Non Raceday Inquiry RIU v BR Shirley – Decision as to Penalty dated 9 August 2013
ID: JCA15985
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
CHRISTOPHER JOHN ALLISON, Stipendiary Steward for the Racing Integrity Unit (RIU)
Informant
BRENT ROBERT SHIRLEY, Licensed Public Trainer/ Open Horseman
Respondent
Information: No. A5904
Appearing: Mr C Lange for the informant, Ms M Thomas for the respondent
Judicial Committee: Prof G Hall, Chairman - Mr S Ching, Member
Date of decision: 9 August 2013
DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
[1] In our decision of 4 July 2013 we found information A5904 to be proved in that the respondent, Mr Shirley, in race 12 at the Invercargill Harness Racing Club’s meeting on 26 January 2013, drove in an improper manner contrary to r 869(3)(f).
[2] We called for and have now received written submissions from the parties as to penalty and costs.
[3] The Penalty Guide issued by the Judicial Control Authority provides the following guidelines for improper driving:
869(3)(f) Improper driving
• Improper driving – not in accordance with accepted rules of behaviour 20 drives or $1,000
• Improper driving in a major race 60 drives or $3,000
• Causing a relegation 25 drives or $1,250
• Causing accident or injury 30 drives or $1,500
Informant’s submissions:
[4] Mr Lange, on behalf of the RIU, made reference to the Penalty Guide and submitted that a penalty equating to a 40-drive suspension was appropriate. He also included itemised calculations of the costs of the RIU ($7413) and the JCA ($2115).
[5] Mr Lange drew the Committee’s attention to certain findings in our decision as to the breach of rule:
a. That at just under 900 metre mark, when just ahead of Mr Dunn’s horse, Mr Shirley steered his horse inwards and leant all over Mr Dunn;
b. Mr Shirley was placing pressure on SUPERSUB by deliberately pulling LITTLE EINSTEIN inwards;
c. Mr Shirley’s actions resulted in contact between the carts, and the stays locking;
d. The extent of the pressure exerted by Mr Shirley was abnormal and out of the ordinary;
e. Once the stays locked, Mr Shirley continued to apply downward and backward pressure to Mr Dunn;
f. The stays remained locked together for several hundred metres and Mr Shirley continued to apply downward and, significantly, backward pressure;
g. Mr Shirley made no effort to assist or to attempt to unlock the stays himself;
h. Mr Shirley’s actions were in order to take revenge after being denied the lead;
i. Mr Shirley took no steps to attempt to remedy the situation;
j. Mr Shirley’s actions effectively extinguishing the chances of Mr Dunn’s horse, his own horse’s chances and to a lesser extent, Mr Barron’s horse and other trailing runners.
[6] The informant contended that “the level of culpability [was] at the higher band of culpability for improper driving”. Mr Lange emphasised that the Committee had found Mr Shirley’s actions were deliberate, had occurred over a significant distance, were motivated by revenge and had extinguished the chances of Mr Dunn’s horse. He thus submitted that a deterrent penalty was appropriate.
[7] The informant noted that the race meeting was the Invercargill Harness Racing Club’s Cup Day. It was thus one of the higher status race meetings held in the Southland area. The stake for the race was $10,000.
[8] The informant produced Mr Shirley’s record, which showed 103 drives in the 2012/13 season at 33 meetings, but made no further reference to that record in his submissions, other than to note the courses at which the respondent had not driven and to submit that these days not be taken into account.
Respondent’s submissions:
[9] Ms Thomas in her submissions stated that 40 drives, as sought by the informant, was greater than the penalty for improper driving causing an accident or injury. As neither consequence had occurred in this case, she submitted a lesser penalty was appropriate.
[10] Ms Thomas asked us to take into account the fact that the respondent’s income was derived solely from the industry.
[11] With respect to costs, Ms Thomas acknowledged that generally an award of 50 to 60 percent of the costs would be made against an unsuccessful respondent. She asked us to consider the fact that Mr Shirley had agreed to the matter being heard in Dunedin, which had reduced travelling costs for the informant and the JCA but the consequence for the respondent was that he had incurred the additional costs of travel.
Decision:
[12] We consider this matter to be at the top end of the scale when imposing penalty for improper driving. The informant in his submission, as we have noted at [5], has highlighted aggravating features of the case, which we identified in our decision as to breach. There is no need to repeat these, but we emphasise the fact that we found the respondent’s actions were retaliatory and were intended to ensure that Mr Dunn “paid” for his not handing up the lead to Mr Shirley.
[13] We do not believe a fine is the appropriate response due to the gravity of the breach and having regard to Mr Shirley’s personal circumstances.[14] We note that Ms Thomas refers to the Penalty Guide as listing maximum penalties for breaches of the Rules. That is not correct. The Penalty Guide establishes starting points and Judicial Committees can impose a penalty at a level that is higher than or is below this figure.
[15] The need to uphold the integrity of the harness racing industry has to be to the fore when imposing penalty upon Mr Shirley. Close behind, are the purposes of denunciation and deterrence, both general and specific. A punitive response is appropriate. Suspension from driving will not prevent Mr Shirley’s participation in the industry as a licensed trainer. The financial impact of this form of penalty, while substantial, will not be crippling for a man who has a dependent wife and family and for whom the industry is his sole source of income.
[16] The consequences of Mr Shirley’s actions were not only that his own horse LITTLE EINSTEIN and Mr Dunn’s horse, SUPERSUB, lost all chance but Mr Barron’s horse ITS OLLIES EXCUSE was also badly impeded, and other trailing horses were affected to a lesser degree. All this occurred in the last race on the card, which was thus a Quaddie, Place 6, and Treble race. The impact on the betting public was thus far from insignificant.
[17] The Penalty Guide indicates a standard starting point of 20 drives for a breach of this rule. The deliberate and cynical nature of Mr Shirley’s actions must be factored into the equation. The highest starting point for improper driving is stated to be 60 drives. This figure is expressed in the Guide as applying to a “major race”. While this was the Invercargill Harness racing Club’s major meeting for the season (it was “Cup Day”), and the stake for the race was $10,000, we do not believe it would be accurate to describe race 12 as a major race. Nonetheless, when regard is had to the retaliatory and prolonged nature of the respondent’s actions and the severity of their impact upon a number of horses, not the least of which was Mr Shirley’s own horse, we believe his culpability is at the upper end of the range and that the aggravating factors relating to the breach require the starting point be raised to 60 drives.
[18] Mitigating factors are that the respondent is of good character and, while he clearly has issues with the excessive use of the whip rule, his record may otherwise be described as good. We cannot treat him as a “first offender” under this rule as his record evidences a previous breach in November 2000. However, this is sufficiently in the past to be regarded simply as a neutral factor. We make a ten percent reduction from our starting point for good character and record.
Penalty:
[19] This leaves a penalty of 54 drives. The informant’s analysis demonstrates that Mr Shirley has on average three drives per meeting. The respondent has not challenged that assessment. We determine the length of the suspension on that basis. We disagree with the informant’s submission that those venues where Mr Shirley has not driven in the past season should not be taken into account. Mr Shirley is to be treated as an Otago/ Southland driver and all meetings within that geographical area are thus taken into consideration.
[20] Drivers have been declared for the Invercargill Harness Racing Club’s meeting this Sunday. We note that Mr Shirley has one drive. His suspension thus commences at the conclusion of that meeting.
[21] Mr Shirley is suspended from driving from the conclusion of racing on 11 August 2013 up to and including 1 December 2013. This is 18 Otago/ Southland meetings.
[22] As Ms Thomas has submitted, costs in the 50 to 60 percent range usually follow in a matter of this nature.
[23] We take into account the fact that the respondent did incur some expense through the hearing being held in Dunedin. We believe an award to the RIU in the sum of $3900 and to the JCA in the sum of $1100 is appropriate. This constitutes 52.5 percent of the total expenses.
[24] Dated this 9th day of August 2013
Geoff Hall Stewart Ching
Chairman Member of Committee
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 09/08/2013
Publish Date: 09/08/2013
JCA Decision Fields (raw)
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Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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informantnumber: A5904
horsename:
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startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 09/08/2013
hearing_title: Non Raceday Inquiry RIU v BR Shirley - Decision as to Penalty dated 9 August 2013
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
CHRISTOPHER JOHN ALLISON, Stipendiary Steward for the Racing Integrity Unit (RIU)
Informant
BRENT ROBERT SHIRLEY, Licensed Public Trainer/ Open Horseman
Respondent
Information: No. A5904
Appearing: Mr C Lange for the informant, Ms M Thomas for the respondent
Judicial Committee: Prof G Hall, Chairman - Mr S Ching, Member
Date of decision: 9 August 2013
DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
[1] In our decision of 4 July 2013 we found information A5904 to be proved in that the respondent, Mr Shirley, in race 12 at the Invercargill Harness Racing Club’s meeting on 26 January 2013, drove in an improper manner contrary to r 869(3)(f).
[2] We called for and have now received written submissions from the parties as to penalty and costs.
[3] The Penalty Guide issued by the Judicial Control Authority provides the following guidelines for improper driving:
869(3)(f) Improper driving
• Improper driving – not in accordance with accepted rules of behaviour 20 drives or $1,000
• Improper driving in a major race 60 drives or $3,000
• Causing a relegation 25 drives or $1,250
• Causing accident or injury 30 drives or $1,500
Informant’s submissions:
[4] Mr Lange, on behalf of the RIU, made reference to the Penalty Guide and submitted that a penalty equating to a 40-drive suspension was appropriate. He also included itemised calculations of the costs of the RIU ($7413) and the JCA ($2115).
[5] Mr Lange drew the Committee’s attention to certain findings in our decision as to the breach of rule:
a. That at just under 900 metre mark, when just ahead of Mr Dunn’s horse, Mr Shirley steered his horse inwards and leant all over Mr Dunn;
b. Mr Shirley was placing pressure on SUPERSUB by deliberately pulling LITTLE EINSTEIN inwards;
c. Mr Shirley’s actions resulted in contact between the carts, and the stays locking;
d. The extent of the pressure exerted by Mr Shirley was abnormal and out of the ordinary;
e. Once the stays locked, Mr Shirley continued to apply downward and backward pressure to Mr Dunn;
f. The stays remained locked together for several hundred metres and Mr Shirley continued to apply downward and, significantly, backward pressure;
g. Mr Shirley made no effort to assist or to attempt to unlock the stays himself;
h. Mr Shirley’s actions were in order to take revenge after being denied the lead;
i. Mr Shirley took no steps to attempt to remedy the situation;
j. Mr Shirley’s actions effectively extinguishing the chances of Mr Dunn’s horse, his own horse’s chances and to a lesser extent, Mr Barron’s horse and other trailing runners.
[6] The informant contended that “the level of culpability [was] at the higher band of culpability for improper driving”. Mr Lange emphasised that the Committee had found Mr Shirley’s actions were deliberate, had occurred over a significant distance, were motivated by revenge and had extinguished the chances of Mr Dunn’s horse. He thus submitted that a deterrent penalty was appropriate.
[7] The informant noted that the race meeting was the Invercargill Harness Racing Club’s Cup Day. It was thus one of the higher status race meetings held in the Southland area. The stake for the race was $10,000.
[8] The informant produced Mr Shirley’s record, which showed 103 drives in the 2012/13 season at 33 meetings, but made no further reference to that record in his submissions, other than to note the courses at which the respondent had not driven and to submit that these days not be taken into account.
Respondent’s submissions:
[9] Ms Thomas in her submissions stated that 40 drives, as sought by the informant, was greater than the penalty for improper driving causing an accident or injury. As neither consequence had occurred in this case, she submitted a lesser penalty was appropriate.
[10] Ms Thomas asked us to take into account the fact that the respondent’s income was derived solely from the industry.
[11] With respect to costs, Ms Thomas acknowledged that generally an award of 50 to 60 percent of the costs would be made against an unsuccessful respondent. She asked us to consider the fact that Mr Shirley had agreed to the matter being heard in Dunedin, which had reduced travelling costs for the informant and the JCA but the consequence for the respondent was that he had incurred the additional costs of travel.
Decision:
[12] We consider this matter to be at the top end of the scale when imposing penalty for improper driving. The informant in his submission, as we have noted at [5], has highlighted aggravating features of the case, which we identified in our decision as to breach. There is no need to repeat these, but we emphasise the fact that we found the respondent’s actions were retaliatory and were intended to ensure that Mr Dunn “paid” for his not handing up the lead to Mr Shirley.
[13] We do not believe a fine is the appropriate response due to the gravity of the breach and having regard to Mr Shirley’s personal circumstances.[14] We note that Ms Thomas refers to the Penalty Guide as listing maximum penalties for breaches of the Rules. That is not correct. The Penalty Guide establishes starting points and Judicial Committees can impose a penalty at a level that is higher than or is below this figure.
[15] The need to uphold the integrity of the harness racing industry has to be to the fore when imposing penalty upon Mr Shirley. Close behind, are the purposes of denunciation and deterrence, both general and specific. A punitive response is appropriate. Suspension from driving will not prevent Mr Shirley’s participation in the industry as a licensed trainer. The financial impact of this form of penalty, while substantial, will not be crippling for a man who has a dependent wife and family and for whom the industry is his sole source of income.
[16] The consequences of Mr Shirley’s actions were not only that his own horse LITTLE EINSTEIN and Mr Dunn’s horse, SUPERSUB, lost all chance but Mr Barron’s horse ITS OLLIES EXCUSE was also badly impeded, and other trailing horses were affected to a lesser degree. All this occurred in the last race on the card, which was thus a Quaddie, Place 6, and Treble race. The impact on the betting public was thus far from insignificant.
[17] The Penalty Guide indicates a standard starting point of 20 drives for a breach of this rule. The deliberate and cynical nature of Mr Shirley’s actions must be factored into the equation. The highest starting point for improper driving is stated to be 60 drives. This figure is expressed in the Guide as applying to a “major race”. While this was the Invercargill Harness racing Club’s major meeting for the season (it was “Cup Day”), and the stake for the race was $10,000, we do not believe it would be accurate to describe race 12 as a major race. Nonetheless, when regard is had to the retaliatory and prolonged nature of the respondent’s actions and the severity of their impact upon a number of horses, not the least of which was Mr Shirley’s own horse, we believe his culpability is at the upper end of the range and that the aggravating factors relating to the breach require the starting point be raised to 60 drives.
[18] Mitigating factors are that the respondent is of good character and, while he clearly has issues with the excessive use of the whip rule, his record may otherwise be described as good. We cannot treat him as a “first offender” under this rule as his record evidences a previous breach in November 2000. However, this is sufficiently in the past to be regarded simply as a neutral factor. We make a ten percent reduction from our starting point for good character and record.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
[19] This leaves a penalty of 54 drives. The informant’s analysis demonstrates that Mr Shirley has on average three drives per meeting. The respondent has not challenged that assessment. We determine the length of the suspension on that basis. We disagree with the informant’s submission that those venues where Mr Shirley has not driven in the past season should not be taken into account. Mr Shirley is to be treated as an Otago/ Southland driver and all meetings within that geographical area are thus taken into consideration.
[20] Drivers have been declared for the Invercargill Harness Racing Club’s meeting this Sunday. We note that Mr Shirley has one drive. His suspension thus commences at the conclusion of that meeting.
[21] Mr Shirley is suspended from driving from the conclusion of racing on 11 August 2013 up to and including 1 December 2013. This is 18 Otago/ Southland meetings.
[22] As Ms Thomas has submitted, costs in the 50 to 60 percent range usually follow in a matter of this nature.
[23] We take into account the fact that the respondent did incur some expense through the hearing being held in Dunedin. We believe an award to the RIU in the sum of $3900 and to the JCA in the sum of $1100 is appropriate. This constitutes 52.5 percent of the total expenses.
[24] Dated this 9th day of August 2013
Geoff Hall Stewart Ching
Chairman Member of Committee
hearing_type: Non-race day
Rules: 869(3)(f)
Informant: Mr CJ Allison - Stipendiary Steward
JockeysandTrainer:
Otherperson:
PersonPresent: Mr C Lange - for the Informant, Ms M_J Thomas - for the Respondent
Respondent: Mr BR Shirley - Open Horseman
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