Non Raceday Inquiry RIU v M Kerr – Decision dated 11 January 2015

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decisiondate: 13/01/2015

hearing_title: Non Raceday Inquiry RIU v M Kerr - Decision dated 11 January 2015

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BEFORE THE JUDICIAL CONTROL AUTHORITY

HELD AT NELSON

IN THE MATTER of New Zealand Rules of Harness Racing

BETWEEN

Mr N Ydgren Stipendiary Steward (Racing Integrity Unit)

Informant

AND

Mr M Kerr – Open Horseman

Respondent

Date of Hearing: 11 January 2015

Information No: A6188

Venue: Richmond Park

Judicial Committee: Mr T Utikere, Chairman - Mr P Williams, Committee Member

Plea: Admitted

Date of Decision: 11 January 2015

THE CHARGE

Information A6188 alleged a breach of Rule 505(1) and stated " as the engaged driver of WEBB ELLIS you did place a combination bet involving that horse in Race one at the Westport Trotting Club's meeting."

THE RULE

Rule 505(1) states: "A horseman may not bet on any horse or combination of horses in a race, in which he or she is driving;

Rule 505 (2) states: “ A breach of this sub-rule (1) is declared to be a serious racing offence;"

EVIDENCE

At the commencement of the hearing the committee was satisfied that the administrative and procedural matters had been attended to. This included the filing of the Information (A6188), the authority to lodge the information from the General Manager of the RIU and the Notice of Appointment of the Judicial Committee. Mr Kerr acknowledged receipt of these papers.

The rule was read and Mr Kerr confirmed he understood the rule and accepted that this alleged breach was defined as a serious racing offence. He also confirmed that he admitted the breach. The applicable penalties for serious racing offences were read and Mr Kerr confirmed he understood the applicable penalties and that he was prepared for the hearing to proceed.

The horse WEBB ELLIS is co-trained by Mr Mitchell Kerr in partnership with his father Mr P Kerr. Mr M Kerr confirmed he was its driver in Race 1 at the Westport Trotting Club's meeting of 26 December 2014.

Mr Ydgren advised that Mr Kerr had placed a bet on his runner at 9.17am on the morning of the race meeting. This bet was placed via Mr Kerr's internet account and was a $100 All Up bet in nature. WEBB ELLIS was the first leg of the four leg bet and would have resulted in a dividend of $6221 if successful. Mr Ydgren supplied the committee with a report from Betting Analyst Mr Basil Payne, which was confirmed as accurate by Mr Kerr. Mr Ydgren said that as a result of questioning Mr Kerr about the performance of WEBB ELLIS it transpired that Mr Kerr had placed the bet on raceday morning. Mr Ydgren stated that Mr Kerr presented his phone to show the bet he had placed and that he had been very co-operative throughout the investigative process. He also submitted that the stipendiary stewards had no issues with how Mr Kerr had handled the horse during the race. They believed it had been given every possible chance. Mr Ydgren advised that when the betting rule was changed in April 2014 it was published extensively through HRNZ publications, and that it was a responsibility of licence holders to familiarise themselves with the rules.

Mr Kerr agreed with everything Mr Ydgren had submitted, and indicated that he had been a junior driver for five years, but had only had three drives in the current season. He said he had decided to drive WEBB ELLIS on this occasion because he was in part-ownership of the horse, and that he was not happy with how the horse had been driven previously. He stated that his breach was a complete misunderstanding on his part as he was not aware of the new rule. As a trainer, he was aware that trainers were permitted to place bets, but was not aware that, as the driver of a runner in a race, he was not permitted to place a bet on any horse in a race in which he was driving. He was embarrassed by this breach as he did not want to tarnish his reputation or public image as a trainer.

DECISION

As the breach was admitted, the committee found the charge proved.

PENALTY SUBMISSIONS OF INFORMANT

On behalf of the RIU, Mr Ydgren submitted that the stewards did not believe Mr Kerr's actions to be sinister by any means. They did not believe there was any attempt to deceive, but rather that the offending was born out of ignorance of the rule. Mr Kerr had been very upfront and honest with the investigative process and he had made an early admission of the breach. Mr Ydgren referred to the 2009 case of HRNZ v Donald, where a combination of bets were placed resulting in four breaches of the rule. In that case the respondent received a $1500 fine and $850 costs. Mr Ydgren referred to two other cases where he believed the circumstances bore some similarities with Mr Kerr's offending. The 2013 case of RIU v Jones and the 2012 case of RIU v (Jockey) J Collett both resulted in a $500 fine. Considering all factors, Mr Ydgren submitted that as the circumstances were similar a $500 was appropriate. Under questioning from the committee, Mr Ydgren acknowledged that both of the latter breaches were not classified as a serious racing offence, as the nature of those bets related to a Drivers and Jockeys Challenge bet option. Mr Ydgren also submitted that Mr Kerr should be given credit for his clear record and advised that the RIU were not seeking any costs.

PENALTY SUBMISSIONS OF RESPONDENT

Mr Kerr stated that he was very disappointed in himself and that he felt very silly. He submitted that a modest fine would be appropriate as he was currently in a training partnership with his father and received no percentages at this stage, but did receive weekly wage of a modest amount. Mr Kerr had nothing further to submit.

REASONS FOR PENALTY

The committee considered all of the submissions placed before it. Mr Kerr has admitted a breach of Rule 505(1), when he placed a $100 All Up bet at the Westport Trotting Club's meeting on 26 December 2014, where he was driving the horse WEBB ELLIS in the first leg of that bet. A breach of this rule is declared to be a serious racing offence. Accordingly, the penalty provisions of Rule 1001(2) apply.

The committee noted that historically there were not many breaches of this specific rule, and considered the decisions submitted by the RIU in their submissions. The Donald case was a result of four breaches, while the other cases submitted by Mr Ydgren may have been under similar circumstances, they were not defined as serious racing offences under the rules. When the Donald decision was released, the maximum monetary penalty was one of $25,000. The maximum monetary penalty for a breach of this rule has since been increased to one of $30,000 and is a reflection of the deterrence aspect that any breach of this rule must bring. In Mr Kerr's particular circumstance, the committee considers a monetary penalty to be appropriate on this occasion. The current JCA Penalty guidelines do not identify a starting point for a breach of this rule. In this circumstance, which is fact-dependent, we have adopted a starting point of $1000. In aggravation, as a licence holder, Mr Kerr has a strict liability to familiarise himself and be aware of the rules under which he is licensed. Breaches of this nature can create a perception that goes to the heart and integrity of racing. Serious racing offence provisions are in place to protect this integrity and are paramount for public confidence in racing and the administration of racing. In mitigation, the committee considered Mr Kerr's co-operation throughout the investigative process and his early admission of the breach. He has a very good record and no previous breaches of an integrity nature. He is very remorseful and is clearly concerned about the perception others might have of him as a trainer as a result of a breach of this rule. The committee accepts that there was no attempt to deceive at any time, and that his actions as a driver in the race were not sinister; therefore there is no suggestion that he did not attempt to drive WEBB ELLIS out on its own merits. Mr Kerr simply assumed that, as the trainer of the horse he could place a bet, when, as the driver, he could not.

PENALTY

After considering all of the above matters we believe a fine is an appropriate penalty and Mr Kerr is fined $650. As this matter was heard on a raceday, there will be no order for costs.

Tangi Utikere            Paul Williams

CHAIRMAN               COMMITTEE MEMBER

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