Appeal S Phelan v RIU – Decision dated 22 May 2013

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hearing_title: Appeal S Phelan v RIU - Decision dated 22 May 2013

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Decision:

BEFORE AN APPEALS TRIBUNAL

IN THE MATTER of the Rules of Racing of New Zealand Thoroughbred Racing Incorporated

BETWEEN   SHAUN PHELAN

Appellant

AND THE RACING INTEGRITY UNIT

Respondent

Appeals Tribunal:  Mr Bruce Squire QC (Chairman) - Mr Stewart Ching (Member)

Parties:  The Racing Integrity Unit, represented by Mr Ross Neal, Co-Chief Stipendiary Steward, Mr Shaun Phelan, Jockey Mr Graeme Rogerson, Trainer representing Mr Phelan and the New Zealand Jumping Association

Date:  20 May 2013

DECISION OF THE APPEALS TRIBUNAL

Introduction:

1. On 24 April 2013 at a meeting of the Te Aroha Racing Club Mr Phelan pleaded guilty to a charge of careless riding under Rule 638(1)(d). The charge arose out of Mr Phelan’s riding of a horse named West End in Race 2 of the meeting. It was alleged that in the course of the race Mr Phelan had shifted his mount when not sufficiently clear of a following horse resulting in the crowding and checking of other following horses.

2. After hearing Mr Phelan’s explanation for his breach of the Rule and receiving advice from him as to his forward commitments the Judicial Committee suspended him from riding for four days commencing on 25 April 2013 extending through to 7 May 2013.

3. In assessing the penalty imposed on Mr Phelan the Judicial Committee categorized the breach of the Rules as within low to mid-range and took account of the fact the breach had been admitted and that Mr Phelan had a “clean record” as mitigating factors. The Judicial Committee took as its starting point suspension for a period of five riding days which is the recommended starting point for careless riding prescribed by the Penalty Guide for Judicial Committees effective from 1 June 2011. The Committee then reduced the five day period of suspension to four days to take account of the mitigating factors it had identified. In doing so the Judicial Committee specifically recognised that the four days suspension imposed encompassed days on which there were highweight or jumping races “… taking the whole country into account”. The result, as indicated, was that Mr Phelan was suspended from riding for four days commencing on 25 April 2013 extending through to 7 May 2013.

4. Subsequently Mr Phelan lodged an Appeal against the suspension imposed on him and applied for it to be stayed until the Appeal had been heard and determined. The Application for a stay was heard on 30 April 2013 and granted for reasons set out in a Minute of the Appeals Tribunal of the same date. By the time the stay application was heard two of the four days suspension imposed on Mr Phelan had passed with the remaining two days falling within the following fortnight if the Appeal was not heard within that time or the suspension not stayed.

5. In the Minute recording the grant of the stay of suspension the Tribunal accepted that the Appeal could be dealt with by way of written submissions from the parties subject to an oral hearing being held if it became necessary once the written submissions had been considered. The parties have now provided written submissions by way of Mr Neal on behalf of the Racing Integrity Unit and Mr Rogerson on behalf of Mr Phelan and the New Zealand Jumping Association. Having considered the written submissions the Tribunal does not consider an oral hearing is necessary.

The Grounds of Appeal: Submissions:

6. There is no challenge by Mr Phelan to any aspect of the Judicial Committee’s Decision except as to the length of the period of suspension imposed on him. In the written submissions lodged in support of Mr Phelan’s Appeal by Mr Rogerson the sole ground of appeal advanced is that the Judicial Committee erred in selecting a starting point of suspension for a period of five days. In particular it is submitted that in fixing that starting point the Judicial Committee failed to take any or sufficient account of what is described in the submissions as the “imbalance” that jumping riders experience in comparison with flat riders, in terms of the restricted riding opportunities available to jumping riders throughout the season.

7. In his submissions on behalf of the Racing Integrity Unit Mr Neal has acknowledged that riding opportunities for jumping and highweight riders over past seasons have diminished to the point where, in the current season, the number of racing days where jumping races have been programmed have been reduced to an all-time low of 24 days. Mr Neal says this represents less than 3% of the total thoroughbred races run in New Zealand throughout the current racing season. He has also pointed out that the number of highweight races to be run during the winter will be less than 20. Against the background of those limited riding opportunities Mr Neal accepts that a suspension from riding for a period of four days is what he calls a “significant impost” which might be regarded as unduly harsh. For those reasons Mr Neal says that the Racing Integrity Unit supports the “general principle” of a lower starting point for jumping and highweight riders which he submits should be three riding days rather than a higher starting point that might be recommended in the Penalty Guide.

Discussion:

8. The assessment of penalty is not an arithmetical exercise. Although it is now generally recognised that a formulaic approach, involving the fixing of a start point with adjustments made for aggravating or mitigating factors, is an acceptable approach, the reality is still that the fixing of penalty is always a matter of judgment based on an assessment of the culpability of the offending and relevant mitigating factors. While no two cases are ever precisely the same in all respects which bear on the assessment of penalty equal and consistent treatment of offenders means that offending of broadly comparable culpability should generally attract broadly comparable penalties. The proposition is no more than fair play in action and represents the philosophical underpinning of the Penalty Guide produced by the Judicial Control Authority to assist Judicial Committees in the imposition of penalties.

9. It is important to bear in mind however that the selection of a starting point recommended in the Penalty Guide is not a mandatory requirement of the process by which penalties are fixed. The recommended starting points contained in the Penalty Guide are provided for the purpose of ensuring, as far as it may be possible, consistency in the imposition of penalties by Judicial Committees. But as the Introduction to the Penalty Guide recognises they are not intended to override the discretion Judicial Committees have in imposing penalties. The Introduction specifically provides they may be departed from where a Judicial Committee:

“… has good reason to believe that the case before it has some special characteristic that justifies the imposition of a penalty greater or lesser than that suggested by the guidelines.”

10. We have carefully examined the transcript of the hearing before the Judicial Committee on 24 April 2013. According to the transcript Mr Phelan did not raise with the Judicial Committee the issue which forms the basis of his appeal and inevitably the Judicial Committee did not take account of the matter in fixing the penalty imposed on him. In the circumstances the Judicial Committee can hardly be criticized for not doing so.

11. Notwithstanding the failure to raise the issue before the Judicial Committee we are of the view however that as an Appeals Tribunal we can take account of the matter under the Rules which govern our consideration of this Appeal. In doing so we accept that the limited riding opportunities available to Mr Phelan was a legitimate consideration which the Judicial Committee could properly have taken into account under R. 920(2) in fixing the penalty imposed on him had it been raised as an issue in the same way as it has been advanced in support of this Appeal. It seems clear from the transcript that in arriving at a penalty of suspension of four riding days the Judicial Committee had in mind relevant riding opportunities for jumping and highweight riders throughout the country but the significant of those opportunities, conceded to be limited, as a factor relevant to the selection of an appropriate starting point was neither put to the Judicial Committee or considered by it. In those circumstances the Judicial Committee was not wrong not to have considered the issue, but in terms of the basis upon which we as an Appeals Tribunal are required to consider the Appeal under R. 1007 we think we can properly take it into account.

12. We start with the unchallenged assessment of the Judicial Committee that the breach was in the low to mid-range category and we take account and give effect to the mitigating factors identified by the Judicial Committee in the same way as the Judicial Committee did, that is by effectively allowing a 20% discount from the starting point the Committee used. According to Mr Neal’s submissions the limited season available to riders who compete solely in jumping and highweight races involve some 24 jumping days and less than 20 highweight races. Proportionately to penalties that would be imposed on flat riders for similar offending we think that against that background a starting point of suspension for a period of five riding days as recommended in the Penalty Guide, discounted for the reasons identified by the Judicial Committee, has led to a suspension on Mr Phelan which was excessive in the circumstances. The relevant starting point should be properly, in circumstances such as this case, take account of the limited riding opportunities available to jumping and highweight riders such as Mr Phelan. Making that allowance and taking the various factors identified into account we believe a penalty of suspension for two riding days will be sufficient to meet the breach of R. 638 admitted by Mr Phelan. Accordingly pursuant to R. 1007(2)(d) we quash the penalty of four riding days imposed by the Judicial Committee and in its place impose a suspension of 2 riding days on Mr Phelan to commence on 25 April 2013. As we understand the position, and as recorded in the Tribunal’s Minute of 30 April 2013, Mr Phelan has missed two riding days by reason of the suspension imposed on him by the Judicial Committee prior to the stay being granted by the Tribunal, which will mean that on release of this decision he will have served the period of suspension imposed on him by this Tribunal.

13. Lest there be any perception otherwise we need to make it clear that in allowing the appeal in this case for the reasons set out in this Decision we have not accepted the submissions of either Mr Rogerson or Mr Neal that a fixed starting point of one jumping day and one flat day, as urged by Mr Rogerson, or suspension for three riding days as submitted by Mr Neal, should be applied across the board to jumping and highweight riders charged with breaches of the Rules. This Decision does no more than reflect the Tribunal’s view that because of the limited riding opportunities available to jumping and highweight riders during the season departure from the recommended starting points contained in the Penalty Guide is a matter Judicial Committees should have regard to in selecting starting points in cases in which breaches of the Rules are alleged against jumping and highweight riders.

14. Although Mr Phelan has, for the reasons recorded, succeeded in his Appeal, because the issue on which the Appeal was advanced was not put before the Judicial Committee for consideration, and the Judicial Committee had no opportunity to consider it, we do not think this is an appropriate case in which to make an award of costs.

Result:

15. In the result:

(a) The Appeal is allowed. The suspension of four riding days imposed on Mr Phelan is quashed and in its place Mr Phelan is suspended for a period of two riding days to commence on 25 April 2013.

(b) There will be no order for costs.

DATED at Wellington this 22nd day of May 2013

__________________________
Bruce Squire QC (Chairman)
Signed pursuant to Rule 1007
 

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