Nelson HRC – 11 June 2010 – R3

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startdate: 11/06/2010

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hearing_title: Nelson HRC - 11 June 2010 - R3

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RACEDAY JUDICIAL COMMITTEE DECISION

Informant:  Stipendiary Steward Mr N. M. Ydgren 

Defendant:  Mr T. J. Grant – Open Horseman

Information No:  68981

Meeting:  Nelson Harness Racing Club          

 Date:  11 June 2010

Venue:  Nelson                                              

Race:  3

Rule No:  869(3)(b) and (c)

 Judicial Committee:  J M Phelan Chairman,  P. Williams Committee Member

 Plea:  Rule 869(3)(b) – Admitted,  Rule 869(3)(c) – Not admitted

CHARGE:

Stipendiary Steward Mr N. M. Ydgren filed an Information against Open Horseman Mr T. J. Grant alleging breaches of Rules 869(3)(b) and (c) in the alternative.  It was alleged that Mr Grant, the driver of “Morning’s Calling” (7), which started in Race 3, the Nelson Building Society F&M Mobile Pace, drove recklessly, or alternatively, drove carelessly.

The charge reads as follows.

“I the abovenamed Informant allege that the abovenamed Defendant committed a breach of Rule 869(3)(c) and 869(3)(b) – alternative –  in that Mr Grant drove recklessly down the back straight on the final occasion when shifting position down the track contacting the legs of “Avicmaro” causing this horse to break & lose all chance.”

Rule 869(3)(b) and (c) read as follows.

“(3) No horseman in any race shall drive:-

(a)   ….

(b)   carelessly;     

(c)    recklessly…”

FACTS:

Mr Ydgren gave evidence and used video coverage to show that in the back straight for the last time Mr Grant was racing three wide when he was pushed four wide by Mr G. Smith driving “New Year Bopper” (11).  This movement was within the rules.  Shortly after Mr Grant eased his horse back and moved it inwards to try and regain his position in the three wide line.  It was while making this manoeuvre that he made contact with the legs of “Avicmaro”, causing that horse to break and lose its chance.

Mr Grant gave evidence and he did not dispute the basic facts if this incident.  He accepted that he had been pushed four wide legitimately.  He said that he looked back and saw that there was space available in the three wide line behind “New Year Bopper”.  He eased his horse back and moved it inwards.  Mr Grant said that he had been unaware that “Avicmaro”, driven by Mr G. D. Smith, had in the meantime moved his horse outwards and had already taken up this position.

Mr Ydgren asked Mr Grant if he looked before he made this movement, and he said that he had.  Video coverage was used by Mr Ydgren to show that Mr Grant had looked back, as he had stated, but that there was a gap of a few seconds between this look and his moving inwards.

SUBMISSIONS:

Mr Ydgren made submissions that the Stipendiary Stewards case was that Mr Grant was reckless because he had not looked to see if space was available before he made his movement inwards.  The movement inwards was a sudden shift onto Mr Lethaby’s horse.  Mr Ydgren  agreed Mr Grant had looked back on one occasion, but said that he had not looked when he was making the movement inwards.

Mr Grant agreed that there was a gap between his looking back and making the move inwards.  He said that he was taken by surprise by the speed in which Mr Smith was able to take up the position he was intending to move into. He agreed that his driving was careless, but disputed that it amounted to reckless driving.

After hearing the evidence we adjourned to consider our decision.

REASONS:

The decision we were required to make was whether Mr Grant’s driving was “reckless” rather than “careless”.  “Reckless” is defined in the Concise Oxford Dictionary (9^th Ed.) as “Disregarding the consequences or danger, lacking caution, rash.”

After reviewing the video coverage and the evidence we were satisfied that Mr Grant had initially looked back and had seen that there was a space available for him to move into.  We were also satisfied that Mr Smith’s movement outwards to take up this space with “Avicmaro” was quick. Although we were satisfied that Mr Grant should have looked again to check that there was still a space available, we did not consider that this lapse amounted to “reckless” driving and accordingly that this charge should be dismissed.

DECISION:

On returning to the Enquiry Room we advised the parties that a full written decision with more detailed reasons would be given later, and we gave the following oral decision.

“Having heard the evidence and having seen the video coverage, we are satisfied that down the back straight for the final time there was contact between “Morning’s Calling”, driven by Mr Grant, and “Avicmaro” driven by Mr Lethaby.  As a result “Avicmaro” broke and lost its chance.

Mr Grant admitted that he drove carelessly, but did not admit that he drove recklessly.

We are satisfied that the evidence does not support the charge of reckless driving and this charge is dismissed.  We will give more detailed reasons in our written decision.”

DECISION:

As Mr Grant had admitted this breach of the Rules in relation to the careless driving charge it was found to be proved in accordance with Rule 1111(1)(d).

SUBMISSIONS ON PENALTY:

Mr Ydgren made submissions and said that Mr Grant had no previous conviction under this Rule, and he had admitted the breach.  Mr Ydgren also advised that Mr Grant had shown remorse for this incident, and he had also apologised to the connections of “Avicmaro”.

There was a general discussion as to whether Mr Grant would prefer a suspension to a fine, and he said that he preferred a fine.

Mr Ydgren said that this breach was at the higher end of the scale for careless driving, and that the Sentencing Guide recommends that an appropriate starting point for a fine in this case is  $400-00.  Mr Ydgren recommended a fine in the vicinity of $400-00.

Mr Grant said he would prefer it if the fine were “cheaper”.

After hearing the submissions on penalty we adjourned to consider our decision.

REASONS:

After reviewing the submissions on penalty we were satisfied that this was a breach of Rule 869(3)(b) which was at the upper end of the scale of seriousness.  It was to Mr Grant’s credit that he had admitted this breach, and that he had no previous relevant convictions.  We also took into account that Mr Grant had shown remorse and had apologised to the connections of “Avicmaro”.

Taking all these matters into account we decided that a fine of $350-00 would be an appropriate penalty in this case.  On resuming the hearing we advised the parties of our decision.

PENALTY:

Mr Grant was fined the sum of $350.

J.  M. Phelan                                        P. Williams

Chairman                                            Committee Member

68981

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hearing_type: Old Hearing

Rules: 869(3)(b) & 869(3)(c)

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