Non Raceday Inquiry RIU v JW Cox – Penalty Decision dated 7 April 2015

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decisiondate: 02/04/2015

hearing_title: Non Raceday Inquiry RIU v JW Cox - Penalty Decision dated 7 April 2015

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BEFORE A JUDICIAL COMMITTEE OF
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 JOHNNY COX
Open Horseman
Respondent

Information: A1407
Judicial Committee: Prof G Hall, Chairman - Mr P Knowles, Committee Member
Appearing: Mr C Allison, for the Informant, The Respondent in person
Date of hearing: 19 February 2015
__________________________________________________________________________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
__________________________________________________________________________________________________________________________________

[1] In our decision of 6 March last we found the respondent, Mr J Cox, to be in breach of r 869(3)(g) of the New Zealand Rules of Harness Racing in that when driving CERATO in race 8 at the Central Otago TC meeting at Omakau on 2 January last he drove in a manner capable of diminishing the chances of that horse winning by vying for the lead at an excessive pace over the opening 800 metres of the race.

[2] We called for and have now received written submissions as to penalty from the parties.

[3] The penalty provision is r 1003, which states:

1. A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:

(a) a fine not exceeding $10,000; and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) disqualification for a period not exceeding 12 months.

[4] Mr Cox is currently licensed as an Open Horseman and a Public Trainer. Until recently he was training in partnership with Ms Amber Hoffman. Mr Cox has been licensed in the Harness Racing industry since 2002 as a Trials Horseman.

[5] Mr Cox has had 329 drives this season as at 16 March. Last season he had 456 drives, and 422 drives in the 2012/13 season. Mr Cox has had in excess of 4200 race-day drives. He is an experienced senior horseman in the Southland/Otago region and has driven in the Canterbury region on occasions. Mr Cox is in the process of shifting to the Canterbury region to work for Mr Ken Barron.

[6] Race 8 the Alexandra Super Liquor/Macca Lodge Mobile Pace had total stake money of $7500. Mr Cox’s drive CERATO was 3/3 in the betting in the 14-horse field.
Informant’s submissions

[7] Mr Allison stated that during the race Mr Cox had opportunities to adopt other tactics throughout which he failed to do. The manner in which CERATO was driven meant the horse’s chances of winning or finishing in a dividend bearing placing were totally distinguished through the early stages of the race.

[8] The RIU considered the breach of the rule to be mid-range due to the excessive speed and energy used through the early stages of the race. As a holder of an Open Horseman’s licence Mr Cox’s drive fell well below the required standard. The RIU sought a penalty, which was a deterrent to other licence holders to drive in this manner.

[9] The RIU acknowledged that Mr Cox had an excellent driving record over several seasons. His record for the current season was very good with his only breach in the previous 12 months being a breach of r 869(4) in May 2014 when he was fined $200. Mr Cox did not have any breaches of r 869(3)(g) since he had been licensed.

[10] Mr Cox was very professional in the manner in which he conducted himself, and he had co-operated with the Stewards’ inquiry into the matter.

[11] The RIU identified the most relevant case as that of HRNZ v McKendry (5 February 2010). Mr McKendry was involved in a speed duel with Ms Chilcott and he was suspended from 7 February 2010 up to and including 2 March 2010. This equated to six race meetings for Mr McKendry, a leading North Island driver who usually had a near full book of drives. The associated breach of the Rules against Ms Chilcott went to the Appeals Tribunal. Ms Chilcott appealed the decision of the Judicial Committee and also the severity of her penalty. The Appeals Tribunal dismissed her appeal regarding the breach of the rule, however her penalty was decreased to a three day driving suspension plus a fine of $600.

[12] The RIU sought a suspension of Mr Cox’s Horseman’s Licence for five meetings, which they estimated would be near to the equivalent of 40 race-day drives.

[13] The RIU sought costs of $200 in relation to administration costs, travel expenses and witness expenses.

Respondent’s submission
[14] Mr Cox stated that as of 23 March 2015 he had had 4298 drives, 351 this season. He had never previously been charged under r 869(3)(g). His driving record had been good this season with only one breach in the last 12 months.

[15] Mr Cox acknowledged on the day in question he had showed a lack horsemanship and judgement.

[16] Mr Cox submitted a two days’ suspension and a fine in the range of $1000 to $1200 was appropriate.

Decision

[17] It is our view that Mr Cox and Mr Williamson, in the particular circumstances of this case, were equally culpable. We accept that Mr Williamson’s actions determined the pace of the race but Mr Cox’s determined denial of the lead to Mr Williamson simply continued for too long. Mr Williamson twice endeavoured to cross Mr Cox. First on the bend entering the home straight and then again at the 600 metres. Mr Cox’s response on each occasion was to keep Mr Williamson out. At no point did Mr Cox consider a change in tactics. He persisted in reining up CERATO whenever Mr Williamson attempted to cross him. We have found that there was ample opportunity before and at the 600 metres for Mr Cox to ease CERATO and to trail THE SHAKEY MISTRESS and, if he so wished, to come out again. He had the option to ease CERATO, hand up the lead, and take a breather behind THE SHAKEY MISTRESS.

[18] Mr Cox only slowed the pace of the race once THE SHAKEY MISTRESS ceased to challenge for the lead. It should have been evident to Mr Cox from the manner in which Mr Williamson was chasing his horse up and trying to cross that he was determined to get the lead off Mr Cox. We believe Mr Cox was equally fixed in his determination not to hand up, despite the speed at which he was required to travel to prevent Mr Williamson from crossing. Mr Williamson had made his intentions abundantly clear. Mr Cox simply chose to ignore this fact because he was not prepared to hand up to what he believed was a lesser performed horse.

[19] Mr Cox has continued to duel for the lead with Mr Williamson at a speed and over a distance that was inevitably going to exhaust the reserves of his horse.

[20] The JCA Penalty Guide recommends a starting point of a suspension equivalent to 40 drives or a fine of $2000. We agree with the RIU’s assessment of the breach as being mid-range and see no need to increase the starting point.

[21] We are aware of the penalties imposed in the two Chilcott decisions (22 March 2010 and 31 August 2012) and in Abernethy. Abernethy and the second Chilcott arise out of the same speed duel. Mr Abernethy was suspended for the equivalent of 18 drives and fined $450, while Ms Chilcott was given three days’ suspension and a $650 fine. Both these penalties appear light, and in particular the three days’ suspension and $650 fine for Ms Chilcott’s second breach, when regard is had to the Penalty Guide and the decision of the Appeals Tribunal in Chilcott. It appears that the Committee placed little weight on the fact this was a repeated breach of the rule in a little over two years.

[22] The first Chilcott decision is that of an Appeals Tribunal and is the one from which we take guidance. The Committee stated that Mr McKendry was the more culpable of the two drivers involved in the speed duel in that case, and it believed he had been very fortunate in the penalty that had been imposed upon him by the raceday Committee (six days’ suspension). The penalty imposed on Ms Chilcott was reduced simply because of a disparity with the penalty imposed upon Mr McKendry. The Tribunal expressly stated it would not otherwise have interfered with the original penalty of six days’ suspension. It said at [62]: “We do not believe the penalty imposed upon the appellant [Ms Chilcott], if viewed without reference to the penalty imposed upon Mr McKendry, is manifestly excessive. Indeed, it is well within range.”

[23] The Appeals Tribunal in J & C (19 October 2000) expressly refrained from establishing a tariff for a breach of r 869(3)(g) (and also r 868(2), which was considered in that case). Each case has to depend on its own facts, but that Tribunal identified as a particularly relevant factor, the extent to which the chances of the horse were diminished by the particular driving tactics adopted. Also of relevance to penalty, was the degree of experience of the drivers involved. Ready admission of fault and any previous breaches of the rule were also to be weighed.

[24] We consider these factors, which were adopted in Chilcott, in turn. Having regard to the sectional times for the first 800 metres, we are of the view that the chances of CERATO winning the race were diminished by Mr Cox’s actions from the 300 metres to the 700 metres in his urging CERATO forward to keep the lead whenever Mr Williamson looked likely to cross him. By the 1600 metre mark CERATO had commenced to tire markedly and eventually finished in 12th placing in excess of 23 lengths from the winner in a time of 2.30.6.

[25] Mr Cox is a very experienced driver, having had over 4,000 drives. He has not previously breached this rule. His failure to admit the breach is of course not an aggravating factor but, in contrast, is the absence of a mitigating one.

[26] We also have regard to r 1114(2)(c) and note that a consequential effect of the breach of the rule was that the betting public never got a competitive run for their investments on CERATO and that para (d) of that rule requires us to have regard to the need to maintain integrity and public confidence in Harness Racing.

[27] We assess that on average Mr Cox has six drives per meeting. He clearly has more than this number when he is driving in the Otago / Southland area and less when driving in Canterbury.

[28] We believe a combination of a suspension and a fine is appropriate in the interests of denunciation and deterrence.

[29] Rule 1304(2) provides that a suspension may be deferred for up to seven days where the driver has an engagement to drive a horse in a betting race. Mr Cox has stated he is engaged to drive JACCKA JUSTY at Invercargill on 12 April. He has told the Committee that he has been the only driver of this horse for the last three seasons.

[30] Mr Cox’s licence to drive is suspended for four South Island days. This suspension commences after racing on 12 April and is up to and including 21 April. This encompasses the NZ Metro meetings on 15 and 17 April, Rangiora/ Winton on 19 April and Invercargill on 21 April (24 drives).

[31] Mr Cox is also fined the sum of $500. This sum is greater than that imposed on Mr Williamson and reflects the lesser number of raceday drives that Mr Cox has in comparison to Mr Williamson. We adopt the same practice as we did with Mr Williamson, and have reduced the quantum of the fine by $300 to reflect Mr Cox’s record, which for a busy South Island driver, is excellent.

[32] There is no award of costs.

Dated at Dunedin this 7th day of April 2015.

Geoff Hall, Chairman
Paul Knowles, Committee Member

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