Non Raceday Inquiry RIU v M J White – Written Decision dated 6 March 2017 – Chair, Prof G Hall
ID: JCA14661
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 MICHAEL JAMES WHITE
Licensed Class B Trainer
Respondent
INFORMATION NOS. A6641, 6642
COMMITTEE: Prof G Hall (Chairman)
Mr V Munro (Member)
DATE OF WRITTEN DECISION: 6 March 2017
RESERVED DECISION OF JUDICIAL COMMITTEE
[1] Mr C Allison, Racecourse Investigator, on behalf of his employer, the RIU, has charged Mr M White with two breaches of r 340 of the New Zealand Thoroughbred Rules of Racing.
[2] The first charge (information A6641) is that on 5 December 2016, at Omakau, he used abusive and offensive language to Mr Murray Hamilton.
[3] The second charge (information A6642) is that on 10 January 2017, at Omakau, he used abusive and offensive language to Mr Murray Hamilton.
[4] Mr White is a licensed Class B trainer pursuant to the Rules and he indicated on the signed information and at a teleconference held on 2 March last that he admitted the charges. We thus find the breaches proved.
[5] 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.
[6] 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.
[7] Mr Allison produced written permission, in accordance with r 903(2)(d), from the General Manager of the RIU, Mr M Godber, to file an information charging the respondent with two breaches of the Rules. The letter was dated 13 February 2017.
Summary of facts
[8] Mr White told this Committee that he accepted the summary of facts that had been prepared in advance of the teleconference by the informant. This summary states:
[9] Mr White is 48 years old and resides in the Omakau region in Central Otago. Mr White has been licensed with New Zealand Thoroughbred Racing (NZTR) since 2016 as a trainer in partnership with his wife, Mrs Nicola White.
[10] Over previous months there have been several incidents involving licence holders situated at the Omakau Racecourse. This racecourse is situated in a remote area of Central Otago and currently has four licensed trainers, training from the racecourse. Two of the licence holders are licensed with NZTR and the other two licence holders are licensed with Harness Racing New Zealand.
[11] The RIU had already attended the region on two previous occasions due to the behaviour of another licence holder which resulted in informations alleging breaches of the Rules being laid with the JCA.
[12] The RIU had been advised of ongoing issues since the last investigation was completed around October 2016.
Information A6641
[13] At around 9.00am on Monday 5 December 2016 Mr Hamilton drove onto the training track via the crossing in a utility vehicle. As he drove onto the track a track work rider who was working a horse had to take evasive action to avoid the vehicle.
[14] Mr White did not observe the incident but was advised of it by his wife with whom he trains in partnership. Mr White was enraged and went out to confront the other party on the track.
[15] Witnesses advised Racing Investigators that Mr White could be heard from a considerable distance away and he was very aggressive. Mr White yelled at Mr Hamilton. The words he used included “f***ing c**t, f**k off you old c**t” and he stated “you should just die, you shouldn’t even be on the track.”
Information A6642
[16] At about 7.30am on Tuesday 10 January 2017 Mr White was at the racecourse assisting with the training of his racing team.
[17] The horses, which were trained by Mr White and his wife, were stabled in tie-ups that run alongside the main barn.
[18] Inside the main barn is a feed room belonging to another trainer on the course. The feed room contains a grain-crushing machine. The grain crusher was turned on by Mr Hamilton, which agitated Mr White due to his horses being stabled on the other side of the wall.
[19] Mr White walked into the feed room and turned the grain crusher off. Mr White has then said to Mr Hamilton, “Why don’t you f**k off you old c**t, no one wants you here you horrible old c**t.”
[20] Mr White then encouraged Mr Hamilton to hit him saying, “Go on hit me, hit me, hit me.” Mr Hamilton did not respond to Mr White’s comments.
[21] Present nearby during the incidents was a four-year-old child who was being looked after by Mr Hamilton while the child’s mother was riding track work.
[22] When spoken to regarding the incidents Mr White stated he was frustrated at the actions of Mr Hamilton, who was a suspended trainer, but whom he believed continued to be involved in the day-to day-care of horses.
[23] Mr White acknowledged he used swear words when he confronted Mr Hamilton but could not remember exactly what he had said. He was co-operative with the RIU Investigators when questioned regarding the incidents.
Respondent’s submissions with respect to the summary of facts
[24] Mr White commenced his oral submissions by confirming that he agreed with the summary of facts but wished to emphasise there was a long history to his actions and, with respect to the first incident, it had been a two-way conversation with Mr Hamilton. He did not think he had been yelling but he accepted there would have been a higher volume level than a normal conversation. He was surprised to learn that other people at the track that day had heard his words to Mr Hamilton. When questioned by this Committee, he said there were only 5 or 6 people, at most, on the course at the time and, with the exception of the track work rider, they were not nearby.
[25] The respondent said he was angry because, in driving on to the track, Mr Hamilton had put the track work rider at risk. He said Mr Hamilton had not been aggressive but rather was smug, and had told the respondent to shut up and that he had “only been here for five minutes”.
[26] When questioned by this Committee as to how far away from the track work rider Mr Hamilton had been when he drove on to the course, the respondent said although he had not witnessed it himself, his wife had told him it was only 10 or 20 metres.
[27] Mr White said after learning of the incident, he had walked on to the track and had spoken to Mr Hamilton through the open window of his vehicle. He believed the only person in the near vicinity was the track work rider, who was in her mid-20s.
[28] The second incident arose out of Mr Hamilton turning the grain crusher on when the respondent’s horses were close by, being immediately behind the wall where the crusher was located. He alleged that his was not the first time Mr Hamilton had done this and Mr Hamilton was aware it upset his horses. He was not aware a four-year old child was within hearing distance but accepted that this had been the case.
Informant’s penalty submissions
[29] Mr Allison stated that as a result of the ongoing tension in the Omakau region RIU Investigators had had to conduct enquiries on three separate occasions in relation to behavioural issues.
[30] Rule 340 covers the conduct of licence holders in relation to any matter relating to the conduct of races or racing and is in place to ensure that they conduct themselves in a professional and orderly manner. The expectations and behaviour of the industry participants is essential to uphold the integrity of the racing industry.
[31] The informant identified the relevant 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.
[32] The RIU believed the need to reflect the disapproval of the JCA for this type of behaviour was the relevant principle for the outcome of this hearing.
[33] Previous cases were identified as being relevant:
RIU v Grant 2 September 2014 — Mr Grant was fined $100 after using offensive language to another licence holder following a greyhound race.
RIU v Mitchell 5 March 2013 — Mr Mitchell was fined $200 after using offensive language to another driver during a race.
RIU v White 16 December 2012 — Mr White was fined $250 after using offensive language to another horseman in the drivers’ room after a race.
[34] The RIU identified as aggravating features:
When using the language a four-year-old child was in proximity and heard the language used.
Mr White has previously been President of the Central Otago Racing Club and should know the expectations and requirements in relation to his behaviour.
[35] The informant identified the following mitigating circumstances:
When spoken to by RIU Racing Investigators Mr White was co-operative and openly admitted his actions.
Mr White has admitted the breaches of the Rules at the first available opportunity.
Mr White acknowledged he over-stepped the mark with both breaches.
The language used was as a result of Mr White being frustrated by Mr Hamilton, who was a suspended trainer but Mr White believed he continued to be involved with the training of horses despite the suspension.
During the first incident Mr White’s horse, which was being worked on the track, had a near miss with Mr Hamilton who drove onto the track via the crossing in a utility vehicle.
During the second incident Mr White was frustrated with the actions of Mr Hamilton who continually turned on a noisy grain crushing machine when his horses were stabled on the other side of the wall.
Mr White has no previous breaches of any rules.
[36] The RIU sought a fine of $200 for each breach after taking into account the low level of the breach and the mitigating circumstances.
Respondent’s penalty submissions
[37] Mr White accepted that he had used the words alleged but said he had been provoked by Mr Hamilton’s actions on both occasions and by preceding events. He indicated there had been ongoing friction. He emphasised he was usually mild mannered.
[38] Mr White said he was new to training but had a long history in the industry. He had a small number of horses and only four were currently racing. He said he had been the President of the Central Otago Racing Club for three years and had been on the Equestrian Club Committee.
[39] Mr White said in imposing penalty this Committee should be aware there was two-way abuse and the fines should be less because of this. He believed there should be no penalty at all; just a warning.
Decision as to penalty
[40] The language the respondent has used is unacceptable even if this is in the course of an ongoing dispute and is during an argument that is believed to be able to be heard only by the participants themselves. Mr White was clearly wrong in this regard. There were witnesses to the first altercation and a four-year-old child was in the near vicinity when he again had words with Mr Hamilton.
[41] We accept the immediate background to the first breach was Mr White’s belief that Mr Hamilton had caused a health and safety issue by driving on to the track during track work and, moreover, in so doing he had come perilously close to a horse in a work. The second breach was in the context of perceived danger to the welfare of his horses that were tied up close to the grain crusher, which when turned on was very noisy.
[42] We have regard to the cases cited by the informant and we too are of the view that the interests of accountability, denunciation and deterrence can be met by fines at the lower end. While we have regard to the respondent’s admission of the breach and his unblemished record, we do not accept his submission that a warning is appropriate. There needs to be some penalty to mark the respondent’s actions. The fact that the penalty is light in nature should allay to some extent the concern Mr White has that this matter will appear on his record.
[43] We have regard to the breaches on a totality basis as they have their genesis in the simmering tensions on the Omakau racecourse. The second breach is the more serious, as the words were used in the vicinity of a young child and the respondent goaded Mr Hamilton to hit him. Mr White is fined the sum of $250 on this charge. The earlier breach was in the course of a heated argument in the middle of the track. While the words used were also clearly unacceptable language for a licence holder, Mr White believed he could not be heard by anyone other than Mr Hamilton. We impose a fine of $100. The total sum is thus $350.
Costs
[44] The RIU have not sought costs. Mr White did not specifically address this issue in his oral submissions.
[45] Mr White has co-operated fully with the RIU in their investigation of the matter and in the laying of the charges. He has admitted the breaches at the first opportunity. The matter has been heard on the papers. There is no award in favour of the JCA in these circumstances.
Dated at Dunedin this 6th day of March 2017.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 07/03/2017
Publish Date: 07/03/2017
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
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: 07/03/2017
hearing_title: Non Raceday Inquiry RIU v M J White - Written Decision dated 6 March 2017 - Chair, Prof G Hall
charge:
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appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
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 MICHAEL JAMES WHITE
Licensed Class B Trainer
Respondent
INFORMATION NOS. A6641, 6642
COMMITTEE: Prof G Hall (Chairman)
Mr V Munro (Member)
DATE OF WRITTEN DECISION: 6 March 2017
RESERVED DECISION OF JUDICIAL COMMITTEE
[1] Mr C Allison, Racecourse Investigator, on behalf of his employer, the RIU, has charged Mr M White with two breaches of r 340 of the New Zealand Thoroughbred Rules of Racing.
[2] The first charge (information A6641) is that on 5 December 2016, at Omakau, he used abusive and offensive language to Mr Murray Hamilton.
[3] The second charge (information A6642) is that on 10 January 2017, at Omakau, he used abusive and offensive language to Mr Murray Hamilton.
[4] Mr White is a licensed Class B trainer pursuant to the Rules and he indicated on the signed information and at a teleconference held on 2 March last that he admitted the charges. We thus find the breaches proved.
[5] 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.
[6] 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.
[7] Mr Allison produced written permission, in accordance with r 903(2)(d), from the General Manager of the RIU, Mr M Godber, to file an information charging the respondent with two breaches of the Rules. The letter was dated 13 February 2017.
Summary of facts
[8] Mr White told this Committee that he accepted the summary of facts that had been prepared in advance of the teleconference by the informant. This summary states:
[9] Mr White is 48 years old and resides in the Omakau region in Central Otago. Mr White has been licensed with New Zealand Thoroughbred Racing (NZTR) since 2016 as a trainer in partnership with his wife, Mrs Nicola White.
[10] Over previous months there have been several incidents involving licence holders situated at the Omakau Racecourse. This racecourse is situated in a remote area of Central Otago and currently has four licensed trainers, training from the racecourse. Two of the licence holders are licensed with NZTR and the other two licence holders are licensed with Harness Racing New Zealand.
[11] The RIU had already attended the region on two previous occasions due to the behaviour of another licence holder which resulted in informations alleging breaches of the Rules being laid with the JCA.
[12] The RIU had been advised of ongoing issues since the last investigation was completed around October 2016.
Information A6641
[13] At around 9.00am on Monday 5 December 2016 Mr Hamilton drove onto the training track via the crossing in a utility vehicle. As he drove onto the track a track work rider who was working a horse had to take evasive action to avoid the vehicle.
[14] Mr White did not observe the incident but was advised of it by his wife with whom he trains in partnership. Mr White was enraged and went out to confront the other party on the track.
[15] Witnesses advised Racing Investigators that Mr White could be heard from a considerable distance away and he was very aggressive. Mr White yelled at Mr Hamilton. The words he used included “f***ing c**t, f**k off you old c**t” and he stated “you should just die, you shouldn’t even be on the track.”
Information A6642
[16] At about 7.30am on Tuesday 10 January 2017 Mr White was at the racecourse assisting with the training of his racing team.
[17] The horses, which were trained by Mr White and his wife, were stabled in tie-ups that run alongside the main barn.
[18] Inside the main barn is a feed room belonging to another trainer on the course. The feed room contains a grain-crushing machine. The grain crusher was turned on by Mr Hamilton, which agitated Mr White due to his horses being stabled on the other side of the wall.
[19] Mr White walked into the feed room and turned the grain crusher off. Mr White has then said to Mr Hamilton, “Why don’t you f**k off you old c**t, no one wants you here you horrible old c**t.”
[20] Mr White then encouraged Mr Hamilton to hit him saying, “Go on hit me, hit me, hit me.” Mr Hamilton did not respond to Mr White’s comments.
[21] Present nearby during the incidents was a four-year-old child who was being looked after by Mr Hamilton while the child’s mother was riding track work.
[22] When spoken to regarding the incidents Mr White stated he was frustrated at the actions of Mr Hamilton, who was a suspended trainer, but whom he believed continued to be involved in the day-to day-care of horses.
[23] Mr White acknowledged he used swear words when he confronted Mr Hamilton but could not remember exactly what he had said. He was co-operative with the RIU Investigators when questioned regarding the incidents.
Respondent’s submissions with respect to the summary of facts
[24] Mr White commenced his oral submissions by confirming that he agreed with the summary of facts but wished to emphasise there was a long history to his actions and, with respect to the first incident, it had been a two-way conversation with Mr Hamilton. He did not think he had been yelling but he accepted there would have been a higher volume level than a normal conversation. He was surprised to learn that other people at the track that day had heard his words to Mr Hamilton. When questioned by this Committee, he said there were only 5 or 6 people, at most, on the course at the time and, with the exception of the track work rider, they were not nearby.
[25] The respondent said he was angry because, in driving on to the track, Mr Hamilton had put the track work rider at risk. He said Mr Hamilton had not been aggressive but rather was smug, and had told the respondent to shut up and that he had “only been here for five minutes”.
[26] When questioned by this Committee as to how far away from the track work rider Mr Hamilton had been when he drove on to the course, the respondent said although he had not witnessed it himself, his wife had told him it was only 10 or 20 metres.
[27] Mr White said after learning of the incident, he had walked on to the track and had spoken to Mr Hamilton through the open window of his vehicle. He believed the only person in the near vicinity was the track work rider, who was in her mid-20s.
[28] The second incident arose out of Mr Hamilton turning the grain crusher on when the respondent’s horses were close by, being immediately behind the wall where the crusher was located. He alleged that his was not the first time Mr Hamilton had done this and Mr Hamilton was aware it upset his horses. He was not aware a four-year old child was within hearing distance but accepted that this had been the case.
Informant’s penalty submissions
[29] Mr Allison stated that as a result of the ongoing tension in the Omakau region RIU Investigators had had to conduct enquiries on three separate occasions in relation to behavioural issues.
[30] Rule 340 covers the conduct of licence holders in relation to any matter relating to the conduct of races or racing and is in place to ensure that they conduct themselves in a professional and orderly manner. The expectations and behaviour of the industry participants is essential to uphold the integrity of the racing industry.
[31] The informant identified the relevant 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.
[32] The RIU believed the need to reflect the disapproval of the JCA for this type of behaviour was the relevant principle for the outcome of this hearing.
[33] Previous cases were identified as being relevant:
RIU v Grant 2 September 2014 — Mr Grant was fined $100 after using offensive language to another licence holder following a greyhound race.
RIU v Mitchell 5 March 2013 — Mr Mitchell was fined $200 after using offensive language to another driver during a race.
RIU v White 16 December 2012 — Mr White was fined $250 after using offensive language to another horseman in the drivers’ room after a race.
[34] The RIU identified as aggravating features:
When using the language a four-year-old child was in proximity and heard the language used.
Mr White has previously been President of the Central Otago Racing Club and should know the expectations and requirements in relation to his behaviour.
[35] The informant identified the following mitigating circumstances:
When spoken to by RIU Racing Investigators Mr White was co-operative and openly admitted his actions.
Mr White has admitted the breaches of the Rules at the first available opportunity.
Mr White acknowledged he over-stepped the mark with both breaches.
The language used was as a result of Mr White being frustrated by Mr Hamilton, who was a suspended trainer but Mr White believed he continued to be involved with the training of horses despite the suspension.
During the first incident Mr White’s horse, which was being worked on the track, had a near miss with Mr Hamilton who drove onto the track via the crossing in a utility vehicle.
During the second incident Mr White was frustrated with the actions of Mr Hamilton who continually turned on a noisy grain crushing machine when his horses were stabled on the other side of the wall.
Mr White has no previous breaches of any rules.
[36] The RIU sought a fine of $200 for each breach after taking into account the low level of the breach and the mitigating circumstances.
Respondent’s penalty submissions
[37] Mr White accepted that he had used the words alleged but said he had been provoked by Mr Hamilton’s actions on both occasions and by preceding events. He indicated there had been ongoing friction. He emphasised he was usually mild mannered.
[38] Mr White said he was new to training but had a long history in the industry. He had a small number of horses and only four were currently racing. He said he had been the President of the Central Otago Racing Club for three years and had been on the Equestrian Club Committee.
[39] Mr White said in imposing penalty this Committee should be aware there was two-way abuse and the fines should be less because of this. He believed there should be no penalty at all; just a warning.
Decision as to penalty
[40] The language the respondent has used is unacceptable even if this is in the course of an ongoing dispute and is during an argument that is believed to be able to be heard only by the participants themselves. Mr White was clearly wrong in this regard. There were witnesses to the first altercation and a four-year-old child was in the near vicinity when he again had words with Mr Hamilton.
[41] We accept the immediate background to the first breach was Mr White’s belief that Mr Hamilton had caused a health and safety issue by driving on to the track during track work and, moreover, in so doing he had come perilously close to a horse in a work. The second breach was in the context of perceived danger to the welfare of his horses that were tied up close to the grain crusher, which when turned on was very noisy.
[42] We have regard to the cases cited by the informant and we too are of the view that the interests of accountability, denunciation and deterrence can be met by fines at the lower end. While we have regard to the respondent’s admission of the breach and his unblemished record, we do not accept his submission that a warning is appropriate. There needs to be some penalty to mark the respondent’s actions. The fact that the penalty is light in nature should allay to some extent the concern Mr White has that this matter will appear on his record.
[43] We have regard to the breaches on a totality basis as they have their genesis in the simmering tensions on the Omakau racecourse. The second breach is the more serious, as the words were used in the vicinity of a young child and the respondent goaded Mr Hamilton to hit him. Mr White is fined the sum of $250 on this charge. The earlier breach was in the course of a heated argument in the middle of the track. While the words used were also clearly unacceptable language for a licence holder, Mr White believed he could not be heard by anyone other than Mr Hamilton. We impose a fine of $100. The total sum is thus $350.
Costs
[44] The RIU have not sought costs. Mr White did not specifically address this issue in his oral submissions.
[45] Mr White has co-operated fully with the RIU in their investigation of the matter and in the laying of the charges. He has admitted the breaches at the first opportunity. The matter has been heard on the papers. There is no award in favour of the JCA in these circumstances.
Dated at Dunedin this 6th day of March 2017.
Geoff Hall, Chairman
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