Non Raceday Inquiry – HRNZ v W Heads 20 July 2011 – Decision dated 28 July 2011

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decisiondate: 31/07/2011

hearing_title: Non Raceday Inquiry - HRNZ v W Heads 20 July 2011 - Decision dated 28 July 2011

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MR WILLIAM HEADS
Licensed trainer and Open horseman
Defendant

Information No: 68877
Judicial Committee:  Prof G Hall (Chairman),  Mr N Skelt (Member)
Appearing: Mr C Allison (for the informant) - Ms Mary-Jane Thomas (for the defendant)
Venue: Wingatui Racecourse
Date of Hearing: 20 July 2011
Date of Decision: 28 July 2011
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DECISION OF JUDICIAL COMMITTEE
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[1] Mr Heads appears before this Judicial Committee on a charge of misconduct in breach of Rule 303(2).
The Rule reads as follows:

303(2) No person or body who holds a permit or licence under these Rules and no owner, trainer,
breeder, stablehand, unlicensed apprentice or racing manager shall misconduct himself….

[2] Mr Heads admitted the breach, which we thus find proved.

[3] The relevant penalties are to be found in r 1003(1)(a), (b), and (c). These include disqualification and/or suspension for up to 12 months, and/or a fine not exceeding $5,000.

Facts
[4] Mr Allison placed before this committee the following summary of facts:
On Thursday the 16th of June 2011 Mr Heads was driver and trainer of BECKY’S BABY in Race 10 at the Forbury Park Trotting Club meeting held at Forbury Park Raceway Dunedin.

BECKY’S BABY which was the fourth win favourite for the race was the last horse to complete the race finishing some 57 ½ lengths from the winner. During the early stages of the race BECKY’S BABY broke badly and took no serious part in the race thereafter.

Following the race BECKY’S BABY was the first horse off the track and returned to the main barn via the walkway situated by the Forbury Park Greyhounds’ administration office. While being driven back to the main barn Mr Heads has urged BECKY’S BABY on with the reins and by running the bit through the mouth. In the vicinity of the main barn Mr Heads has struck BECKY’S BABY on the rump aggressively on one occasion and has continued to strike the horse in the region of the rump and sulky shaft with the whip on 4 or 5 occasions. The strikes of the whip were forceful and witnesses advised they heard Mr Heads returning to the barn before they saw him.

Upon returning to his allocated stall Mr Heads has been overly rough and struck Becky’s Baby on one occasion with a punch to the head region and pushed BECKY’S BABY’s head back over the chain.

One of the witnesses was distressed with what she had witnessed and approached Mr Heads. She spoke with Mr Heads advising him he was “an idiot” and that he needed to be reported to the authorities.

Following the running of the meeting the General Manager of Forbury Park, Mr Knowles, advised the Stewards an unknown female member of the public, who had witnessed the incident, approached him and wanted the authorities alerted about it. Another licence holder who had witnessed Mr Heads leave the track also alerted the Stewards to the incident, concerned at what they had witnessed.

When questioned by RIU officials, Mr Heads admitted striking the horse once with what he described as a haymaker upon entering the barn, but had no recollection of striking the horse with the whip more than once or punching the horse. When asked for an explanation for his actions Mr Heads stated he was frustrated with the performance of BECKY’S BABY which he expected to perform well after working well in the lead up to the race. Mr Heads also did not believe there was anything wrong with his actions as he believed the horse needed to be disciplined at the time.

[5] Ms Thomas stated that the defendant accepted the summary of facts and emphasised that Mr Heads believed he had hit the horse only once. She emphasised that when Mr Milne, who was assisting the defendant, inspected the horse later in the evening, there was no evidence of any physical injuries to the horse.

Submissions as to penalty
[6] Mr Allison submitted that Mr Head’s behaviour fell well below the required standard, in that the use of the whip on the horse after the race had concluded was “unwarranted and totally unacceptable”. The later punching of the horse in the main stabling area was said to be a further aggravating feature.

[7] This ill-treatment to the horse was observed by Mr Allison to be a violent outburst due to Mr Head’s loss of temper. The image portrayed by his behaviour was said to have a detrimental impact upon the image of Harness Racing and the racing industry in general.

[8] Mr Allison emphasised that the defendant had shown no control over his behaviour in an area which was open to other persons attending the race meeting. His behaviour was witnessed by other licence holders, and connections of other horses.

[9] Mr Allison produced the defendant’s record, which evidenced a previous breach of r 303(2) at the Central Southland Raceway on 28 March 2010 in which he received a fine of $600 for the use of foul and abusive language in the birdcage area and in the Stewards’ room.

[10] Mr Allison stated that the RIU believed the most relevant case was NZTR v W 30 April 2008. Mr W was fined the sum of $700 for striking a horse across the head after the completion of a race. Mr W was having difficulty with the horse while attempting to pull the horse up after the conclusion of the race. He was observed by members of the public to hit the horse twice and to jag the horse’s mouth.

[11] The informant submitted that the defendant’s actions were more serious due to his behaviour occurring after the horse had left the track; he struck the horse on several occasions, including a punch to the head; he believed he was justified in his actions; he showed no remorse; and he had a previous breach of the rule.

[12] Mr Allison submitted that a fine of $1000 and a suspension of the defendant’s horseman’s licence for a period of two months were appropriate for the breach.

[13] Ms Thomas stated that the defendant had been involved in the harness industry for over 20 years. He had driven 288 horses and trained 905 race starters. She provided a number of character references from well-respected identities in the racing industry. These all attest to his abilities as a horseman and state that they have never seen the defendant mistreat a horse. Some note that they have entrusted their own horses to his care.

[14] Ms Thomas referred to Kitto v S (2008) where the committee observed that the (now former) Penalty Guide stated that a $750 fine would be an appropriate starting point for grossly offensive behaviour by a licensed trainer. There was also a suggested starting point of a $500 fine for failing to comply with a request, direction or instruction, and a $1000 fine for any other action or omission that failed to meet generally accepted standards within racing, where that action or omission was deliberate or calculated rather than careless or unpremeditated. That committee correctly observed that that the penalties listed were only a guide and we similarly would not endorse these figures as general starting points as the facts of each case vary and these levels are quite some distance away from the maximum penalty of a $5000 fine.

[15] Ms Thomas, as had Mr Allison, drew this committee’s attention to the case of W. She also referred to three cases where the misconduct was in the form of a physical assault but we believe the defendant’s conduct is sufficiently different to that in those cases for them not to be of assistance to us.

[16] Ms Thomas emphasised that the defendant had acknowledged that his behaviour was unacceptable, by both an early admission of the breach and his enrolling in a “Stop Violence” course at a personal cost of $1,100. She submitted that the cost of the course could be a substitute for any fine that might otherwise have been imposed. She accepted that a period of suspension from driving was appropriate.

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Penalty and reasons
[17] Mr Heads has been licensed since 1986. He is thus an experienced trainer/horseman in the Harness Racing Industry. His behaviour is unacceptable; it has tarnished the image of harness racing. Put simply, the defendant should have known better.

[18] We give credit for the defendant’s admission of the breach at the first available opportunity once there was an agreed summary of facts. We are in receipt of a number of excellent testimonials attesting to the defendant’s good character. The clear consensus is that Mr Heads is an excellent horseman and that his actions towards BECKY’S BABY on the night in question were quite out of character.

[19] The defendant has enrolled in a three month anger management programme. The $1100 fee for this programme is a considerable expense. The defendant is to be commended for this step, which he has taken of his own volition and which is clear evidence of his commitment to rehabilitate himself. Ms Thomas has asked that we not impose any financial penalty. Alternatively, she has asked that we defer the imposition of any such penalty until we are satisfied that the defendant has completed the course. Obviously she wishes his attendance to be seen as a significant mitigating factor. While we understand the reason why counsel is suggesting that we adopt this approach, we do not believe it is necessary.

[20] We are satisfied, as Ms Thomas has submitted, that Mr Heads has a very proud history in the harness racing industry and has trained a number of very well-performed horses, especially trotters, which are known to be often more difficult to handle than pacers. We are satisfied that he is a man of good character who is genuine in his desire to address his anger issues. We accept Ms Thomas’s submission that this is a significant mitigating factor and is a relevant matter when considering the appropriate penalty, and in particular, the quantum of a fine.

[21] We have given careful consideration to the issue of the extent to which the defendant’s enrolment in the stopping violence programme should temper his penalty. While we wish to encourage and reinforce the defendant’s rehabilitative efforts, this consideration obviously has to be balanced against the needs of deterrence and denunciation.

[22] Having regard to the defendant’s actions, which by his own admission amounted to his striking BECKY’S BABY with “a haymaker” upon entering the barn, and the penalty imposed in W, we accept Mr Allison’s submission that a fine in the region of a $1000, together with a suspension, is appropriate. Significantly, however, this submission was made before Mr Allison was aware that the defendant was outlaying a sum in excess of that figure in order to deal with his anger management issues. We do not believe a one for one discount is appropriate for the course fees, in which case there would be no imposition of a fine upon the defendant.

[23] Mr Heads was fined $600 on the previous occasion he breached this rule. In normal circumstances a penalty substantially in excess of this sum would be imposed on the ground that the earlier penalty had failed to have the necessary deterrent effect. However, we believe the cost involved in the defendant addressing his anger management issues is an exceptional matter to which we can appropriately attach some weight. We believe the appropriate course of action is to impose a fine at a similar level to the previous breach. In so doing, we have had regard to the gravity of the breach before us. We believe a fine at this level fairly reflects both the defendant’s culpability, given it is only 15 months since his previous breach of this rule, and the initiative and willingness to address his issues with violence that he has demonstrated by enrolling in counselling. Mr Heads is fined the sum of $600.

[24] A period of suspension of the defendant’s open horseman’s licence is also necessary to hold him accountable for his conduct, to denounce his behaviour, and to deter him and others who might be similarly minded to lash out at a horse that is perceived not to have given of its best. We are aware that the defendant does not drive regularly. August and September are not busy months for racing in the deep south. A suspension of two months at this time of the year is too short a period to be a real and effective deterrent to Mr Heads. We impose a three-month suspension. Mr Heads is suspended from driving from the commencement of the 2011/2012 season on 1 August up to and including 31 October 2011.

Costs
[25] The informant did not seek costs. However, a contribution towards the costs of the Judicial Control Authority is appropriate. We order costs in the sum of $300.

hearing_type: Non-race day

Rules: 303(2)

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