Non Raceday Inquiry – HRNZ v P Butcher – decision on penalty

hearingid: 45957d77ad21a3837881bd91d24c44ec

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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 - HRNZ v P Butcher - decision on penalty

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE JCA
AT AUCKLAND

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Harness Racing

AND

IN THE MATTER  of Information No. 68264

BETWEEN HARNESS RACING NEW ZEALAND

Informant

AND PHILIP A BUTCHER
Open Horseman

Defendant

Judicial Committee:  Prof G Hall  Chairman
                                      Mr B Rowe  Member

Date of decision: 21 December 2009

_______________________________________________________________

DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
_______________________________________________________________

[1] In our decision of 10 December last we found Mr Butcher to be in breach of R 869(3)(g) of the Rules of Harness Racing in that he had driven Awesome Armbro in race 10 at the New Zealand Metropolitan Trotting Club’s meeting on 13 November 2009 in a manner capable of diminishing the chances of his horse winning. We dismissed the alternative charge under R 869(3)(f) of improper driving.

BEFORE A JUDICIAL COMMITTEE OF THE JCA
AT AUCKLAND

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Harness Racing

AND

IN THE MATTER  of Information No. 68264

BETWEEN HARNESS RACING NEW ZEALAND

Informant

AND PHILIP A BUTCHER
Open Horseman

Defendant

Judicial Committee:  Prof G Hall  Chairman
                                      Mr B Rowe  Member

Date of decision: 21 December 2009

_______________________________________________________________

DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
_______________________________________________________________

[1] In our decision of 10 December last we found Mr Butcher to be in breach of R 869(3)(g) of the Rules of Harness Racing in that he had driven Awesome Armbro in race 10 at the New Zealand Metropolitan Trotting Club’s meeting on 13 November 2009 in a manner capable of diminishing the chances of his horse winning. We dismissed the alternative charge under R 869(3)(f) of improper driving.

[2]  The parties have filed written submissions as to the issues of penalty and costs as directed by this Committee. We have considered these submissions.

[3] The informant has submitted that a suspension of the defendant’s open horseman’s licence for a period of four to six weeks plus a fine in the sum of $1000 to $1500 is appropriate. The defendant’s response is that a penalty of this magnitude should only be considered had the defendant been found to have been in breach of R 869(3)(f), a more serious charge than that which this Committee has found to be proved.

[4] The defendant further submits the matter should be dealt with by way of a fine only, and that this fine should be in the range of $500 to $750. Should the Committee decide to impose a suspension, the defendant states that there are a number of meetings at this time of the year and that this matter should be factored into any period of suspension. He states that, for example, a two-week suspension at this time is equivalent to a four-week suspension at a quieter time of the year.

[5] The Judicial Control Authority’s Penalty Guide recommends a suspension of two weeks or a fine of $500 for a breach of R 869(3)(g) in a major race. The defendant has submitted that the Committee should follow this guide, whereas the informant has said that this penalty is inadequate to meet the seriousness of the defendant’s actions on this occasion.

[6] We are aware that the Penalty Guide emphasises the need for consistency in decision-making. However, we observe that the preamble to the Guide states: “While it is expected that judicial committees will have regard to this Penalty Guide, the discretion to impose penalties appropriate to the circumstances of the matter before them, and to the circumstances of the person on whom a penalty is imposed, is not fettered and penalty outcomes should always reflect those circumstances.”

[7] We are also aware the Judicial Control Authority is currently reviewing the Penalty Guide and that one of the weaknesses that has been identified with respect to this document is the fact that it is not clear whether the recommended penalty is a starting point, as the informant suggests, a mid point, as the defendant suggests, or is the final penalty. We see no need to endeavour to resolve this ambiguity in this decision, as we are content simply to heed the direction in the Guide, which we believe to be sound, that we impose a penalty appropriate to the circumstances of the matter before us. We thus view the Penalty Guide as just that; ie a guide to this Committee as to what is the appropriate penalty for the defendant’s breach of R 869(3)(g).

[8] It is appropriate, indeed necessary, for this Committee to place weight on the considerations identified in R 1114(2). This Rule provides:
“On finding a breach proved the Judicial Committee may impose any penalty and/or affect any remedy provided by these Rules. In imposing a penalty or affecting any remedy provided in these Rules the Judicial Committee may have regard to such matters as they consider appropriate including:-
 (a) the status of race;
 (b) the stake payable in respect of the race;
 (c) any consequential effects upon any person or horse as a result of breach of the Rule;
 (d) the need to maintain integrity and public confidence in Harness Racing.”

[9] The 2009 New Zealand Free-For-All was a Group One and a grand circuit race as recognised by Harness Racing New Zealand and was run on one of New Zealand’s premier race days. The stake of the race was $224,036.

[10] The informant submitted Mr Butcher, who is an experienced senior horseman, by driving Awesome Armbro in the manner that he did had jeopardised the harness racing industry’s image and public confidence. New Zealand harness racing, they said, had undergone many significant changes, and most notable was that it was an international product that attracts interest and betting from overseas countries. They emphasised the defendant had an obligation as a licensee to assist the industry in protecting these aspects and his driving in this race had demonstrated a failure in his obligation under the Rules. The effects of Mr Butcher’s driving, the informant said, had “not only adversely affected his own chances but also the chances of the favourite, Auckland Reactor.”

[11] The informant has not placed Mr Butcher’s record before this Committee, but the defendant indicates that he has a very good record with his last charge being in June 2008. Since that time he states he has had over 480 drives without being charged and he has no previous breaches of this Rule. The defendant states that he complied with all directives from the Judicial Control Authority and that he purchased an airline ticket to attend the hearing originally scheduled to be held in Christchurch. We give weight to the defendant’s co-operation in these matters and his excellent driving record.

[12] We accept the defendant’s submission that R 869(3)(g) is capable of applying to a variety of circumstances that might arise during the running of the race. The Rule, he states, “is very open to interpretation” and “minor errors of judgment could potentially be a breach of the Rule.” However, we believe Mr Butcher’s actions to be a serious breach of this Rule. We have previously found that Awesome Armbro had commenced to tire markedly just after the 400 metre mark. This was understandable given the fact that the horse, shortly after the start, had progressed around the outside of the field at speed, and had been given no respite in the middle stages of a quickly run race, due to the fact that Mr Butcher had sat up immediately outside Auckland Reactor and had continued to eyeball that horse. The chances of Awesome Armbro winning the race had been severely diminished by Mr Butcher’s actions.

[13] In the interests of consistency we have regard to penalties imposed on earlier occasions under R 869(3)(g).

[14] C v HRNZ (8 September 2009) is a decision of the Appeals Tribunal. In this case the breach was described as being “towards the higher end of the range for a charge under R 869(3)(g)”. A charge under this Rule was substituted for one under R 869(3)(a) (incompetent driving), and a seven-week suspension was imposed. C had raced 3-wide in a 1950 metres event and his horse had commenced to tire with 600 metres to run. C’s limited experience, that he had only infrequent drives on raceday, and his ready admission of the breach of this Rule, were taken into account.

[15] In HRNZ v T (20 September 2009) the penalty was five weeks’ suspension of T’s graduation horseman’s licence. T had raced 3-wide without cover for the duration of the race. Significantly, the Committee on that occasion stated, “C v HRNZ is a more reliable starting point than the Penalty Guide. In this Committee’s view, the starting point suggested by the Guide is on the light side for a breach of the Rule”.

[16] A further case is HRNZ v G (19 December 2006) where G had elected to progress 3-wide around the field after one lap, diminishing his horse’s chances by offering her no respite at any stage of the race. G was suspended for five weeks, although the Committee observed that G indicated he intended to race at only six meetings in that period. That Committee made reference to HRNZ v M (9 December 2006) where a seven-week suspension was imposed after M had admitted a breach of R 869(3)(g) where he had raced outside the leader for at least 1400 metres, with his nose in front of that horse on a number of occasions.

[17]  The circumstances of each case must be considered. None of the cases to which we have made reference involved a breach of R 869(3)(g) in major race and each of the drivers was inexperienced. Significantly, in each case the breach was admitted. The defendant cannot call upon this mitigating factor in this case. While we note fairly lengthy suspensions were considered appropriate, we accept, and have taken into consideration, that Mr Butcher could be expected to have more drives at more meetings in equivalent periods of time than would these less busy horsemen.

[18] We have held that the defendant drove in a manner that was capable of diminishing the chances of his own horse, Awesome Armbro, winning the Free-For-All. With respect to the impact of the defendant’s actions upon the leading horse, Auckland Reactor, we have observed in our previous decision that we had no evidence from Mr Purdon or the connections of Auckland Reactor adduced before us. The Committee is divided as to whether it is appropriate, when considering penalty, to have regard to the effect of Mr Butcher’s actions upon Auckland Reactor. One member believes it is relevant because any horse leading the field in such a fast run race that was attacked in the manner that Auckland Reactor was on this occasion, would inevitably have had its chances affected by the defendant’s actions. The other member is of the view that the performance of Auckland Reactor could be attributed, at least in part, to factors other than the defendant’s driving. He believes, therefore, that this issue is irrelevant to penalty.

[19] The Committee is thus not satisfied that the impact of Mr Butcher’s actions upon Auckland Reactor’s chances has been established to the standard necessary for this to constitute an aggravating factor when determining the penalty that is appropriate for this breach of R 869(3)(g).

[20] Having regard to the factors identified in R 1114(2) and, in particular the need to reinforce public confidence in the harness racing industry, which we accept has an ever-increasing international dimension, and the manner of the defendant’s driving on this occasion, we view this as being a serious example of a breach of R 869(3)(g). This Committee thus believes that a fine would be an insufficient penalty to denounce Mr Butcher’s actions and to hold him accountable, and to deter him or other horsemen from driving in a similar fashion in the future. A period of suspension is necessary.

[21] The defendant is suspended from holding an open horseman’s licence from the end of racing on Thursday December 24 up to and including Wednesday 13 January 2010. This is three weeks and encompasses seven North Island meetings (including one premier meeting, and two dual code meetings where there are likely to be less driving opportunities). In determining the length of this suspension, the Committee has thus had regard to both the number and the status of the meetings that are encompassed by the period of suspension. We believe this penalty is adequate to hold Mr Butcher accountable for his actions and we do not impose any further penalty by way of a fine.

[22] We note that HRNZ have not incurred any expenses additional to those arising out of the investigation of the matter. We concur with the defendant’s submission that it is not appropriate to reimburse the informant for such costs. However, a contribution to the costs of the Judicial Control Authority with respect to the hearing of this matter is appropriate. We believe the sum of $300 to be fair and reasonable. We order the defendant to pay costs in this sum.

Geoff Hall         Chairman
Bryan Rowe      Member

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hearing_type: Old Hearing

Rules: 869.3.g, 869.3.f, 1114.2, 869.3.a

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