Non Raceday Inquiry RIU v M Hamilton – Reserved Decision dated 18 October 2016 – Chair, Prof G Hall
ID: JCA15593
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MURRAY HAMILTON, Owner
Respondent
INFORMATION NO. A6633
COMMITTEE: Prof G Hall (Chairman)
Mr P Knowles (Committee Member)
DATE OF ORAL HEARING: 6 October 2016
DATE OF WRITTEN DECISION: 18 October 2016
RESERVED DECISION OF JUDICIAL COMMITTEE
[1] Mr C Allison, Racecourse Investigator, on behalf of his employer, the RIU, has charged Mr M Hamilton with a breach of r 340 of the New Zealand Thoroughbred Rules of Racing.
[2] The charge (information A6633) is that on 27 August last he rang Mr Neville Armstrong, the Secretary of the Central Otago Equestrian Club, and used abusive and offensive language.
[3] Mr Hamilton is an owner pursuant to the Rules and he indicated on the signed information and at the commencement of the hearing, that he admitted the charge. We thus find the breach proved.
[4] Rule 340 of the Rules of Racing states:
A Licensed Person, Owner, lessee, Racing Manager, Official or any other person bound by these Rules must not misconduct himself in any matter relating to the conduct of Races or racing.
[5] The penalty provisions which apply in this case are found in r 803, which states
(1) A person who commits, or is deemed to have committed a breach of these Rules for which a penalty is not provided elsewhere in these Rules shall be liable to:
(a) be disqualified for a period not exceeding 12 months; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months; and or
(c) a fine not exceeding $20,000.
[6] Mr Allison produced written permission to file an information from the General Manager of the RIU, Mr M Godber, in accordance with r 903(2)(d). The letter was dated 6 September 2016.
[7] Because of the sexual nature of the comments made by the respondent, the RIU has informed this Committee that the complainant in this matter wishes the content of Mr Hamilton’s remarks to be suppressed. After considering this submission, we have determined that the content of the call and the name of the person to whom the remarks were directed should be suppressed. Mr Hamilton has acknowledged at the hearing that there was no factual basis whatsoever to his drunken outburst and, in these circumstances, we see no point in publishing any details, which could lead to further embarrassment.
Facts
[8] Mr Hamilton has been licensed with New Zealand Thoroughbred Racing (NZTR) since 2003 as a trainer, however his licence has not been renewed by NZTR in the current racing season.
[9] Prior to being issued a licence with NZTR Mr Hamilton had been licensed in the Harness Racing industry since 1972.
[10] Mr Hamilton has been involved in numerous incidents over past months, which have led to the Central Otago Equestrian Club trespassing him from the Omakau Racecourse because of alleged breaches of the training agreement with the Equestrian Club.
[11] Mr Hamilton does not agree with the actions taken by the Equestrian Club and he has disputed their authority to issue the notice.
[12] As a result of the trespass notice being issued to Mr Hamilton, NZTR have declined to renew his Class A Trainers Licence for the 2016-2017 season due to him not having a suitable training establishment.
[13] The complainant in this matter is the Secretary of the Central Otago Equestrian Club, which was formed to administer the running of the Omakau Racecourse and is made up of members from the Central Otago Racing Club and the Central Otago Trotting Club.
[14] On Saturday evening 27 August 2016 Mr Hamilton was at his home drinking wine. At 9.00 pm he rung Mr Neville Armstrong, who is the Secretary of the Equestrian Club and also the Vice-President of the Trotting Club. At the time Mr Armstrong was out socially with his wife and family friends celebrating an associate’s birthday. Mr Armstrong had Mr Hamilton’s cell phone number on his contact list and, when he answered the phone, he left the group he was sitting with as he recognised Mr Hamilton’s number and did not want the other members of the group to hear the conversation.
[15] Upon Mr Armstrong answering the phone, the call commenced with some small talk about not being in contact for a while. Mr Armstrong then asked Mr Hamilton what he could do for him. Mr Hamilton then made disparaging remarks about a person close to Mr Armstrong. Mr Armstrong was taken aback by this and said, “Excuse me” to Mr Hamilton. Mr Hamilton then repeated the insulting remarks. We note this is the only aspect of the summary of facts that Mr Hamilton disagrees with, but as Mr Armstrong took contemporaneous notes and the respondent was affected by liquor, we proceed on the basis of the summary before us. However, little hangs on whether the comment was made once or twice. Once was sufficient to have the unsettling impact upon the complainant that the respondent desired.
[16] Due to its content, Mr Armstrong terminated the call, which lasted for 31 seconds. Mr Armstrong returned to his group of friends who recognised that Mr Armstrong had been flustered and angered by the call.
[17] Mr and Mrs Armstrong left the function at around 10.15 pm and he received a further four text messages in quick succession from Mr Hamilton.
[18] The first text message stated, “Sorry to f**k your night up but it is only going to get worse for ya you might have brought it on your self all the years trying to keep things together you c***s have f****d it up be no EQC will not function from next week sorry nev now will help Pirate”
[19] The following 3 texts stated: “Await your reply.” “Can’t wait to the meeting to tell people all about it.” “I will get us nev sorry.”
[20] Mr Armstrong wrote down the details of the call at the first opportunity.
[21] At 3.46 pm on Monday 29 August 2016 Mr Hamilton texted an apology to Mr Armstrong stating, “I apologise for Saturday night suicidal back to wall.” Shortly afterwards on the same day Mr Hamilton left a message on Mr Armstrong’s cell phone again apologising for his phone call on Saturday night.
[22] At 4.51 pm Mr Hamilton telephoned RIU staff and admitted making the phone call. Mr Hamilton stated it was the silliest thing he had ever done; he was not thinking straight and had been affected by alcohol.
[23] Due to the content of the phone call, Mr Armstrong and the person whose alleged behaviour was the subject of the call were highly offended and upset. This resulted in their making an official complaint with the Omakau Police.
[24] Mr Hamilton subsequently appeared in the Alexandra District Court on 20 September 2016. Mr Hamilton admitted a charge of using a telephone in an offensive manner and was convicted and fined $450 plus $130 Court costs.
[25] When questioned by RIU Investigators, Mr Hamilton was co-operative and freely admitted his actions although he believed (as previously noted) that he only made the offensive comments on one occasion. He stated he was frustrated with some of the decisions made by the Equestrian Club of which Mr Armstrong was the Secretary, however he acknowledged his phone call was totally inappropriate and he was disappointed with his actions.
Respondent’s submissions with respect to the summary of facts
[26] Mr Hamilton commenced his oral submissions by stating this was the silliest 31 seconds of his life and he regretted his actions. He said he had never had the opportunity to explain himself to the District Court and he had already paid the fine and costs. He believed he had paid the sum of $630 but the correct amount would appear to be $580. Mr Hamilton was going to look into whether he had over-paid the amount due.
[27] Mr Hamilton stated that Mr Rennell, the chief executive of HRNZ, and Mr Moncur, Deputy Chief Executive of NZTR, had come to Omakau in early September in order to deal with issues relating to the Central Otago Equestrian Club. He was confident that matters would improve as the constitution of the Equestrian Club was going to be updated and there would be personnel changes with respect to the Committee. He believed that the trespass notice against him would be lifted. However, at the time of the hearing the trespass notice that prevented him from entering the Omakau racecourse was still in force.
[28] Mr Hamilton said the trouble between him and the Equestrian Club had first started after he had “fixed” the track to ensure it was safe for the New Year’s meeting. He produced a letter from Mr Moseley, a very experienced South Island jockey, which expressed his gratitude at the improvements Mr Hamilton had organised to be undertaken.
[29] Mr Hamilton said a trespass notice had first been imposed on him on 16 April (we note the informant has said 16 May, but the exact date is not important — it is evident the notice had been in force for some time prior to the respondent’s phone call, which is the subject of this charge) but it had not been in force the whole time as the Equestrian Club kept changing its mind as to whether he was banned from the racecourse.
[30] The respondent’s main complaint, and this appeared to be the catalyst to the telephone call in question, was the fact that a meeting of the Equestrian Club’s committee in mid August had had before it a letter from his lawyer threatening legal action, whereas in fact Mr Hamilton’s last letter to the Club had been an apology. He believed the Secretary had misrepresented the order in which the Club had received the letters, and that this was why the Club’s Committee had decided not to lift the ban.
[31] Mr Hamilton explained the Secretary should have read the dates of the letters out to the Committee and this was why he was angry with Mr Armstrong, who was the Secretary of the Equestrian Club. He had had too much to drink on the night in question and was frustrated because his livelihood was affected, as well as that of his staff, who like him, were struggling to earn a living. He said he had no licence, no job, and saw no progress being made with the issue.
[32] Mr Hamilton said it was a stupid act and he had apologised to Mr Armstrong the next day. He said while there was animosity between him and Mr Armstrong, Mr Armstrong’s brother was a good friend of his.
[33] Mr Hamilton explained that the Blatch’s, whose stable is in Tapanui, were training his horses as a temporary measure. While he had lost one employee, he had two others who would help with his horses once they were back in Omakau. But the first step was for the trespass notice to be lifted.
[34] Mr Hamilton called Mr Jon Fergus who spoke of the disharmony that had existed between the galloping and trotting Clubs and the Equestrian Committee over the years. He described the situation as dysfunctional. He thought this was from the early 1970s although his personal involvement was in the years 2000 to 2009. He believed this was mainly down to a belief that trotting was not paying its fair share.
[35] Mr Fergus stated he believed the current issue was due to the fact that the respondent had not consulted Mr Sinnamon, who was responsible for health and safety matters, before he attended to the fencing and track issues earlier this year. He accepted that Mr Hamilton’s response to Mr Sinnamon, when Mr Sinnamon voiced his concerns, may have inflamed the situation. He said the respondent’s caustic wit offended some people.
[36] Mr Fergus stated that he understood the delegates to the Equestrian Committee from the galloping Club had been told to vote in favour of the respondent but some had viewed the issue of whether the trespass should be lifted as a conscience vote and the vote had gone against Mr Hamilton.
[37] Mr Fergus emphasised the cloud of uncertainty that had enveloped Mr Hamilton over the six weeks leading up to the telephone call in question. It had not helped the respondent’s state of mind and his frustration had bubbled over.
[38] Mr Fergus concluded by stating he believed the matters related to the fencing gear and the repairs to the track had been blown completely out of proportion.
Informant’s penalty submissions
[39] Mr Allison stated that Mr Hamilton had been involved in ongoing obstructive and belligerent negative behaviours, which had continued to cause major issues in the Omakau racing community. He was currently on a suspended sentence for previous misconduct and this latest highly offensive tirade was said to be “absolutely inexcusable given these ongoing issues”.
[40] Mr Allison emphasised that r 340 covers the conduct of licensed persons, owners and racing officials in relation to any matter relating to the conduct of races or racing and was in place to ensure that these persons conduct themselves in a professional and orderly manner. These expectations as to the behaviour of industry participants were essential to the upholding of the integrity of the racing industry.
[41] The informant identified the sentencing principles in this case to be:
Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.
In a racing context, it is extremely important that a penalty has the effect of deterring others from committing similar offences.
A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.
The need to rehabilitate the offender should be taken into account.
[42] Previous cases were identified as being relevant:
RIU v Hamilton, 11 July 2016 — Mr Hamilton rung the same complainant and used abusive and offensive language. There was also a second charge of writing offensive language on a racecourse sign. Mr Hamilton was fined $500 on the first charge and had a $500 fine suspended on the second charge.
RIU v Hamilton, 3 March 2015 — Mr Hamilton rang NZTR and abused an employee from the Handicapping Department. The breach was admitted. Mr Hamilton was fined $350.
RIU v Vile, 25 June 2014 — Mr Vile abused an employee from the NZTR Handicapping Department during a telephone conversation. The breach was admitted. Mr Vile was fined $350.
[43] The RIU identified as aggravating features:
Mr Hamilton had a previous breach of r 801(1)(s)(ii), which was laid as a serious racing offence in December 2014, and Mr Hamilton received a $350 fine for language he used to a NZTR official.
He also had two previous breaches of r 340 (misconduct), with the decisions dated as recently as 11 July 2016, where Mr Hamilton was fined $500 for an abusive and offensive phone call. The second misconduct charge was due to Mr Hamilton writing offensive language on a racecourse sign and Mr Hamilton received a suspended $500 fine. The suspended fine expired on 31 December 2017.
Mr Hamilton has had a total of three previous misconduct or similar charges within an 18-month period. This current breach would be the fourth breach of the misconduct rule or similar charges in a 20-month period.
Despite a suspended sentence being imposed in July 2016 as an incentive for Mr Hamilton to change his behaviour, he had failed to conduct himself in an orderly fashion. Within three months of the decision Mr Hamilton had offended again.
The telephone call in question was a personal attack on a member of the Equestrian Committee who was endeavouring to undertake his voluntary duties. The content of the call was highly offensive with the comments being of a personal nature causing distress and discomfort to the victim and the person referred to in the call.
The direction of the abuse at a person close to the complainant was a particularly aggravating feature, along with the comments actually made. Mr Armstrong and this person were upset and had found the comments to be highly offensive and inappropriate. They had made an official complaint with the Police due to the seriousness of the matter. The Police considered the phone call to be offensive and had charged Mr Hamilton, who had been convicted in the Alexandra District Court on 20 September 2016.
[44] The informant identified the following mitigating circumstances:
When spoken to by the RIU Investigators Mr Hamilton was co-operative and openly admitted his actions.
Mr Hamilton had admitted the breaches of the Rules at the first available opportunity. He had acknowledged he had over-stepped the mark with the comments he made.
Mr Hamilton, upon realising the serious mistake he had made with the call and text, had left an apology message on Mr Armstrong’s home phone. He had also sent a text to Mr Armstrong apologising for his behaviour.
Mr Hamilton had also contacted RIU Investigators prior to his being approached by them and had openly admitted his actions, describing his actions as the silliest thing he had ever done.
[45] The informant sought a penalty that the respondent be suspended from obtaining a trainer’s licence for three months. Mr Allison submitted the appropriate commencement date was the day this penalty decision was delivered.
[46] The informant also submitted that it was appropriate that the $500 fine, which was suspended until 31 December 2017 in relation to Information A6632, be activated as per the decision, delivered by the Judicial Committee on 11 July 2016. The purpose of that penalty was to support the Central Otago Equestrian Club’s endeavours to ensure all their participants act within their respective code’s rules.
[47] Mr Allison added that the local Omakau police officer was “well aware of the current environment” and he was continuing to monitor the situation.
Respondent’s penalty submissions
[48] Mr Hamilton accepted that it was appropriate that the fine imposed on 11 July last be “activated” He expressed concern about the impact of a suspension on his ability to earn an income and upon his staff. He raised the issue of his applying for a Stablehand’s licence, and we explained to him that that was not an issue for this Committee.
[49] Mr Hamilton said he had ten horses but only three were racing at present and they were turned out for a month. He had lost a number of owners as a consequence of his dispute with the Equestrian Club. He had also lost his leading hand, who had moved to another stable.
[50] Mr Hamilton said one possibility was that the Blatchs might set up a satellite stable at Omakau. But that was merely in the planning stage. If they did, he believed they would employ his staff who were currently without jobs or who had to travel to Tapanui to work for the Blatchs and to help out with his horses that were stabled there.
[51] Mr Hamilton stated he had effectively been suspended since 1 August as he had not applied for a trainer’s licence as he was not able to set foot on the Omakau racecourse, which meant that he had been unable to train. He had considered training from his son’s property and this was still a possibility but this had not eventuated by the time of the hearing.
Decision as to penalty
[52] We first make reference to Mr Hamilton’s personal history. He is 67 years old and resides in the small Central Otago town of Omakau. He has been licensed with NZTR since 2003. Prior to this time he had been licensed in the Harness Racing industry since 1972.
[53] Mr Hamilton is a recidivist. This is his fourth breach of the Rules of Racing relating to misconduct in a short period of time. Three of the breaches relate to his ongoing dispute with the Central Otago Equestrian Club, which was formed to administer the running of the Omakau Racecourse.
[54] Previous penalties by way of fines have been imposed with the intent to emphasise to the respondent the error of his ways and to afford him an opportunity to rehabilitate himself.
[55] Personal deterrence has not been achieved. It is evident that a penalty of a different nature is necessary to bring home to Mr Hamilton the fact that his behaviour is unacceptable. On this occasion, his behaviour was also criminal in nature. That, of course, is a matter for the criminal justice system and we note the financial impost of $580. However, the respondent also has to be held to account for his breach of the Rules of Racing. His actions have fallen far below those standards that are acceptable for a person, who is governed by these Rules.
[56] The brief temporal nature of the offending words is relevant but unfortunately Mr Hamilton chose to follow these words up with texts that could at best be described as concerning to Mr Armstrong and it would not be an exaggeration to say they were threatening in nature.
[57] The RIU seeks the activation of the $500 fine that was imposed and then suspended by the Judicial Committee on 11 July last with respect to one of two breaches of r 340 that the respondent admitted on that occasion. The Rules are silent as to this. The suspension was ordered with the consent of both parties and on the basis of an undertaking by Mr Hamilton that he would not make telephone contact with members of the Central Otago Equestrian Club.
[58] The Judicial Committee’s decision of 11 July states at [46]:
With the consent of both parties, the fine in respect of information No. A6632 is suspended for a period of 18 months. This fine is to be paid in full if the respondent is charged with any breach of the Rules of Thoroughbred Racing relating to misconduct before 31 December 2017, which is subsequently found to be proved.
[59] One of the undertakings Mr Hamilton gave was:
(iv) He will not make phone contact with members of the Central Otago Equestrian Club in relation to racing matters, but will make contact with the committee of that Club in writing.
[60] Mr Hamilton has clearly not honoured this undertaking. He freely accepts this, and has told this Committee that he will pay the $500 fine that was suspended. We believe an appropriate way to facilitate this is for this Committee to incorporate this sum as part of the penalty that we impose for the breach before us.
[61] The RIU also seek that Mr Hamilton be suspended from obtaining a trainer’s licence for three months.
[62] Mr Hamilton has emphasised his financial plight, which is due to the effect of the trespass notice. He detailed the impact the fact that he is not currently licensed to train has had on his staff. He has asked that there be no suspension or that it only be of short duration.
[63] A significant mitigating feature is the fact that Mr Hamilton recognised the next day that his actions were inappropriate and he apologised to Mr Armstrong. When questioned by this Committee, he acknowledged he had not apologised directly to the person who was the subject of his comments. He agreed with us that such an apology was appropriate and he gave an undertaking that he would rectify this oversight. Subsequent to the hearing we received a copy of a letter that we understand Mr Hamilton has sent to the person who was the subject of the abuse in this matter.
[64] We thus factor into our decision as to penalty the respondent’s admission of the breach and his remorse, which was not only evident before us but has also been supported by his taking the appropriate steps to apologise to the affected persons. We also have regard to the fact that prior to the first of the recent misconduct charges Mr Hamilton was of good character and has had a lifetime in the racing industry. It is thus fair to say these breaches are out of character. However, Mr Hamilton has to learn to deal with his issues by a means other than personal abuse.
[65] Mr Hamilton is correct when he says it was 31 seconds of madness. However, the nature of the comments and the context in which they were made (an ongoing dispute in respect of which he had been clearly warned to modify his behaviour) are significant aggravating features.
[66] We believe the three-month suspension sought by the RIU is an appropriate penalty in this case. Unless the respondent is able to satisfy the RIU he has appropriate training facilities, the effect of the trespass notice, which is still in effect at the time of this decision, is to deny him the ability to train. This of course, as we have previously observed, is the catalyst to this charge and the previous two charges that were dealt with on 11 July. A suspension will permit Mr Hamilton to go onto racetracks other than the Omakau racecourse.
[67] Mr Hamilton is suspended from obtaining a Trainer’s Licence as provided in the Rules of Racing for a period of three months from the date of this decision (18 October 2016).
[68] A suspension alone, however, is insufficient to mark the gravity of this breach. We believe a fine of $750 is appropriate. Of this amount, $500, as previously noted, is in order to give effect to the undertaking Mr Hamilton gave to the Judicial Committee on 11 July last and which was incorporated into the Committee’s decision of that date. The further $250 is principally in the interests of personal deterrence, but the need simply to denounce Mr Hamilton’s repeated misconduct also weighs heavily with us.
[69] Mr Hamilton is fined the sum of $750.
Costs
[70] The RIU have not sought costs.
[71] Mr Hamilton did not specifically address the issue in his oral submissions but he has emphasised the impact the dispute with the Equestrian Club has had on his financial position.
[72] A contribution by Mr Hamilton to JCA costs in this matter is fair and reasonable. We order costs to the JCA in the sum of $250.
Dated at Dunedin this 18th day of October 2016.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 18/10/2016
Publish Date: 18/10/2016
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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decisiondate: 18/10/2016
hearing_title: Non Raceday Inquiry RIU v M Hamilton - Reserved Decision dated 18 October 2016 - Chair, Prof G Hall
charge:
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appealdecision: NO LINKED APPEAL DECISION
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reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MURRAY HAMILTON, Owner
Respondent
INFORMATION NO. A6633
COMMITTEE: Prof G Hall (Chairman)
Mr P Knowles (Committee Member)
DATE OF ORAL HEARING: 6 October 2016
DATE OF WRITTEN DECISION: 18 October 2016
RESERVED DECISION OF JUDICIAL COMMITTEE
[1] Mr C Allison, Racecourse Investigator, on behalf of his employer, the RIU, has charged Mr M Hamilton with a breach of r 340 of the New Zealand Thoroughbred Rules of Racing.
[2] The charge (information A6633) is that on 27 August last he rang Mr Neville Armstrong, the Secretary of the Central Otago Equestrian Club, and used abusive and offensive language.
[3] Mr Hamilton is an owner pursuant to the Rules and he indicated on the signed information and at the commencement of the hearing, that he admitted the charge. We thus find the breach proved.
[4] Rule 340 of the Rules of Racing states:
A Licensed Person, Owner, lessee, Racing Manager, Official or any other person bound by these Rules must not misconduct himself in any matter relating to the conduct of Races or racing.
[5] The penalty provisions which apply in this case are found in r 803, which states
(1) A person who commits, or is deemed to have committed a breach of these Rules for which a penalty is not provided elsewhere in these Rules shall be liable to:
(a) be disqualified for a period not exceeding 12 months; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months; and or
(c) a fine not exceeding $20,000.
[6] Mr Allison produced written permission to file an information from the General Manager of the RIU, Mr M Godber, in accordance with r 903(2)(d). The letter was dated 6 September 2016.
[7] Because of the sexual nature of the comments made by the respondent, the RIU has informed this Committee that the complainant in this matter wishes the content of Mr Hamilton’s remarks to be suppressed. After considering this submission, we have determined that the content of the call and the name of the person to whom the remarks were directed should be suppressed. Mr Hamilton has acknowledged at the hearing that there was no factual basis whatsoever to his drunken outburst and, in these circumstances, we see no point in publishing any details, which could lead to further embarrassment.
Facts
[8] Mr Hamilton has been licensed with New Zealand Thoroughbred Racing (NZTR) since 2003 as a trainer, however his licence has not been renewed by NZTR in the current racing season.
[9] Prior to being issued a licence with NZTR Mr Hamilton had been licensed in the Harness Racing industry since 1972.
[10] Mr Hamilton has been involved in numerous incidents over past months, which have led to the Central Otago Equestrian Club trespassing him from the Omakau Racecourse because of alleged breaches of the training agreement with the Equestrian Club.
[11] Mr Hamilton does not agree with the actions taken by the Equestrian Club and he has disputed their authority to issue the notice.
[12] As a result of the trespass notice being issued to Mr Hamilton, NZTR have declined to renew his Class A Trainers Licence for the 2016-2017 season due to him not having a suitable training establishment.
[13] The complainant in this matter is the Secretary of the Central Otago Equestrian Club, which was formed to administer the running of the Omakau Racecourse and is made up of members from the Central Otago Racing Club and the Central Otago Trotting Club.
[14] On Saturday evening 27 August 2016 Mr Hamilton was at his home drinking wine. At 9.00 pm he rung Mr Neville Armstrong, who is the Secretary of the Equestrian Club and also the Vice-President of the Trotting Club. At the time Mr Armstrong was out socially with his wife and family friends celebrating an associate’s birthday. Mr Armstrong had Mr Hamilton’s cell phone number on his contact list and, when he answered the phone, he left the group he was sitting with as he recognised Mr Hamilton’s number and did not want the other members of the group to hear the conversation.
[15] Upon Mr Armstrong answering the phone, the call commenced with some small talk about not being in contact for a while. Mr Armstrong then asked Mr Hamilton what he could do for him. Mr Hamilton then made disparaging remarks about a person close to Mr Armstrong. Mr Armstrong was taken aback by this and said, “Excuse me” to Mr Hamilton. Mr Hamilton then repeated the insulting remarks. We note this is the only aspect of the summary of facts that Mr Hamilton disagrees with, but as Mr Armstrong took contemporaneous notes and the respondent was affected by liquor, we proceed on the basis of the summary before us. However, little hangs on whether the comment was made once or twice. Once was sufficient to have the unsettling impact upon the complainant that the respondent desired.
[16] Due to its content, Mr Armstrong terminated the call, which lasted for 31 seconds. Mr Armstrong returned to his group of friends who recognised that Mr Armstrong had been flustered and angered by the call.
[17] Mr and Mrs Armstrong left the function at around 10.15 pm and he received a further four text messages in quick succession from Mr Hamilton.
[18] The first text message stated, “Sorry to f**k your night up but it is only going to get worse for ya you might have brought it on your self all the years trying to keep things together you c***s have f****d it up be no EQC will not function from next week sorry nev now will help Pirate”
[19] The following 3 texts stated: “Await your reply.” “Can’t wait to the meeting to tell people all about it.” “I will get us nev sorry.”
[20] Mr Armstrong wrote down the details of the call at the first opportunity.
[21] At 3.46 pm on Monday 29 August 2016 Mr Hamilton texted an apology to Mr Armstrong stating, “I apologise for Saturday night suicidal back to wall.” Shortly afterwards on the same day Mr Hamilton left a message on Mr Armstrong’s cell phone again apologising for his phone call on Saturday night.
[22] At 4.51 pm Mr Hamilton telephoned RIU staff and admitted making the phone call. Mr Hamilton stated it was the silliest thing he had ever done; he was not thinking straight and had been affected by alcohol.
[23] Due to the content of the phone call, Mr Armstrong and the person whose alleged behaviour was the subject of the call were highly offended and upset. This resulted in their making an official complaint with the Omakau Police.
[24] Mr Hamilton subsequently appeared in the Alexandra District Court on 20 September 2016. Mr Hamilton admitted a charge of using a telephone in an offensive manner and was convicted and fined $450 plus $130 Court costs.
[25] When questioned by RIU Investigators, Mr Hamilton was co-operative and freely admitted his actions although he believed (as previously noted) that he only made the offensive comments on one occasion. He stated he was frustrated with some of the decisions made by the Equestrian Club of which Mr Armstrong was the Secretary, however he acknowledged his phone call was totally inappropriate and he was disappointed with his actions.
Respondent’s submissions with respect to the summary of facts
[26] Mr Hamilton commenced his oral submissions by stating this was the silliest 31 seconds of his life and he regretted his actions. He said he had never had the opportunity to explain himself to the District Court and he had already paid the fine and costs. He believed he had paid the sum of $630 but the correct amount would appear to be $580. Mr Hamilton was going to look into whether he had over-paid the amount due.
[27] Mr Hamilton stated that Mr Rennell, the chief executive of HRNZ, and Mr Moncur, Deputy Chief Executive of NZTR, had come to Omakau in early September in order to deal with issues relating to the Central Otago Equestrian Club. He was confident that matters would improve as the constitution of the Equestrian Club was going to be updated and there would be personnel changes with respect to the Committee. He believed that the trespass notice against him would be lifted. However, at the time of the hearing the trespass notice that prevented him from entering the Omakau racecourse was still in force.
[28] Mr Hamilton said the trouble between him and the Equestrian Club had first started after he had “fixed” the track to ensure it was safe for the New Year’s meeting. He produced a letter from Mr Moseley, a very experienced South Island jockey, which expressed his gratitude at the improvements Mr Hamilton had organised to be undertaken.
[29] Mr Hamilton said a trespass notice had first been imposed on him on 16 April (we note the informant has said 16 May, but the exact date is not important — it is evident the notice had been in force for some time prior to the respondent’s phone call, which is the subject of this charge) but it had not been in force the whole time as the Equestrian Club kept changing its mind as to whether he was banned from the racecourse.
[30] The respondent’s main complaint, and this appeared to be the catalyst to the telephone call in question, was the fact that a meeting of the Equestrian Club’s committee in mid August had had before it a letter from his lawyer threatening legal action, whereas in fact Mr Hamilton’s last letter to the Club had been an apology. He believed the Secretary had misrepresented the order in which the Club had received the letters, and that this was why the Club’s Committee had decided not to lift the ban.
[31] Mr Hamilton explained the Secretary should have read the dates of the letters out to the Committee and this was why he was angry with Mr Armstrong, who was the Secretary of the Equestrian Club. He had had too much to drink on the night in question and was frustrated because his livelihood was affected, as well as that of his staff, who like him, were struggling to earn a living. He said he had no licence, no job, and saw no progress being made with the issue.
[32] Mr Hamilton said it was a stupid act and he had apologised to Mr Armstrong the next day. He said while there was animosity between him and Mr Armstrong, Mr Armstrong’s brother was a good friend of his.
[33] Mr Hamilton explained that the Blatch’s, whose stable is in Tapanui, were training his horses as a temporary measure. While he had lost one employee, he had two others who would help with his horses once they were back in Omakau. But the first step was for the trespass notice to be lifted.
[34] Mr Hamilton called Mr Jon Fergus who spoke of the disharmony that had existed between the galloping and trotting Clubs and the Equestrian Committee over the years. He described the situation as dysfunctional. He thought this was from the early 1970s although his personal involvement was in the years 2000 to 2009. He believed this was mainly down to a belief that trotting was not paying its fair share.
[35] Mr Fergus stated he believed the current issue was due to the fact that the respondent had not consulted Mr Sinnamon, who was responsible for health and safety matters, before he attended to the fencing and track issues earlier this year. He accepted that Mr Hamilton’s response to Mr Sinnamon, when Mr Sinnamon voiced his concerns, may have inflamed the situation. He said the respondent’s caustic wit offended some people.
[36] Mr Fergus stated that he understood the delegates to the Equestrian Committee from the galloping Club had been told to vote in favour of the respondent but some had viewed the issue of whether the trespass should be lifted as a conscience vote and the vote had gone against Mr Hamilton.
[37] Mr Fergus emphasised the cloud of uncertainty that had enveloped Mr Hamilton over the six weeks leading up to the telephone call in question. It had not helped the respondent’s state of mind and his frustration had bubbled over.
[38] Mr Fergus concluded by stating he believed the matters related to the fencing gear and the repairs to the track had been blown completely out of proportion.
Informant’s penalty submissions
[39] Mr Allison stated that Mr Hamilton had been involved in ongoing obstructive and belligerent negative behaviours, which had continued to cause major issues in the Omakau racing community. He was currently on a suspended sentence for previous misconduct and this latest highly offensive tirade was said to be “absolutely inexcusable given these ongoing issues”.
[40] Mr Allison emphasised that r 340 covers the conduct of licensed persons, owners and racing officials in relation to any matter relating to the conduct of races or racing and was in place to ensure that these persons conduct themselves in a professional and orderly manner. These expectations as to the behaviour of industry participants were essential to the upholding of the integrity of the racing industry.
[41] The informant identified the sentencing principles in this case to be:
Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.
In a racing context, it is extremely important that a penalty has the effect of deterring others from committing similar offences.
A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.
The need to rehabilitate the offender should be taken into account.
[42] Previous cases were identified as being relevant:
RIU v Hamilton, 11 July 2016 — Mr Hamilton rung the same complainant and used abusive and offensive language. There was also a second charge of writing offensive language on a racecourse sign. Mr Hamilton was fined $500 on the first charge and had a $500 fine suspended on the second charge.
RIU v Hamilton, 3 March 2015 — Mr Hamilton rang NZTR and abused an employee from the Handicapping Department. The breach was admitted. Mr Hamilton was fined $350.
RIU v Vile, 25 June 2014 — Mr Vile abused an employee from the NZTR Handicapping Department during a telephone conversation. The breach was admitted. Mr Vile was fined $350.
[43] The RIU identified as aggravating features:
Mr Hamilton had a previous breach of r 801(1)(s)(ii), which was laid as a serious racing offence in December 2014, and Mr Hamilton received a $350 fine for language he used to a NZTR official.
He also had two previous breaches of r 340 (misconduct), with the decisions dated as recently as 11 July 2016, where Mr Hamilton was fined $500 for an abusive and offensive phone call. The second misconduct charge was due to Mr Hamilton writing offensive language on a racecourse sign and Mr Hamilton received a suspended $500 fine. The suspended fine expired on 31 December 2017.
Mr Hamilton has had a total of three previous misconduct or similar charges within an 18-month period. This current breach would be the fourth breach of the misconduct rule or similar charges in a 20-month period.
Despite a suspended sentence being imposed in July 2016 as an incentive for Mr Hamilton to change his behaviour, he had failed to conduct himself in an orderly fashion. Within three months of the decision Mr Hamilton had offended again.
The telephone call in question was a personal attack on a member of the Equestrian Committee who was endeavouring to undertake his voluntary duties. The content of the call was highly offensive with the comments being of a personal nature causing distress and discomfort to the victim and the person referred to in the call.
The direction of the abuse at a person close to the complainant was a particularly aggravating feature, along with the comments actually made. Mr Armstrong and this person were upset and had found the comments to be highly offensive and inappropriate. They had made an official complaint with the Police due to the seriousness of the matter. The Police considered the phone call to be offensive and had charged Mr Hamilton, who had been convicted in the Alexandra District Court on 20 September 2016.
[44] The informant identified the following mitigating circumstances:
When spoken to by the RIU Investigators Mr Hamilton was co-operative and openly admitted his actions.
Mr Hamilton had admitted the breaches of the Rules at the first available opportunity. He had acknowledged he had over-stepped the mark with the comments he made.
Mr Hamilton, upon realising the serious mistake he had made with the call and text, had left an apology message on Mr Armstrong’s home phone. He had also sent a text to Mr Armstrong apologising for his behaviour.
Mr Hamilton had also contacted RIU Investigators prior to his being approached by them and had openly admitted his actions, describing his actions as the silliest thing he had ever done.
[45] The informant sought a penalty that the respondent be suspended from obtaining a trainer’s licence for three months. Mr Allison submitted the appropriate commencement date was the day this penalty decision was delivered.
[46] The informant also submitted that it was appropriate that the $500 fine, which was suspended until 31 December 2017 in relation to Information A6632, be activated as per the decision, delivered by the Judicial Committee on 11 July 2016. The purpose of that penalty was to support the Central Otago Equestrian Club’s endeavours to ensure all their participants act within their respective code’s rules.
[47] Mr Allison added that the local Omakau police officer was “well aware of the current environment” and he was continuing to monitor the situation.
Respondent’s penalty submissions
[48] Mr Hamilton accepted that it was appropriate that the fine imposed on 11 July last be “activated” He expressed concern about the impact of a suspension on his ability to earn an income and upon his staff. He raised the issue of his applying for a Stablehand’s licence, and we explained to him that that was not an issue for this Committee.
[49] Mr Hamilton said he had ten horses but only three were racing at present and they were turned out for a month. He had lost a number of owners as a consequence of his dispute with the Equestrian Club. He had also lost his leading hand, who had moved to another stable.
[50] Mr Hamilton said one possibility was that the Blatchs might set up a satellite stable at Omakau. But that was merely in the planning stage. If they did, he believed they would employ his staff who were currently without jobs or who had to travel to Tapanui to work for the Blatchs and to help out with his horses that were stabled there.
[51] Mr Hamilton stated he had effectively been suspended since 1 August as he had not applied for a trainer’s licence as he was not able to set foot on the Omakau racecourse, which meant that he had been unable to train. He had considered training from his son’s property and this was still a possibility but this had not eventuated by the time of the hearing.
Decision as to penalty
[52] We first make reference to Mr Hamilton’s personal history. He is 67 years old and resides in the small Central Otago town of Omakau. He has been licensed with NZTR since 2003. Prior to this time he had been licensed in the Harness Racing industry since 1972.
[53] Mr Hamilton is a recidivist. This is his fourth breach of the Rules of Racing relating to misconduct in a short period of time. Three of the breaches relate to his ongoing dispute with the Central Otago Equestrian Club, which was formed to administer the running of the Omakau Racecourse.
[54] Previous penalties by way of fines have been imposed with the intent to emphasise to the respondent the error of his ways and to afford him an opportunity to rehabilitate himself.
[55] Personal deterrence has not been achieved. It is evident that a penalty of a different nature is necessary to bring home to Mr Hamilton the fact that his behaviour is unacceptable. On this occasion, his behaviour was also criminal in nature. That, of course, is a matter for the criminal justice system and we note the financial impost of $580. However, the respondent also has to be held to account for his breach of the Rules of Racing. His actions have fallen far below those standards that are acceptable for a person, who is governed by these Rules.
[56] The brief temporal nature of the offending words is relevant but unfortunately Mr Hamilton chose to follow these words up with texts that could at best be described as concerning to Mr Armstrong and it would not be an exaggeration to say they were threatening in nature.
[57] The RIU seeks the activation of the $500 fine that was imposed and then suspended by the Judicial Committee on 11 July last with respect to one of two breaches of r 340 that the respondent admitted on that occasion. The Rules are silent as to this. The suspension was ordered with the consent of both parties and on the basis of an undertaking by Mr Hamilton that he would not make telephone contact with members of the Central Otago Equestrian Club.
[58] The Judicial Committee’s decision of 11 July states at [46]:
With the consent of both parties, the fine in respect of information No. A6632 is suspended for a period of 18 months. This fine is to be paid in full if the respondent is charged with any breach of the Rules of Thoroughbred Racing relating to misconduct before 31 December 2017, which is subsequently found to be proved.
[59] One of the undertakings Mr Hamilton gave was:
(iv) He will not make phone contact with members of the Central Otago Equestrian Club in relation to racing matters, but will make contact with the committee of that Club in writing.
[60] Mr Hamilton has clearly not honoured this undertaking. He freely accepts this, and has told this Committee that he will pay the $500 fine that was suspended. We believe an appropriate way to facilitate this is for this Committee to incorporate this sum as part of the penalty that we impose for the breach before us.
[61] The RIU also seek that Mr Hamilton be suspended from obtaining a trainer’s licence for three months.
[62] Mr Hamilton has emphasised his financial plight, which is due to the effect of the trespass notice. He detailed the impact the fact that he is not currently licensed to train has had on his staff. He has asked that there be no suspension or that it only be of short duration.
[63] A significant mitigating feature is the fact that Mr Hamilton recognised the next day that his actions were inappropriate and he apologised to Mr Armstrong. When questioned by this Committee, he acknowledged he had not apologised directly to the person who was the subject of his comments. He agreed with us that such an apology was appropriate and he gave an undertaking that he would rectify this oversight. Subsequent to the hearing we received a copy of a letter that we understand Mr Hamilton has sent to the person who was the subject of the abuse in this matter.
[64] We thus factor into our decision as to penalty the respondent’s admission of the breach and his remorse, which was not only evident before us but has also been supported by his taking the appropriate steps to apologise to the affected persons. We also have regard to the fact that prior to the first of the recent misconduct charges Mr Hamilton was of good character and has had a lifetime in the racing industry. It is thus fair to say these breaches are out of character. However, Mr Hamilton has to learn to deal with his issues by a means other than personal abuse.
[65] Mr Hamilton is correct when he says it was 31 seconds of madness. However, the nature of the comments and the context in which they were made (an ongoing dispute in respect of which he had been clearly warned to modify his behaviour) are significant aggravating features.
[66] We believe the three-month suspension sought by the RIU is an appropriate penalty in this case. Unless the respondent is able to satisfy the RIU he has appropriate training facilities, the effect of the trespass notice, which is still in effect at the time of this decision, is to deny him the ability to train. This of course, as we have previously observed, is the catalyst to this charge and the previous two charges that were dealt with on 11 July. A suspension will permit Mr Hamilton to go onto racetracks other than the Omakau racecourse.
[67] Mr Hamilton is suspended from obtaining a Trainer’s Licence as provided in the Rules of Racing for a period of three months from the date of this decision (18 October 2016).
[68] A suspension alone, however, is insufficient to mark the gravity of this breach. We believe a fine of $750 is appropriate. Of this amount, $500, as previously noted, is in order to give effect to the undertaking Mr Hamilton gave to the Judicial Committee on 11 July last and which was incorporated into the Committee’s decision of that date. The further $250 is principally in the interests of personal deterrence, but the need simply to denounce Mr Hamilton’s repeated misconduct also weighs heavily with us.
[69] Mr Hamilton is fined the sum of $750.
Costs
[70] The RIU have not sought costs.
[71] Mr Hamilton did not specifically address the issue in his oral submissions but he has emphasised the impact the dispute with the Equestrian Club has had on his financial position.
[72] A contribution by Mr Hamilton to JCA costs in this matter is fair and reasonable. We order costs to the JCA in the sum of $250.
Dated at Dunedin this 18th day of October 2016.
Geoff Hall, Chairman
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