Central Otago TC 2 January 2016 – R 3 (penalty decision delivered on 4 January 2016 at Roxburgh – Chair, Prof G Hall
ID: JCA20299
Hearing Type (Code):
harness-racing
Meet Title:
Central Otago TC - 2 January 2016
Meet Chair:
PKnowles
Meet Committee Member 1:
GHall
Race Date:
2016/01/02
Race Number:
R 3
Decision:
RACEDAY JUDICIAL COMMITTEE DECISION
Informant: Mr B Kitto - Racecourse Investigator
Respondent: Mr B Orange - Licensed Horseman
Information No: A7762
Meeting: Central Otago Trotting Club
Date: 2 January 2016
Venue: Oamakau
Rule No: 513(4)(c)
Race: 3
Judicial Committee: Prof G Hall Chairman - Mr P Knowles, Committee Member
Plea: Admitted
Persons Present: Mr M Jones - Licensed Horseman, supporting Mr Orange
Evidence
Mr Orange has admitted a breach of r 513(4)(c) in that he presented himself at 12.45 pm on 2 January 2016 within one hour prior to the start of a race in which he was engaged to drive, namely race 3, and committed a breach of the Rules of Harness Racing as he recorded a breath alcohol level greater than 100 mcg, namely 334 mcg.
Rule r 513(4)(c) states:
(4) A horseman commits a breach of these rules who presents himself or herself within 1 hour prior to the start of the race in which he or she is engaged to drive or who drives in a race commits a breach of these rules if he or she:
(c) has a breath alcohol level greater than 100 micrograms of alcohol per litre of breath (0.02%).
The penalty provision is 1003(1)(a), (b) and (c). Relevantly this is a fine not exceeding $10000 and/or a suspension for a period not exceeding 12 months.
Mr Kitto stated that Mr Orange was one of a number of drivers he breath tested for alcohol at the Central Otago TC meeting on 2 January. He had tested Mr Orange at 12.45 pm, which was within one hour prior to the start of race 3, in which the respondent was engaged to drive. He said the respondent had complied with the breath testing procedure and this had produced a result of 334 mcg. The respondent was immediately “cross with himself” for failing the test. He said Mr Orange had been tested numerous times before and had never failed a test.
Mr Orange explained that he is not a regular drinker but had been drinking until 2 on the morning of the meeting after journeying to Cromwell from Auckland. He had not eaten since breakfast the previous day at Auckland airport, as he was not a big eater, and this, plus the fact he was slightly built, he believed was a contributing factor to his returning a positive result. He emphasised at no time did he feel he was under the influence of alcohol and that there was no way he would turn up to a race meeting if he believed he was so affected. He added he had travelled to the racecourse as a passenger in a vehicle.
Decision
As Mr Orange has admitted the breach, it is found to be proved.
Submissions as to Penalty
Mr Kitto has submitted that a suspension, or a suspension and a fine, is appropriate. He said the appropriate starting point was 6 weeks’ suspension. There were no aggravating factors and he acknowledged the mitigating factors of Mr Orange’s clear record, co-operation, and admission of the breach would reduce this starting point substantially.
Mr Kitto submitted that the Bishop case offered guidance to the Committee and that the starting point there was 6 weeks suspension. However, he acknowledged that the number of drives that Mr Orange had on raceday was a very relevant consideration and the period of suspension would need to be adjusted because of this fact. Mr Kitto estimated the respondent had on average 6 drives per meeting. When the Committee indicated it believed the number was closer to 7, he replied that the informant accepted that figure, as did Mr Orange.
Mr Orange has submitted that a fine is appropriate. He has acknowledged that this would be in the 4-figure range. He has emphasised the fact that he needs to be able to drive on raceday to support his family and has asked that if there were to be a suspension, that this be as short as possible for this reason.
Reasons for Penalty
The RIU has informed us that this is the first breach of this rule in the Harness Racing industry. However, we are aware that there have been a small number of such cases in the thoroughbred code. Mr Kitto has referred us to the case of Bishop and we are aware of the earlier case of Moseley. We need to be consistent and we intend to take guidance from these cases. However, a complicating factor is that penalties in the harness code as detailed in the JCA Penalty Guide are by fine or number of drives (one drive equates to a fine of $50), in contrast to the number of days suspension in thoroughbred.
Mr Moseley, whose level was 214 mcg (lower than that of Mr Orange), was suspended for 4 weeks, which was stated to be 9 meetings. On average, we believe Mr Moseley would have 6 rides a meeting, so this would equate to 54 rides. Mr Bishop, whose level was high at 512 mcg (and thus substantially above that of Mr Orange), was suspended for 5 weeks (14 meetings). He would have had on average, we assess, 5 rides per meeting at that time in his career, which adds up to 70 rides.
The penalty we impose has to hold Mr Orange accountable and uphold the integrity of the Harness Racing industry. We doubt there is a need for specific deterrence but general deterrence (the deterring of other licence holders) is a very relevant consideration.
Mr Orange has a clear record under the rule and is an experienced, successful and well-regarded participant in the harness industry. He has been fully cooperative with the RIU investigation, has forthrightly admitted the breach, and is clearly embarrassed by the predicament in which he finds himself, and is remorseful. He has stated he has never been suspended from driving at any time in his career, which he rightly regards with a degree of pride.
Taking guidance from Bishop and Moseley, and we emphasise having regard to the interest of consistency between the codes, we arrive at a figure for Mr Orange of 56 drives (8 days’ suspension). We calculate this to be slightly more drives than the number of rides that were forfeited by Mr Moseley, as a consequence of his suspension. We view Mr Moseley to be a similarly experienced and well-regarded licence holder in thoroughbred racing, as is Mr Orange in the harness industry.
We believe because of the serious nature of the breach that it has to be marked by a suspension. We thus do not accept Mr Orange’s submission on this point. However, we believe a combined penalty to be appropriate in this instance, as was acknowledged by Mr Kitto.
Penalty
Mr Orange has drives at Roxburgh and Cromwell. He was stood down from driving at Omakau, so he has already served the equivalent of one day’s suspension.
Mr Orange is suspended from the end of racing on 6 January up to and including 14 January (4 days — Oamaru; Nelson (2); Invercargill). He is also fined the sum of $1050.
This is in effect 5 days’ suspension (35 drives) and the fine of $1050 equates to 21 drives. The total is thus 56 drives.
As the matter was heard on raceday, there is no award of costs to the RIU or the JCA.
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: 5c87f38ca59f163ff789f6170d33c66f
informantnumber:
horsename:
hearing_racingtype: harness-racing
startdate: 02/01/2016
newcharge:
plea:
penaltyrequired:
decisiondate: no date provided
hearing_title: Central Otago TC 2 January 2016 - R 3 (penalty decision delivered on 4 January 2016 at Roxburgh - Chair, Prof G Hall
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
RACEDAY JUDICIAL COMMITTEE DECISION
Informant: Mr B Kitto - Racecourse Investigator
Respondent: Mr B Orange - Licensed Horseman
Information No: A7762
Meeting: Central Otago Trotting Club
Date: 2 January 2016
Venue: Oamakau
Rule No: 513(4)(c)
Race: 3
Judicial Committee: Prof G Hall Chairman - Mr P Knowles, Committee Member
Plea: Admitted
Persons Present: Mr M Jones - Licensed Horseman, supporting Mr Orange
Evidence
Mr Orange has admitted a breach of r 513(4)(c) in that he presented himself at 12.45 pm on 2 January 2016 within one hour prior to the start of a race in which he was engaged to drive, namely race 3, and committed a breach of the Rules of Harness Racing as he recorded a breath alcohol level greater than 100 mcg, namely 334 mcg.
Rule r 513(4)(c) states:
(4) A horseman commits a breach of these rules who presents himself or herself within 1 hour prior to the start of the race in which he or she is engaged to drive or who drives in a race commits a breach of these rules if he or she:
(c) has a breath alcohol level greater than 100 micrograms of alcohol per litre of breath (0.02%).
The penalty provision is 1003(1)(a), (b) and (c). Relevantly this is a fine not exceeding $10000 and/or a suspension for a period not exceeding 12 months.
Mr Kitto stated that Mr Orange was one of a number of drivers he breath tested for alcohol at the Central Otago TC meeting on 2 January. He had tested Mr Orange at 12.45 pm, which was within one hour prior to the start of race 3, in which the respondent was engaged to drive. He said the respondent had complied with the breath testing procedure and this had produced a result of 334 mcg. The respondent was immediately “cross with himself” for failing the test. He said Mr Orange had been tested numerous times before and had never failed a test.
Mr Orange explained that he is not a regular drinker but had been drinking until 2 on the morning of the meeting after journeying to Cromwell from Auckland. He had not eaten since breakfast the previous day at Auckland airport, as he was not a big eater, and this, plus the fact he was slightly built, he believed was a contributing factor to his returning a positive result. He emphasised at no time did he feel he was under the influence of alcohol and that there was no way he would turn up to a race meeting if he believed he was so affected. He added he had travelled to the racecourse as a passenger in a vehicle.
Decision
As Mr Orange has admitted the breach, it is found to be proved.
Submissions as to Penalty
Mr Kitto has submitted that a suspension, or a suspension and a fine, is appropriate. He said the appropriate starting point was 6 weeks’ suspension. There were no aggravating factors and he acknowledged the mitigating factors of Mr Orange’s clear record, co-operation, and admission of the breach would reduce this starting point substantially.
Mr Kitto submitted that the Bishop case offered guidance to the Committee and that the starting point there was 6 weeks suspension. However, he acknowledged that the number of drives that Mr Orange had on raceday was a very relevant consideration and the period of suspension would need to be adjusted because of this fact. Mr Kitto estimated the respondent had on average 6 drives per meeting. When the Committee indicated it believed the number was closer to 7, he replied that the informant accepted that figure, as did Mr Orange.
Mr Orange has submitted that a fine is appropriate. He has acknowledged that this would be in the 4-figure range. He has emphasised the fact that he needs to be able to drive on raceday to support his family and has asked that if there were to be a suspension, that this be as short as possible for this reason.
Reasons for Penalty
The RIU has informed us that this is the first breach of this rule in the Harness Racing industry. However, we are aware that there have been a small number of such cases in the thoroughbred code. Mr Kitto has referred us to the case of Bishop and we are aware of the earlier case of Moseley. We need to be consistent and we intend to take guidance from these cases. However, a complicating factor is that penalties in the harness code as detailed in the JCA Penalty Guide are by fine or number of drives (one drive equates to a fine of $50), in contrast to the number of days suspension in thoroughbred.
Mr Moseley, whose level was 214 mcg (lower than that of Mr Orange), was suspended for 4 weeks, which was stated to be 9 meetings. On average, we believe Mr Moseley would have 6 rides a meeting, so this would equate to 54 rides. Mr Bishop, whose level was high at 512 mcg (and thus substantially above that of Mr Orange), was suspended for 5 weeks (14 meetings). He would have had on average, we assess, 5 rides per meeting at that time in his career, which adds up to 70 rides.
The penalty we impose has to hold Mr Orange accountable and uphold the integrity of the Harness Racing industry. We doubt there is a need for specific deterrence but general deterrence (the deterring of other licence holders) is a very relevant consideration.
Mr Orange has a clear record under the rule and is an experienced, successful and well-regarded participant in the harness industry. He has been fully cooperative with the RIU investigation, has forthrightly admitted the breach, and is clearly embarrassed by the predicament in which he finds himself, and is remorseful. He has stated he has never been suspended from driving at any time in his career, which he rightly regards with a degree of pride.
Taking guidance from Bishop and Moseley, and we emphasise having regard to the interest of consistency between the codes, we arrive at a figure for Mr Orange of 56 drives (8 days’ suspension). We calculate this to be slightly more drives than the number of rides that were forfeited by Mr Moseley, as a consequence of his suspension. We view Mr Moseley to be a similarly experienced and well-regarded licence holder in thoroughbred racing, as is Mr Orange in the harness industry.
We believe because of the serious nature of the breach that it has to be marked by a suspension. We thus do not accept Mr Orange’s submission on this point. However, we believe a combined penalty to be appropriate in this instance, as was acknowledged by Mr Kitto.
Penalty
Mr Orange has drives at Roxburgh and Cromwell. He was stood down from driving at Omakau, so he has already served the equivalent of one day’s suspension.
Mr Orange is suspended from the end of racing on 6 January up to and including 14 January (4 days — Oamaru; Nelson (2); Invercargill). He is also fined the sum of $1050.
This is in effect 5 days’ suspension (35 drives) and the fine of $1050 equates to 21 drives. The total is thus 56 drives.
As the matter was heard on raceday, there is no award of costs to the RIU or the JCA.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
hearing_type: Old Hearing
Rules: 513(4)(c)
Informant:
JockeysandTrainer:
Otherperson:
PersonPresent:
Respondent:
StipendSteward:
raceid: 314fe8703917016b966a1d7cff81afb3
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race_title: R 3
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meet_title: Central Otago TC - 2 January 2016
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