Non-Raceday Inquiry 18 April 2006

hearingid: e93a0c3f1fa84eef5cca1fed0367ebc0

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Non-Raceday Inquiry 18 April 2006

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Decision:

The informations all relate to allegations of breaches of Rule 304 for misconduct.  Messrs Ormsby and Harris were each charged with two breaches, one on the 7^th January 2006 and the other on 25^th March 2006 arising from, in the first instance, the sending of text messages that were alleged to contain threatening, obscene, offensive and insulting words;  and secondly, for unlawful entry by night to residential premises and the unlawful interference with a motor vehicle parked there.

NON-RACEDAY DECISION

VENUE:                                Te Rapa Racecourse

DATE:                                    Tuesday, 18 April 2006

INFORMANT:                       B F McKenzie, Racecourse Inspector

DEFENDANTS:                 C K Ormsby, Apprentice Jockey            (Info. 0830)

                                                T N Harris, Apprentice Jockey             (Info. 0829)

                                                J L Waddell, Apprentice Jockey            (Info. 0810)

                                                C L Carmine, Apprentice Jockey            (Info. 0811)

JUDICIAL COMMITTEE:           E F Doherty (Chairman)

                                                R M Seabrook

REGISTRAR:                       P C Laboyrie

ALSO PRESENT:               J W McKenzie, Chief Racecourse Inspector

                                                A R Coles, Stipendiary Steward

                                                J P Oatham, Stipendiary Steward

                                                R Tocker, Observer

                                                A Rodley, Waikato Times

                                                L O?Sullivan representing C K Ormsby and J L Waddell

                                                N Harris representing T N Harris

                                                A Scott representing C L Carmine

The informations all relate to allegations of breaches of Rule 304 for misconduct.  Messrs Ormsby and Harris were each charged with two breaches, one on the 7^th January 2006 and the other on 25^th March 2006 arising from, in the first instance, the sending of text messages that were alleged to contain threatening, obscene, offensive and insulting words;  and secondly, for unlawful entry by night to residential premises and the unlawful interference with a motor vehicle parked there.

Messrs Waddell and Carmine were each charged with one breach;  in respect of Mr Carmine it concerned the text messaging on 7^th January 2006, and for Mr Waddell it concerned the unlawful entry and interference with a motor vehicle on 25^th March 2006.

Each defendant confirmed that the alleged breaches were admitted and that the summary of facts provided by Mr McKenzie substantially set out the details with minor variations.

As a preliminary matter Mr Rodley and a photographer were authorized to be present as observers subject to any directions of the Committee regarding suppression of details where appropriate.  In that respect, Mr J W McKenzie sought and was granted leave for all details of the female complainant, her employer and any personal information that might identify her to be suppressed.

SUMMARY OF FACTS:

Mr J W McKenzie presented a detailed summary of facts and the relevant details follow. 

On 3^rd April 2006 Racecourse Inspector Bryan McKenzie was advised of a series of events by a licensed trainer at Matamata that had occurred to one of his apprentices and being concerned for her welfare and safety sought the assistance of the Inspector.  It was ascertained that during the latter part of 2005 the apprentice had kept company with Chad Ormsby and had then broken up.  For a further 2 months over the Christmas period she had also formed a friendship with Chris Carmine and this had also ended. 

On 7^th January 2006, the day of the Thames races, she received text messages on her mobile phone and she could identify from caller ID the fact that one of the calls came from the number of Chad Ormsby, and the others were made from the phone bearing the name and number of Troy Harris.  She was alarmed at the tone and content of the messages and told her mother and showed the messages to members of the family she was boarding with in Matamata at the time.  She later showed them to a fellow female employee but did no more than that at the time. 

On 7^th February 2006 she commenced employment as an apprentice with a view to becoming a jockey, but did not inform her employer at the time because she thought it may affect her employment chances.  She received no more text messages but since then had been subjected to periodic verbal abuse at the Matamata track and surrounds when she has been working horses.  The verbal abuse was directed at her by both Ormsby and Harris, and the last occurred on the morning of 3^rd April at the track by Ormsby when both of them were riding horses, and was described as of a threatening and obscene nature. 

The incident on 3^rd April caused her to then confide in her employer and she also related at that time another matter, namely that on the night of the 25^th March 2006 (the day of the Tauranga races) that had occurred when she had been home at her place of residence in Matamata. 

She had her car parked at the end of the driveway outside the garage door at her home some 30 metres from the footpath.  The following morning she got up, went to her vehicle and drove it some distance from her home.  On this journey she thought there was something wrong with the steering and at her destination another person pointed out to her that both passenger side tyres on her car were almost flat, and this is what was causing her driving problems. 

Some days later she learnt that Ormsby and Harris had something to do with letting her tyres down.  She then became concerned and apprehensive about her safety.  She was also conscious that she was at that stage soon to be getting a riding licence and became worried at what they might do to her in a race.

Troy Harris was spoken to in the presence of his employer, Mark Walker, and admitted that on 7^th January 2006 on their way to the Thames races, he Ormsby, and Carmine had been involved in texting messages.  He said he knew Ormsby was angry with the girl so they had all decided to do the texting.  Ormsby who was driving the car sent one message and he, Harris, sent 4 and gave his phone to Carmine who sent 1 message.  He admitted all of the text messages were obscene and accepted it was wrong to do this and that he would not like it if such a message were sent to a member of his own family. 

Troy Harris also confirmed on 25^th March 2006 he, Ormsby and Jason Waddell had been at a house on the outskirts of Matamata.  They had been drinking, then decided to go into town.  They were in Ormsby's car with him driving and decided to go to where the girl lived to cause trouble to her.  Of those in the car only Harris knew where she lived.  He had made it his business to find out her address from a workmate some days earlier. When they got to the street where she lived it was late at night and the house was in darkness and they decided to interfere with the girl's motor vehicle by letting the tyres down.  They made their way by stealth down the driveway and Ormsby and Waddell let the passenger tyres down whilst Harris kept watch. 

It is of significance and concern they chose the off-side tyres to let down which could mean and did in fact mean this act was undetected by the girl when she got into her car the following day.  When the danger of this action was pointed out to Harris he claimed he had not thought of those consequences such as the car being involved in an accident if she had lost control because of the flat tyres. 

Chad Ormsby when interviewed in the presence of his employer, Lance O?Sullivan, admitted sending the one text message driving to the Thames races on 7^th January.  He admitted he had used threatening and offensive language and said he was angry with her.  He admitted what he did was wrong and acknowledged he would not like such messages to be received by a member of his family.

When spoken to about letting the tyres down he initially denied that he had gone to the girl's address and continued that denial for some time, although reminded of the need in his position to be truthful.  He was told what Troy Harris had already stated, but continued to deny his involvement.  Finally he admitted his part in this matter after Jason Waddell was interviewed and to his credit was very frank and straight-forward with the Inspector.  He admitted his part and implicated Chad Ormsby as the other person who let the tyres down.  Ormsby could hear the discussions between the Inspector and Jason Waddell and said he had not told the truth earlier because he was scared he was already in a lot of trouble.  He stated he did not at the time realize how dangerous it could have been to interfere with the car by letting the tyres down.   

At a further interview Jason Waddell reiterated what he had said previously explaining he was feeling a bit down at the time because of family worries.  He said he did not really know the girl well, nor did he have anything against her and meant her no harm.  He had gone along for the ride and got caught up in their activities.  He hadn?t realized at the time of the possible danger of what he had done and was sorry for his actions.  The Inspector reiterated Jason Waddell was deserving of credit for his honesty in admitting his and the others roles in this matter. 

Chris Carmine was interviewed on 5^th April and admitted being with Ormsby and Harris driving to the Thames races.  He admitted he had used the mobile phone belonging to Harris to make 1 text call.  He said he was angry with her because she wouldn?t go out with him.  He said he knew what he did was wrong and was sorry for doing it and for the upset it caused.  This was the only thing he had done with regard to the girl and he was not with the others on the night of 25^th March. 

SUBMISSIONS ON PENALTY:

Mr J W McKenzie submitted that based on the summary of facts the behaviour of the defendants, all licensed as apprentice jockeys, was a very serious matter and warranted a penalty to punish them in the appropriate manner, but in addition there needed to be a strong message that such behaviour would not be tolerated in the racing industry in New Zealand. 

The language used in the text messages was insulting, offensive, obscene and threatening, and, he submitted, a form of sexual harassment of the lowest kind.  He referred to recent publicity concerning a group of young girls who through bullying tactics by texting messages resulted in another young classmate committing suicide.  There was no suggestion that those messages were any more threatening, or obscene, or insulting than the messages sent by the defendants in this matter. 

It was a matter of law that misuse of a telephone is an offence under Section 112 of the Telecommunications Act 2001 carrying a maximum penalty of 3 months imprisonment or a fine not exceeding $2,000.00.  The messages sent by the defendants were capable of being an offence under this statutory provision. 

Regarding the unlawful interference of the motor vehicle he pointed out the incident took place at night and the offenders used the cover of darkness to perpetrate their crime.  The word ?crime? is appropriate because this was an offence under Section 226(2) of the Crimes Act 1961.  Had that interference resulted in an accident or death the charge could have been as severe as murder or manslaughter. 

The charges faced collectively and individually by these four young men were of the sort that brings racing into a very bad light in the eyes not only of other industry participants but also the public at large.  Racing did not need people who behave in this way and they were fortunate that there has not been a more serious outcome of their antics. 

Regarding specific penalties a period of disqualification would have been Mr McKenzie's first and strongest submission.  The consequences of that would remove them from the industry, cancellation of their apprentice jockeys licence, their apprenticeship, and their involvement in racing in any capacity.  However, while such a penalty would send a message loud and clear it meant the loss of talented young riders who attracted public favour for their efforts on the back of a horse, but that could not be waived against their antics on the ground. 

Another option would be for them to be penalized by way of a suspension, or a suspensi

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