Appeal SJ Lawson v RIU – Decision dated 29 July 2014
ID: JCA13528
Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN SIMON LAWSON, Open Horseman
Appellant
AND RACING INTEGRITY UNIT (RIU)
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mr R McKenzie, Member
Appearing: Mr R Lawson, for Mr S Lawson - Mr S Mulcay for the RIU
DECISION OF APPEALS TRIBUNAL
[1] We are an Appeals Tribunal appointed to hear an appeal by Mr S Lawson (“Mr Lawson”), Open Horseman, against the penalty of a fine of $375 imposed by the Judicial Committee on 26 June last at Cambridge Raceway on a charge of driving in a manner likely to cause interference in Race 4 at the Harness Racing Waikato race meeting.
[2] A teleconference was held with the parties on 4 July last. It was agreed that the matter would be determined on the papers.
[3] We have now viewed the race video and have read a transcript of the raceday hearing. We have also received written submissions from the parties.
[4] Information A3704 alleged that Mr Lawson, the horseman of COPY MY PAST, was in breach of r 869(4) which states: “No horseman shall during any race do anything which interferes or is likely to interfere with his own horse and/or any other horse or its progress.” Mr Lawson denied the charge.
[5] The particulars of the charge, which the raceday Judicial Committee found proved, were that “horseman S Lawson allowed his drive to shift out abruptly near the 100 metres which resulted in CARLOS (D Ferguson) being forced out onto GOLDEN DELIGHT (P Butcher) with that gelding galloping as a result”.
[6] The Judicial Committee in finding the charge proved held: “Mr Lawson caused GOLDEN DELIGHT to go off stride due to his sharp movement outwards onto CARLOS which in turn struck GOLDEN DELIGHT’S legs. We therefore find that Mr Lawson failed to exercise the required standard of care in the circumstances.”
Imposition of penalty on raceday
[7] Mr Mulcay stated that the Stewards assessed the degree of interference as being at the lower end of the scale, as the outcome of the race had not been affected in that there was no protest involved.
[8] Mr Mulcay submitted that the starting point for a charge of this nature was a fine of $400 or a suspension of eight drives. He acknowledged that Mr Lawson did “a fair amount of driving”, however he commented, “his record obviously shows that he has been before the Stewards and the JCA on a regular basis over recent months”. He highlighted two breaches of r 869(3)(b) (careless driving) and two matters under r 869(4), one of which was a warning only. He emphasised the last occasion was 11 April 2014 when Mr Lawson was fined $300 under r 869(3)(b).
[9] Mr Mulcay accordingly submitted a fine of between $400 to $500 or a period of suspension was an appropriate penalty
[10] Mr Lawson in response to Mr Mulcay’s submissions acknowledged that his record was “not flash” however he stated this incident fell at the “absolute minor end of the scale”. He added that a fine at the level that the Stewards had suggested would be the largest fine ever imposed on him.
[11] In imposing a fine of $375, the Judicial Committee noted that the starting point in the JCA Penalty Guide for a breach of r 869(4) is a suspension of 8 drives or $400. Mitigating factors were that there was only one horse affected and that there was no protest initiated as a result of the breach. The Committee accepted that the breach was at the lower end of the scale.
[12] After making an allowance for the number of times he drives in races, the Committee observed that Mr Lawson’s record of breaches of this rule was “poor, this being the 5th breach within the last 12 months”. The Committee noted Mr Lawson’s previous fines had ranged between $200 to $350.
Submissions on appeal
[13] Mr Lawson lodged a Notice of Appeal against the severity of the penalty of a $375 fine, with his grounds for appeal being: “The penalty was influenced by incorrect information given to the JCA by the RIU. Mr Lawson has only one previous charge under this rule this season and the one prior to that was 15/12/2011”.
[14] Mr R Lawson stated that the basis of the appeal was that the Judicial Committee had “incorrectly accepted Mr Mulcay’s submissions without checking the validity of those submissions by not checking Mr Lawson’s penalty report themselves”. The appellant’s record, he noted, showed in fact only one prior breach this season under this rule on 4 March when the penalty was a fine of $200. He further emphasised that in six seasons of driving Mr Lawson had had only two other breaches of this rule, on 15 December 2011 and 6 November 2008. The penalty on each occasion was a $200 fine. During this time Mr Lawson had had over 1500 drives.
[15] Mr R Lawson elaborated that the Committee had given undue weight to the RIU’s submissions, which were based on an incorrect reading of the appellant’s record. He thus submitted that this Tribunal should reconsider the penalty “on the basis of the magnitude of the breach and the fact that Mr Lawson’s record for a breach of this rule was not an aggravating feature in assessing penalty.”
[16] Mr R Lawson then addressed the appropriate penalty. He emphasised that the penalties for a breach of r 869(4) ranged from $200 to $400, with the most common penalty where there had been no relegation, being $200.
[17] Mr R Lawson noted that the Stewards had assessed the breach as low end and that Mr Butcher, the driver of GOLDEN DELIGHT, which Mr Lawson alleged was “the most affected horse” had stated in his evidence to the Committee: “I was running real bad, he locked on one rein…. When [Mr Lawson’s] come out, if I wasn’t hanging I would have moved out, it wouldn’t have been a problem.” Mr Butcher had also described his horse as “hanging chronic”. Mr R Lawson also noted that Mr Mulcay had stated when questioning Mr Butcher, “there’s no doubt your horse may have been on one rein coming around the turn and in the run home….”
[18] Mr R Lawson thus submitted that Mr Butcher’s horse had obviously contributed to the incident. In Mr R Lawson’s view, this was “a minor case of interference caused to GOLDEN DELIGHT. The interference has been caused by COPY MY PAST over-reacting outwards when the earplugs were activated. This is not a case of the driver of the horse moving abruptly rather the horse over-reacting when the ear plugs have been released.”
[19] Mr R Lawson concluded by submitting, “the correct penalty level should have been no larger than a fine of $250.”
[20] Mr Mulcay stated that on raceday he had made submissions as to penalty and had simply read into the record the appellant’s previous six driving offences that related to careless driving (r 869(3)(b)) and/or driving in a manner which causes or is likely to cause interference (r 869(4)). He said: “At no stage did I state that this was Mr Lawson’s 5th offence within the last six months, as claimed, although it is apparent on reading the decision that the Judicial Committee took that line in settling on penalty.”
[21] This then raised the issue, Mr Mulcay said, which was the basis of Mr Lawson’s appeal, of “whether breaches of r 869(3)(b) should be taken into account when considering penalty for a charge under r 869(4) and vice versa”. He submitted that it was appropriate to do so for charges relating to interference given that the rules concerned were closely aligned and were basically interchangeable in the vast majority of interference incidents. Where the interference was deemed to be more serious than a mere error of judgement and/or a driver failing to display all due care and attention, a charge would be laid under one of the more serious offences proscribed under the other sections of r 869(3), ie reckless, dangerous, improper or foul driving.
[22] In relation to Mr Butcher’s evidence, to which Mr R Lawson had made reference, he drew the Tribunal’s attention to the fact that Mr Butcher had conceded under cross examination that although his horse was on one rein, that he had not shifted inwards in the incident and that the other horses had shifted out to him. Mr Butcher further confirmed that contact had occurred to his horse’s leg.
[23] With reference to the gravity of the breach, Mr Mulcay re-affirmed his raceday comment that the degree of interference was at the lower end of the scale and that the outcome of the race was not affected. However, contact to GOLDEN DELIGHT’s leg had occurred with the associated risk of injury to that gelding and potential loss of earnings for the connections. He believed that the replay clearly showed Mr Lawson activating the deafeners and then steering his horse outwards where it responded and shifted in an abrupt manner causing the interference. This, he submitted, was a risk that drivers took when shifting ground where clear passage did not exist.
[24] Mr Mulcay concluded his submission by stating that the penalty imposed was appropriate and was not manifestly excessive, even if the offence was viewed in isolation without taking into account the prior breach of r 869(4) on 4 March 2013 or the similar offences under r 868(3)(b). The penalty imposed for this type of offence had to act as a deterrent, both general and specific, as the safety of both drivers and horses was paramount, along with maintaining public confidence in the harness industry.
[25] Mr R Lawson responded by stating it was “most definitely” his submission that a breach of r 869(3)(b) should not be taken into account when considering a breach of r 869(4). One rule, he believed, dealt with carelessness, the other did not; the rules were separate for a reason, and were not interchangeable or aligned.
Decision
[26] We refer first to the breach itself. Mr Lawson has stated it is “a minor case of interference caused to GOLDEN DELIGHT”, while Mr Mulcay has accepted “the degree of interference was at the lower end of the scale”, as has the Judicial Committee. We have viewed the video and accept this assessment of the breach is correct. Were this to be the appellant’s first breach of this rule, a penalty in the range of a fine of $200 to $250 would be appropriate. We are aware that a $200 fine is a common penalty for a low end admitted breach of this rule where a driver has a good record and, in particular, has not previously breached this rule in the past 12 months.
[27] The Judicial Committee has imposed a fine of $375. We can only assume that it chose this figure in order not only to hold Mr Lawson accountable for the breach but also to specifically deter him from breaching the Rules, or perhaps more specifically, r 869(4), in the future. Their reference to Mr Lawson’s record would support this conclusion.
[28] The Committee has clearly erred when it stated that Mr Lawson’s record of breaches of this rule was “poor, this being the 5th breach within the last 12 months”. There had only been one breach of r 869(4) in that time; the other four breaches were of r 869(3)(b). The key issue, however, and the main point of difference between the parties is whether it is appropriate to place any weight on the fact that the appellant has four breaches of the careless driving rule in the last 12 months (and a further breach only two weeks outside this period). Mr R Lawson is correct when he says r 869(3)(b) and 869(4) are different. However, in our view, there is sufficient relationship between them for it to be appropriate to take into account a breach of one when imposing penalty for the other. That said, a Judicial Committee must be careful as to the degree of weight that is attached to the breach where it is for the rule other than the one before the Committee. Mr Lawson is not correct when, for example, he states that a breach of the rule relating to reckless driving is not relevant when imposing penalty for careless driving or that penalties for careless driving are not relevant when imposing penalty on a charge of reckless driving. Previous breaches evidence a willingness to breach the Rules and may demonstrate a propensity to drive in a particular fashion (eg shifting ground when not sufficiently clear) that is proscribed by the Rules.
[29] It is not apparent from the transcript of the hearing just how the confusion as to previous penalties occurred. Mr Mulcay clearly differentiates between r 869(3)(b) and (4) when producing Mr Lawson’s record. No fault is to be laid at his feet. It is not clear, however, whether the breaches were each individually discussed with Mr Lawson. This is a practice that we believe Judicial Committees should adopt and it will go some way to obviating confusion, such as that that occurred on this occasion.
[30] We note that Mr Mulcay did refer to a previous warning under subs (4) and Mr R Lawson is correct when he says this was not a matter to be considered by a Judicial Committee when imposing penalty as it had not been before an independent body. We note, however, this was a relevant factor when Mr Mulcay came to determine whether to charge Mr Lawson. There is no reference to the warning in the raceday decision and there is no suggestion the Committee has erred in this respect. The Committee refers to there being five breaches. Were the warning to be counted, there would be six. We believe Mr Lawson’s concerns with this aspect of the matter are unfounded.
[31] It is our view that it is appropriate to give some weight when imposing penalty for a breach of r 869(4) to the fact that there has been a previous breach of r 869(3)(b), as we believe such a breach is relevant as evidence of driving on a previous occasion that has fallen below an acceptable standard. It is not likely that the weight would be the same as it would be were the breach of the same rule (869(4)), but much will depend on the circumstances of the previous breach. Mr Lawson was correct when he said his record was “not flash”. An individual is not be sentenced on his or her record, however, as he or she will have already received a penalty for the earlier breach or breaches. The uplift should be circumspect and a Committee should have regard to the type and nature of the previous breaches. (For example, what rule was breached, what were the circumstances of the breach, and what was the penalty imposed.)
[32] We must now address the confusion that has arisen in this particular case. We are satisfied that the previous breaches of r 869(3)(b) were either equated to or viewed as being breaches of r 869(4). We are not in a position to be able to determine whether any of these breaches related to driving conduct similar to that adopted by the appellant on the occasion at issue before us. Were we so able and were they were found to be so, we would undoubtedly view Mr Lawson’s record as constituting an aggravating factor. In the circumstances of this case, however, we propose to impose penalty on the basis that the previous breaches do not demonstrate propensity but rather indicate merely a willingness to drive on occasion in breach the Rules.
[33] The starting point is a fine of $400, as provided in the Penalty Guide. There is agreement that the nature of the breach is such that it is at the low end of the scale. We take an adjusted starting point of $300. There is no discount available for an admission of the breach. When regard is had to the fact that Mr Lawson has one previous breach of this rule, which was three and a half months prior to the breach at issue, and three other driving related breaches (all for careless driving) this current season (or four in the past year), were we imposing penalty at first instance we would allow a modest uplift of say $50 for this factor. However, having regard to the apparent confusion as to Mr Lawson’s record, we refrain from increasing the penalty on account of record on this appeal. In this regard, Mr Lawson should consider himself to be very fortunate.
[34] A fine of $300 is substituted for the fine of $375 imposed by the Judicial Committee. We are aware that the filing fee has been paid. In order that Mr Lawson’s victory is not merely a pyrrhic one, we order that the fee is refunded.
[35] There is no award of costs to the RIU or the JCA.
Dated at Dunedin this 29th day of July 2014.
G Hall
Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 05/08/2014
Publish Date: 05/08/2014
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decisiondate: 05/08/2014
hearing_title: Appeal SJ Lawson v RIU - Decision dated 29 July 2014
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN SIMON LAWSON, Open Horseman
Appellant
AND RACING INTEGRITY UNIT (RIU)
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mr R McKenzie, Member
Appearing: Mr R Lawson, for Mr S Lawson - Mr S Mulcay for the RIU
DECISION OF APPEALS TRIBUNAL
[1] We are an Appeals Tribunal appointed to hear an appeal by Mr S Lawson (“Mr Lawson”), Open Horseman, against the penalty of a fine of $375 imposed by the Judicial Committee on 26 June last at Cambridge Raceway on a charge of driving in a manner likely to cause interference in Race 4 at the Harness Racing Waikato race meeting.
[2] A teleconference was held with the parties on 4 July last. It was agreed that the matter would be determined on the papers.
[3] We have now viewed the race video and have read a transcript of the raceday hearing. We have also received written submissions from the parties.
[4] Information A3704 alleged that Mr Lawson, the horseman of COPY MY PAST, was in breach of r 869(4) which states: “No horseman shall during any race do anything which interferes or is likely to interfere with his own horse and/or any other horse or its progress.” Mr Lawson denied the charge.
[5] The particulars of the charge, which the raceday Judicial Committee found proved, were that “horseman S Lawson allowed his drive to shift out abruptly near the 100 metres which resulted in CARLOS (D Ferguson) being forced out onto GOLDEN DELIGHT (P Butcher) with that gelding galloping as a result”.
[6] The Judicial Committee in finding the charge proved held: “Mr Lawson caused GOLDEN DELIGHT to go off stride due to his sharp movement outwards onto CARLOS which in turn struck GOLDEN DELIGHT’S legs. We therefore find that Mr Lawson failed to exercise the required standard of care in the circumstances.”
Imposition of penalty on raceday
[7] Mr Mulcay stated that the Stewards assessed the degree of interference as being at the lower end of the scale, as the outcome of the race had not been affected in that there was no protest involved.
[8] Mr Mulcay submitted that the starting point for a charge of this nature was a fine of $400 or a suspension of eight drives. He acknowledged that Mr Lawson did “a fair amount of driving”, however he commented, “his record obviously shows that he has been before the Stewards and the JCA on a regular basis over recent months”. He highlighted two breaches of r 869(3)(b) (careless driving) and two matters under r 869(4), one of which was a warning only. He emphasised the last occasion was 11 April 2014 when Mr Lawson was fined $300 under r 869(3)(b).
[9] Mr Mulcay accordingly submitted a fine of between $400 to $500 or a period of suspension was an appropriate penalty
[10] Mr Lawson in response to Mr Mulcay’s submissions acknowledged that his record was “not flash” however he stated this incident fell at the “absolute minor end of the scale”. He added that a fine at the level that the Stewards had suggested would be the largest fine ever imposed on him.
[11] In imposing a fine of $375, the Judicial Committee noted that the starting point in the JCA Penalty Guide for a breach of r 869(4) is a suspension of 8 drives or $400. Mitigating factors were that there was only one horse affected and that there was no protest initiated as a result of the breach. The Committee accepted that the breach was at the lower end of the scale.
[12] After making an allowance for the number of times he drives in races, the Committee observed that Mr Lawson’s record of breaches of this rule was “poor, this being the 5th breach within the last 12 months”. The Committee noted Mr Lawson’s previous fines had ranged between $200 to $350.
Submissions on appeal
[13] Mr Lawson lodged a Notice of Appeal against the severity of the penalty of a $375 fine, with his grounds for appeal being: “The penalty was influenced by incorrect information given to the JCA by the RIU. Mr Lawson has only one previous charge under this rule this season and the one prior to that was 15/12/2011”.
[14] Mr R Lawson stated that the basis of the appeal was that the Judicial Committee had “incorrectly accepted Mr Mulcay’s submissions without checking the validity of those submissions by not checking Mr Lawson’s penalty report themselves”. The appellant’s record, he noted, showed in fact only one prior breach this season under this rule on 4 March when the penalty was a fine of $200. He further emphasised that in six seasons of driving Mr Lawson had had only two other breaches of this rule, on 15 December 2011 and 6 November 2008. The penalty on each occasion was a $200 fine. During this time Mr Lawson had had over 1500 drives.
[15] Mr R Lawson elaborated that the Committee had given undue weight to the RIU’s submissions, which were based on an incorrect reading of the appellant’s record. He thus submitted that this Tribunal should reconsider the penalty “on the basis of the magnitude of the breach and the fact that Mr Lawson’s record for a breach of this rule was not an aggravating feature in assessing penalty.”
[16] Mr R Lawson then addressed the appropriate penalty. He emphasised that the penalties for a breach of r 869(4) ranged from $200 to $400, with the most common penalty where there had been no relegation, being $200.
[17] Mr R Lawson noted that the Stewards had assessed the breach as low end and that Mr Butcher, the driver of GOLDEN DELIGHT, which Mr Lawson alleged was “the most affected horse” had stated in his evidence to the Committee: “I was running real bad, he locked on one rein…. When [Mr Lawson’s] come out, if I wasn’t hanging I would have moved out, it wouldn’t have been a problem.” Mr Butcher had also described his horse as “hanging chronic”. Mr R Lawson also noted that Mr Mulcay had stated when questioning Mr Butcher, “there’s no doubt your horse may have been on one rein coming around the turn and in the run home….”
[18] Mr R Lawson thus submitted that Mr Butcher’s horse had obviously contributed to the incident. In Mr R Lawson’s view, this was “a minor case of interference caused to GOLDEN DELIGHT. The interference has been caused by COPY MY PAST over-reacting outwards when the earplugs were activated. This is not a case of the driver of the horse moving abruptly rather the horse over-reacting when the ear plugs have been released.”
[19] Mr R Lawson concluded by submitting, “the correct penalty level should have been no larger than a fine of $250.”
[20] Mr Mulcay stated that on raceday he had made submissions as to penalty and had simply read into the record the appellant’s previous six driving offences that related to careless driving (r 869(3)(b)) and/or driving in a manner which causes or is likely to cause interference (r 869(4)). He said: “At no stage did I state that this was Mr Lawson’s 5th offence within the last six months, as claimed, although it is apparent on reading the decision that the Judicial Committee took that line in settling on penalty.”
[21] This then raised the issue, Mr Mulcay said, which was the basis of Mr Lawson’s appeal, of “whether breaches of r 869(3)(b) should be taken into account when considering penalty for a charge under r 869(4) and vice versa”. He submitted that it was appropriate to do so for charges relating to interference given that the rules concerned were closely aligned and were basically interchangeable in the vast majority of interference incidents. Where the interference was deemed to be more serious than a mere error of judgement and/or a driver failing to display all due care and attention, a charge would be laid under one of the more serious offences proscribed under the other sections of r 869(3), ie reckless, dangerous, improper or foul driving.
[22] In relation to Mr Butcher’s evidence, to which Mr R Lawson had made reference, he drew the Tribunal’s attention to the fact that Mr Butcher had conceded under cross examination that although his horse was on one rein, that he had not shifted inwards in the incident and that the other horses had shifted out to him. Mr Butcher further confirmed that contact had occurred to his horse’s leg.
[23] With reference to the gravity of the breach, Mr Mulcay re-affirmed his raceday comment that the degree of interference was at the lower end of the scale and that the outcome of the race was not affected. However, contact to GOLDEN DELIGHT’s leg had occurred with the associated risk of injury to that gelding and potential loss of earnings for the connections. He believed that the replay clearly showed Mr Lawson activating the deafeners and then steering his horse outwards where it responded and shifted in an abrupt manner causing the interference. This, he submitted, was a risk that drivers took when shifting ground where clear passage did not exist.
[24] Mr Mulcay concluded his submission by stating that the penalty imposed was appropriate and was not manifestly excessive, even if the offence was viewed in isolation without taking into account the prior breach of r 869(4) on 4 March 2013 or the similar offences under r 868(3)(b). The penalty imposed for this type of offence had to act as a deterrent, both general and specific, as the safety of both drivers and horses was paramount, along with maintaining public confidence in the harness industry.
[25] Mr R Lawson responded by stating it was “most definitely” his submission that a breach of r 869(3)(b) should not be taken into account when considering a breach of r 869(4). One rule, he believed, dealt with carelessness, the other did not; the rules were separate for a reason, and were not interchangeable or aligned.
Decision
[26] We refer first to the breach itself. Mr Lawson has stated it is “a minor case of interference caused to GOLDEN DELIGHT”, while Mr Mulcay has accepted “the degree of interference was at the lower end of the scale”, as has the Judicial Committee. We have viewed the video and accept this assessment of the breach is correct. Were this to be the appellant’s first breach of this rule, a penalty in the range of a fine of $200 to $250 would be appropriate. We are aware that a $200 fine is a common penalty for a low end admitted breach of this rule where a driver has a good record and, in particular, has not previously breached this rule in the past 12 months.
[27] The Judicial Committee has imposed a fine of $375. We can only assume that it chose this figure in order not only to hold Mr Lawson accountable for the breach but also to specifically deter him from breaching the Rules, or perhaps more specifically, r 869(4), in the future. Their reference to Mr Lawson’s record would support this conclusion.
[28] The Committee has clearly erred when it stated that Mr Lawson’s record of breaches of this rule was “poor, this being the 5th breach within the last 12 months”. There had only been one breach of r 869(4) in that time; the other four breaches were of r 869(3)(b). The key issue, however, and the main point of difference between the parties is whether it is appropriate to place any weight on the fact that the appellant has four breaches of the careless driving rule in the last 12 months (and a further breach only two weeks outside this period). Mr R Lawson is correct when he says r 869(3)(b) and 869(4) are different. However, in our view, there is sufficient relationship between them for it to be appropriate to take into account a breach of one when imposing penalty for the other. That said, a Judicial Committee must be careful as to the degree of weight that is attached to the breach where it is for the rule other than the one before the Committee. Mr Lawson is not correct when, for example, he states that a breach of the rule relating to reckless driving is not relevant when imposing penalty for careless driving or that penalties for careless driving are not relevant when imposing penalty on a charge of reckless driving. Previous breaches evidence a willingness to breach the Rules and may demonstrate a propensity to drive in a particular fashion (eg shifting ground when not sufficiently clear) that is proscribed by the Rules.
[29] It is not apparent from the transcript of the hearing just how the confusion as to previous penalties occurred. Mr Mulcay clearly differentiates between r 869(3)(b) and (4) when producing Mr Lawson’s record. No fault is to be laid at his feet. It is not clear, however, whether the breaches were each individually discussed with Mr Lawson. This is a practice that we believe Judicial Committees should adopt and it will go some way to obviating confusion, such as that that occurred on this occasion.
[30] We note that Mr Mulcay did refer to a previous warning under subs (4) and Mr R Lawson is correct when he says this was not a matter to be considered by a Judicial Committee when imposing penalty as it had not been before an independent body. We note, however, this was a relevant factor when Mr Mulcay came to determine whether to charge Mr Lawson. There is no reference to the warning in the raceday decision and there is no suggestion the Committee has erred in this respect. The Committee refers to there being five breaches. Were the warning to be counted, there would be six. We believe Mr Lawson’s concerns with this aspect of the matter are unfounded.
[31] It is our view that it is appropriate to give some weight when imposing penalty for a breach of r 869(4) to the fact that there has been a previous breach of r 869(3)(b), as we believe such a breach is relevant as evidence of driving on a previous occasion that has fallen below an acceptable standard. It is not likely that the weight would be the same as it would be were the breach of the same rule (869(4)), but much will depend on the circumstances of the previous breach. Mr Lawson was correct when he said his record was “not flash”. An individual is not be sentenced on his or her record, however, as he or she will have already received a penalty for the earlier breach or breaches. The uplift should be circumspect and a Committee should have regard to the type and nature of the previous breaches. (For example, what rule was breached, what were the circumstances of the breach, and what was the penalty imposed.)
[32] We must now address the confusion that has arisen in this particular case. We are satisfied that the previous breaches of r 869(3)(b) were either equated to or viewed as being breaches of r 869(4). We are not in a position to be able to determine whether any of these breaches related to driving conduct similar to that adopted by the appellant on the occasion at issue before us. Were we so able and were they were found to be so, we would undoubtedly view Mr Lawson’s record as constituting an aggravating factor. In the circumstances of this case, however, we propose to impose penalty on the basis that the previous breaches do not demonstrate propensity but rather indicate merely a willingness to drive on occasion in breach the Rules.
[33] The starting point is a fine of $400, as provided in the Penalty Guide. There is agreement that the nature of the breach is such that it is at the low end of the scale. We take an adjusted starting point of $300. There is no discount available for an admission of the breach. When regard is had to the fact that Mr Lawson has one previous breach of this rule, which was three and a half months prior to the breach at issue, and three other driving related breaches (all for careless driving) this current season (or four in the past year), were we imposing penalty at first instance we would allow a modest uplift of say $50 for this factor. However, having regard to the apparent confusion as to Mr Lawson’s record, we refrain from increasing the penalty on account of record on this appeal. In this regard, Mr Lawson should consider himself to be very fortunate.
[34] A fine of $300 is substituted for the fine of $375 imposed by the Judicial Committee. We are aware that the filing fee has been paid. In order that Mr Lawson’s victory is not merely a pyrrhic one, we order that the fee is refunded.
[35] There is no award of costs to the RIU or the JCA.
Dated at Dunedin this 29th day of July 2014.
G Hall
Chairman
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