Appeal BRJ Lammas 3 September 2013 – Decision dated 6 September 2013

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decisiondate: 01/09/2013

hearing_title: Appeal BRJ Lammas 3 September 2013 - Decision dated 6 September 2013

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE AN APPEALS TRIBUNAL

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

BETWEEN BRENDAN LAMMAS

Appellant

AND THE RACING INTEGRITY UNIT

Respondent

Appeals Tribunal:

Mr Bruce Squire QC (Chairman)

Mr Noel McCutcheon

Present were:

Mr Brendan Lammas, Jockey

Mr John Tannahill, Counsel for Mr Lammas

Mr Ross Neal, Co-Chief Stipendiary Steward representing the Racing Integrity Unit

Venue:

The Offices of the Judicial Control Authority, Wellington

Date:

3 September 2013

DECISION OF APPEALS TRIBUNAL

1. Introduction:

1.1 On 10 August 2013 before a Judicial Committee duly constituted under the Rules of Racing of New Zealand Thoroughbred Racing Incorporated (“the Rules”) the Appellant Mr Lammas was found guilty of a charge brought against him under R. 649(1)(a) of the Rules following a hearing at which he had denied the charge. Subsequently the Judicial Committee, after hearing submissions on penalty, including submissions from Mr Lammas himself, fined Mr Lammas the sum of $300 and suspended him from race riding for a period of two weeks commencing on Monday 12 August 2013 extending up to and including Monday 26 August 2013.

1.2 On 13 August 2013 Mr Lammas lodged an Appeal against the Decision of the Judicial Committee finding him guilty of a breach of R. 649(1)(a) and the penalty it imposed. At the same time Mr Lammas applied for a stay of the suspension which had commenced the day prior to the filing of his Notice of Appeal. His Application for a stay of suspension was dealt with by this Tribunal on the papers on 14 August 2013 and for the reasons set out in a Minute issued on that date the suspension was stayed pending the hearing and determination of this Appeal.

1.3 At the commencement of the hearing of the Appeal Mr Tannahill advised the Tribunal the Appeal against the finding of breach of R. 649(1)(a) was not being pursued and the Appeal proceeded only in relation to the issue of penalty.

2. The Decision of the Judicial Committee:

2.1 Mr Lammas had been contracted to ride in Race 7 at the Canterbury Jockey Club’s meeting at Riccarton on 7 August 2013. When he weighed out for the race he was observed by a Stipendiary Steward in attendance to be wearing a pair of worn-out lightweight boots which did not correspond with the boots he was seen by the same Stipendiary Steward to be wearing when he weighed in from the race. In evidence before the Judicial Committee the Stipendiary Steward provided clear evidence the boots worn by Mr Lammas when he weighed in from the race were quite different in appearance and condition from what he described as the well-worn shabby boots worn by Mr Lammas when he weighed out for the race. Mr Lammas gave evidence before the Judicial Committee. In his evidence he denied that he had breached Rule 649(1)(a) in the manner described by the Stipendiary Steward and said that the Stipendiary Steward was mistaken. Mr Lammas maintained he weighed out in lightweight boots, rode in them and weighed in wearing the same boots.

2.2 In its Decision the Judicial Committee noted the further evidence before it that a search of the Jockeys’ Room carried out by two Stipendiary Stewards shortly after the race found the lightweight boots allegedly worn by Mr Lammas at the weighing out in a concealed position. The Judicial Committee noted that the evidence of the result of the search aside, the case was otherwise simply a matter of the Stipendiary Stewards’ word against that of Mr Lammas but that having regard to what was found in the search it was entitled to draw the inference Mr Lammas had something to hide and was trying to “beat the scales”. The Committee recorded in its Decision that having drawn that inference it accepted the Stipendiary Steward’s evidence and rejected the evidence of Mr Lammas noting it was in no doubt that he had changed his boots after weighing out.

2.3 In relation to the issue of penalty the Stipendiary Steward conducting the case on behalf of the RIU submitted the charge was serious and involved an intentional act of cheating. He submitted that Mr Lammas should be either fined $1,000 or alternatively suspended for a minimum of five racing days. In reply Mr Lammas told the Judicial Committee that his six previous breaches of R. 330(3)(c) which had been previously referred to of failing to make the contracted weight were not relevant to penalty and that he should be fined only the sum of $300 which was the penalty imposed upon an apprentice rider in May this year for a not dissimilar breach of R. 649.

2.4 After detailing the respective submissions the Committee summarised its view by recording what it described as aggravating features of the breach. The Committee itemised the features as follows:

• its finding that Mr Lammas had set out to “beat the scales”.

• he did so because he had a weight problem.

• the evidence against him was strong.

• the breach was not admitted in the face of what it described as “rather compelling evidence”. At the same time the Committee noted that Mr Lammas would receive no credit in terms of a discount on its starting point for penalty.

• the case was a serious one and Mr Lammas’ actions reflected badly on the integrity of racing.

The Committee recorded it could find no mitigating factors and stated that its starting point for the assessment of penalty was a period of suspension for two weeks noting the Penalty Guide for Judicial Committees offered little assistance in that regard. Having selected that starting point the Committee then recorded that having regard to the aggravating features it had identified it was imposing a fine as what it called an “uplift on penalty”. In the result, as previously noted the Committee imposed a fine of $300 and suspended him from race riding for a period of two weeks commencing from 12 August 2013 and concluding on Monday 26 August 2013.

3. The Appeal:

3.1 At the hearing of the Appeal Mr Tannahill submitted the penalty imposed on Mr Lammas was manifestly excessive. In support of that submission he made the following points:

(i) the penalty greatly exceeded penalties imposed by other Judicial Committees for similar offending in two cases dealt with in May and August this year in which fines of $200 and $300 only were imposed.

(ii) that no benefit accrued to Mr Lammas as a result of his breach of R. 649. The evidence before the Committee from Mr Lammas was that he weighed in at the same 55kg weight as he weighed out. Mr Tannahill submitted the Committee must have ignored this matter in fixing penalty.

(iii) the Committee was wrong to find Mr Lammas’ boots located by the Stipendiary Stewards in the Jockeys’ Room had been concealed. He acknowledged however that the Judicial Committee could properly have drawn the inference it did in this regard.

(iv) the Committee should have accepted the submission of the Stipendiary Steward as to the penalty, namely a fine of $1,000 or suspension for five racing days.

3.2 In his submissions in reply Mr Neal explained the basis upon which the Stipendiary Steward had made his submissions in relation to penalty by reference to the Decisions referred to by Mr Tannahill, acknowledging at the same time that the matter of penalty was for the Judicial Committee to decide in terms of the facts as the Judicial Committee found them. In that regard Mr Neal pointed to the fact that this was apparent from the Penalty Guide to which the Judicial Committee had referred in its Decision.

4. Discussion:

4.1 We were not persuaded by any of the matters raised by Mr Tannahill that the Judicial Committee had erred in imposing the penalty it did on Mr Lammas. The other cases referred to in which fines were imposed involved material differences from Mr Lammas’ case and the fact that Mr Lammas weighed in at the same weight with different boots as he weighed out was before the Committee in evidence. We did not accept the Committee would have overlooked that fact. Neither did we accept that the Committee was wrong in finding that Mr Lammas’ boots were concealed in the Jockeys’ Room as the Judicial Committee found or the inference the Committee drew from that finding. Further it scarcely needs to be said that the matter of penalty was entirely for the Judicial Committee to decide irrespective of what the Stipendiary Steward might have submitted was appropriate.

4.2 The Committee clearly, and in our view rightly, regarded Mr Lammas’ conduct as an attempt to “beat the scales” as the Committee put it. Mr Lammas’ weight problem exemplified by his previous breaches of R. 330(3)(c) inferentially disclosed his motive for changing his boots after weighing out and the Committee was entitled to assess the offending as serious, reflecting adversely, as it clearly did, on the integrity of Racing. Those findings were properly open to the Judicial Committee on the evidence it had before it and in our view involved no error of principle or assessment by the Committee.

4.3 We were however troubled by the fact that on the face of its Decision the Committee regarded the fact the evidence against Mr Lammas was strong and that the breach was not admitted by him in the face of compelling evidence as aggravating features. In the latter regard the Committee did however add the observation Mr Lammas would receive no credit in terms of a discount from its fixed starting point which is difficult to reconcile with its earlier related comment that failure to admit the breach in the face of compelling evidence was an aggravating feature. In the result we were left unsure as to whether the Committee treated it as an aggravating feature enlarging its assessment of culpability, or simply a factor which eliminated any discount for an acknowledgement of the breach. Further the identification of Mr Lammas’ motive for acting as he did together with the observation the case was a serious one reflecting badly on the integrity of Racing were properly observations as to the culpability of the offending but could not in our view be legitimately regarded as aggravating features.

4.4 In the result we were left with the impression the Committee erred in principle in treating those matters as aggravating features. Standard sentencing principles recognise that credit can properly be given for early acknowledgements of a breach of the Rules but the converse is not the case. The fact a person charged with a breach of the Rules unsuccessfully defends the charge cannot be treated as an aggravating feature. In such circumstances the person concerned simply loses the benefit of a discount on penalty that might otherwise have been given for an acknowledgement of a breach. Nor do we think an assessment of the intrinsic culpability of a breach of the Rules can ever properly be regarded as an aggravating feature.

4.5 For those reasons we concluded that the Judicial Committee erred in principle in fixing the penalty imposed on Mr Lammas and that we should approach the matter afresh.

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5. Penalty:

5.1 Adopting broadly the approach of the Judicial Committee to the assessment of culpability but putting aside any treatment of the matters referred to as aggravating features we concluded that the appropriate starting point was suspension from racing for a period encompassing five racing days. We did not think that any uplift by way of a fine was necessary. Like the Judicial Committee we did not find any mitigating factors justifying any reduction from our starting point.

5.2 We were told, and it was accepted by Mr Neal, that because the stay of suspension issued by the Tribunal on 14 August came after the suspension imposed by the Judicial Committee had been operative for a day Mr Lammas had lost the opportunity of riding at races in Oamaru on 16 August 2013. The period of suspension we selected therefore needed to encompass five riding days but making due allowance for the loss of the riding opportunities at Oamaru on 16 August. As it happened that exercise was able to be met by imposing a period of suspension on Mr Lammas commencing from 9 September 2013 extending through and including 13 September 2013.

6. Costs:

6.1 Mr Lammas abandoned his Appeal against the finding of the Judicial Committee that he was guilty of the charge brought against him. But notice of that abandonment was only given to the Tribunal at the last moment, at the commencement of the hearing of the Appeal. On the other hand Mr Lammas has succeeded in his Appeal against penalty to the extent, and for the reasons recorded earlier in this Decision. On that basis we think that as between Mr Lammas and the RIU there should be no order for costs in favour of either party. There is no basis for a refund of the fee paid by Mr Lammas on the filing of his Appeal.

6.2 The position concerning the costs of the Judicial Control Authority is different. Normally costs follow the event in the usual way and the unsuccessful party is required to meet the costs of the Judicial Control Authority to the extent considered appropriate by the Judicial Committee in the particular case under consideration. The reasons for that approach are set out in the Decision of the Appeal Tribunal in B v RIU (21 December 2011) and the Judicial Committee in NZTR v McA (17 March 2011). In this case neither party was wholly successful in the Appeal as it was lodged, although as recorded earlier that was due, so far as Mr Lammas was concerned, to the fact he abandoned his Appeal against the finding of the Judicial Committee he was guilty of the charge brought against him. However the Tribunal was not notified of that until the commencement of the hearing of the Appeal. Against that background we are of the view that both Mr Lammas and the RIU should properly contribute to the costs of the Judicial Control Authority in the sum of $250 each.

7. Result:

7.1 In the result:

(i) the penalty imposed on Mr Lammas by the Judicial Committee on 10 August 2013 is quashed and in its place there is an Order that Mr Lammas is suspended from race riding from 9 September 2013 up to and including 13 September 2013.

(ii) Mr Lammas is ordered to pay costs to the Judicial Control Authority in the sum of $250.

(iii) The RIU is ordered to pay costs to the Judicial Control Authority in the sum of $250.

DATED at Wellington this 6th day of September 2013

__________________________
Bruce Squire QC (Chairman)

Signed pursuant to Rule 1007

hearing_type: Non-race day

Rules: 649(1)(a)

Informant: BRJ Lammas - Licensed Jockey

JockeysandTrainer:

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PersonPresent: Mr John Tannahill - Counsel for Mr Lammas, Mrs Catherine Hutton - Registrar

Respondent: Ross Neal - representing the Racing Integrity Unit

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