Appeal NZTR v C Lunn – 18 January 2011 – Decision

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hearing_title: Appeal NZTR v C Lunn - 18 January 2011 - Decision

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Decision:

NZTR v CASEY LUNN

Hearing before Appeal Tribunal

Appeal Tribunal

Mr Bruce Squire QC (Chairman)
Mr Russell McKenzie

Present:

Mr Mark Davidson: Stipendiary Steward
Ms Casey Lunn: Apprentice Jockey
Mr Paul Harris: Licensed Trainer and Employer of Ms Lunn

Date of Hearing:

18 January 2011

Venue:

Riccarton Racecourse; Christchurch

DECISION OF APPEAL TRIBUNAL

1. Introduction:

1.1. This is an Appeal by NZTR against penalties imposed upon the apprentice jockey Casey Lunn following a hearing at Kurow on 30 December 2010 at which Ms Lunn pleaded guilty to a charge of failing to ride her horse out contrary to Rule 636(1)(c) of the NZTR Rules of Racing ("the Rules"). The charge contained in the Information laid against Ms Lunn alleged a breach of Rule 636(1)(b) but was dealt with by the Judicial Committee as a charge under Rule 636(1)(c). As a result Ms Lunn was suspended by the Judicial Committee from riding for the period 1 January 2011 up to and including 11 January 2011 equating to three South Island riding days, and fined the sum of $150.00. The charge brought against Ms Lunn arose out of the running of race 8 of the meeting at Kurow held on 30 December 2010.

1.2. Although the charge was dealt with by the Judicial Committee as outlined in the preceding paragraph at a hearing on 30 December 2010 the Committee's written decision was not available until 2 January 2011. The Notice of Appeal against the Committee's decision was lodged by NZTR on 7 January 2011 and, having regard to the time of the year at which these events occurred, was within the time specified for lodging such an Appeal prescribed by Rule 1002(1) of the Rules. The Appeal brought by NZTR is against the penalty imposed by the Judicial Committee on Ms Lunn. NZTR contends the penalty was inadequate when compared with penalties imposed in other cases for similar breaches of Rule 636(1)(c).

1.3. At the hearing before the Tribunal it was confirmed by Mr Harris on behalf of Ms Lunn that the fine imposed by the Judicial Committee had not been paid but the period of suspension imposed had expired and Ms Lunn had ridden at two race meetings following the expiry of the period of suspension.

2. The Decision of the Judicial Committee:

2.1 In its Decision delivered on 2 January 2011 the Judicial Committee recorded that Ms Lunn breached Rule 636(1)(c) because of a misjudgement on her part in thinking she had reached the winning post when she had not. Ms Lunn acknowledged before the Committee that she was clearly at fault and except to the extent indicated did not appear to seek to excuse the mistake she made. It is clear also from the Judicial Committee's decision that it was impressed with the way in which Ms Lunn comported herself before it at the hearing and in the fashion in which she honestly admitted she was at fault. The Judicial Committee referred to what it described as "rare contrition" on her part leading it to conclude the case was not one in which deterrence needed to be given any great weight. The Committee also noted that Ms Lunn was very inexperienced, specifically recording this was a factor which weighed heavily with it in its assessment of the penalty it imposed.

2.2 The Judicial Committee also particularly recognised the need to take account of what it called "parity" in imposing penalty on Ms Lunn. In that regard it made reference to the penalty imposed upon a similarly inexperienced apprentice jockey at a previous meeting at Cromwell (albeit for a different breach of the Rules), implicitly concluding that despite the different breaches of the Rules involved, the overall culpability of the jockey in that case was comparable to that of Ms Lunn for her breach of Rule 636(1)(c). The Committee recorded that having regard to the other case referred to, it believed a similar penalty was appropriate in Ms Lunn's case and for that reason and other matters referred to in its Decision, imposed the penalty on Ms Lunn outlined earlier in paragraph 1.1.

3. The Case for NZTR:

3.1 The case for NZTR as presented by Mr Davidson was essentially that a breach of Rule 636(1)(c) was one of seriousness for a range of reasons he outlined but particularly because it had the potential to harm the industry and affect the confidence of those investing on the outcome of races. In that context Mr Davidson submitted that penalties imposed upon riders who failed to comply with the requirements of the Rule needed to reflect the seriousness of the breach and that in this case, by reference to a range of other cases which he provided brief details of, the penalty imposed upon Ms Lunn fell below what should have been imposed notwithstanding the various matters taken into account to her credit by the Judicial Committee, which Mr Davidson did not contest. In short, his submission was that in order to properly reflect those matters the penalty imposed on Ms Lunn was inadequate and should be increased to encompass six riding days with the fine of $150.00 imposed by the Judicial Committee being quashed.

3.2 When questioned by the Tribunal as to what, if any, significance the Tribunal should attach to the fact NZTR was seeking by the Appeal to increase the suspension imposed on Ms Lunn which had been served and expired, Mr Davidson responded by pointing out the Appeal was lodged within time and that NZTR had been unable to obtain a hearing before an Appeal Tribunal prior to 18 January 2011. In relation to the fashion in which the Judicial Committee had focussed on, and dealt with the "need for parity" in imposing penalty, Mr Davidson pointed out that the case relied on by the Committee as being of comparable culpability involved a different offence (which was in fact noted by the Committee) and that greater weight should be attached to the range of cases referred to in his submissions which showed the penalty imposed on Ms Lunn was significantly below penalties imposed in those cases for similar offending.

4. The Case for Ms Lunn:

4.1 In response to the submissions of NZTR Mr Harris described the Appeal as unusual. He submitted there was no "benefit" from the Appeal which simply sought to have Ms Lunn suspended for a further three days. He explained that the fact she had been charged and been required to serve the suspension imposed by the Judicial Committee had been a salutary experience for her and that further punishment was not needed to bring home to her the importance of ensuring that at all times she comply with the requirements of Rule 623(1)(c). Reference was also made by Mr Harris to the riding fees that Ms Lunn had lost by reason of serving the suspension imposed on her.

5. Discussion:

5.1 In an Appeal of this kind the Tribunal may only properly differ from the decision of the Judicial Committee if it is satisfied the Committee made an error of principle or seriously erred in its understanding or interpretation of the factual basis of the offending or other factors relevant to the assessment of penalty. Disparities in penalties imposed for particular breaches of the Rules will not of themselves, necessarily lead to the conclusion there has been error warranting correction on Appeal as the differences may be explicable for a range of reasons not necessarily amounting to error. In addition where there are circumstances in a particular case which persuade a Judicial Committee to extend leniency, any perceived disparity in penalty arising will again not necessarily lead to error requiring correction on Appeal. It follows that the imposition of a penalty by a Judicial Committee for breach of a particular Rule which may be seen to be outside the run of penalties imposed in other cases for a breach of the same Rule will, without more, not necessarily be sufficient to justify intervention by an Appeal Tribunal.

5.2 Further, where the Appeal against sentence is by the prosecuting authority, in this case the NZTR, seeking an increase in penalty, the considerations which justify any such increase must be more compelling than those which might justify a reduction in penalty (NZTR v C (19.12.08)). In those cases where an increase in penalty is justified on Appeal, the increase will not necessarily be to a level precisely comparable with the penalties imposed in other like cases on which reliance is placed to demonstrate insufficiency, but only to the extent the penalty imposed in the case under Appeal is seen by the Appeal Tribunal to be inadequate within Rule 1007(2)(b) of the Rules.

5.3 In this case there was the additional factor that NZTR was seeking by way of the Appeal to increase the suspension imposed by the Judicial Committee which had been served by Ms Lunn and had expired at the date of hearing of the Appeal. While the Rules do not preclude an Appeal against penalty being brought in such circumstances, it is generally the position that in such cases Appeals against penalty lapse if not heard before the penalty against which the Appeal is taken has been served and expired. That notion finds expression in relation to sentences of detention imposed in the criminal law setting in s.383(3) Crimes Act 1961 and s.115A(3) Summary Proceedings Act 1957. It is not within this Tribunal's power to effectively provide the same outcome by way of a ruling in this case but we think the principle which lies behind those statutory provisions can, and should, properly be given effect to, within due limits, within the discretion the Tribunal has in dealing with Appeals against penalty encompassed in Rule 1007 (2) of the Rules. Consistently with the exercise being one of discretion we think the principle is appropriately applied in this context by not simply ruling out Appeals against penalty in such circumstances, but rather by requiring the Appellant to show in any such case, that there is, or are, some special or unique reason or reasons why the Tribunal should allow the Appeal when the penalty appealed against has been served and has expired.

5.4 Applying those principles to this case we were inclined to the view the penalty imposed on Ms Lunn by the Judicial Committee in terms of the period of suspension alone was lenient but when coupled with the fine and the personal features which the Judicial Committee found to be of significance in this case possibly could not be said to be manifestly inadequate. However the test under Rule 1007(2) is not manifest inadequacy but rather simple inadequacy and we were of the view that test was satisfied in this case. On that basis the Appeal was in our view properly brought.

5.5 However, given that Ms Lunn had served the suspension imposed on her by the Judicial Committee and the suspension expired on 11 January 2011, consistently with the approach outlined in paragraph 5.3 above, we needed to be satisfied there was some special or unique reason in this case, beyond the fact the penalty imposed by the Judicial Committee was inadequate in the sense explained above, which would justify us allowing the Appeal and increasing the penalty imposed on Ms Lunn. No such reason was put before us by Mr Davidson. As previously recorded he noted the Appeal was filed in time and the problem associated with getting all parties, including the Tribunal, together for the hearing of the Appeal before this date but we do not regard those matters as being sufficiently special or unique considerations, rather simply a function of time of the year at which the relevant events occurred in this case. In making that finding we record however that the events occurred as they did through no fault of the NZTR or Mr Davidson or the JCA.

6. Result:

6.1 In the result, for the reasons outlined we were not persuaded that we should interfere with the penalty imposed by the Judicial Committee in this case and the Appeal by NZTR was dismissed accordingly.

6.2 For reasons which will be evident from what is recorded in this decision we did not think that in the circumstances this was a case in which costs should be awarded either against or in favour of either party.

DATED at Wellington this day of January 2011

____________________________
Bruce Squire QC (Chairman)
 

____________________________
Russell McKenzie (Member)
 

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