Non Raceday Inquiry – NZTR v S Oomen 4 December 2009 Decision

hearingid: 219ac1ae76873fd63bb3fe1654f7e572

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non Raceday Inquiry - NZTR v S Oomen 4 December 2009 Decision

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BEFORE A JUDICIAL COMMITTEE                                                                                                     
AT WELLINGTON
 
 
IN THE MATTER              of the New Zealand Rules of Racing
 
BETWEEN              NEW ZEALAND THOROUGHBRED RACING
                                         
Informant
 
AND                            Sue OOMEN 
  
Defendant
 
 
DATE OF HEARING:  4 December 2009
 
VENUE: JCA Offices, AMI Centre, Level 4, 342 Lambton Quay, Wellington
 
PRESENT: J W McKenzie (Chief Racecourse Inspector) for New Zealand Thoroughbred Racing 
                    Sue Oomen (Defendant)
 
JUDICIAL COMMITTEE: N Hampton QC
                                            J Phelan
                                            P Williams (Registrar)
 
DATE OF DECISION: 4 December 2009
 
 
________________________________________________________________________
 
DECISION OF TRIBUNAL
________________________________________________________________________
 
 SUMMARY
1               Mrs Oomen, we regard this event as a serious error of judgment on your part.  We have reached the view that what saves you from a greater penalty, and I will tell you what the penalty is in just a moment, is that you did not intend this document that you concocted to be used as an official document, that you were using it just to get your partner off your back as you have described it.  Indeed in some respects it is difficult to see how the document itself could have been used as “an official document”. 
 

BEFORE A JUDICIAL COMMITTEE                                                                                                     
AT WELLINGTON
 
 
IN THE MATTER              of the New Zealand Rules of Racing
 
BETWEEN              NEW ZEALAND THOROUGHBRED RACING
                                         
Informant
 
AND                        Sue OOMEN 
  
Defendant
 
 
DATE OF HEARING:  4 December 2009
 
VENUE: JCA Offices, AMI Centre, Level 4, 342 Lambton Quay, Wellington
 
PRESENT: J W McKenzie (Chief Racecourse Inspector) for New Zealand Thoroughbred Racing
                    Sue Oomen (Defendant)
 
JUDICIAL COMMITTEE: N Hampton QC
                                           J Phelan 
                                           P Williams (Registrar)
 
DATE OF DECISION: 4 December 2009
 
 
________________________________________________________________________
 
DECISION OF TRIBUNAL
________________________________________________________________________
 
 SUMMARY
1               Mrs Oomen, we regard this event as a serious error of judgment on your part.  We have reached the view that what saves you from a greater penalty, and I will tell you what the penalty is in just a moment, is that you did not intend this document that you concocted to be used as an official document, that you were using it just to get your partner off your back as you have described it.  Indeed in some respects it is difficult to see how the document itself could have been used as “an official document”.
 
2               We intend to impose a period of three months’ disqualification (this will run from today’s date) and in addition to impose a fine of $3,000.  (I pause there for a moment, you will be able to talk to Mr McKenzie and NZTR as to the means for paying, your ability to pay that fine). We order you to pay costs first to NZTR in the sum of $800 and secondly, to the JCA for its costs in setting up this Hearing in the sum of $850, a total of $1,650.
 
3               It should be made clear that at least on the face, a period of disqualification for a one to two year period would well be in order for an offence such as this.  But what saved you from that were the type of concessions that were made quite fairly by Mr McKenzie that this whole thing has been generated by ‘a feeling of frustration with a business partner. While that does not excuse her ... this is a factor to take into consideration.  Her ignorance and stupidity is not condoned but her demeanour clearly extinguishes a deception to defraud.’
 
4               This Committee agrees with what has been said by Mr McKenzie.  It strikes us that you are a somewhat naïve person who has got yourself in a position where you felt that you were losing control over, or the ability to control, your partner and resorted to doing what you have done here.  We are sure that you have learned a lesson from what has taken place.
 
PRELIMINARY
 
5               The reasons themselves. Briefly first, as with the case earlier heard today the charge against Mrs Oomen has been heard under the Rules that existed prior to 5 October 2009 because the matters of fact involved here occurred or substantially occurred prior to that date.  It makes no significant difference really because the corresponding offence in the old Rule and under the amended Rule remains the same and the corresponding penalty provision remains the same excepting that the maximum fine increases under the new Rule from $25,000 to $50,000.
 
6               Of primary importance to us and to the NZTR is the provision to be found in the old Rule 1122(2)(d) that on the imposition of penalty one of the considerations, indeed the paramount consideration, to be taken into account on sentencing, is the need to maintain integrity and public confidence in racing.
 
CHARGE
 
7               The charge which you face and which you have freely admitted both to Mr McKenzie in the course of his investigations and before us today, is a serious offence which does have the ability to reflect on or affect the integrity of the racing industry.  And your actions that led to the charge had that effect as well.  The charge brought against you by Chief Racecourse Inspector McKenzie is as follows:
 
THAT on or about a date in August/September 2009, you did alter information on a document, namely a “Certificate that has been duly Registered for the named racehorse BLACK ANNA”, IN THAT you did cut from another document of registration for a racehorse in which you and a Mr Frank Dale owned, and covered over the name of Mr P Setchell, the registered owner of BLACK ANNA to record it as having yourself and Mr Frank Dale as the owners, AN DID THEREBY commit a dishonest act in breach of Rule 1001(1)(p) of the New Zealand Rules of Racing, AND THAT you are liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1001(2) of the said Rules.
 
8              As I say you have admitted that charge before us and we have been impressed with the frankness of your admission of the charge and of the facts lying behind  that charge and of the contrition you have expressed for your involvement. 
 
9               The summary of facts shows that from 1999 on Mr Setchell, as the breeder and owner of the mare BLACK ANNA, leased to you, Mrs Oomen, that mare for a period that seems to have extended not only for the original term of the lease ending in April 2003 but on further through the years 2007, 2008 and indeed from what we have heard, the horse was still physically with you until the end of October 2009, when after the interview of you by Mr McKenzie the horse was returned to Mr Setchell.
 
10               At some time in the decade of the 2000s, you entered into an arrangement with Mr Dale involving the leasing and breeding of horses which has continued until the present time; although presently, as we understand, such arrangement is in the process of dissolution, with an accounting being had between the two of you.  It is obvious from the formal summary of facts that there were difficulties with the completion of documentation in terms of the Oomen/Dale partnership with Mr Dale being absent from New Zealand for considerable periods of time.  Strains developed in the relationship.  It is said that you found it increasingly difficult to deal with Mr Dale as your partner. 
 
11               What was of concern to this Committee, but it is not directly the subject of the charge itself, is that you issued a receipt to Mr Dale for a total sum of $10,000, $5,000 of which, according to your  written explanation on the receipt, being  for Mr Dale to acquire a half share in BLACK ANNA.  The further $5,000 was for a part half part of a service fee.  We were told that as to the $5,000 for the part service fee, that issue has been resolved and that the $5,000 purporting to be payment for a half share in BLACK ANNA, has now been credited back by you to Mr Dale as part of the dissolution of the partnership.
 
12               Going back to the Summary of Facts and this is really the heart of the charge that you have admitted, on a date that is not actually known, you cut a slip from a registration form of a horse jointly owned by yourself and Mr Dale and using that slip overlaid it on the BLACK ANNA ownership papers to cover over Mr Setchell’s name so that the ownership appeared to rest with you and Mr Dale.  You then photocopied that document, as we understand it, with the intent of using that document to ‘get Mr Dale off my back”  and persuade him that in effect, he had a half share in BLACK ANNA.  In relation to that, you say it was a document that you manufactured solely for the purpose of taking the pressure off you from Mr Dale and that you had no intent that it be used for any other purpose. Indeed it may not have emerged at all because you say that it was your intent to show it to Mr Dale and then retain it in your possession and destroy it.  What happened, however, was that at some time subsequent he took the form, which is how it came to light and led to this official investigation on behalf of NZTR.
 
13               You did not help yourself subsequently, however when in mid October 2009, you handed Mr Dale a number of forms, prepared by you, including a form that related to BLACK ANNA and which would have confirmed to him the belief that he was the half owner of that horse. It validated, in effect, his belief.   That is a précis of what Mr McKenzie has put to us in the Summary of Facts.
 
14               On hearing those facts you, Mrs Oomen, described your actions as wrong and as stupid. You described the deterioration in your relationship with Mr Dale, how you found him increasingly annoying from your perspective and with the intent of getting him ‘off your back’, with you say no intent to rip him off, you fabricated this document.  You told us of how the partnership is now in the throes of dissolution (and that seems to be sensible from both points of view) and how the money issues have now been resolved.
 
PENALTY
 
15               As to penalty, a couple of preliminary things need be said. One is the importance of what was commented on earlier, the protection of the racing industry.  Secondly, that any offence that falls into the category of a serious racing offence and involving, as here, a dishonest act, is going to be visited by this Committee seriously and will almost inevitably be met with a term of disqualification.  
 
16               You should know, Mrs Oomen, that the Judicial Control Authority  Penalty Guide suggests as an appropriate starting point for a breach of the Rule 1001 (1) (p), the Rule that you have breached, a starting disqualification of two years.  So you must know that you are being dealt with in a very lenient way here   We see the concessions made by Mr McKenzie, that we have already mentioned, as being ones that enable us to view this as an exceptional case, to be treated on its own facts, and not to be seen as having some widespread precedent value as to how such serious racing offences involving dishonesty are going to be dealt with.  This is a penalty peculiar to these particular facts.
 
17               We think that there is much to be said for you in these particular circumstances.  What has been characterized as your ignorance and stupidity, we would characterize as your naivety at least.  But the NZTR submission saying that this penalty needs to be a short, sharp period of disqualification and a fine is on the mark.  
 
18               We are aware of the guiding principles in coming to penalty in such matters, viz the five that have already been mentioned in the other case we heard earlier today, coming from the NZTR v C (#3461 of 5 June 2009.
(a) Accountability, to hold you accountable for what you have done.
(b) Denunciation, robustly announcing to the world that this cannot be done, this sort of action.
(c) Deterrence, specifically deterring you from ever thinking about doing this again, and as well deterring the rest of the world from even thinking about doing this, because if others think that they can do it and get away with a three month disqualification they will be very surprised.
(d) Incapacitation, which means taking you out of the industry for a time.. Even although you have a horse, a youngster that you have told us about, you are going to be incapacitated (and you will have to discuss that with Mr McKenzie), disqualified, which means that you won’t be able to do anything.  This also brings home to you, we hope, just how serious this is.
(e) And the fifth thing is rehabilitation. We have got to look at you, to bringing you back into the game. To see that you do come back but that you come back prepared to abide by the Rules.  We made an assessment of you and we think that you can come back and abide by the Rules and so your rehabilitation is important.
 
19 You have had ten to fifteen years’ involvement with horses. We think that is important.  Also, we think that it is important that you be brought back into the industry, so we bear that in mind quite heavily here.  Those are the factors that we have brought into account in reaching the three month disqualification (running from today's date). 
 
20 In terms of the monetary penalty and costs, we have regard to what you have said about your circumstances and your ability to pay.  We have tried to tailor the fine ($3000) and total costs ($1650) to fit those circumstances. As I said at the outset you can  talk to NZTR about means of paying them.  And of course, by and large, we take account of your cooperation with the authorities and of your admissions both to them and to us today.
 
               N Hampton QC                             J Phelan

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hearing_type: Old Hearing

Rules: 1122.2.d, 1001.1.p, 1001.2

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