Appeal RIU v LF O’Reilly 18 December 2016 – Reserved Decision dated 22 December 2016 – Chair, Mr R McKenzie

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decisiondate: 22/12/2016

hearing_title: Appeal RIU v LF O'Reilly 18 December 2016 - Reserved Decision dated 22 December 2016 - Chair, Mr R McKenzie

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appealdecision: NO LINKED APPEAL DECISION

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BEFORE AN APPEALS TRIBUNAL
HELD AT CHRISTCHURCH
IN THE MATTER of the HARNESS RACING NEW ZEALAND RULES OF RACING
BETWEEN S P RENAULT, Stipendiary Steward for the Racing Integrity Unit
Appellant
AND LEO FRANCIS O’REILLY of Rakaia, Licensed Open Driver
Respondent
Date of Hearing: 18th December 2016
Venue: Stipendiary Stewards Room, Rangiora Racecourse, Rangiora
Appeals Tribunal: R G McKenzie (Chairman), S C Ching (Tribunal Member)
Present: N M Ydgren, Chief Stipendiary Steward (for the Appellant), N G McIntyre, Manager of Stewards
Date of Decision: 22nd December 2016

RESERVED DECISION OF APPEALS TRIBUNAL
1. Background

1.1 At the meeting of Oamaru TC held at Oamaru on 3 December 2016, the Respondent was charged with a breach of Rule 869 (2) (a) in that, as the driver of URALLA SUE in Race 9, Ballantyne’s Showcase Jewellers Pace, he “used his whip in an excessive manner in the home straight”.

1.2 The Respondent admitted the breach of the Rule and, following a hearing, he was fined the sum of $200 by the raceday Judicial Committee.

1.3 The Informant has now appealed against the penalty imposed by the Judicial Committee on the ground, as set out in the Notice of Appeal, that “the penalty is inconsistent with recent decisions and also with the penalty guide for Judicial Committees”.

1.4 Mr O’Reilly was not present at the hearing of the appeal. Paragraph 49.2 of the Fifth Schedule of the New Zealand Rules of Harness Racing provide that, if the Respondent fails to appear at the time fixed for the hearing, the Appeals Tribunal may proceed with the hearing if it is satisfied that the Respondent is aware of the date of hearing.

1.5 The Tribunal had evidence before it that the Respondent was served by email on Friday, 9 December 2016. Further, Mr O’Reilly had informed the Executive Officer of the Judicial Control Authority by email on 15 December 2016 that he would not be present at the hearing of the appeal.

1.6 In the Committee’s view, it was appropriate, in the circumstances, to proceed with the hearing of the appeal in Mr O’Reilly’s absence.

2. Submissions of the Informant

2.1 Mr Ydgren showed video replays of the final 400 metres of the race in question. He pointed out Mr O’Reilly, driving URALLA SUE, improving wide on the track inside the final 400 metres. Mr O’Reilly had used the whip 12 times, free of the rein, including a couple of backhanders, in the final 400 metres, Mr Ydgren alleged. Mr O’Reilly did not commence using his whip until late in the race after he had given his horse some respite by dropping behind another runner, the eventual winner SEDUCE ME (M J Williamson), shortly after turning for home.

2.2 Mr Ydgren then referred to the Penalty Guide for Judicial Committees (effective 1 May 2015) and, specifically, to the starting point for a breach of the Rule of a $500 fine or a 2-day suspension. The fine of $200 imposed in this instance was “insufficient”, Mr Ydgren submitted. A fine was the appropriate penalty but the amount of the fine was “too light”, he submitted.

2.3 Mr Ydgren produced a printout of driver penalties under the excessive use of the whip Rule between 1 August 2016 and 15 December 2016 which indicated one penalty of $250 and a range of other penalties between $300 and $500. He produced another printout of penalties under the Rule since the amendment to the guidelines on 1 December 2016. Leaving out the two fines of $200 at the Oamaru meeting, one of which is the subject of this appeal, the statistics revealed the single fine of $250 referred to, two fines of $300 and two of $400. Mr Ydgren pointed out that there had not been a whip fine as low as $200.

2.4 On the basis of those statistics, Mr Ydgren submitted, it was clear that the penalty imposed on Mr O’Reilly was inconsistent.

2.5 Mr Ydgren emphasised that the Penalty Guide starting point had not been changed. He then referred to the decision of the raceday Judicial Committee where it was stated: “The JCA Penalty Guide recommends a starting point of $500. However, the Committee acknowledges that the HRNZ Whip Guidelines have changed significantly but the JCA Penalty Guidelines for this offence have not. We take a starting point of $400 with the view that this is a first offence under the new whip guidelines”.

2.6 It appeared that the raceday Judicial Committee had, effectively, given Mr O’Reilly credit twice for having a clear record and had thus arrived at a $200 fine. To have done so, was inconsistent with previous decisions, Mr Ydgren submitted. The Committee had used the penalty in the Ottley case (also under appeal) earlier in the day as a precedent, despite it stating in that decision that the fine of $200 was not to be taken as a precedent.

2.7 Mr Ydgren said the appropriate penalty, in the view of the Racing Integrity Unit, is a fine of not less than $300.

3. Reasons for Decision

3.1 The Appellant has appealed the decision of the raceday Judicial Committee on the grounds, as stated in the Notice of Appeal, that the penalty is inconsistent with recent Judicial Committee decisions and also with the Guide for Judicial Committees.

3.2 It was clear from the outset of Mr Ydgren’s submissions that the penalty imposed on Mr O’Reilly was lighter than has been imposed under the Penalty Guide since the starting point for penalty was raised from $400 to $500 in May 2015. It is clear from a perusal of penalties since that date that, in the vast majority of cases, the penalty for a breach of the Rule in cases in which the driver has a clear record (no breach within the previous 6 months) and has admitted the breach has been a fine of $300, a discount of $200 from the starting point. In some cases, there have been aggravating factors, such as the high number or force of the strikes or the status of the race and the stake payable, in which a larger fine has been imposed. Less often (see paragraph 2.3), there has been a fine of less than $300 where there were exceptional circumstances amounting to a compelling mitigating factor, warranting a discount of more than the usual $200.

3.3 In the present case, the number of strikes was 12, which is two over the amount permitted by the guidelines. Mr O’Reilly admitted the breach and did not dispute before the Judicial Committee the alleged number of strikes. The Stewards on raceday made no submission as to the seriousness of the breach and the Judicial Committee stated that the breach was “at the very bottom of the scale”. This Tribunal finds that the breach was towards the lower end of a scale of seriousness. So, neither the number of strikes nor the force amounted to an aggravating factor.

3.4 We find it somewhat odd that the Judicial Committee elected to take a starting point, in this case, of a $400 fine. It appears that its basis for taking that lower starting point was that this was a first offence under the new whip guidelines. It stated that, while the guidelines have changed, the penalty guideline for a breach of the Rule had not. It is true that the Penalty Guide starting point had not changed which shows that the intent of the amended guidelines was to reduce the permissible number of whip strikes but maintain the level of penalties as a deterrent.

3.5 The new guidelines from 1st December 2016 are the first time that a number of strikes has been specified. Previously, there had been an understanding that any number of 20 or above, or a lesser number if the strikes were continuous, would result in a charge. We say an understanding, because we believe that the Stipendiary Stewards, horsemen and Judicial Committees were aware of it and accepted it. Any uncertainty that previously existed has now been removed and we see this as a positive step, one clearly taken with animal welfare issues in mind.

3.6 We find that the Judicial Committee erred in adopting a starting point for penalty in this case of $400. As a consequence of taking that starting point, it appears to have arrived at a fine of $200 by applying the usual discount of $200 from the starting point for a good record and admission of the breach, although it does not explain how it arrived at $200 from a starting point of $400. Mr Ydgren suggested that the Committee had given Mr O’Reilly credit twice for his good record and it does appear that this may be so.

3.7 In announcing the penalty of a $200 fine for Mr O’Reilly, the Judicial Committee stated: “OK so we are going to set a fine of $200 which is consistent with the fine we’ve put out today”. This was a reference to the fine of $200 imposed on driver, Ms S J Ottley, for a breach of the same Rule, in Race 6 earlier in the day.

3.8 The correct starting point, we believe, was $500 as per the Penalty Guide and, from that point, a discount of $200 was appropriate for a combination of the two mitigating factors we have referred to – that is to say, Mr O’Reilly’s previous good record and his admission of the breach. This would have resulted in a fine of $300 which would have been consistent with previous penalties and penalties since 1st December 2016 and appropriate to the circumstances of Mr O’Reilly’s breach.

4. Decision
4.1 The appeal is upheld. The penalty decision of the raceday Judicial Committee at the meeting of Oamaru Harness Racing Club (Race 6) on 3 December 2016 is quashed and replaced with a fine, as determined by this Tribunal, of $300.

5. Costs
5.1 The Informant did not seek an order for costs and, in any event, such an order would be inappropriate in the circumstances of this case.

R G McKenzie        S C Ching
Chairman              Tribunal Member

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