Non Raceday Inquiry RIU v FJ Phelan – Decision dated 8 December 2014

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hearing_title: Non Raceday Inquiry RIU v FJ Phelan - Decision dated 8 December 2014

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Non Raceday Inquiry RIU v Mr FJ Phelan 4 December 2014

BEFORE A JUDICIAL COMMITTEE

HELD AT CAMBRIDGE

IN THE MATTER of New Zealand Rules of Harness Racing

BETWEEN Mr S Mulcay Stipendiary Steward (RIU)

Informant

AND Mr FJ Phelan – Advanced Amateur Horseman

Respondent

Date of Hearing: 4 December 2014

Information No: A7002

Venue: Cambridge Raceway

Judicial Committee: Mr A Dooley, Chairman – A Godsalve, Committee Member

Present: Mr S Mulcay - Stipendiary Steward, Mr J Muirhead – Stipendiary Steward, Mr FJ Phelan – Advanced Amateur Horseman

Registrar: Mr B Jones – Stipendiary Steward

Plea: Admitted

Date of Decision: 8 December 2014

Charge

SECOND CHARGE - Alternatively

Charge under Rule 868 (2)

That on Thursday 16 October 2014 at the Bay Of Plenty HRC’s meeting held at Cambridge Raceway Mr FJ Phelan as the Horseman of COUGAR BROMAC in Race 1, the SHADOW PLAY AT ALABAR AMATEUR DRIVER’S PACE, failed to take all reasonable and permissible measures at all times during the race to ensure that your horse was given full opportunity to win or obtain the best possible position and/or finishing place.

The particulars of the charge being that:

1. Between the 550 metres & 400 metres you failed to take the opportunity that was available to shift your horse out from a position four back on the pylons and ease JD’s DREAM (J Darby) wider on the track thereby obtaining clear running; and/or

2. Between the 200 metres & 150 metres you failed to place your horse under any discernible and demonstrable pressure which would have given the mare full opportunity to win the race or finish in second place.

Mr Phelan acknowledged that he understood the nature of the charge, the Rule and admitted the breach.

Mr Phelan acknowledged that all the relevant documents from the RIU had been disclosed to him. Mr Phelan said he accepted the contents of the documents and consented to them being admitted as evidence. The proposed procedure for the hearing was explained to Mr Phelan and Mr Mulcay. They confirmed they had no concerns or objections.

Mr Mulcay produced a letter dated 3 November 2014 from Mr M R Godber, Operations Manager for the Racing Integrity Unit, authorising the filing of the information pursuant to Rule 1103 (4) (c).

Rule 868 (2) provides: Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.

Informant's Submissions

Background

1. Advanced Amateur Horseman Mr Frank Phelan was the driver of COUGAR BROMAC in Race 1 “SHADOW PLAY AT ALABAR AMATEUR DRIVERS MOBILE PACE at the Bay Of Plenty HRC’s meeting held at Cambridge Raceway on 16/10/14 in which COUGAR BROMAC was placed third by the Judge.

2. Following this event Mr Phelan was interviewed by Stewards in relation to the tactics he adopted during the running and after taking evidence and viewing the replays the matter was adjourned to enable Stewards to review the recent racing of COUGAR BROMAC and to examine the betting on the event.

3. On 07/11/14 Information A7002 was filed with the Judicial Control Authority charging Mr Phelan under Rule 868 (1) on the grounds that he failed to permit COUGAR BROMAC to run on its merits. An additional charge under Rule 868 (2) was lodged in the alternative alleging the Mr Phelan had failed to take all reasonable and permissible measures at all times during the race to ensure that COUGAR BROMAC was given full opportunity to win or obtain the best possible position and/or finishing place.

4. Mr Mulcay advised Mr Phelan of this action at Alexandra Park on 07/11/14 and he was given a letter of confirmation outlining the particulars of both charges and that he will be required to attend an inquiry at a time and place to be advised.

5. Following a further interview with Mr Phelan at Cambridge Raceway on Sunday 23/11/14, where he was assisted by lay advocate Mr R Lawson, the Stipendiary Stewards Panel decided to seek the leave of this Committee pursuant to Rule 1105 (1) to withdraw the charge under Rule 868 (1) given that Mr Phelan has admitted the breach of Rule 868 (2) and entered a guilty plea. Accordingly Mr Mulcay made such application to the Committee.

The Committee granted Mr Mulcay leave to withdraw the charge under Rule 868(1).

Mr Mulcay demonstrated on the video films that COUGAR BROMAC drew barrier 2 and settled 3 back on the marker line shortly after the start. At the winning post with a round to go COUGAR BROMAC was placed 4 back on the markers. The area of concern for the Stewards was near the 550 metres when Mr Phelan clearly had an advantage over JD ‘S DREAM and he only had to move out marginally to get a run. Mr Mulcay believed Mr Phelan's failure to do so was unreasonable and deserving of culpability. He said the Stewards viewed this incident very seriously. Mr Mulcay advised that COUGAR BROMAC started 2-2 in the betting and was paying $2.10 to win.

Mr Mulcay in relation to the second area of concern identified COUGAR BROMAC in the final straight. He said Mr Phelan only flicked his whip twice and was driving his horse out to some degree.

Submissions by the Respondent

Mr Phelan told the Committee that COUGAR BROMAC was only a small mare and that JD’S DREAM who was racing in his outside was a bigger horse. He said he didn’t want to cause his horse to become unbalanced which may have caused an accident. He added that two weeks prior to this race COUGAR BROMAC had galloped when a horse in front of her had gone off stride. He acknowledged that he made an error of judgement in failing to take all reasonable and permissible measures during the running of the race. He thought the horse that was parked may have stopped however when he elected to move out it was too late. Mr Phelan advised that he needed both hands on the reins while getting out of the pocket. He said COUGAR BROMAC responded well considering the race was won in the time of 2.43. He added in relation to the home straight allegation drivers get told off by Stewards for using too much vigour.

Decision

As Mr Phelan admitted the breach we find the charge proved.

Submissions of Informant on Penalty

• Rule 1003 (1) sets out penalties that may be imposed for a breach of Rule 868 (2) and provide for a fine not exceeding $10,000 and/or a suspension of a driver’s licence for a period not exceeding 12 months. There is also provision for a disqualification to be imposed but that it not being sought given the nature of the offence.

• Rule 1114 states “On finding a breach proved the Judicial Committee may impose a penalty and/or affect any remedy provided by these rules. In imposing a penalty or affecting any remedy provided in these the rules the Judicial Committee may have regard to such matters as they consider appropriate including:-

(c) any consequential effects upon any person or horse as a result of breach of the rule;

(d) the need to maintain integrity and public confidence in Harness Racing.”

Mr Mulcay submitted the mitigating factors were Mr Phelan’s clear record for this or similar offences. Mr Phelan’s admission of the breach and contrition in relation to the offence. The aggravating factors are the level of culpability was high range given the serious nature of the breach.

Mr Mulcay submitted additional factors were Mr Phelan’s personal situation, the infrequency with which he drives, the need to provide a deterrent – both general and specific.

Mr Mulcay submitted the JCA Penalty Guidelines provide a starting point of 15 drives or a $750 fine. He submitted that these guidelines relate primarily to Professional drivers that are competing on a regular basis as opposed to “Hobbyists” and/or Amateur drivers who are competing on a much more infrequent basis.

Mr Mulcay produced the electronic decisions for three similar offences under the same rule:

1. Mr T 01/03/11 R 868 (2) Suspension of 6 months & $250 fine.

2. Mr M 28/04/11 R 868 (2) Suspension of 6 months & $300 fine.

3. Ms R 03/05/13 R 868 (2) Suspension of 3 months & $600 fine.

Mr Phelan advised the Committee that he was aware of these offences and elected not to read the available decisions.

After considering all of the aforementioned Mr Mulcay submitted that the appropriate penalty ought to be that Mr Phelan’s Advanced Amateur Driver’s licence be suspended for the period of 6 months and that he be fined the sum of $500.

Respondent's Submissions on Penalty

Mr Phelan asked the Committee to consider his admission of the breach and to be “quite light on him”. He made reference to a recent decision where a driver received a penalty of 6 weeks and incurred a fine of $300 for a similar breach.

Mr Mulcay advised this case was a breach of Rule 868(3).

In response to a question from the Committee, Mr Phelan acknowledged that he was in a position to pay a fine if required.

Reasons for Penalty

The Committee carefully considered all the submissions presented and viewed the available video films. The mitigating factors are Mr Phelan’s admission of the breach and his clear record under this Rule. However the video film evidence is very clear and as far as we are concerned Mr Phelan had no option other than to admit the breach.

This has to be balanced against the significant aggravating factors.

This is a serious breach of the Rule and we assess it at the high end of the scale. Mr Phelan in our opinion made a poor error of judgement between the 550 metres & 400 metres when failing to take the opportunity that was available to him to shift COUGAR BROMAC out from a position four back on the pylons and ease JD’s DREAM wider on the track thereby obtaining clear running. The back on film showed that JD ‘S DREAM was drifting out which presented a run for COUGAR BROMAC which Mr Phelan failed to take advantage of. It was further noticeable between the 200 metres and the 150 metres Mr Phelan failed to demonstrate discernible actions to enhance his horse's chances. Therefore, the Committee is of the opinion that COUGAR BROMAC was denied the opportunity of finishing in a higher placing. We note that COUGAR BROMAC finished the race off strongly to finish a close 3rd.

It is paramount for the integrity of Harness Racing Industry, that the betting fraternity and public confidence is maintained at the highest possible level. The on-going confidence in Harness Racing needs constant reinforcement, including the display of competent driving using reasonable and permissible measures, to show that participants are genuinely giving their horses every possible opportunity to win races or to do their best. Mr Phelan clearly failed to do so. Before considering penalty we referred to the JCA Penalty Guide and this showed a breach under this rule had a starting point of 15 drives or $750 fine. We also took into account similar penalties imposed under this Rule.

The Committee notes that Mr Phelan is classified as an Advanced Amateur Horseman. Mr Mulcay produced his record as an Amateur which showed a total of 44 drives from 2011 to the current date. However we believe it is significant that from 1993 to 2011 Mr Phelan competed as an Open Horseman with a total of 427 drives. Therefore this Committee would have expected a higher standard of driving by Mr Phelan than demonstrated in this case.

The Committee had regard for the fact Mr Phelan’s total drives in a season as an Amateur ranged from 12 to 14 which averages out to approximately 1 drive per month.

Balancing all the above factors we consider that a suspension of Mr Phelan’s driver’s license for a significant period together with a fine is an appropriate penalty.

Penalty

Accordingly, the Committee imposes a suspension on Mr Phelan Driver’s License from the conclusion of racing on 4 December 2014 to the conclusion of racing on 4 June 2015. In addition to that the Committee order that Mr Phelan be fined the sum of $500.

Costs

The RIU sought no costs.

Due to this matter being scheduled to be heard on a raceday there will be no order for JCA costs.

Adrian Dooley        Alan Godsalve

Chair                      Committee Member

8 December 2014

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