Appeal Mr T Pilcher – Decision dated 13 July 2011
ID: JCA17544
Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY AT WELLINGTON
UNDER THE RACING ACT 2003
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN Mr Pilcher of Palmerston North
Appellant
Appellant
AND Racing Integrity Unit (RIU)
Respondent
Respondent
Appeals Tribunal: Prof G Hall, Chairman
Mr R Seabrook, Member
Appearing: Mr T Pilcher in person
Mr R Neal for the RIU
Date of hearing: 7 July 2011
Date of oral decision: 7 July 2011
Date of written decision: 13 July 2011
Mr R Seabrook, Member
Appearing: Mr T Pilcher in person
Mr R Neal for the RIU
Date of hearing: 7 July 2011
Date of oral decision: 7 July 2011
Date of written decision: 13 July 2011
DECISION OF APPEALS TRIBUNAL
[1] This is an appeal by Mr T Pilcher against the decision of a non-raceday committee (the committee) at Palmerston North on 30 May last that he had breached r 39.2 of the New Zealand Greyhound Racing Association (Inc) Rules of Racing. The penalty incurred was 5 years’ disqualification and a fine of $500. Costs of $350 were also imposed.
[2] Rule 39.2 provides:
No Official, Steward or Veterinarian shall directly or indirectly engage in any betting transaction at a Meeting at which he/she officiates.
No Official, Steward or Veterinarian shall directly or indirectly engage in any betting transaction at a Meeting at which he/she officiates.
[3] The relevant penalty is to be found in r 89.1 which states:
Any person found guilty of an offence under these Rules shall be liable to, in the sole and absolute discretion of the Board or the stewards:
a) a fine not exceeding $10,000 for any 1 offence and/or
b) suspension and/or
c) disqualification and/or
d) warning off
Any person found guilty of an offence under these Rules shall be liable to, in the sole and absolute discretion of the Board or the stewards:
a) a fine not exceeding $10,000 for any 1 offence and/or
b) suspension and/or
c) disqualification and/or
d) warning off
[4] The facts briefly were that on 27 April 2011 the appellant was officiating for the Palmerston North Greyhounds in the capacity of lure driver. He placed bets of $40 to win on Race 4, Number 7, BOUND BY PRIDE and a $10 a place on Race 12, Number 1, IGNITE THE LIGHT. The first bet was a winning bet; the second was not.
Submissions:
[5] Mr Whiterod, the stipendiary steward who appeared for the respondent at the non-race day hearing, said that over the last 2 or 3 years it had been reported to the stewards that Mr Pilcher might have been betting whilst working in his official capacity as the lure driver at greyhound meetings. He said Mr Pilcher had been spoken to on more than one occasion by the stewards and reminded of his obligations not to bet whilst working at a race meeting.
[6] Mr Pilcher acknowledged to us that he had been spoken to, although he thought it was only on one occasion. When questioned by this Tribunal as to why he had failed to heed this warning, he said “boredom” and that it was difficult to resist having a bet when he and other officials, such as the raceday photographer and the announcer, were receiving “hot tips”. He added he knew he should not be doing this, but it was difficult not to do so in these circumstances. He added that he considered he had taken the warning too lightly. On hearing this explanation, we stated to the appellant that we were unable to prevent his continued employment in the industry as a lure driver other than by the imposition of a lengthy period of disqualification. We added that we did not believe that this was an appropriate penalty, as it would prevent his participation in the industry in any capacity. However, we were concerned by his statements and indicated that we would append an addendum to our decision in which we would recommend that he not be re-employed in the industry as a lure driver.
[7] Mr Pilcher said he had been a lure driver at Palmerston North for over 20 years and he also drove the lure on trial days at the track. He explained to us that he first started in the position on a voluntary basis but for much of the time that he had officiated it had been a paid position. He said he was currently receiving about $130 a week for driving at the trials and on raceday. He had also been a committee member, Vice-President, and President of Palmerston North Greyhounds. He said he had never been charged in relation to the racing of his dogs but he had been fined for failing to be at the start at the required time on one occasion some years ago.
[8] The appellant’s main submission was that the penalty was excessive when regard was had to his record and the fact that he was charged under r 39.2 and not with a more serious breach. He said he had already suffered the humiliation of losing his job as a lure driver. He said he originally became involved in the sport as a trainer and the 5-year disqualification prevented him from returning to this activity, which was his wish. He said he had never been given any warning by either the respondent or the committee that disqualification was being contemplated and its imposition had cost him not only his job as a lure driver but also his ability to train and race dogs. He explained he was a family man with a mortgage. He acknowledged he was in full-time employment outside of greyhound racing.
[9] Mr Pilcher emphasised that he was a casual punter and had only had two bets at the particular meeting. These bets were not planned and he had done nothing to influence the running of the race. In this regard, he said, the aim was for a 7 second run up from when the lure started until the boxes were opened. He emphasised he was not responsible for the opening of the boxes and that there was an allowable 5 to 7 metre variance between the lure and the leading dog. He added that weather conditions and the dogs’ abilities each affected the speed of the lure and the distance of the dogs behind it. There were no issues with this at the meeting in question, he said.
[10] Mr Neal did not seek to support the committee’s penalty. He submitted that in the interests of consistency of penalties and the provision of guidance for future committees that a fine in the vicinity of $1000 be substituted on appeal. He drew this Tribunal’s attention to comparable cases although he confirmed this was the first time any official within the Greyhound Racing code had been charged with an offence under r 39.2. A number of the cases he put before us were more serious, he said, as these related to offences against r 88. However, the range of penalties in those cases was between 2 and 6 months’ disqualification.
[11] Mr Neal reiterated that the respondent did not seek the disqualification of Mr Pilcher. He said it was never part of their case that there had been any irregularity in the manner in which the appellant had driven the lure in either race. Mr Neal said he had specifically spoken to the steward who officiated regularly in the central districts, Mr Whiterod, who had confirmed this. He said Mr Whiterod had spoken with the appellant “on numerous occasions” about the speed of the lure as it went past the boxes at the beginning of the race as the speed of the lure could influence the start, and also on how far the lure was in front of the dogs, particularly during the early stages of a race. He said this was normal practice and Mr Whiterod had not had to speak more often to Mr Pilcher than he had to any other lure driver.
[12] Mr Neal supported Mr Whiterod’s submission to the committee that Mr Pilcher’s betting was totally unacceptable and that the penalty imposed had to be a deterrent to both Mr Pilcher and any other official who might be tempted to breach r 39.2. However, there was also a need for consistency and to properly rank the appellant’s conduct with respect to its degree of seriousness. He believed the committee had over-stated this in its decision with the consequence that the penalty was “not fair nor in the right scale” and that “5 years would be an inappropriate benchmark for this type of offending”.
[13] The respondent emphasised that the charge the appellant had admitted was one under r 39.2. He could not understand the reference in the committee’s decision to r 88, which refers to acts detrimental to racing, and he believed this might have led the committee to impose an excessive penalty. When questioned by this Tribunal as to the appellant’s degree of culpability, he acknowledged that offending, despite being warned, in circumstances where the stewards had a strong suspicion Mr Pilcher was betting, was an aggravating factor.
Reasons:
[14] At the hearing before the committee the appellant had acknowledged that the two charges were “not a one off instance” and that in the past he had bet on races when working as the lure driver. We acknowledge the appellant’s candour but limit our penalty to encompassing only the two charges before us.
[15] The committee emphasised the need to maintain integrity and public confidence in the greyhound industry. This Tribunal is also conscious of this need. However, where we differ from the committee is in its conclusion that this was “a serious racing offence” and that this was “offending at the top end of the scale and the penalty should send the strongest possible signal to the industry that this behaviour will not be tolerated under any circumstances.” There is no doubt that a lure driver has the potential to influence the result of a race and, in this regard, betting by a person in this position is to be regarded seriously. Significantly, however, there is no evidence of any attempt by the appellant to influence the outcome of either race.
[16] In making our assessment of the appellant’s culpability we pay particular regard to the fact that he failed to heed a warning to desist from a stipendiary steward who had suspected, but could not prove, he was betting. This is a significant aggravating factor that leads us to the view that the imposition of a fine, without any additional penalty, is not a sufficient response to mark the seriousness of the breach.
[17] There is clearly a need to hold the appellant accountable for his actions, to denounce his conduct and to deter him and others from
similar behaviour in the future. However, we believe a disqualification period of 5 years fails to identify or give appropriate weight to personal mitigating factors. Mr Pilcher has given a lifetime’s service to Palmerston North Greyhounds. He is also of good character. We disregard the earlier minor breach, which he tells us arose in exceptional circumstances due to ill-health, and treat him as a first offender. He has co-operated fully with the stewards’ investigation and has admitted the breach. We believe the imposition of a period of disqualification, rather than the length of that period, will provide an effective deterrent, both general and specific.
Penalty:
[18] We increase the fine of $500 to one of $750. We reduce the period of disqualification imposed by the committee to a period of 6 weeks. That disqualification period will end on 31 July next.
[19] The RIU did not seek costs on this appeal and the appellant, when given the opportunity, made no submissions on this issue. We order that these lie where they fall.
Addendum: We understand there is an appointment process with respect to the position of lure driver and that it is at the pleasure of the Board of the New Zealand Greyhound Racing Association. The stewards vet applicants and make recommendations to the Board but these are usually limited to matters of competency to hold the position. We accept that we have no power to prevent the appellant from being employed as a lure driver. However, it is our clearly and strongly held view that that Mr Pilcher should not be re-employed in the industry in this position. We accept that the weight that is given to this recommendation is a matter for the Board but we would expect some regard be had to this recommendation as it was reached only after a careful consideration of the appellant’s statements and demeanour at this hearing. We believe the temptation to place bets may again become too strong for the appellant to resist, despite his holding the official position of lure driver.
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 06/07/2011
Publish Date: 06/07/2011
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.
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penaltyrequired:
decisiondate: 06/07/2011
hearing_title: Appeal Mr T Pilcher - Decision dated 13 July 2011
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY AT WELLINGTON
UNDER THE RACING ACT 2003
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN Mr Pilcher of Palmerston North
Appellant
Appellant
AND Racing Integrity Unit (RIU)
Respondent
Respondent
Appeals Tribunal: Prof G Hall, Chairman
Mr R Seabrook, Member
Appearing: Mr T Pilcher in person
Mr R Neal for the RIU
Date of hearing: 7 July 2011
Date of oral decision: 7 July 2011
Date of written decision: 13 July 2011
Mr R Seabrook, Member
Appearing: Mr T Pilcher in person
Mr R Neal for the RIU
Date of hearing: 7 July 2011
Date of oral decision: 7 July 2011
Date of written decision: 13 July 2011
DECISION OF APPEALS TRIBUNAL
[1] This is an appeal by Mr T Pilcher against the decision of a non-raceday committee (the committee) at Palmerston North on 30 May last that he had breached r 39.2 of the New Zealand Greyhound Racing Association (Inc) Rules of Racing. The penalty incurred was 5 years’ disqualification and a fine of $500. Costs of $350 were also imposed.
[2] Rule 39.2 provides:
No Official, Steward or Veterinarian shall directly or indirectly engage in any betting transaction at a Meeting at which he/she officiates.
No Official, Steward or Veterinarian shall directly or indirectly engage in any betting transaction at a Meeting at which he/she officiates.
[3] The relevant penalty is to be found in r 89.1 which states:
Any person found guilty of an offence under these Rules shall be liable to, in the sole and absolute discretion of the Board or the stewards:
a) a fine not exceeding $10,000 for any 1 offence and/or
b) suspension and/or
c) disqualification and/or
d) warning off
Any person found guilty of an offence under these Rules shall be liable to, in the sole and absolute discretion of the Board or the stewards:
a) a fine not exceeding $10,000 for any 1 offence and/or
b) suspension and/or
c) disqualification and/or
d) warning off
[4] The facts briefly were that on 27 April 2011 the appellant was officiating for the Palmerston North Greyhounds in the capacity of lure driver. He placed bets of $40 to win on Race 4, Number 7, BOUND BY PRIDE and a $10 a place on Race 12, Number 1, IGNITE THE LIGHT. The first bet was a winning bet; the second was not.
Submissions:
[5] Mr Whiterod, the stipendiary steward who appeared for the respondent at the non-race day hearing, said that over the last 2 or 3 years it had been reported to the stewards that Mr Pilcher might have been betting whilst working in his official capacity as the lure driver at greyhound meetings. He said Mr Pilcher had been spoken to on more than one occasion by the stewards and reminded of his obligations not to bet whilst working at a race meeting.
[6] Mr Pilcher acknowledged to us that he had been spoken to, although he thought it was only on one occasion. When questioned by this Tribunal as to why he had failed to heed this warning, he said “boredom” and that it was difficult to resist having a bet when he and other officials, such as the raceday photographer and the announcer, were receiving “hot tips”. He added he knew he should not be doing this, but it was difficult not to do so in these circumstances. He added that he considered he had taken the warning too lightly. On hearing this explanation, we stated to the appellant that we were unable to prevent his continued employment in the industry as a lure driver other than by the imposition of a lengthy period of disqualification. We added that we did not believe that this was an appropriate penalty, as it would prevent his participation in the industry in any capacity. However, we were concerned by his statements and indicated that we would append an addendum to our decision in which we would recommend that he not be re-employed in the industry as a lure driver.
[7] Mr Pilcher said he had been a lure driver at Palmerston North for over 20 years and he also drove the lure on trial days at the track. He explained to us that he first started in the position on a voluntary basis but for much of the time that he had officiated it had been a paid position. He said he was currently receiving about $130 a week for driving at the trials and on raceday. He had also been a committee member, Vice-President, and President of Palmerston North Greyhounds. He said he had never been charged in relation to the racing of his dogs but he had been fined for failing to be at the start at the required time on one occasion some years ago.
[8] The appellant’s main submission was that the penalty was excessive when regard was had to his record and the fact that he was charged under r 39.2 and not with a more serious breach. He said he had already suffered the humiliation of losing his job as a lure driver. He said he originally became involved in the sport as a trainer and the 5-year disqualification prevented him from returning to this activity, which was his wish. He said he had never been given any warning by either the respondent or the committee that disqualification was being contemplated and its imposition had cost him not only his job as a lure driver but also his ability to train and race dogs. He explained he was a family man with a mortgage. He acknowledged he was in full-time employment outside of greyhound racing.
[9] Mr Pilcher emphasised that he was a casual punter and had only had two bets at the particular meeting. These bets were not planned and he had done nothing to influence the running of the race. In this regard, he said, the aim was for a 7 second run up from when the lure started until the boxes were opened. He emphasised he was not responsible for the opening of the boxes and that there was an allowable 5 to 7 metre variance between the lure and the leading dog. He added that weather conditions and the dogs’ abilities each affected the speed of the lure and the distance of the dogs behind it. There were no issues with this at the meeting in question, he said.
[10] Mr Neal did not seek to support the committee’s penalty. He submitted that in the interests of consistency of penalties and the provision of guidance for future committees that a fine in the vicinity of $1000 be substituted on appeal. He drew this Tribunal’s attention to comparable cases although he confirmed this was the first time any official within the Greyhound Racing code had been charged with an offence under r 39.2. A number of the cases he put before us were more serious, he said, as these related to offences against r 88. However, the range of penalties in those cases was between 2 and 6 months’ disqualification.
[11] Mr Neal reiterated that the respondent did not seek the disqualification of Mr Pilcher. He said it was never part of their case that there had been any irregularity in the manner in which the appellant had driven the lure in either race. Mr Neal said he had specifically spoken to the steward who officiated regularly in the central districts, Mr Whiterod, who had confirmed this. He said Mr Whiterod had spoken with the appellant “on numerous occasions” about the speed of the lure as it went past the boxes at the beginning of the race as the speed of the lure could influence the start, and also on how far the lure was in front of the dogs, particularly during the early stages of a race. He said this was normal practice and Mr Whiterod had not had to speak more often to Mr Pilcher than he had to any other lure driver.
[12] Mr Neal supported Mr Whiterod’s submission to the committee that Mr Pilcher’s betting was totally unacceptable and that the penalty imposed had to be a deterrent to both Mr Pilcher and any other official who might be tempted to breach r 39.2. However, there was also a need for consistency and to properly rank the appellant’s conduct with respect to its degree of seriousness. He believed the committee had over-stated this in its decision with the consequence that the penalty was “not fair nor in the right scale” and that “5 years would be an inappropriate benchmark for this type of offending”.
[13] The respondent emphasised that the charge the appellant had admitted was one under r 39.2. He could not understand the reference in the committee’s decision to r 88, which refers to acts detrimental to racing, and he believed this might have led the committee to impose an excessive penalty. When questioned by this Tribunal as to the appellant’s degree of culpability, he acknowledged that offending, despite being warned, in circumstances where the stewards had a strong suspicion Mr Pilcher was betting, was an aggravating factor.
Reasons:
[14] At the hearing before the committee the appellant had acknowledged that the two charges were “not a one off instance” and that in the past he had bet on races when working as the lure driver. We acknowledge the appellant’s candour but limit our penalty to encompassing only the two charges before us.
[15] The committee emphasised the need to maintain integrity and public confidence in the greyhound industry. This Tribunal is also conscious of this need. However, where we differ from the committee is in its conclusion that this was “a serious racing offence” and that this was “offending at the top end of the scale and the penalty should send the strongest possible signal to the industry that this behaviour will not be tolerated under any circumstances.” There is no doubt that a lure driver has the potential to influence the result of a race and, in this regard, betting by a person in this position is to be regarded seriously. Significantly, however, there is no evidence of any attempt by the appellant to influence the outcome of either race.
[16] In making our assessment of the appellant’s culpability we pay particular regard to the fact that he failed to heed a warning to desist from a stipendiary steward who had suspected, but could not prove, he was betting. This is a significant aggravating factor that leads us to the view that the imposition of a fine, without any additional penalty, is not a sufficient response to mark the seriousness of the breach.
[17] There is clearly a need to hold the appellant accountable for his actions, to denounce his conduct and to deter him and others from
similar behaviour in the future. However, we believe a disqualification period of 5 years fails to identify or give appropriate weight to personal mitigating factors. Mr Pilcher has given a lifetime’s service to Palmerston North Greyhounds. He is also of good character. We disregard the earlier minor breach, which he tells us arose in exceptional circumstances due to ill-health, and treat him as a first offender. He has co-operated fully with the stewards’ investigation and has admitted the breach. We believe the imposition of a period of disqualification, rather than the length of that period, will provide an effective deterrent, both general and specific.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
[18] We increase the fine of $500 to one of $750. We reduce the period of disqualification imposed by the committee to a period of 6 weeks. That disqualification period will end on 31 July next.
[19] The RIU did not seek costs on this appeal and the appellant, when given the opportunity, made no submissions on this issue. We order that these lie where they fall.
Addendum: We understand there is an appointment process with respect to the position of lure driver and that it is at the pleasure of the Board of the New Zealand Greyhound Racing Association. The stewards vet applicants and make recommendations to the Board but these are usually limited to matters of competency to hold the position. We accept that we have no power to prevent the appellant from being employed as a lure driver. However, it is our clearly and strongly held view that that Mr Pilcher should not be re-employed in the industry in this position. We accept that the weight that is given to this recommendation is a matter for the Board but we would expect some regard be had to this recommendation as it was reached only after a careful consideration of the appellant’s statements and demeanour at this hearing. We believe the temptation to place bets may again become too strong for the appellant to resist, despite his holding the official position of lure driver.
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