Wyndham HRC 13 November 2016 – R 2 (heard on 24 November 2016)- Decision as to Penalty – Chair, Prof G Hall
ID: JCA20467
Hearing Type (Code):
harness-racing
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MR ALAN BECK
Open Horseman
Respondent
Information: A8422
Judicial Committee: Prof G Hall, Chairman
Mr N Skelt, Member
Appearing: Mr S Wallis, Stipendiary Steward, for the Informant
The Respondent in person, with the assistance of Mr D Baynes
Date of decision: 15 December 2016
DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
[1] In our decision dated 5 December we found Mr Beck to have breached r 868(2) of the Rules of Harness Racing in that on 13 November last in race 2 at the Wyndham Harness Racing Club’s meeting he failed to take all reasonable and permissible measures in the home straight to ensure that DON SEBASTIAN was given full opportunity to win the race.
[2] We required the parties to file written submissions as to penalty. These have been received.
Informant’s submission
[3] Mr Wallis produced Mr Beck’s record. This evidenced that Mr Beck has had 44 drives this season up to 7 December, and he had 191 drives last season. The total number of drives since HRNZ has been keeping records in 1984 is 7868. Mr Beck as evidenced by these statistics is a busy Southland based driver averaging 250 drives per season.
[4] Mr Beck has a clear record under this rule.
[5] That Mr Beck had failed to show enough vigour over the concluding stages of the race was said by the RIU to be “hugely detrimental to the image and interests of our sport”. Mr Beck’s actions had had a detrimental effect not only on the punters who had invested on the race but also on any potential punters who would have been “turned away” by his actions. Through disadvantaging the public, as he had, the actions of Mr Beck had only served to dent the reputation of Harness Racing.
[6] Mr Wallis emphasised that Mr Beck, as did all drivers, carried with him the weight of public money and the integrity of the sport. These were two matters that could not be compromised and were to be protected appropriately.
[7] To enhance public confidence and integrity within racing, the RIU asked for the imposition of a meaningful penalty. Stewards were of the belief that the breach should be dealt with by way of a suspension.
[8] A breach of r 868(2) was said to be a serious charge and was deserving of a significant penalty, which should reflect the serious nature of the breach and also serve as a deterrent to any participants who might believe this style of driving was acceptable. Harness Racing was a global product and its integrity and image could not be compromised.
[9] The RIU submitted that Mr Beck’s offending was comparable to that in RIU v DeFilippi 22 March 2013 where Mr DeFilippi had admitted the breach and was suspended for 5 racing days.
[10] When taking into account that this charge involved the potential of first placing and the considerable financial support his horse carried, the RIU assessed Mr Beck’s breach as being at the mid to high end.
[11] Given the JCA’s starting point of a 15-drive suspension or a $750 fine for a breach of r 868(2), Mr Wallis submitted that the appropriate penalty was a suspension of Mr Beck’s horseman’s licence for 6 racing days.
[12] The RIU submitted that the meeting at Forbury Park on 21 December should not be included in our calculation of days of suspension as the respondent was not a regular driver at this venue.
Respondent’s submissions
[13] Mr Beck submitted that he believed the 6-day suspension to be “on the high end” as the penalty as stated in the Penalty Guide was a 15-drive suspension, and at 5 drives per meeting, this amounted to 3 days.
[14] Mr Beck stated that on the day of the incident he was told by a Stipendiary Steward that “if you are to plead guilty you are looking at 3 days and if you plead not guilty then 4 days.”
[15] Mr Beck emphasised this was the “biggest time of the season” and within the next month there were some “high stake cup races on offer”. He stated he was “agreeable to a fine as well if it reduces suspension”.
Informant’s response to the respondent’s submissions
[16] Mr Wallis replied that in relation to Mr Beck requesting a reduced suspension together with a fine the RIU had no issue with this. He submitted that there be a 4-day suspension with a $500 fine, or a 3-day suspension with a $750 fine.
[17] The RIU also responded to Mr Beck’s submission as to the advice the Stipendiary Stewards had given him on the day. The RIU denied that the alleged indication had been given. We do not need to determine this matter, as it has no bearing on the penalty we intend to impose.
Decision
[18] We are required to address the need for general deterrence and to hold Mr Beck accountable for his breach of r 868(2). We do not emphasise specific deterrence, as it is very clear to this Committee that Mr Beck is a very experienced driver and has never previously been in breach of this rule. We accept the RIU’s submission that the need to uphold the integrity of Harness Racing must also be given substantial weight.
[19] Mr Beck’s drive over the final 200 metres of the race in question has resulted in his being found to be in breach of the rule. There was a distinct lack of vigour shown at various times during this period of the race.
[20] We have referred to RIU v DeFilippi 22 March 2013, as noted by the RIU in their penalty submission, where the Judicial Committee found that the respondent had used only minimal urgings to encourage his horse (a trotter) over the final 200 metres. As had Mr Beck, the respondent in that case justified his drive by reference to the fact that as an experienced driver, he knew when a horse was giving its best. The Committee in that case stated: “With the margin between first and second only half a head, a reasonably minded person would think that had Mr DeFilippi employed a little more vigour over the concluding 200 metres and that extra vigour not necessarily with the whip, that STENT may have won the race.” As we noted in our earlier decision, a similar conclusion could be drawn with respect to Mr Beck’s actions. However, in our view the principal issue is that the public should be able to perceive that DON SEBASTIAN had been asked to give its best in what was a tight finish, whether or not that horse would have won the race.
[21] Significantly, we find assistance in the JCA Penalty Guide, which identifies 15 drives or a $750 fine as a starting point. We believe a starting point in the region of 20 drives is appropriate in this instance, as we accept the RIU submission that the breach is mid to high end. We would describe it as being at the top end of mid range. This is a 33% uplift. The RIU’s submission that a 6-day suspension is appropriate is difficult to reconcile with the starting point identified in the Penalty Guide. We would conclude that it is based on the 5 days imposed in DeFilippi. The Judicial Committee in that case did not explain how it reached this figure, which equated to 25 to 30 drives, other than to state this was a breach in the mid to high range and that the penalty had to reflect this. With our assessment of Mr Beck’s breach as being at the high end of mid range, it is close to but perhaps not quite as serious a breach as that in DeFilippi.
[22] Mr Beck has four drives a meeting on average. We have before us his driving record for this season up until 7 December, and the previous season. Were it not for the 2 most recent meetings where he had had one drive and two drives, respectively, this figure would have been closer to five. A 10% reduction for the mitigating factor of an excellent record (no previous breaches of this rule) takes us to 18 drives.
[23] The RIU have not sought that the penalty be solely a financial one. Having regard to the seriousness of the breach and the need for general deterrence, we agree with the informant that a purely financial penalty is not appropriate in this instance.
[24] Mr Beck has sought a suspension coupled with a fine. The informant has not resisted this submission.
[25] We have had regard to forthcoming meetings and the fact that the respondent drives primarily in Southland. We have carefully considered whether or not the Forbury Park meeting on 21 December should be included in our calculation. The RIU have noted in their submission that Mr Beck has driven there only once in the last 8 months and, more generally, he is an irregular driver at that particular Otago venue.
[26] The practice of the JCA is that days included in a suspension must be genuine days. We accept this clearly applies to venues outside the district in which a horseman usually drives, where he or she endeavours to persuade a Committee that a particular meeting should be encompassed by the suspension. However, Mr Beck is an Otago / Southland (a southern) driver. We would hesitate to exclude days in a driver’s residential district. Mr Beck has driven 2 times (9 races) at Forbury Park in the past 12 months. He has also driven at Waikouaiti (which is a little north of Dunedin) in this time. We also observe he drove at 4 meetings at Forbury Park in March, April and May 2015 and again at Waikouaiti. Ultimately, we find we do not need to finally determine this issue, as we are satisfied it is appropriate to include this day.
[27] Mr Beck has not sought a deferral of any suspension. We note he has drives at Wairio on 17 December.
[28] We impose a penalty that is the equivalent of 18 drives. We suspend Mr Beck from driving from the end of racing on 17 December up to and including 29 December. This is three Otago and Southland (southern) days. The days encompassed by the suspension are: 21 December - Forbury Park TC; 27 December – Gore HRC; and 29 December - Winton HRC. We also impose a fine of $480 (calculated on the basis of a driving fee of $80 per drive). The respondent thus is able to complete his suspension this calendar year and to participate fully in the Central Otago circuit in early January.
Costs
[29] The RIU incurred costs of $612 for flights from Christchurch to Invercargill. The RIU believed that some compensation for this was “not unreasonable”. Two matters were heard on the day. An apportionment is appropriate.
[30] We have a discretion to impose costs that are just and reasonable. Their purpose is not to fully indemnify any party.
[31] We award costs in the sum of $220 to the RIU.
[32] We make no award in favour of the JCA.
Dated at Dunedin this 15th day of December 2016.
Geoff Hall, Chairman
Decision Date: 13/11/2016
Publish Date: 13/11/2016
JCA Decision Fields (raw)
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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.
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startdate: 13/11/2016
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decisiondate: no date provided
hearing_title: Wyndham HRC 13 November 2016 - R 2 (heard on 24 November 2016)- Decision as to Penalty - Chair, Prof G Hall
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MR ALAN BECK
Open Horseman
Respondent
Information: A8422
Judicial Committee: Prof G Hall, Chairman
Mr N Skelt, Member
Appearing: Mr S Wallis, Stipendiary Steward, for the Informant
The Respondent in person, with the assistance of Mr D Baynes
Date of decision: 15 December 2016
DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
[1] In our decision dated 5 December we found Mr Beck to have breached r 868(2) of the Rules of Harness Racing in that on 13 November last in race 2 at the Wyndham Harness Racing Club’s meeting he failed to take all reasonable and permissible measures in the home straight to ensure that DON SEBASTIAN was given full opportunity to win the race.
[2] We required the parties to file written submissions as to penalty. These have been received.
Informant’s submission
[3] Mr Wallis produced Mr Beck’s record. This evidenced that Mr Beck has had 44 drives this season up to 7 December, and he had 191 drives last season. The total number of drives since HRNZ has been keeping records in 1984 is 7868. Mr Beck as evidenced by these statistics is a busy Southland based driver averaging 250 drives per season.
[4] Mr Beck has a clear record under this rule.
[5] That Mr Beck had failed to show enough vigour over the concluding stages of the race was said by the RIU to be “hugely detrimental to the image and interests of our sport”. Mr Beck’s actions had had a detrimental effect not only on the punters who had invested on the race but also on any potential punters who would have been “turned away” by his actions. Through disadvantaging the public, as he had, the actions of Mr Beck had only served to dent the reputation of Harness Racing.
[6] Mr Wallis emphasised that Mr Beck, as did all drivers, carried with him the weight of public money and the integrity of the sport. These were two matters that could not be compromised and were to be protected appropriately.
[7] To enhance public confidence and integrity within racing, the RIU asked for the imposition of a meaningful penalty. Stewards were of the belief that the breach should be dealt with by way of a suspension.
[8] A breach of r 868(2) was said to be a serious charge and was deserving of a significant penalty, which should reflect the serious nature of the breach and also serve as a deterrent to any participants who might believe this style of driving was acceptable. Harness Racing was a global product and its integrity and image could not be compromised.
[9] The RIU submitted that Mr Beck’s offending was comparable to that in RIU v DeFilippi 22 March 2013 where Mr DeFilippi had admitted the breach and was suspended for 5 racing days.
[10] When taking into account that this charge involved the potential of first placing and the considerable financial support his horse carried, the RIU assessed Mr Beck’s breach as being at the mid to high end.
[11] Given the JCA’s starting point of a 15-drive suspension or a $750 fine for a breach of r 868(2), Mr Wallis submitted that the appropriate penalty was a suspension of Mr Beck’s horseman’s licence for 6 racing days.
[12] The RIU submitted that the meeting at Forbury Park on 21 December should not be included in our calculation of days of suspension as the respondent was not a regular driver at this venue.
Respondent’s submissions
[13] Mr Beck submitted that he believed the 6-day suspension to be “on the high end” as the penalty as stated in the Penalty Guide was a 15-drive suspension, and at 5 drives per meeting, this amounted to 3 days.
[14] Mr Beck stated that on the day of the incident he was told by a Stipendiary Steward that “if you are to plead guilty you are looking at 3 days and if you plead not guilty then 4 days.”
[15] Mr Beck emphasised this was the “biggest time of the season” and within the next month there were some “high stake cup races on offer”. He stated he was “agreeable to a fine as well if it reduces suspension”.
Informant’s response to the respondent’s submissions
[16] Mr Wallis replied that in relation to Mr Beck requesting a reduced suspension together with a fine the RIU had no issue with this. He submitted that there be a 4-day suspension with a $500 fine, or a 3-day suspension with a $750 fine.
[17] The RIU also responded to Mr Beck’s submission as to the advice the Stipendiary Stewards had given him on the day. The RIU denied that the alleged indication had been given. We do not need to determine this matter, as it has no bearing on the penalty we intend to impose.
Decision
[18] We are required to address the need for general deterrence and to hold Mr Beck accountable for his breach of r 868(2). We do not emphasise specific deterrence, as it is very clear to this Committee that Mr Beck is a very experienced driver and has never previously been in breach of this rule. We accept the RIU’s submission that the need to uphold the integrity of Harness Racing must also be given substantial weight.
[19] Mr Beck’s drive over the final 200 metres of the race in question has resulted in his being found to be in breach of the rule. There was a distinct lack of vigour shown at various times during this period of the race.
[20] We have referred to RIU v DeFilippi 22 March 2013, as noted by the RIU in their penalty submission, where the Judicial Committee found that the respondent had used only minimal urgings to encourage his horse (a trotter) over the final 200 metres. As had Mr Beck, the respondent in that case justified his drive by reference to the fact that as an experienced driver, he knew when a horse was giving its best. The Committee in that case stated: “With the margin between first and second only half a head, a reasonably minded person would think that had Mr DeFilippi employed a little more vigour over the concluding 200 metres and that extra vigour not necessarily with the whip, that STENT may have won the race.” As we noted in our earlier decision, a similar conclusion could be drawn with respect to Mr Beck’s actions. However, in our view the principal issue is that the public should be able to perceive that DON SEBASTIAN had been asked to give its best in what was a tight finish, whether or not that horse would have won the race.
[21] Significantly, we find assistance in the JCA Penalty Guide, which identifies 15 drives or a $750 fine as a starting point. We believe a starting point in the region of 20 drives is appropriate in this instance, as we accept the RIU submission that the breach is mid to high end. We would describe it as being at the top end of mid range. This is a 33% uplift. The RIU’s submission that a 6-day suspension is appropriate is difficult to reconcile with the starting point identified in the Penalty Guide. We would conclude that it is based on the 5 days imposed in DeFilippi. The Judicial Committee in that case did not explain how it reached this figure, which equated to 25 to 30 drives, other than to state this was a breach in the mid to high range and that the penalty had to reflect this. With our assessment of Mr Beck’s breach as being at the high end of mid range, it is close to but perhaps not quite as serious a breach as that in DeFilippi.
[22] Mr Beck has four drives a meeting on average. We have before us his driving record for this season up until 7 December, and the previous season. Were it not for the 2 most recent meetings where he had had one drive and two drives, respectively, this figure would have been closer to five. A 10% reduction for the mitigating factor of an excellent record (no previous breaches of this rule) takes us to 18 drives.
[23] The RIU have not sought that the penalty be solely a financial one. Having regard to the seriousness of the breach and the need for general deterrence, we agree with the informant that a purely financial penalty is not appropriate in this instance.
[24] Mr Beck has sought a suspension coupled with a fine. The informant has not resisted this submission.
[25] We have had regard to forthcoming meetings and the fact that the respondent drives primarily in Southland. We have carefully considered whether or not the Forbury Park meeting on 21 December should be included in our calculation. The RIU have noted in their submission that Mr Beck has driven there only once in the last 8 months and, more generally, he is an irregular driver at that particular Otago venue.
[26] The practice of the JCA is that days included in a suspension must be genuine days. We accept this clearly applies to venues outside the district in which a horseman usually drives, where he or she endeavours to persuade a Committee that a particular meeting should be encompassed by the suspension. However, Mr Beck is an Otago / Southland (a southern) driver. We would hesitate to exclude days in a driver’s residential district. Mr Beck has driven 2 times (9 races) at Forbury Park in the past 12 months. He has also driven at Waikouaiti (which is a little north of Dunedin) in this time. We also observe he drove at 4 meetings at Forbury Park in March, April and May 2015 and again at Waikouaiti. Ultimately, we find we do not need to finally determine this issue, as we are satisfied it is appropriate to include this day.
[27] Mr Beck has not sought a deferral of any suspension. We note he has drives at Wairio on 17 December.
[28] We impose a penalty that is the equivalent of 18 drives. We suspend Mr Beck from driving from the end of racing on 17 December up to and including 29 December. This is three Otago and Southland (southern) days. The days encompassed by the suspension are: 21 December - Forbury Park TC; 27 December – Gore HRC; and 29 December - Winton HRC. We also impose a fine of $480 (calculated on the basis of a driving fee of $80 per drive). The respondent thus is able to complete his suspension this calendar year and to participate fully in the Central Otago circuit in early January.
Costs
[29] The RIU incurred costs of $612 for flights from Christchurch to Invercargill. The RIU believed that some compensation for this was “not unreasonable”. Two matters were heard on the day. An apportionment is appropriate.
[30] We have a discretion to impose costs that are just and reasonable. Their purpose is not to fully indemnify any party.
[31] We award costs in the sum of $220 to the RIU.
[32] We make no award in favour of the JCA.
Dated at Dunedin this 15th day of December 2016.
Geoff Hall, Chairman
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