Non Raceday Inquiry RIU v PE Seque and NJ Simonsen – Decision on Penalty dated 4 August 2014

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decisiondate: 05/08/2014

hearing_title: Non Raceday Inquiry RIU v PE Seque and NJ Simonsen - Decision on Penalty dated 4 August 2014

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appealdecision: NO LINKED APPEAL DECISION

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BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT DUNEDIN

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND PETER ERIC SEQUE

Respondent

BETWEEN RACING INTEGRITY UNIT

Informant

AND NIKO JAMES SIMONSEN

Respondent

Information numbers: A1155 and A1156

Judicial Committee: Prof G Hall, Chairman - Mr D Jackson, Member of Committee

Appearing: Mr B Kitto, Racecourse Investigator, for the informant

The respondent, Mr P Seque in person

Mr P Bradshaw, assisting Mr P Seque

DECISION OF JUDICIAL COMMITTEE AS TO PENALTY

[1] In our decision of 10 July last we found two breaches of r 88.1.q (acts detrimental to and prejudicial to the image and interest of Greyhound Racing) to be proved against the respondents Peter Eric SEQUE and Niko James SIMONSEN. We required the parties to provide written submissions as to penalty.

[2] We have now received submissions from Mr Kitto and Mr Bradshaw, who has assisted Mr Seque.

[3] Mr Simonsen did not appear at the hearing of the matter on 11 June and had not indicated that he would not do so. We were satisfied that he had been served personally by Mr Kitto and the hearing proceeded in Mr Simonsen’s absence in accordance with r 92.6. Mr Kitto has informed the Committee by a memorandum dated 29 July that he had spoken to Mr Simonsen by telephone on 12 July, and that Mr Simonsen advised him that he had received the Judicial Committee’s written decision. Mr Kitto has further stated that Mr Simonsen said he had received the RIU’s penalty submissions and was aware that he had the opportunity to make his own submissions. Mr Simonsen has not communicated with this Committee.

[4] The penalty provision is r 89.1 which provides:

“Any Person found guilty of an Offence under these Rules shall be liable to:

a. a fine not exceeding $10,000 for any one (1) Offence; and/or

b. Suspension; and/or

c. Disqualification; and/or

d. Warning Off.”

[5] Relevantly r 92.11 provides:

“On finding an Offence proved the Judicial Committee may impose any penalty and/or affect any remedy provided by these Rules. In imposing a Penalty or affecting any remedy provided in these Rules, the Judicial Committee, may have regard to such matters as it considers appropriate and, in imposing any Penalty, may order that the whole or any part of any fine imposed be paid to any person it thinks fit.”

Mr Seque

[6] Mr Seque is a licensed Owner and Handler under the Greyhound New Zealand Rules of Racing. He has been a licensed person since October 2008. He is aged 21.

[7] The two charges of committing an act which is detrimental to the interest or image of Greyhound Racing which Mr Seque has been found to be in breach relate to obscene and insulting language at Addington raceway on 4 April in that he has admitted calling a fellow licence holder, Mrs Bonnie EVANS, a “f***ing slut” (charge 1), and an assault on Mr Stephen Evans at Forbury Park on the morning of raceday on 15 April 2014 (charge 3).

Informant’s submissions

[8] With respect to charge 1 Mr Kitto has submitted that this was “serious offending”, which “reflects poorly on Mr Seque and the Greyhound industry”. Mr Seque’s comment to Mrs Evans, he said, was heard by a number of other trainers. Mrs Evans was upset and she was yet to receive an apology from Mr Seque. Mr Kitto submitted a fine of $500 was appropriate and that it be paid in part or whole to the complainant pursuant to r 92.11.

[9] Mr Kitto identified 4 recent Greyhound Racing cases where penalties had been imposed for the use of abusive or obscene language. The most relevant was RIU v P (2013) (abusive and offensive language directed at a female Club Secretary — fine of $350). He also referred to GRNZ v M (2009) (abusive language directed to 2 female trainers — 3 months’ disqualification, but M had 2 previous misconduct breaches); RIU v McP (2011) (abusing and threatening a Racecourse Investigator — 6 months’ disqualification); and RIU v W (2014) (obscene language used in an email — fine of $200).

[10] Mr Kitto identified the catalyst for the assault upon Mr Evans by Mr Seque as being Mr Seque’s abusive language to Mrs Evans at the Addington meeting the week before. He submitted that the head-butt was intentional and the punching, although causing no physical injury, was to be “condemned”. It was totally unacceptable and brought the industry into disrepute. In Mr Kitto’s view, Mr Seque could have taken the heat out of the situation by apologising to Mrs Evans. He had not.

[11] Mr Kitto provided the Committee with a copy of the decision in GRNZ v F (2009) (assault – nine months’ disqualification).

[12] Mr Kitto submitted that the appropriate starting point for the assault on Mr Evans was one year’s disqualification. This was the starting point adopted in F. He did not identify a final sentence for Mr Seque on charge 3.

[13] Mr Kitto identified as aggravating features, Mr Seque’s lack of remorse and his denial of the assault.

[14] Mr Kitto stated that Mr Seque has not previously offended against the NZ Greyhound Rules of Racing.

[15] Mr Kitto noted that the complainant had requested that the investigation be conducted by the RIU. He said had the Police been involved and Mr Seque been convicted of an assault, s 34 of the Racing Act might have applied, which would have had the effect of excluding Mr Seque from a racetrack for 2 years.

[16] On 19 May 2014, Mr Seque was served with a “Warned off” Notice from the Board of NZ Greyhound Racing. Mr Kitto acknowledged that this was effectively a penalty and had resulted in Mr Seque being unable to go onto any Greyhound racetrack in New Zealand until the result of the charges was known, although he could still work at racing kennels. He was content for the Committee to regard this time as “two months penalty already served”.

Respondent’s submissions

[17] In his written submissions handed to us on the day of the hearing Mr Bradshaw stated that Mr Seque’s outburst at Addington was out of character and “it was not the usual way he handles himself”. Mr Seque had had his Handler’s licence for 7 years and this was the first time he had faced charges.

[18] Mr Bradshaw stated that Mr Seque had become very agitated during an argument with Mrs Evans over the non-payment of an infringement notice received for a vehicle not having a Certificate of Fitness. Mr Seque had been driving the vehicle at the time but he had no ownership interest in it. Mr Seque could not understand why he should be responsible for paying the fine and out of frustration had used the words that we have found to constitute a breach of r 88.1.q. Mr Seque now recognised that his outburst was inappropriate and he was “very disappointed with himself for losing his cool with someone he has been on friendly terms with for over three years”.

[19] Mr Bradshaw produced signed testimonials from a number of Canterbury licence-holders attesting to Mr Seque’s good character. Mr Kitto has not objected to our receiving these.

[20] Mr Bradshaw submitted that a fine of $500 was excessive for a first time offence. He reminded the Committee that no complaint was made to the RIU by Mrs Evans or other trainers and kennel staff who witnessed the incident. Charge 1, he said, had only come about to show causation for charge 3 and to justify Mr Evans’ actions in confronting Mr Seque and abusing him at Dunedin. Mr Bradshaw also submitted that it would be inappropriate for the fine to be paid to Mrs Evans given the circumstances (her starting the argument over the infringement notice) and he said any fines should be directed to GAP as a mutually beneficial charity.

[21] In written submissions to the Committee after our finding charge 3 proved, Mr Bradshaw stated that Mr Seque still believed that Mr Evans had hit him first. With respect to the RIU’s submission that he could have taken the heat out of the situation with an apology, Mr Bradshaw stated this may have been forthcoming if Mr Seque had been approached in a calm manner but he was placed in a confrontational situation by Mr Evans, which did not set the scene for a calm and reasonable conversation.

[22] With reference to the decision in F, to which Mr Kitto had made reference, Mr Bradshaw emphasised that the assault in that case was found to be serious and premeditated. That differed from the current case, he said, in that “Mr Evans was not injured by Mr Seque and was certainly not attacked in a premeditated fashion”.

Decision

[23] Clearly assaulting a fellow licence holder is unacceptable behaviour. When it occurs on a racecourse on raceday its turpitude is compounded. A deterrent sentence and one that will hold the respondent accountable is necessary. The integrity of Greyhound Racing demands no less. Disqualification is the appropriate penalty.

[24] The assault on Mr Evans had its origins in a failure to pay a traffic fine and the abuse by Mr Seque of Mrs Evans was due to this fact. Mr Evans not unnaturally was angry at the treatment of his wife and undoubtedly this anger built up over the days leading up to the meeting at Forbury Park. Unfortunately Mr Evans let his anger get the better of him and rather than discussing the matter with Mr Seque and requesting an apology, he confronted him in a loud fashion and abused him. We have found in our previous decision that Mr Evans called Mr Seque a “f***ing thief”. It is not surprising that this angered Mr Seque but Mr Seque’s responding by running after Mr Evans and head-butting him when he turned to face Mr Seque was far from an appropriate response. Indeed, as we have found, it was a breach of r 88.1.q.

[25] We thus find that the assault by Mr Seque upon Mr Evans was provoked by Mr Evans’ verbal confrontation with Mr Seque a few moments earlier. We view Mr Seque’s actions as a violent and immature response to the actions of Mr Evans. We have to say that Mr Evans is not completely blameless in this episode. His throwing of punches, which missed their mark, and a willingness to engage in a fight, was a disproportionate response to the head-butt by Mr Seque. Merely lightly pushing Mr Seque away or departing from the scene in order that they could both cool off would have been more appropriate.

[26] We find the decision in F to be of limited assistance. As Mr Bradshaw correctly points out, the Tribunal in that case described the assault as “serious and premeditated”. This is not an apt description of Mr Seque’s actions, which we find to be taken in the heat of the moment and in the face of verbal abuse. That said, Mr Seque had followed Mr Evans to the grassy knoll where he then head-butted him. The assault committed by F in our view was worse than Mr Seque’s in the round (at least 6 “vicious” punches to one victim and a push to another compared to a head-butt causing no facial damage and a punch). F was a mature man who had been President of a Club; Mr Seque is 21.

[27] We have received a number of positive testimonials from licensed persons, although one refers to the writer detecting a change in Mr Seque’s behaviour in recent times. We trust that the experience of being before this Judicial Committee and the penalty that we impose will have a salutary effect upon Mr Seque (and to this extent is punitive) but will also be the impetus he needs to lead him to reassess his behaviour (and in this regard is rehabilitative).

[28] We do not accept the two features, lack of remorse and denial of the assault, as identified by Mr Kitto, to be aggravating. These are the absence of mitigating factors and are not factors that would lead us to increase penalty. Mr Seque is entitled as a licence-holder to put the informant to proof. Nor do we pay any heed to the possibility that charges could have been brought in the criminal courts with the outcome being likely to be more severe consequences for Mr Seque, including his being excluded from a racetrack for 2 years. This is purely a matter of speculation and is irrelevant to our determination of the appropriate penalty in the Greyhound Racing disciplinary arena.

[29] With respect to charge 1, Mr Seque at the hearing acknowledged that the language he used towards Mrs Evans was inappropriate and he regretted his choice of words, although we were concerned that Mr Bradshaw’s later oral submissions and his further written submissions indicated that Mr Seque still blamed Mrs Evans for provoking him on the day. Whatever words Mrs Evans had with Mr Seque, these could never justify his obscene response. Mr Seque could have and should have apologised immediately to Mrs Evans and his failure to do so undoubtedly contributed to the assault at Forbury. We accept that sometime after being charged Mr Seque spoke on the telephone to Mr or Mrs Evans (perhaps both — Mr Bradshaw’s written submission is not clear on this point) and apologised for his behaviour. Mr Seque should have done this before the meeting at Forbury Park.

[30] The language used by Mr Seque is simply unacceptable when directed to a female licence-holder on a racecourse on raceday. It too, must be denounced in the clearest terms.

[31] The most significant mitigating factor for Mr Seque is his youth, although at age 21 he is not able to call upon this in his favour to the same extent as Mr Simonsen. (We examine the justification for a sentencing discount for youth in our sentencing of Mr Simonsen.)

[32] Factoring in the provocation to which Mr Seque was subject prior to his assault on Mr Evans, we take a starting point for charge 3 of nine months’ disqualification. We believe a 20% reduction is appropriate for youth, and a further 20%, which we regard as being generous, for previous good character (as evidenced by the positive testimonials) and personal circumstances, including the fact that being “warned off” has denied Mr Seque the opportunity of being on the racetrack to witness the first win from the first litter he has bred and the difficulties a disqualification will create for his training partnership with Ashley Bradshaw. This results in a disqualification, which we will round down to five months. We order that this disqualification commence on 14 August 2014. We give credit for the time that Mr Seque has been “warned off”. The period of disqualification is up to and including 18 October 2014.

[33] We believe a fine is appropriate for charge 1. P is the most helpful decision. The amount there was $350. There was no admission of the breach in that case, although there was an apology to the woman to whom the comments were directed and evidence of remorse. We note the obscene word was repeated on 4 occasions in P and was directed to a Club official who was merely performing her raceday tasks. P thus has some aggravating factors not present in this case. Mr Seque is a young man and we assume his financial position is such that a fine of a similar amount to P would be a significant impost for him. He has also admitted this breach, which has obviated the need for Mrs Evans and a witness to travel from Christchurch for the hearing. We believe a fine at a level lower than that in P is appropriate and we fine Mr Seque the sum of $250. We see no reason why the whole of this amount should not be paid to the complainant, a person with whom Mr Seque says he has been on friendly terms for over three years. We are satisfied that Mrs Evans would have suffered emotional upset as a consequence of Mr Seque’s words, and we so order pursuant to r 92.11. We emphasise whether Mrs Evans started the argument, as Mr Seque alleges, or not, this is still no excuse for the language used by Mr Seque, and is no reason for us not to make an award in Mrs Evans’ favour.

Costs

[34] Mr Kitto sought costs for the RIU and witness expenses totalling $1221. There should also be an award in favour of the JCA. We agree with Mr Kitto that it is appropriate that costs be shared equally between the 2 respondents. We do not believe it is appropriate that an award be made with respect to the cancelled flight. Again we temper our awards having regard to the youth and means of the respondents. Mr Seque is ordered to pay costs in the sum of $250 to the RIU and $250 to the JCA.

Mr Simonsen

35] Mr Simonsen is a licensed Handler under the Greyhound New Zealand Rules of Racing. He has been a licensed person since October 2011. He is aged 16.

[36] The two charges in respect of which Mr Simonsen has been found to be in breach relate to an assault on two individuals, Mr Evans (charge 4) and Mr Guthrie (charge 6). The assaults occurred at Forbury Park on the morning of raceday on 15 April 2014.

Informant’s submissions

[37] In relation to charge 4, Mr Kitto submitted Mr Simonsen’s offending had to be denounced in the strongest terms. Mr Simonsen was not involved in the initial dispute between Mr Seque and Mr Evans. He had joined in of his own volition and was described as being “young, fit and strong”. He attacked Mr Evans from behind in “a cowardly attack”. He has punched Mr Evans, raining blows to the back of his head and neck. Mr Evans was unable to defend himself as he was being assaulted by Mr Seque front on. Mr Evans received a sore neck and bruising to the back of his neck. A witness, Mr Rance, described the striking of Mr Evans by Mr Simonsen as “serious punches”.

[38] Mr Kitto described the assault as “extremely serious and dangerous” in that Mr Evans was “blind-sided and could not defend himself”. It was offending of a type that could have “serious, if not deadly, consequences”.

[39] In relation to charge 6, Mr Kitto emphasised Mr Guthrie was 68 yrs of age and was the President of the Otago Greyhound Racing Club. Mr Guthrie had observed what was happening and with the assistance of a witness, Mr Connor, he had grabbed hold of Mr Simonsen to pull him off Mr Evans whom Mr Simonsen was punching. Mr Simonsen struggled violently, punching Mr Guthrie several times and causing minor injuries to the right side of Mr Guthrie’s face. Mr Kitto submitted the injuries received by Mr Evans from Mr Simonsen may well have been more serious but for the intervention of Mr Guthrie and Mr Connor.

[40] Mr Kitto provided the Committee with a copy of the decision in GRNZ v F (2009). F assaulted 2 people, including a Club Official. One assault was described as a push, the other “at least 6 vicious punches to the head”. On appeal the 3-month disqualification was increased to one of nine months. The starting point taken at first instance and on appeal was 12 months. F was a first offender, who admitted the breach. He had acted under considerable provocation and out of concern for his wife, who had been the victim of a campaign of insults and abuse. Understandably, it was noted there were alternative courses of action available to F and he should not have taken matters into his own hands. Emphasising deterrence, the Appeals Tribunal was of the view that only a 3-month discount was warranted for mitigating factors, and not the nine months’ discount afforded by the Committee.

[41] Mr Kitto identified as aggravating features, Mr Simonsen’s lack of remorse and apology to either of the complainants; the serious and dangerous nature of the assault on Mr Evans; and his failure to attend the hearing, thereby requiring formal proof of the assault on Mr Guthrie.

[42] Mr Simonsen has not previously offended against the NZ Greyhound Rules of Racing. A further mitigating factor, Mr Kitto said, was the fact that Mr Simonsen admitted the assault upon Mr Evans.

[43] Mr Kitto submitted that the appropriate starting point for the assault on Mr Evans was two years’ disqualification and Mr Guthrie 12 months’ disqualification.

[44] On 19 May 2014, Mr Simonsen was served with a “Warned off” Notice from the Board of NZ Greyhound Racing. Mr Kitto said this effectively was a penalty and had resulted in Mr Simonsen being unable to go onto any Greyhound racetrack in New Zealand until the result of these charges was known, although he could still work at racing kennels. He was not currently working at any kennels, he believed. Mr Kitto said this amounted to two months penalty already served.

Decision

[45] Mr Simonsen’s conduct is totally unacceptable and is aggravated by the fact that he joined in an altercation in which he had no reason to be involved. It did not concern him. He rained punches on Mr Evans’ head from behind when Mr Evans was already being punched by Mr Seque and was swinging wild blows at Mr Seque. Mr Simonsen also fought with Mr Guthrie who had intervened in an endeavour to break up the fight. An aggravating feature of the assaults was that the punches to Mr Evans continued whilst Mr Guthrie, who was simply acting as a peacemaker, was taking Mr Simonsen to the ground. Moreover, Mr Simonsen continued to hit Mr Guthrie when they were both on the ground. Mr Guthrie suffered minor abrasions to a cheek as a consequence of the assault by Mr Simonsen upon his person.

[46] Disqualification is the appropriate penalty in order to denounce Mr Simonsen’s actions. Assaulting fellow licence holders on a racecourse on raceday is unacceptable behaviour that questions the integrity of Greyhound Racing. To continue to fight an older man, who is intervening merely to pull the participants apart, further emphasises the need for a deterrent sentence and one that will hold Mr Simonsen accountable.

[47] The assaults have arisen out of the one incident and are similar in nature. There are of course 2 victims; hence the 2 charges. We believe concurrent sentences are appropriate. We take the assault on Mr Evans, which we regard as the more serious of the 2 assaults, involving as it did repeated punches to the back of the head, as the lead offence. We adopt a 12-month starting point, which we increase by 6 months having regard to the later but related assault on Mr Guthrie, which was only marginally less serious than the assault on Mr Evans. There are no other aggravating factors.

[48] Mr Simonsen is only 16. In the broader judicial system it is accepted that youth is a mitigating factor. We refer to Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 where the relevance of youth to the sentencing process was carefully considered. The following matters were identified at [77] and [78]:

- There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults; …

- Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult;

- Offending  by  a  young person  is frequently a  phase,  which  passes  fairly  rapidly and  thus a   well-balanced reaction is required in order to avoid alienating the young person from society;

- Criminal convictions at this stage of a person's life may have a disproportionate impact on the ability of the young person to gain meaningful employment and play a worthwhile role in society.

[49] These factors are relevant to the sphere in which we come to impose sentence with the exception, of course, that we impose no criminal conviction upon Mr Simonsen, but nonetheless his being found to be in breach of the Rules may well impact on his ability to gain meaningful employment and to play a worthwhile role in the industry.

[50] We allow a 30% discount for youth. There is no good character evidence or matters of a personal nature before us, so we are unable to make a deduction on that ground. The 30% discount for youth is greater than that for Mr Seque because of the difference in age; Mr Simonsen being some 5 years younger than Mr Seque. Mr Simonsen has admitted the assault on Mr Evans but we are only able to give a very small discount for this factor as he denied assaulting Mr Guthrie and this necessitated the calling of evidence from the victim of each of his assaults and from 2 eye-witnesses. A period of 12 months’ disqualification is appropriate for the totality of the offending. We impose this penalty on charge 4, and order that this disqualification is to commence on 14 August 2014. We give credit for the time that Mr Simonsen has been “warned off”. The period of disqualification is up to and including 18 May 2015. We impose a concurrent term of 9 months’ disqualification on charge 6, which also commences on 14 August. Again we give credit for the time Mr Simonsen has been “warned off”. This period of disqualification is up to and including 18 February 2015.

Costs

[51] Mr Kitto sought costs for the RIU and witness expenses totalling $1221. There should also be an award in favour of the JCA. We agree with Mr Kitto that it is appropriate that costs be shared equally between the 2 respondents. We do not believe it is appropriate that an award be made with respect to the cancelled flight. Again we temper our awards having regard to the youth and means of the respondents. Mr Simonsen is ordered to pay costs in the sum of $250 to the RIU and $250 to the JCA.

Dated at Dunedin this 4th day of August 2014.

Geoff Hall                  Chairman

David Jackson            Committee Member

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