthermore, the RIU submitted that a period of disqualification was necessary to preserve public confidence in racing. It would look poorly to the public if Mr Lawson was to appear at further New Zealand race meetings, immediately after he was found guilty of a charge based on him betting on races in which he was driving. It might give the public the impression that a race in which he was driving was fixed. A period of disqualification would prevent public confidence eroding further.

[28]-The informant also referred to McDonald v Racing NSW, 22 December 2016. Mr McDonald, a jockey, on one occasion had someone else place a bet on his behalf on the horse he was riding. He admitted the breach and was disqualified from racing for 18 months. He appealed unsuccessfully to the Racing Appeals Tribunal (McDonald v Racing NSW, 10 April 2017) and sought (unsuccessfully) to judicially review the Tribunal’s decision (McDonald v Racing NSW [2017] NSWSC 1511).

[29]-The RIU submitted that the outcome in McDonald was consistent with the other authorities it had cited. It further illustrated the importance of deterrence in imposing a penalty for race betting offences. The Appeals Tribunal in McDonald cited the following passage from Smith v Racing NSW 15 August 2014 at [6]:

[T]he Tribunal in determining what order is appropriate has regard to what message is to be given to this individual trainer to ensure that in the future this type of conduct is not repeated, but to ensure that there is an appropriate penalty imposed to indicate the response of the community to integrity and welfare issues. In addition, it is a question of what general message is required to be sent to the community at large to indicate to those who might be likeminded to engage in such conduct, what the likely consequences are, and, secondly, to indicate to the broader community who are not likely to engage in the type of conduct that, should it be detected, they, whether they be wagerers or people just generally interested in the individual code, will know that it is operating at the highest possible standards.

[30]-The Tribunal also noted that the industry relies on betting for its existence, and so the public’s confidence in the integrity of racing was to be maintained.

[31]-The RIU observed that New South Wales had recognised how serious this type of offending was by having a mandatory minimum disqualification period of two years. That is, a first-time offender with no aggravating features would receive a two-year disqualification. (Mr McDonald was given a six-month discount due to special circumstances, namely lack of previous breaches, low prospects of reoffending, remorse as demonstrated through making a donation to charity, and his early admission of the breach.)

[32]-The Appeals Tribunal also referred to the fact that Mr McDonald had someone else place the bet for him, noting that “the use of agents is obviously part of a subterfuge to avoid detection” and that “once a jockey starts to use an agent ... others may become involved and other integrity issues enlivened”.

[33]-The RIU submitted that Mr Lawson’s culpability was greater than that of Mr McDonald. Mr McDonald had backed his own horse, so had a financial interest in ensuring it performed to the best of its ability and that he gave it every opportunity to do so. In contrast, Mr Lawson had an interest in the horses he was driving not winning. The Appeals Tribunal in McDonald discussed this, noting that a person betting on his or her own horse “increases his predisposition to ride outside the rules and disregard his duty of care to fellow riders”, but that betting on another horse is more serious as it means that the person is not complying with the rules requiring that they use their best endeavours to achieve the best po

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