Non Raceday Inquiry RIU v P Yesberg – Decision dated 24 December 2013
ID: JCA12608
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of Information No. A1153
BETWEEN BARRY ALEXANDER KITTO, Racecourse Investigator for the Racing Integrity Unit
Informant
AND PAUL YESBERG of Kaiapoi, Trials Driver/Advanced Amateur Driver
Respondent
Judicial Committee: R G McKenzie, (Chairman) - S C Ching (Committee Member)
Counsel for the Informant: Mr C Lange
Counsel for the Respondent: Mr A Davis
Date of Decision: 24 December 2013
RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY
THE CHARGE
[1] Information No.A1153 (as amended) alleged:
Paul Yesberg is charged that being the holder of Licences under the New Zealand Rules of Harness Racing, namely an Advanced Amateur Horseman and Trial Driver’s licences and being an owner, did misconduct himself by sending an Electronic Transmission by way of e-mail on the 5th July 2013at 9.54am to Ms Doreen Graham of the NZ Sires Stakes Board and copied to Messrs Graham Henley, Bruce Barlass and Kerryn Corbett which states:
“Go f*** yourself, you are entirely trustworthy not to mention completely f***ing stupid!
I said they were put in one of those envelopes you f***wit!
And if you think I’m going to crawl through my rubbish for you; you are stupider than I already think you are.
We will see you in court, please advise your legal representatives so we can serve papers on them as it will be a waste of f***ing time serving them on a f***wit like you!”
Being in breach of Rule 303 (2) [he is] therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1003 (1) (a) (b) and (c).
[2] A letter from Mr M R Godber, Operations Manager for the Racing Integrity Unit, was produced authorising the filing of the informations pursuant to Rule 1103 (4) (c).
[3] Counsel for Mr Yesberg confirmed to the Committee, in a teleconference on 6 December 2013, that the charge was admitted. It was agreed that a formal hearing was not required. Mr Lange filed a Summary of Facts (which was an agreed Summary) and Penalty Submissions. Penalty Submissions have been received from Mr Davis, Counsel for Mr Yesberg.
[4] Mr Yesberg having admitted the charge, the charge was found proved.
THE RULE
[5] The relevant Rules are as follows:
303 (2) No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stablehand, unlicensed apprentice or racing manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter.
1003 (2) A person who commits a breach of any Rule 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.
SUMMARY OF FACTS
[6] The following Summary of Facts was agreed:
1. The New Zealand Sires Stakes Board (NZSSB) conducts the New Zealand Yearling Sales Series. Horses eligible for entry are sold at either the Australasian Classic Yearling Sale or the New Zealand Premier Yearling Sale. The NZSSB appoints PGG Wrightsons (PGGW) as auctioneers to conduct the sale.
2. At the yearling sales held in Auckland on 18 February 2013, the horse SAZZASOPHIE was purchased by Mr Cran Dalgety for $12,000.00 (GST exclusive). In addition, there was payable a nomination fee of $350.00 by the purchaser and an endoscope fee of $100.00.
3. Following the auction, Mr Yesberg contacted PGGW advising that he was to be invoiced for the purchase of SAZZASOPHIE.
4. It is a condition of the Yearling Sales Series that sustaining payments are made by 1 July each year. The conditions state that it is up to the owner to make the necessary sustaining payment to the Board as prescribed in the conditions and provides for late payment extension of either 5% or 10% if paid within 14 days after the due date.
5. A number of horses were subject to sustaining payments by Mr Yesberg totalling $3,521.02 on 1 July 2013.
6. Payment was not received on that date.
7. On 2 July 2013, Mr Yesberg emailed Ms Graham of the NZSSB advising that he had collected his mail from the Post Office and all the Sires Stakes stuff bounced back to him due to the prepaid envelope not having enough stamps on it.
8. Ms Graham responded advising that they would need to see proof of this and asked that he send the original envelope and if proof could not be provided penalties would have to be paid under the Series conditions.
9. Mr Yesberg replied that:
Yeah I got absolutely nothing else to do except file through the rubbish that is at the gate as speak!
Is anyone in this industry interested in progressing the industry or simply putting stupid hurdles in front of busy people?
I think I know the answer.
10. On 5 July 2013, after receiving the sustaining payments by letter from Mr Yesberg, Ms Graham emailed Mr Yesberg pointing out that the payments were postmarked 2 July and advised that the late payment fees totalling $176.00 would have to be paid but there was a further late option after 15 July where 100% of the late penalty payment is available closing on 1 August 2013.
11. Mr Yesberg responded by email on 5 July in the following terms:
“Go f*** yourself, you are entirely untrustworthy not to mention completely f***ing stupid!
I said they were put in one of those envelopes you f***wit!
And if you think I’m going to crawl through my rubbish for you; you are stupider than I already think you are.
We will see you in court, please advise your legal representatives so we can serve papers on them as it will be a waste of f***ing time serving them on a f***wit like you!
12. The email was copied to Mr Graeme Henley, Bruce Barlass and Kerryn Corbett, being the Chairman, Deputy Chairman and Treasurer of the NZSSB.
13. Mr Yesberg was interviewed by Mr Kitto on 7 August and he acknowledged sending the email. In respect of the emails to Ms Graham he accepted the language was unacceptable and responded as Ms Graham had called him a liar.
INFORMANT’S PENALTY SUBMISSIONS
[7] 1. Mr Yesberg has admitted one charge of misconduct, the facts are set out in the above Summary of Facts.
2. Mr Yesberg has been licensed as an amateur driver since June 2003 and an owner of horses registered under the Rules since 1993.
3. Mr Yesberg is well aware of his obligations in relation to sustaining payments for the Sires Stakes Series. In 2007, Mr Yesberg made a late payment for the Sires Stakes Series and had threatened to take proceedings in Court when his horse was not eligible for entry following late payment.
4. The Sires Stakes Board conducts the Sires Stakes Series for the benefit of all involved in Harness Racing.
5. Mr Yesberg’s sustaining payments were not received by the due date which resulted in an email exchange between Ms Doreen Graham, the Secretary-Manager of the New Zealand Sires Stakes Board and Mr Yesberg.
6. The language used in the emails to Ms Graham is offensive, obscene, insulting, abusive and intimidating. On an objective view the email to Ms Graham should be viewed more seriously breach of the misconduct Rule [sic]. It refers to Ms Graham as untrustworthy, completely stupid and as a fuckwit and tells her to “go f*** herself”.
7. Regardless of Mr Yesberg’s disagreement with the Sires Stakes Board, the tone and the language used is completely unacceptable.
8. It is submitted that the Committee can also infer that this was not a kneejerk reaction as may occur in a verbal exchange, but is more akin to deliberate and conscious steps, involving Mr Yesberg sitting down at a computer and typing the emails.
9. Historically, breaches of the misconduct rule most often arise where there have been verbal excesses during or immediately following a race in response to something that has occurred during the race or in response following an inquiry. The penalties in these cases have typically been a fine in the hundreds of dollars as is illustrated by cases such as P (9 October 2004), HRNZ v Feds, foul and abusive language after Stipendiary Stewards’ hearing, fine $600.
10. In RIU v P (19 June 2013) concerned abusive and offensive words directed at Chief Racecourse Investigator Carmichael. The Committee imposed a fine of $450.
11. The Rule has also been considered in relation to non-raceday conduct. NZTR v McN (29 April 2011) concerned a number of phone and email messages which include foul, insulting and offensive words directed to the then Chairman of the New Zealand Racing Board. There were a series of emails over a four day period.
12. In its decision, the Committee in the McN case noted the range of fines varied from fines between $350.00 and $2,000.00, and the Committee noted that:
Even making allowance for the fact officials in positions such as that held by Mr S must be prepared to accept robust criticism on occasions, it is plain that by any measure the language and comments used and made by Mr McN which form the basis of the charge went far beyond what can be considered acceptable it involving foul language, couched in threatening terms with racist overtones , Mr McN faced both a breach of the serious racing offence and the misconduct rules and the Committee adopted a starting point of disqualification for a period of 5 months together with a fine of $2,500.00 and in relation to the serious racing offence, a starting point of 9 months disqualification together with a fine of $5,000.00.
13. The end penalty was one of a period of disqualification of 11 months and a fine of $6,000.00
14. In RIU v M (7 May 2013), relating to charges of serious offences or misconduct by post on the Race Café. It appears that the Judicial Committee was critical of the stance taken by the Informant. Initially, 33 charges with Mr M agreeing to plead guilty to three of those charges and The RIU recommended a penalty of $200.00 per charge. The Judicial Committee in its discretion expressly noted their disquiet over the level of penalty submitted on behalf of the RIU referring to it as inadequate and imposed a fine of $1,050.00 for the three charges.
15. The Committee was also critical of the RIU’s decision to withdraw the charges and imposed costs not only against Mr M but also the RIU.
16. The Informant submits that the appropriate approach to penalty is to assess the circumstances which give rise to the breach and determine where the culpability falls on the spectrum of seriousness.
17. The nomination payments that were overdue are payments which are to go to the Sires Stakes Board for the benefit of all those involved in the Sires Stakes Series. Put simply, the language used is completely unacceptable by those involved in Harness Racing to a person who is simply doing her job.
18. The breach arose due to Mr Yesberg’s failure to ensure sustaining payments on time. It is not Ms Graham’s fault that the payments were not received and the penalty payments totalled only $176.00.
19. His response and language used is abusive, obscene, derogatory and threatening. Ms Graham was doing no more than her job required of her.
20. The Informant submits that the case can be categorised as far more serious that a heated exchange that may occur during or after a race between participants, or a person who has appeared before Stipendiary Stewards or Judicial Committee and who loses their temper for what they perceive as an injustice.
21. This was not robust criticism which officials such as board members or chief executives can expect to receive from time to time but rather is an email directed at ridicule and humiliation of the Secretary of the Sires Stakes Board which was copied to the Executive Board, including the Chairman and Treasurer.
22. The Informant submits that the breach here must be considered as a breach at the more serious end of the scale of its type and calls for not only specific denunciation and deterrence but also general deterrence.
23. The Informant submits that a fine of $2,000.00 for the breach is appropriate.
RESPONDENT’S PENALTY SUBMISSIONS
[8] The following Submissions on Penalty were presented on behalf of Mr Yesberg:
1. The Respondent has admitted one charge of misconduct in that he forwarded to an employee of Harness Racing New Zealand an email which could be considered offensive and abusive.
2. The details of that email are set out in the Summary of Facts and are not disputed.
3. The email exchange as between Mr Yesberg and Ms Graham arose as a result of Mr Yesberg forwarding to Harness Racing New Zealand the requisite sustaining payment. However, the correspondence was returned to Mr Yesberg.
4. Mr Yesberg then emailed Ms Graham of the NZSSB advising her that the email had been returned and he would re-submit the payment to her forthwith.
5. At this point, however, Ms Graham requested that Mr Yesberg provided proof of the same. Mr Yesberg saw this as a slight on his integrity and believed wrongly that Ms Graham was accusing him of fabricating the position i.e., calling him a liar.
6. It is accepted that Mr Yesberg acted inappropriately thereafter with the exchange of emails and ought to have been more restrained.
7. However, with the background of Mr Yesberg’s belief that he was being called a liar, the industry and Mr Yesberg’s personality he simply reacted.
8. On reflection it was an over-reaction and in those circumstances he acknowledges his wrongdoing by his guilty plea and he formally apologises to Ms Graham through Counsel.
9. As the Committee may or not be aware Mr Yesberg is an insurance broker. Since the February earthquake in 2011 Mr Yesberg has been working extremely long hours, 7 days a week. He often works in excess of 18 hours per day. This has caused significant stress and distress in his life.
10. A medical certificate was produced.
11. In our respectful submission it is clear that Mr Yesberg acting under stress and strain did not think through the ramifications of his actions.
12. Significantly, however, had Mr Yesberg apologised at first instance this matter would not have come before the Judicial Committee and no penalty would have been imposed.
13. Indeed he received a text message asking him to simply acknowledge that “he overstepped the mark and apologise and the matter would go no further”. Mr Yesberg, however, again without thinking properly did not apologise in a proper fashion and of course now faces the charge which he has admitted.
14. Mr Yesberg did not respond to the opportunity to apologise because he feels very much aggrieved as to the failure of the RIU to take appropriate action in respect of certain others in the industry. (Four particular incidents were specified which we do not set out). Nothing was done in respect of these incidents on our instructions.
15. In those circumstances Mr Yesberg’s views of the RIU are somewhat clouded and he did not believe that his behaviour was significantly serious as that mentioned above and thus did not warrant any form of apology. Whilst it is not a defence it is an explanation for Mr Yesberg taking the stance that he did in relation to him not tendering an apology in a timely fashion. Mr Yesberg believes rightly or wrongly that there is a bias against him by the RIU whilst others have the RIU “in their pocket” because of their position in the industry. We submit only time will tell whether he is correct or not.
16 It is clear that Mr Yesberg has contributed significantly to the racing industry in the Canterbury Region over the years in many spheres from trainer/driver/sponsor and acting in his capacity as an Insurance Broker.
17. In support of that submission we attach the Chief Executive’s report of 2012/2013 for Canterbury Racing in which his efforts are formally acknowledged. Clearly, Mr Yesberg’s efforts for little or no reward were much appreciated.
18. In addition to that work on behalf of the racing industry through his companies Mr Yesberg invests in excess of $100,000.00 per annum by way of sponsorship.
19. Mr Yesberg has indicated to Counsel and has requested that we make it clear that sponsorship will be withdrawn immediately after the penalty sentencing, irrespective of the level of penalty, such is his feeling about the RIU and its inaction in regard to others who Mr Yesberg sees as much more of a blight on the industry than him but yet they can do and say whatever they wish with impunity.
20. Counsel for the Informant has noted the range of fines vary from between $350.00 and $2,000.00 for previous offenders.
21. In our respectful submission looking at the cases provided by Counsel for the Informant this case is nowhere near as serious as those which have been referred to in support of the sentencing band.
22. More so given the fact that no action would have been taken against Mr Yesberg had a timely apology been tendered. It would be unjust and unfair to impose a fine of any significance in light of that concession which had previously been given.
23. In those circumstances we submit that an appropriate penalty would be a fine of no more than $200.00.
24. There is no objection to a portion or the entire fine being paid directly to Ms Graham.
REASONS FOR PENALTY
[9] This charge came about as a result of Mr Yesberg’s missing the deadline of 1 July 2013 for certain sustaining payments to New Zealand Sires Stakes Board for the New Zealand Yearling Sales Series.
[10] The payments were received by Ms Doreen Graham, the Secretary-Manager of the Board, on 5 July 2013 but the envelopes were postmarked on 2 July 2013. As a consequence of not having been posted by 1 July 2013, late extension penalty payments were payable. Mr Yesberg took exception to being told this and reacted in the manner referred to in the Summary of Facts.
[11] Mr Yesberg has, quite properly in the Committee’s view, admitted that, in doing so, he misconducted himself in breach of Rule 303 (2).
[12] It is of concern that he has used such insulting, abusive and obscene language directed at Ms Graham who was, simply, trying to do her job in an efficient manner. Such a response was uncalled for and unjustified and a gross over-reaction on Mr Yesberg’s part, which he has acknowledged. To put the matter in perspective, the penalty payments amounted to only $176.00. We were not impressed by the submission on Mr Yesberg’s behalf that he believed that Ms Graham was calling him a “liar”.
[13] In the penalty submissions filed on behalf of Mr Yesberg, he formally apologises to Ms Graham through Counsel. He declined the opportunity to acknowledge that he “overstepped the mark” and apologise which may have resulted in the misconduct charge not being brought. We are not aware that he has made any apology to Mrs Graham in person. It appears that no apology was made prior to his Counsel’s submissions and, we are of the view, the apology lacks sincerity. His lack of contrition, as evidenced by his unwillingness to apologise, is an aggravating factor.
[14] The Committee is of the view that Mr Yesberg’s accusatory comments about the Racing Integrity Unit, as set out in his submissions, as his explanation for declining to apologise to Ms Graham do him no credit. He produced no evidence in support of those submissions and, in any event, they would have been irrelevant to the Committee’s considerations.
[15] A further aggravating factor is that the communication in question was, as submitted by the Informant, not a “kneejerk reaction” to a provocative situation that Mr Yesberg was confronted with. It was, by its very nature, deliberate and premeditated. His reaction was exacerbated by the fact that he forwarded copies to other persons – Graeme Henley, Bruce Barlass, and Kerryn Corbett. If he was initially upset, which he clearly was, by the news that he had to pay penalties for late payment, Mr Yesberg did have time and opportunity to reflect on that and make a reasoned response. It was unfortunate that he did not do so.
[16] The Committee has taken into account, as mitigating factors, Mr Yesberg’s admission of the breach and, as the Informant has not referred to any previous breach or breaches of the Rule by him, we give him credit for a clear record.
[17] We have also taken into account the matters put forward by his Counsel in penalty submissions, firstly, that Mr Yesberg has been under “considerable stress” in his business and, secondly, the contribution that he has made to the racing industry in Canterbury in his capacity as an insurance broker and by way of sponsorship.
[18] The Informant has submitted that a fine of $2,000 for the breach is appropriate. On the other hand, the Respondent has submitted that a fine of no more than $200 is appropriate.
[19] The Committee has considered the three previous cases referred to in the Informant’s submissions and the penalties imposed in those cases. The case of McN is exceptional and of little assistance to us as far as arriving at an appropriate penalty in the present case is concerned. The case of M involved a number of postings on the Race Café website which contained “insulting or abusive language with reference to New Zealand Thoroughbred Racing”. Mr M was fined the sum of $350 on each of three charges. The case of P involved abusive text messages and telephone calls to the Chief Racecourse Investigator. Mr P was fined $450.
[20] The Committee disagrees with the submission on behalf of Mr Yesberg and places the present case higher on a scale of seriousness than either the M or P cases because of the language used and to whom that language was directed. We find the degree of culpability in this case to be in the mid-high range. This was not a case of misconduct directed at an official who is routinely accustomed to criticism as part of performing his function.
[21] We are mindful of the need to impose a penalty which will both denounce the Respondent’s conduct and specifically deter him from reoffending. The penalty must also be at a sufficient level that it will deter others.
PENALTY
[22] Mr Yesberg is fined the sum of $1,500.
COSTS
[23] Costs are reserved. Both parties are invited to file submissions regarding costs with the Judicial Control Authority by not later than Friday, 17 January 2014.
R G McKENZIE S C CHING
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 17/12/2013
Publish Date: 17/12/2013
JCA Decision Fields (raw)
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decisiondate: 17/12/2013
hearing_title: Non Raceday Inquiry RIU v P Yesberg - Decision dated 24 December 2013
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of Information No. A1153
BETWEEN BARRY ALEXANDER KITTO, Racecourse Investigator for the Racing Integrity Unit
Informant
AND PAUL YESBERG of Kaiapoi, Trials Driver/Advanced Amateur Driver
Respondent
Judicial Committee: R G McKenzie, (Chairman) - S C Ching (Committee Member)
Counsel for the Informant: Mr C Lange
Counsel for the Respondent: Mr A Davis
Date of Decision: 24 December 2013
RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY
THE CHARGE
[1] Information No.A1153 (as amended) alleged:
Paul Yesberg is charged that being the holder of Licences under the New Zealand Rules of Harness Racing, namely an Advanced Amateur Horseman and Trial Driver’s licences and being an owner, did misconduct himself by sending an Electronic Transmission by way of e-mail on the 5th July 2013at 9.54am to Ms Doreen Graham of the NZ Sires Stakes Board and copied to Messrs Graham Henley, Bruce Barlass and Kerryn Corbett which states:
“Go f*** yourself, you are entirely trustworthy not to mention completely f***ing stupid!
I said they were put in one of those envelopes you f***wit!
And if you think I’m going to crawl through my rubbish for you; you are stupider than I already think you are.
We will see you in court, please advise your legal representatives so we can serve papers on them as it will be a waste of f***ing time serving them on a f***wit like you!”
Being in breach of Rule 303 (2) [he is] therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1003 (1) (a) (b) and (c).
[2] A letter from Mr M R Godber, Operations Manager for the Racing Integrity Unit, was produced authorising the filing of the informations pursuant to Rule 1103 (4) (c).
[3] Counsel for Mr Yesberg confirmed to the Committee, in a teleconference on 6 December 2013, that the charge was admitted. It was agreed that a formal hearing was not required. Mr Lange filed a Summary of Facts (which was an agreed Summary) and Penalty Submissions. Penalty Submissions have been received from Mr Davis, Counsel for Mr Yesberg.
[4] Mr Yesberg having admitted the charge, the charge was found proved.
THE RULE
[5] The relevant Rules are as follows:
303 (2) No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stablehand, unlicensed apprentice or racing manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter.
1003 (2) A person who commits a breach of any Rule 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.
SUMMARY OF FACTS
[6] The following Summary of Facts was agreed:
1. The New Zealand Sires Stakes Board (NZSSB) conducts the New Zealand Yearling Sales Series. Horses eligible for entry are sold at either the Australasian Classic Yearling Sale or the New Zealand Premier Yearling Sale. The NZSSB appoints PGG Wrightsons (PGGW) as auctioneers to conduct the sale.
2. At the yearling sales held in Auckland on 18 February 2013, the horse SAZZASOPHIE was purchased by Mr Cran Dalgety for $12,000.00 (GST exclusive). In addition, there was payable a nomination fee of $350.00 by the purchaser and an endoscope fee of $100.00.
3. Following the auction, Mr Yesberg contacted PGGW advising that he was to be invoiced for the purchase of SAZZASOPHIE.
4. It is a condition of the Yearling Sales Series that sustaining payments are made by 1 July each year. The conditions state that it is up to the owner to make the necessary sustaining payment to the Board as prescribed in the conditions and provides for late payment extension of either 5% or 10% if paid within 14 days after the due date.
5. A number of horses were subject to sustaining payments by Mr Yesberg totalling $3,521.02 on 1 July 2013.
6. Payment was not received on that date.
7. On 2 July 2013, Mr Yesberg emailed Ms Graham of the NZSSB advising that he had collected his mail from the Post Office and all the Sires Stakes stuff bounced back to him due to the prepaid envelope not having enough stamps on it.
8. Ms Graham responded advising that they would need to see proof of this and asked that he send the original envelope and if proof could not be provided penalties would have to be paid under the Series conditions.
9. Mr Yesberg replied that:
Yeah I got absolutely nothing else to do except file through the rubbish that is at the gate as speak!
Is anyone in this industry interested in progressing the industry or simply putting stupid hurdles in front of busy people?
I think I know the answer.
10. On 5 July 2013, after receiving the sustaining payments by letter from Mr Yesberg, Ms Graham emailed Mr Yesberg pointing out that the payments were postmarked 2 July and advised that the late payment fees totalling $176.00 would have to be paid but there was a further late option after 15 July where 100% of the late penalty payment is available closing on 1 August 2013.
11. Mr Yesberg responded by email on 5 July in the following terms:
“Go f*** yourself, you are entirely untrustworthy not to mention completely f***ing stupid!
I said they were put in one of those envelopes you f***wit!
And if you think I’m going to crawl through my rubbish for you; you are stupider than I already think you are.
We will see you in court, please advise your legal representatives so we can serve papers on them as it will be a waste of f***ing time serving them on a f***wit like you!
12. The email was copied to Mr Graeme Henley, Bruce Barlass and Kerryn Corbett, being the Chairman, Deputy Chairman and Treasurer of the NZSSB.
13. Mr Yesberg was interviewed by Mr Kitto on 7 August and he acknowledged sending the email. In respect of the emails to Ms Graham he accepted the language was unacceptable and responded as Ms Graham had called him a liar.
INFORMANT’S PENALTY SUBMISSIONS
[7] 1. Mr Yesberg has admitted one charge of misconduct, the facts are set out in the above Summary of Facts.
2. Mr Yesberg has been licensed as an amateur driver since June 2003 and an owner of horses registered under the Rules since 1993.
3. Mr Yesberg is well aware of his obligations in relation to sustaining payments for the Sires Stakes Series. In 2007, Mr Yesberg made a late payment for the Sires Stakes Series and had threatened to take proceedings in Court when his horse was not eligible for entry following late payment.
4. The Sires Stakes Board conducts the Sires Stakes Series for the benefit of all involved in Harness Racing.
5. Mr Yesberg’s sustaining payments were not received by the due date which resulted in an email exchange between Ms Doreen Graham, the Secretary-Manager of the New Zealand Sires Stakes Board and Mr Yesberg.
6. The language used in the emails to Ms Graham is offensive, obscene, insulting, abusive and intimidating. On an objective view the email to Ms Graham should be viewed more seriously breach of the misconduct Rule [sic]. It refers to Ms Graham as untrustworthy, completely stupid and as a fuckwit and tells her to “go f*** herself”.
7. Regardless of Mr Yesberg’s disagreement with the Sires Stakes Board, the tone and the language used is completely unacceptable.
8. It is submitted that the Committee can also infer that this was not a kneejerk reaction as may occur in a verbal exchange, but is more akin to deliberate and conscious steps, involving Mr Yesberg sitting down at a computer and typing the emails.
9. Historically, breaches of the misconduct rule most often arise where there have been verbal excesses during or immediately following a race in response to something that has occurred during the race or in response following an inquiry. The penalties in these cases have typically been a fine in the hundreds of dollars as is illustrated by cases such as P (9 October 2004), HRNZ v Feds, foul and abusive language after Stipendiary Stewards’ hearing, fine $600.
10. In RIU v P (19 June 2013) concerned abusive and offensive words directed at Chief Racecourse Investigator Carmichael. The Committee imposed a fine of $450.
11. The Rule has also been considered in relation to non-raceday conduct. NZTR v McN (29 April 2011) concerned a number of phone and email messages which include foul, insulting and offensive words directed to the then Chairman of the New Zealand Racing Board. There were a series of emails over a four day period.
12. In its decision, the Committee in the McN case noted the range of fines varied from fines between $350.00 and $2,000.00, and the Committee noted that:
Even making allowance for the fact officials in positions such as that held by Mr S must be prepared to accept robust criticism on occasions, it is plain that by any measure the language and comments used and made by Mr McN which form the basis of the charge went far beyond what can be considered acceptable it involving foul language, couched in threatening terms with racist overtones , Mr McN faced both a breach of the serious racing offence and the misconduct rules and the Committee adopted a starting point of disqualification for a period of 5 months together with a fine of $2,500.00 and in relation to the serious racing offence, a starting point of 9 months disqualification together with a fine of $5,000.00.
13. The end penalty was one of a period of disqualification of 11 months and a fine of $6,000.00
14. In RIU v M (7 May 2013), relating to charges of serious offences or misconduct by post on the Race Café. It appears that the Judicial Committee was critical of the stance taken by the Informant. Initially, 33 charges with Mr M agreeing to plead guilty to three of those charges and The RIU recommended a penalty of $200.00 per charge. The Judicial Committee in its discretion expressly noted their disquiet over the level of penalty submitted on behalf of the RIU referring to it as inadequate and imposed a fine of $1,050.00 for the three charges.
15. The Committee was also critical of the RIU’s decision to withdraw the charges and imposed costs not only against Mr M but also the RIU.
16. The Informant submits that the appropriate approach to penalty is to assess the circumstances which give rise to the breach and determine where the culpability falls on the spectrum of seriousness.
17. The nomination payments that were overdue are payments which are to go to the Sires Stakes Board for the benefit of all those involved in the Sires Stakes Series. Put simply, the language used is completely unacceptable by those involved in Harness Racing to a person who is simply doing her job.
18. The breach arose due to Mr Yesberg’s failure to ensure sustaining payments on time. It is not Ms Graham’s fault that the payments were not received and the penalty payments totalled only $176.00.
19. His response and language used is abusive, obscene, derogatory and threatening. Ms Graham was doing no more than her job required of her.
20. The Informant submits that the case can be categorised as far more serious that a heated exchange that may occur during or after a race between participants, or a person who has appeared before Stipendiary Stewards or Judicial Committee and who loses their temper for what they perceive as an injustice.
21. This was not robust criticism which officials such as board members or chief executives can expect to receive from time to time but rather is an email directed at ridicule and humiliation of the Secretary of the Sires Stakes Board which was copied to the Executive Board, including the Chairman and Treasurer.
22. The Informant submits that the breach here must be considered as a breach at the more serious end of the scale of its type and calls for not only specific denunciation and deterrence but also general deterrence.
23. The Informant submits that a fine of $2,000.00 for the breach is appropriate.
RESPONDENT’S PENALTY SUBMISSIONS
[8] The following Submissions on Penalty were presented on behalf of Mr Yesberg:
1. The Respondent has admitted one charge of misconduct in that he forwarded to an employee of Harness Racing New Zealand an email which could be considered offensive and abusive.
2. The details of that email are set out in the Summary of Facts and are not disputed.
3. The email exchange as between Mr Yesberg and Ms Graham arose as a result of Mr Yesberg forwarding to Harness Racing New Zealand the requisite sustaining payment. However, the correspondence was returned to Mr Yesberg.
4. Mr Yesberg then emailed Ms Graham of the NZSSB advising her that the email had been returned and he would re-submit the payment to her forthwith.
5. At this point, however, Ms Graham requested that Mr Yesberg provided proof of the same. Mr Yesberg saw this as a slight on his integrity and believed wrongly that Ms Graham was accusing him of fabricating the position i.e., calling him a liar.
6. It is accepted that Mr Yesberg acted inappropriately thereafter with the exchange of emails and ought to have been more restrained.
7. However, with the background of Mr Yesberg’s belief that he was being called a liar, the industry and Mr Yesberg’s personality he simply reacted.
8. On reflection it was an over-reaction and in those circumstances he acknowledges his wrongdoing by his guilty plea and he formally apologises to Ms Graham through Counsel.
9. As the Committee may or not be aware Mr Yesberg is an insurance broker. Since the February earthquake in 2011 Mr Yesberg has been working extremely long hours, 7 days a week. He often works in excess of 18 hours per day. This has caused significant stress and distress in his life.
10. A medical certificate was produced.
11. In our respectful submission it is clear that Mr Yesberg acting under stress and strain did not think through the ramifications of his actions.
12. Significantly, however, had Mr Yesberg apologised at first instance this matter would not have come before the Judicial Committee and no penalty would have been imposed.
13. Indeed he received a text message asking him to simply acknowledge that “he overstepped the mark and apologise and the matter would go no further”. Mr Yesberg, however, again without thinking properly did not apologise in a proper fashion and of course now faces the charge which he has admitted.
14. Mr Yesberg did not respond to the opportunity to apologise because he feels very much aggrieved as to the failure of the RIU to take appropriate action in respect of certain others in the industry. (Four particular incidents were specified which we do not set out). Nothing was done in respect of these incidents on our instructions.
15. In those circumstances Mr Yesberg’s views of the RIU are somewhat clouded and he did not believe that his behaviour was significantly serious as that mentioned above and thus did not warrant any form of apology. Whilst it is not a defence it is an explanation for Mr Yesberg taking the stance that he did in relation to him not tendering an apology in a timely fashion. Mr Yesberg believes rightly or wrongly that there is a bias against him by the RIU whilst others have the RIU “in their pocket” because of their position in the industry. We submit only time will tell whether he is correct or not.
16 It is clear that Mr Yesberg has contributed significantly to the racing industry in the Canterbury Region over the years in many spheres from trainer/driver/sponsor and acting in his capacity as an Insurance Broker.
17. In support of that submission we attach the Chief Executive’s report of 2012/2013 for Canterbury Racing in which his efforts are formally acknowledged. Clearly, Mr Yesberg’s efforts for little or no reward were much appreciated.
18. In addition to that work on behalf of the racing industry through his companies Mr Yesberg invests in excess of $100,000.00 per annum by way of sponsorship.
19. Mr Yesberg has indicated to Counsel and has requested that we make it clear that sponsorship will be withdrawn immediately after the penalty sentencing, irrespective of the level of penalty, such is his feeling about the RIU and its inaction in regard to others who Mr Yesberg sees as much more of a blight on the industry than him but yet they can do and say whatever they wish with impunity.
20. Counsel for the Informant has noted the range of fines vary from between $350.00 and $2,000.00 for previous offenders.
21. In our respectful submission looking at the cases provided by Counsel for the Informant this case is nowhere near as serious as those which have been referred to in support of the sentencing band.
22. More so given the fact that no action would have been taken against Mr Yesberg had a timely apology been tendered. It would be unjust and unfair to impose a fine of any significance in light of that concession which had previously been given.
23. In those circumstances we submit that an appropriate penalty would be a fine of no more than $200.00.
24. There is no objection to a portion or the entire fine being paid directly to Ms Graham.
REASONS FOR PENALTY
[9] This charge came about as a result of Mr Yesberg’s missing the deadline of 1 July 2013 for certain sustaining payments to New Zealand Sires Stakes Board for the New Zealand Yearling Sales Series.
[10] The payments were received by Ms Doreen Graham, the Secretary-Manager of the Board, on 5 July 2013 but the envelopes were postmarked on 2 July 2013. As a consequence of not having been posted by 1 July 2013, late extension penalty payments were payable. Mr Yesberg took exception to being told this and reacted in the manner referred to in the Summary of Facts.
[11] Mr Yesberg has, quite properly in the Committee’s view, admitted that, in doing so, he misconducted himself in breach of Rule 303 (2).
[12] It is of concern that he has used such insulting, abusive and obscene language directed at Ms Graham who was, simply, trying to do her job in an efficient manner. Such a response was uncalled for and unjustified and a gross over-reaction on Mr Yesberg’s part, which he has acknowledged. To put the matter in perspective, the penalty payments amounted to only $176.00. We were not impressed by the submission on Mr Yesberg’s behalf that he believed that Ms Graham was calling him a “liar”.
[13] In the penalty submissions filed on behalf of Mr Yesberg, he formally apologises to Ms Graham through Counsel. He declined the opportunity to acknowledge that he “overstepped the mark” and apologise which may have resulted in the misconduct charge not being brought. We are not aware that he has made any apology to Mrs Graham in person. It appears that no apology was made prior to his Counsel’s submissions and, we are of the view, the apology lacks sincerity. His lack of contrition, as evidenced by his unwillingness to apologise, is an aggravating factor.
[14] The Committee is of the view that Mr Yesberg’s accusatory comments about the Racing Integrity Unit, as set out in his submissions, as his explanation for declining to apologise to Ms Graham do him no credit. He produced no evidence in support of those submissions and, in any event, they would have been irrelevant to the Committee’s considerations.
[15] A further aggravating factor is that the communication in question was, as submitted by the Informant, not a “kneejerk reaction” to a provocative situation that Mr Yesberg was confronted with. It was, by its very nature, deliberate and premeditated. His reaction was exacerbated by the fact that he forwarded copies to other persons – Graeme Henley, Bruce Barlass, and Kerryn Corbett. If he was initially upset, which he clearly was, by the news that he had to pay penalties for late payment, Mr Yesberg did have time and opportunity to reflect on that and make a reasoned response. It was unfortunate that he did not do so.
[16] The Committee has taken into account, as mitigating factors, Mr Yesberg’s admission of the breach and, as the Informant has not referred to any previous breach or breaches of the Rule by him, we give him credit for a clear record.
[17] We have also taken into account the matters put forward by his Counsel in penalty submissions, firstly, that Mr Yesberg has been under “considerable stress” in his business and, secondly, the contribution that he has made to the racing industry in Canterbury in his capacity as an insurance broker and by way of sponsorship.
[18] The Informant has submitted that a fine of $2,000 for the breach is appropriate. On the other hand, the Respondent has submitted that a fine of no more than $200 is appropriate.
[19] The Committee has considered the three previous cases referred to in the Informant’s submissions and the penalties imposed in those cases. The case of McN is exceptional and of little assistance to us as far as arriving at an appropriate penalty in the present case is concerned. The case of M involved a number of postings on the Race Café website which contained “insulting or abusive language with reference to New Zealand Thoroughbred Racing”. Mr M was fined the sum of $350 on each of three charges. The case of P involved abusive text messages and telephone calls to the Chief Racecourse Investigator. Mr P was fined $450.
[20] The Committee disagrees with the submission on behalf of Mr Yesberg and places the present case higher on a scale of seriousness than either the M or P cases because of the language used and to whom that language was directed. We find the degree of culpability in this case to be in the mid-high range. This was not a case of misconduct directed at an official who is routinely accustomed to criticism as part of performing his function.
[21] We are mindful of the need to impose a penalty which will both denounce the Respondent’s conduct and specifically deter him from reoffending. The penalty must also be at a sufficient level that it will deter others.
PENALTY
[22] Mr Yesberg is fined the sum of $1,500.
COSTS
[23] Costs are reserved. Both parties are invited to file submissions regarding costs with the Judicial Control Authority by not later than Friday, 17 January 2014.
R G McKENZIE S C CHING
Chairman Committee Member
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