Non Raceday Inquiry RIU v MJ Williamson – Penalty Decision dated 7 April 2015

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decisiondate: 02/04/2015

hearing_title: Non Raceday Inquiry RIU v MJ Williamson - 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 MATTHEW WILLIAMSON
Open Horseman
Respondent

Information: A1406
Judicial Committee: Prof G Hall, Chairman - Mr P Knowles, Committee Member
Appearing: Mr C Allison, for the Informant, Mr G Knight, for the Respondent
Date of hearing: 19 February 2015
_________________________________________________________________________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
_________________________________________________________________________________________________________________________________

[1] In our decision of 6 March last we found the respondent, Mr M Williamson, to be in breach of r 869(3)(g) of the New Zealand Rules of Harness Racing in that when driving THE SHAKEY MISTRESS 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 Williamson is the holder of an Open Horseman’s licence and has been licensed in the Harness Racing industry since 2007 when he received his Trials Horseman’s licence.

[5] Mr Williamson has had 505 drives this season, as at 16 March. In the previous season Mr Williamson had 752 drives, and 884 drives in the 2012/13 season. In total he has had over 4100 race-day drives. He is an experienced senior horseman in the Southland/Otago region and he is also a regular driver in the Canterbury region.

[6] Race 8 the Alexandra Super Liquor/Macca Lodge Mobile Pace had total stake money of $7500. Mr Williamson’s drive THE SHAKEY MISTRESS was 7/9 in the betting in the 14-horse field.

Informant’s submissions

[7] Mr Allison stated that during the race Mr Williamson had opportunities to adopt other tactics throughout which he failed to do. The manner in which THE SHAKEY MISTRESS 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 during the early stages of the race. As a holder of an Open Horseman’s licence Mr Williamson’s drive fell well below the required standard. The RIU sought a penalty that was a deterrent to other licence holders to drive in this manner.

[9] The RIU acknowledged that Mr Williamson has an excellent driving record over several seasons. His record for the current season was very good with the only breach in the previous 12 months being a breach of r 869(3)(b) in July 2014 when he was fined $300. Mr Williamson did not have any breaches of r 869(3)(g) since he had been licensed.

[10] Both throughout this inquiry and during his driving career Mr Williamson had conducted himself in a professional manner and had co-operated with the Stewards.

[11] The RIU believed the most relevant case to fixing penalty was 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 Williamson’s Horseman’s Licence for five meetings, which it calculated would be near 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 submissions

[14] Mr Knight submitted that at the time Mr Williamson believed he was driving THE SHAKEY MISTRESS to its best advantage and that his prior summation of the field and the race meant that in endeavouring to lead he would give his horse the best opportunity to win the race.

[15] He noted this Committee had agreed that THE SHAKEY MISTRESS was free rolling and preferred to lead, was not very tractable and that this meant Mr Williamson had limitations with regards to options tactically.

[16] The issue that had caused the breach was that a consideration of a change of tactics was not made until it was too late. As the Committee had determined, Mr Williamson’s attempt to obtain the lead simply continued for too long. A change of tactics decision was left too late and hence the rule was breached.

[17] Having regard to previous charges under this rule, Mr Allison in his submissions had alleged that this was not the most extreme, nor the most serious breach of this rule. The respondent agreed with the RIU’s assessment that this breach was mid-range. The fact it was not top range had to be factored into the penalty decision.

[18] The respondent conceded that subs (3)(g) was one of the more serious breaches of r 869. Although it was a principle of sentencing that any penalty should act as a deterrent to other licence holders, this should not result in Mr Williamson being penalised more severely than he would otherwise deserve. The penalty schedule for 869(3)(g) was very high in terms of many other rules and Mr Williamson should be penalised for the breach he had committed and not specifically to deter other licence holders. Licence holders were already aware that the penalty regime for breaching this rule was significant.

[19] The respondent accepted he had not admitted the breach therefore this could not be considered to be a mitigating factor in sentencing. The reverse side of that, however, was that it was not an aggravating feature as natural justice dictated that a person was allowed to defend his actions.

[20] Mr Williamson had what has to be considered an exceptional record with regards to his penalty history. There would be very few senior drivers in New Zealand with a record as clean as Mr Williamson’s in relation to his number of drives.

[21] Mr Williamson, as conceded by the RIU, had conducted himself in a professional manner throughout his career.

[22] The respondent considered the most relevant case was HRNZ v Abernethy (20 July 2012). The breach was not admitted and Mr Abernethy received a suspension equivalent to 18 drives and a $450 fine. In total, a penalty equivalent to 27 drives. The Chilcott decision was also highlighted with the Appeals Tribunal reducing her penalty to one of three driving days and a $600 fine. Ms Chilcott, Mr Knight noted, had far fewer drives than Mr Williamson.

[23] The respondent submitted that the appropriate penalty for this particular breach was the equivalent of 30 drives which could be either a $1500 fine only or a suspension for three meetings plus a fine of $300.

[24] Mr Williamson asked that the RIU application for costs be rejected on the basis that the RIU is a NZ Racing Board funded organisation whose task is to monitor and regulate the Harness Racing industry on a daily basis. This includes prosecuting cases where necessary as part of their day-to-day industry funded tasks.

[25] Mr Williamson accepted that there would be a contribution required to cover JCA costs but asked the Committee to consider the fact that although these were separate from the fine, they formed part of the total penalty for the breach.

Decision

[26] The crux of the informant’s case was that the respondent had vied for the lead with Mr Cox at an excessive pace when there were other options available to him. It is our view that Mr Williamson and Mr Cox, in the particular circumstances of this case, were equally culpable.

[27] We are of the view that 400 metres was plenty of ground for the two horsemen to sort themselves out. After unsuccessfully challenging for the lead and Mr Cox making it clear by his actions that he was not going to hand up, Mr Williamson has continued to attempt to obtain the lead for a further 300 metres. He has continued to place pressure on Mr Cox when it should have been evident to him that Mr Cox was not going to hand up the lead to him. The option of restraining THE SHAKEY MISTRESS and taking a trail, thereby gaining cover and obtaining a breather, when there was a considerable distance back to the body of the field (some 20 to 30 metres) was clearly open to him.

[28] In so finding we have had regard to the fact that THE SHAKEY MISTRESS is a free rolling horse and prefers to lead, is not very tractable and that that limits the horse’s options tactically. We accept that on the first occasion Mr Williamson tried to cross he could legitimately have expected Mr Cox to hand up the lead. Mr Cox’s actions when driving CERATO at its previous start, when he did exactly that, would have supported and indeed reinforced Mr Williamson’s expectation. However, after chasing hard for the lead around the top bend Mr Williamson was clearly beaten off by Mr Cox. Mr Williamson should have given up the hunt for the lead when Mr Cox made clear his intention to keep it. It should have been evident to Mr Williamson before he chased his horse up for a second time just prior to the 700 metres that he had no chance of getting the lead off Mr Cox, who had made his intentions abundantly clear.

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

[30] 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.

[31] We are aware of the penalties imposed in the two Chilcott decisions (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 18 drives and fined $450, while Ms Chilcott was given three days’ suspension and a $650 fine. It is difficult to determine from either decision the factors that were identified as being aggravating and mitigating. 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.

[32] 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.”

[33] The Appeals Tribunal in J & C 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.

[34] We consider these factors, which were adopted in Chilcott, in turn. Shortly after passing the 1200 metres mark THE SHAKEY MISTRESS was being worked on by Mr Williamson to maintain the trailing position but was unable to do so. THE SHAKEY MISTRESS commenced to give ground rapidly passing the 1300 metres mark. THE SHAKEY MISTRESS eventually finished in last placing some 55.2 lengths from the winner in a time of 2.36.8 around 11 seconds behind the winning horse. We accept Mr Williamson’s statement that once he realised his horse was a beaten runner he did not ask the horse for further effort.

[35] Having regard to the sectional times for the first 800 metres, we are of the view that with 54.8 for the first 800 metres it was inevitable, before Mr Williamson decided it was wise to grab hold, THE SHAKEY MISTRESS would fade before the end of the race.

[36] Mr Williamson 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.

[37] 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 THE SHAKEY MISTRESS and that para (d) of that rule requires us to have regard to the need to maintain integrity and public confidence in Harness Racing.

[38] We assess that on average Mr Williamson has seven 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.

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

[40] Mr Williamson is suspended from driving from the date of this decision up to and including 15 April. This period encompasses two Otago/ Southland and two Canterbury meetings (28 drives).

[41] Mr Williamson is also fined the sum of $300. We have reduced this quantum by $300 to reflect his record, which for a busy South Island driver, is excellent.

[42] 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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