Auckland TC 13 May 2021 – R 9 (heard 4 June 2021 at Alexandra Park – Penalty Decision) – Chair, Mr M McKechnie

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hearing_title: Auckland TC 13 May 2021 - R 9 (heard 4 June 2021 at Alexandra Park - Penalty Decision) - Chair, Mr M McKechnie

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BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER--of New Zealand Rules of Harness Racing

RACING INTEGRITY UNIT (RIU)

INFORMANT

DYLAN FERGUSON, Licenced Driver

DEFENDANT

Judicial Committee:--Mr Murray McKechnie, Chairman & Professor Geoff Hall

Present:---Mr Steve Mulcay, Senior Stipendiary Steward

Mr Adrian Dooley, Stipendiary Steward

Mr Dylan Ferguson

Mr Peter Ferguson, Father of Dylan Ferguson

Mr Graeme Rogerson, Licenced Trainer

PENALTY DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

DATED THIS 28th DAY OF JUNE 2021

1.-Mr Ferguson faced charges that he had breached Rule 869(3)(f) or in the alternative Rule 869(3)(b). These charges were laid in relation to his driving of the horse Classy Operator in Race 9 at Alexandra Park on 13 May 2021.

2.-There was an extended hearing at Alexandra Park on the afternoon of 4 June. Time constraints meant that the Committee could not issue a decision at that time. A written decision was issued on 15 June this year. Mr Ferguson was found guilty of careless driving. The charge of driving improperly was dismissed.

3.-The Committee requested submissions from both parties on penalty. These have now been received.

4.-Position of the RIU

Mr Mulcay for the RIU draws attention to the number of drives that Mr Ferguson has had in the current season.

At the date of hearing on 4 June he had driven in 201 races with 87 drives having been in the preceding 25 meetings and that this equates to an average of 3.5 drives per meeting. Mr Mulcay further points out that the JCA Penalty Guidelines have a recommended starting point for a breach of the Careless Driving Rule 869(3)(b) of a 10-drive suspension or a $500.00 fine. It is acknowledged in the RIU submissions that Mr Ferguson has a clear record under this Rule for the last six months and over a period of over 200 drives.

The RIU submits that there is an aggravating factor in that the trailing stablemate Meetmeinsorrento gained an unfair advantage over other runners by being presented with an inside run before the passing lane had been reached. It is said that Stewards believe that an offence of this kind has the potential to damage public confidence and the integrity of Standardbred Racing. It is said for the RIU that the breach of the Careless Driving Rule is in the mid to high range and that there should be a meaningful penalty to provide a deterrent.

The period of suspension proposed by the RIU is four meetings subject to any deferment which might be granted in accordance with Rule 1304. More will be said of that later.

The RIU does not seek costs in relation to the hearing as it was held on a race day and that no additional services were required.

5.-Mr Ferguson’s position

Mr Ferguson has filed detailed submissions. These can be summarised as follows:

a.-With reference to the level of carelessness it is said that the result of the race was not affected by Mr Ferguson’s actions. Further, that the horse Mr Perfect while inconvenienced, this did not have any consequence in terms of the outcome of the race.

b.-With reference to the drive of Classy Operator Mr Ferguson submits that the horse raced lethargically and not up to his usual standard and that this was perhaps explained by blood tests that were taken following the race meeting. Further it is said that the horse had a tendency to run about and that such action is significantly increased when the horse is under a hard drive. Mr Ferguson says that it is a balancing act to get the best result with a hard drive while not causing any disadvantage to other runners.

c.-Mr Ferguson advises that he has a young family to support and a mortgage to pay and could not afford a monetary penalty.

d.-Mr Ferguson points to the difference between the number of drives available in the South Island and the North Island and contends that a suspension in the North Island has a greater impact than in the South Island.

e.-Mr Ferguson points to his clear record. Mr Ferguson submits that he gained no benefit from any other horse winning or placing in the race.

f.-Mr Ferguson points to the race being at a low stake level and that it was the lowest rating race at that meeting.

g.-With reference to the not guilty plea Mr Ferguson contends that he should not be penalised for pleading not guilty to the improper driving charge as this was dismissed and he says he was not given the chance to plead separately to the careless driving charge. The Committee observes that at no stage during the proceedings did Mr Ferguson give any indication that he would be prepared to plead guilty to the charge of careless driving.

h.-Mr Ferguson proposes a one meeting suspension.

6.-Discussion

As was made clear in the written decision of 15 June, the Committee considers that Mr Ferguson could have made a significantly greater effort to have the horse Classy Operator hold his line. Mr Ferguson was well aware that the horse had a tendency when racing right-handed to run away from the markers and that this tendency was more pronounced when under a hard drive. Moreover, Mr Ferguson had driven the horse on a number of previous occasions and was regularly involved in its training.

Mr Ferguson’s good record is a mitigating consideration. It is plain that Mr Ferguson is a talented Reinsman. The Committee notes that as recently as Friday evening last, the 25th of June, he drove three winners at the Cambridge meeting.

Mr Ferguson in his submissions drew attention to a number of other cases involving careless driving. The Committee is acquainted with those. Professor Hall was involved in the case of Morrison. The circumstances in that case bear little comparison with the present.

While the charge of improper driving was not upheld Mr Ferguson chose to contest the charge of careless driving. In those circumstances no discount can be allowed for a guilty plea. Where a charge is admitted there is frequently a discount given in consequence. That cannot be the position here.

The Committee considers that the driving was in the mid to high range of careless. An appropriate period of suspension would be four meetings. Set against that is Mr Ferguson’s good record. That leads the Committee to the view that the appropriate period of suspension is three meetings. That period of suspension of three meetings will commence on 28 June 2021 subject to any confirmed engagements that Mr Ferguson may have in the upcoming seven days: reference Rule 1304.

The RIU take a generous position in relation to costs as set out earlier. As to the JCA’s costs a modest contribution would be appropriate. The Committee has regard to Mr Ferguson’s advice as to his personal circumstances referenced in paragraph 5c above. He will pay the sum of $200 towards the costs of the JCA.

DATED this 28th day of June 2021

Murray McKechnie

Chairman

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