Non Raceday Inquiry RIU v R Allen – Decision of Judicial Committee as to Penalty dated 16 October 2014
ID: JCA15681
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT
Informant
AND RICHARD ALLEN
Open Horseman
Respondent
Information: A6484
Judicial Committee: Prof G Hall, Chairman - Mr P Knowles, Committee Member
Appearing: Mr S Renault, for the Informant
The Respondent in person
DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
[1] Mr R Allen is the holder of an Open Horseman’s licence, which was issued under the New Zealand Rules of Harness Racing. In our decision of 22 September last we found that he had committed a breach of r 868(3) in that he failed to drive ZACHARY SMITH out over the final 200 metres in race 1 at the Gore Harness racing Club’s meeting on 24 August last when having a reasonable chance of running first.
[2] We required the parties make written submissions as to penalty. We have received these submissions.
Informant’s submissions
[3] Mr Renault in his submissions for the RIU places the respondent’s breach as towards the higher end of the scale. In particular, he emphasised that the betting public were “relieved of any opportunity” to see ZACHARY SMITH be fully tested and given every opportunity to win the race.
[4] Mr Renault notes the impact that the respondent’s actions had on the integrity of harness racing and emphasises that it is critical for the reputation of the racing industry that public and shareholder confidence be maintained at the highest possible level.
[5] The penalty imposed, the RIU states, must be one that “firstly reflects the seriousness of the matter and secondly is of such significance as to deter other similarly disposed or inclined to commit like acts whether through an error of judgement or corrupt intent from similar offending.”
[6] Mr Allen’s driving record evidences the fact that he drives only on rare occasions. He has had 4 drives this season and 2 in the last. Since 2000 he has had the sum of 10 drives. His record is clear.
[7] The informant submits that a suspension alone would be an insufficient penalty due to the irregular nature of the respondent’s driving commitments. Mr Allen when interviewed by the stipendiary stewards stated that he would no longer drive ZACHARY SMITH.
[8] Mr Renault notes that the starting point in the JCA Penalty Guide is a 12-drive suspension or a fine of $600 with regard being had to the placing in which the horse finished.
[9] The RIU made reference to 4 cases: B (2005); W (2005); P (2011) and D (2013). These cases were all instances of where a horse had the opportunity to win the race but finished second perhaps due to the lack of vigour shown in the run home by the respective drivers of the horses.
[10] Mr Renault submitted the appropriate penalty for Mr Allen was a combination of a suspension and a fine; specifically a 4 months’ suspension and a fine of between $500 and $600.
Respondent’s submissions
[11] Mr Allen first drew to the Committee’s attention the record of ZACHARY SMITH He stated that ZACHARY SMITH had 26 starts as a maiden trotter before winning his first race.
[12] Mr Allen detailed the racing career of the horse as follows:
Prior to joining my stable ZACHARY SMITH had appeared in the Judicial reports in his previous five race appearances:
21 November Forbury broke with 500m and again in final stages.
27 December Gore broke at start and again in concluding stages.
2 January Central Otago broke at start and over concluding stages.
9 May Forbury disqualified from 4th, incorrect gait.
18 May Oamaru broke passing 600m.
[13] And since joining his stable:
30 May at Forbury, again galloped in the last 150m when 3rd tried for a higher placing with pressure and was disqualified, I then requested no whip be carried, granted.
2 June Invercargill - ran 2nd K. Barclay was questioned with the manner she drove over the final stages. Her explanation was that ZACHARY SMITH required little motivation to gallop when placed under pressure. This explanation was accepted.
13 July Oamaru –‘trotted roughly and broke when racing prominently’
[14] His driving instructions to all drivers had been consistent, he said, that was, to hold the horse together with a minimum of movement.
[15] When he had driven ZACHARY SMITH he had followed his own advice to the letter and a perusal of race videos involving himself and ZACHARY SMITH would, he said, not show any variation in the manner in which he had driven ZACHARY SMITH over the concluding stages of any race including the race under inquiry.
[16] Mr Allen added he was “convinced” that had he shown any more vigour ZACHARY SMITH would have broken. This was not based upon opinion but upon the past record of the horse’s behaviour, something that the stipendiary stewards had always been aware of and the Committee, he believed, had not taken into consideration in reaching its decision as to breach. ZACHARY SMITH arrived in his stable as a “chuck out”. This was the horse’s last chance. In Mr Allen’s view the horse had begun to display some bad behaviour traits and this had resulted in him anticipating any movement on the part of the driver. As a result he determined to change this behaviour by not giving the horse any signal to anticipate or react to. The results, he believed spoke for themselves. In following this course of action (restricting driver movement), ZACHARY SMITH had turned a corner and was set to realise his potential.
[17] Mr Allen stated he did not rank himself alongside professional drivers, such as Mr Dexter Dunn, and conceded that in the race under inquiry he might not have given ZACHARY SMITH the best of runs in the race but he refuted the view that he might have cost ZACHARY SMITH a winning opportunity due to a lack of vigour. He was doing all that he dared to do and, taking into account ZACHARY SMITH’s past record, this was the very best outcome for the punter. With reference to ZACHARY SMITH’s next start, which he won, Mr Allen said his instruction to Mr Dunn, was exactly the same as given to all drivers, “no whip and don’t move a muscle”; advice that Mr Dunn followed religiously.
[18] With respect to the finishing position of the horse, Mr Allen said the driver of PYRAMID MAJOR, which won the race, had been quoted as saying that his horse ‘knocked off’ over the last 50 metres resulting in a flattering half length margin back to ZACHARY SMITH. He emphasised ZACHARY SMITH was in fact closer to the 4th horse. He emphasised that the public was aware of the horse’s record. ZACHARY SMITH was only the 6th favourite in the race. The race was won by the hot favourite and he said that this “would certainly have pleased a lot more punters than would have been the case if ZACHARY SMITH had won.”
[19] With reference to the cases cited by the informant, Mr Allen observed that in all of the cases the horses had no prior record of breaking for no reason, as was the case with ZACHARY SMITH. The drivers carried whips. He had been granted permission to not carry a whip. In the case of HRNZ v P, where no fine was imposed, the Committee noted that Mr P had fallen well short of the required standard and it might be that his lack of experience as a driver had contributed to that. A courtesy that Mr Allen said had not been extended to him. He asked us to compare his record with the professional driving record of the other drivers in the other three cases.
[20] Mr Allen said it could be argued that he had failed to drive ZACHARY SMITH with sufficient vigour in every start that he had driven him. His contention was that this had been deliberate and in keeping with the rehabilitation of the horse. This was communicated to the stipendiary stewards as a reason for the application to ‘not carry a whip’. They had been kept informed. The stipendiary stewards decision to target this race only on the basis that ZACHARY SMITH had a chance of winning the race was conjecture and any suggestion that he should have changed the way he drove ZACHARY SMITH in this instance would have resulted in the horse breaking. His actions in ensuring that the horse remained trotting all the way to the line ensured that the betting public received the best possible result. He could not see how this had impacted upon the confidence of the betting public.
[21] Mr Allen concluded his submissions by stating he had put a lot of hard work, time, patience and perseverance into turning around the fortunes of ZACHARY SMITH — “something that had been acknowledged by my peers and the public alike”. He looked forward to his retirement and being able to indulge his love of working with trotting horses. In all of the years that he had held a licence he had never faced a charge such as this. He was disappointed that the decision that he was in breach of the rule raised “questions with regard to my integrity and commitment to the sport.”
Decision
[22] We first draw to Mr Allen’s attention para [23] of our earlier decision where we state: “[W]e do not question Mr Allen’s motives. It is evident that his concern was to try to ensure ZACHARY SMITH kept trotting by keeping a hold on the horse, as he has stated, but this notwithstanding, he has an obligation to those persons that invested on the horse to drive it out to the end of the race, where, as here, there was the reasonable chance of the horse finishing in a better placing. This was not the occasion to restore the horse’s confidence or to see if it was over its unsoundness issues.”
[23] Having further regard to this issue, we believe the reference in Mr Renault’s submission to corruption is inappropriate in the circumstances of this case and could be viewed as being unduly emotive. We accept, of course, that Mr Renault was not alleging corruption in Mr Allen’s case, but this issue need not have been raised and it may explain the tenor of indignance that is evident in Mr Allen’s penalty submissions.
[24] We have found Mr Allen guilty of a misjudgment; nothing more. Neither our decision finding the breach proved nor this decision questions his integrity or commitment to the sport.
[25] The breach itself we believe is mid-range. Other than calling to the horse, Mr Allen has sat there with only a slight movement of the wrist. We note his reference to the margin flattering ZACHARY SMITH and that ZACHARY SMITH was closer to the 4th horse than the winner, but those persons that invested on the horse were entitled to believe the horse would be well tried. The integrity of the sport is engaged to this extent, as Mr Renault has noted. We accept, as Mr Allen has stated, investors would have known that no whip was being carried and that the horse had a history of breaking, but they were entitled to expect some urging from Mr Allen. We understand Mr Allen’s reluctance to do anything that was likely to cause the horse to gallop, but the other side of the coin is his need to obtain the best from the horse, and in particular to give it every opportunity of winning the race. This as we have found, he failed to do on this occasion.
[26] Mr Allen had his first drive in the 1983/84 season and has had a total of 71 drives. As he correctly points out, although his record spans a number of years, he is still a relatively inexperienced driver. He has driven 3 winners in this time.
[27] We do not believe specific deterrence need be emphasised in this case, as is evidenced by Mr Allen’s record. It speaks for itself. General deterrence is relevant, if only to reinforce the fact that all drivers, experienced or inexperienced, have an obligation to take all reasonable measures to ensure that the horse is driven out to the finish of the race when it has any reasonable chance of running first, second, third, fourth, fifth, or sixth.
[28] We make reference to the cases raised in the parties’ submissions. None are on all fours with this case, and in particular none relate to a trotter where the driver was concerned that excessive vigour might result in the horse breaking, as was Mr Allen’s principal concern in this case. We thus obtained only very limited guidance.
[29] The JCA Penalty Guide provides a starting point of a fine of $600 or 12 drives, with particular regard being had to the placing involved.
[30] We have also examined the JCA penalty database with respect to this rule. It shows that over the past 5 years penalties have ranged from a low of a fine of $350 (chance of 4th placing) to a high of a suspension of 12 weeks for an inexperienced driver who drove infrequently. A fine in the range of $500 to $600 has not been uncommon where there was a chance of 1st placing. On only one occasion was a fine plus a suspension imposed and this was 2 days plus $200, when beaten by a nose for 3rd.
[31] We believe Mr Allen’s actions need to be marked by the imposition of a suspension. However, having regard to the infrequency with which Mr Allen drives, we believe a combination of a suspension and a fine, as submitted by Mr Renault is appropriate on this occasion. But this does not need to be at the level he has identified. To do so would be inconsistent with previous cases and would not recognise Mr Allen’s inexperience or that his lifetime involvement in the sport is without blemish, which is clearly a weighty mitigating factor in determining the appropriate penalty.
[32] Mr Allen has made an error of judgment on this occasion. It is out of character. We impose a 6-week suspension and fine Mr Allen the sum of $300. The suspension is from the end of racing on 19 October up to and including 29 November 2014.
[33] The RIU do not seek costs and there is no award in favour of the JCA.
Dated at Dunedin this 16th day of October 2014.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 17/10/2014
Publish Date: 17/10/2014
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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informantnumber:
horsename:
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startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 17/10/2014
hearing_title: Non Raceday Inquiry RIU v R Allen - Decision of Judicial Committee as to Penalty dated 16 October 2014
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT
Informant
AND RICHARD ALLEN
Open Horseman
Respondent
Information: A6484
Judicial Committee: Prof G Hall, Chairman - Mr P Knowles, Committee Member
Appearing: Mr S Renault, for the Informant
The Respondent in person
DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
[1] Mr R Allen is the holder of an Open Horseman’s licence, which was issued under the New Zealand Rules of Harness Racing. In our decision of 22 September last we found that he had committed a breach of r 868(3) in that he failed to drive ZACHARY SMITH out over the final 200 metres in race 1 at the Gore Harness racing Club’s meeting on 24 August last when having a reasonable chance of running first.
[2] We required the parties make written submissions as to penalty. We have received these submissions.
Informant’s submissions
[3] Mr Renault in his submissions for the RIU places the respondent’s breach as towards the higher end of the scale. In particular, he emphasised that the betting public were “relieved of any opportunity” to see ZACHARY SMITH be fully tested and given every opportunity to win the race.
[4] Mr Renault notes the impact that the respondent’s actions had on the integrity of harness racing and emphasises that it is critical for the reputation of the racing industry that public and shareholder confidence be maintained at the highest possible level.
[5] The penalty imposed, the RIU states, must be one that “firstly reflects the seriousness of the matter and secondly is of such significance as to deter other similarly disposed or inclined to commit like acts whether through an error of judgement or corrupt intent from similar offending.”
[6] Mr Allen’s driving record evidences the fact that he drives only on rare occasions. He has had 4 drives this season and 2 in the last. Since 2000 he has had the sum of 10 drives. His record is clear.
[7] The informant submits that a suspension alone would be an insufficient penalty due to the irregular nature of the respondent’s driving commitments. Mr Allen when interviewed by the stipendiary stewards stated that he would no longer drive ZACHARY SMITH.
[8] Mr Renault notes that the starting point in the JCA Penalty Guide is a 12-drive suspension or a fine of $600 with regard being had to the placing in which the horse finished.
[9] The RIU made reference to 4 cases: B (2005); W (2005); P (2011) and D (2013). These cases were all instances of where a horse had the opportunity to win the race but finished second perhaps due to the lack of vigour shown in the run home by the respective drivers of the horses.
[10] Mr Renault submitted the appropriate penalty for Mr Allen was a combination of a suspension and a fine; specifically a 4 months’ suspension and a fine of between $500 and $600.
Respondent’s submissions
[11] Mr Allen first drew to the Committee’s attention the record of ZACHARY SMITH He stated that ZACHARY SMITH had 26 starts as a maiden trotter before winning his first race.
[12] Mr Allen detailed the racing career of the horse as follows:
Prior to joining my stable ZACHARY SMITH had appeared in the Judicial reports in his previous five race appearances:
21 November Forbury broke with 500m and again in final stages.
27 December Gore broke at start and again in concluding stages.
2 January Central Otago broke at start and over concluding stages.
9 May Forbury disqualified from 4th, incorrect gait.
18 May Oamaru broke passing 600m.
[13] And since joining his stable:
30 May at Forbury, again galloped in the last 150m when 3rd tried for a higher placing with pressure and was disqualified, I then requested no whip be carried, granted.
2 June Invercargill - ran 2nd K. Barclay was questioned with the manner she drove over the final stages. Her explanation was that ZACHARY SMITH required little motivation to gallop when placed under pressure. This explanation was accepted.
13 July Oamaru –‘trotted roughly and broke when racing prominently’
[14] His driving instructions to all drivers had been consistent, he said, that was, to hold the horse together with a minimum of movement.
[15] When he had driven ZACHARY SMITH he had followed his own advice to the letter and a perusal of race videos involving himself and ZACHARY SMITH would, he said, not show any variation in the manner in which he had driven ZACHARY SMITH over the concluding stages of any race including the race under inquiry.
[16] Mr Allen added he was “convinced” that had he shown any more vigour ZACHARY SMITH would have broken. This was not based upon opinion but upon the past record of the horse’s behaviour, something that the stipendiary stewards had always been aware of and the Committee, he believed, had not taken into consideration in reaching its decision as to breach. ZACHARY SMITH arrived in his stable as a “chuck out”. This was the horse’s last chance. In Mr Allen’s view the horse had begun to display some bad behaviour traits and this had resulted in him anticipating any movement on the part of the driver. As a result he determined to change this behaviour by not giving the horse any signal to anticipate or react to. The results, he believed spoke for themselves. In following this course of action (restricting driver movement), ZACHARY SMITH had turned a corner and was set to realise his potential.
[17] Mr Allen stated he did not rank himself alongside professional drivers, such as Mr Dexter Dunn, and conceded that in the race under inquiry he might not have given ZACHARY SMITH the best of runs in the race but he refuted the view that he might have cost ZACHARY SMITH a winning opportunity due to a lack of vigour. He was doing all that he dared to do and, taking into account ZACHARY SMITH’s past record, this was the very best outcome for the punter. With reference to ZACHARY SMITH’s next start, which he won, Mr Allen said his instruction to Mr Dunn, was exactly the same as given to all drivers, “no whip and don’t move a muscle”; advice that Mr Dunn followed religiously.
[18] With respect to the finishing position of the horse, Mr Allen said the driver of PYRAMID MAJOR, which won the race, had been quoted as saying that his horse ‘knocked off’ over the last 50 metres resulting in a flattering half length margin back to ZACHARY SMITH. He emphasised ZACHARY SMITH was in fact closer to the 4th horse. He emphasised that the public was aware of the horse’s record. ZACHARY SMITH was only the 6th favourite in the race. The race was won by the hot favourite and he said that this “would certainly have pleased a lot more punters than would have been the case if ZACHARY SMITH had won.”
[19] With reference to the cases cited by the informant, Mr Allen observed that in all of the cases the horses had no prior record of breaking for no reason, as was the case with ZACHARY SMITH. The drivers carried whips. He had been granted permission to not carry a whip. In the case of HRNZ v P, where no fine was imposed, the Committee noted that Mr P had fallen well short of the required standard and it might be that his lack of experience as a driver had contributed to that. A courtesy that Mr Allen said had not been extended to him. He asked us to compare his record with the professional driving record of the other drivers in the other three cases.
[20] Mr Allen said it could be argued that he had failed to drive ZACHARY SMITH with sufficient vigour in every start that he had driven him. His contention was that this had been deliberate and in keeping with the rehabilitation of the horse. This was communicated to the stipendiary stewards as a reason for the application to ‘not carry a whip’. They had been kept informed. The stipendiary stewards decision to target this race only on the basis that ZACHARY SMITH had a chance of winning the race was conjecture and any suggestion that he should have changed the way he drove ZACHARY SMITH in this instance would have resulted in the horse breaking. His actions in ensuring that the horse remained trotting all the way to the line ensured that the betting public received the best possible result. He could not see how this had impacted upon the confidence of the betting public.
[21] Mr Allen concluded his submissions by stating he had put a lot of hard work, time, patience and perseverance into turning around the fortunes of ZACHARY SMITH — “something that had been acknowledged by my peers and the public alike”. He looked forward to his retirement and being able to indulge his love of working with trotting horses. In all of the years that he had held a licence he had never faced a charge such as this. He was disappointed that the decision that he was in breach of the rule raised “questions with regard to my integrity and commitment to the sport.”
Decision
[22] We first draw to Mr Allen’s attention para [23] of our earlier decision where we state: “[W]e do not question Mr Allen’s motives. It is evident that his concern was to try to ensure ZACHARY SMITH kept trotting by keeping a hold on the horse, as he has stated, but this notwithstanding, he has an obligation to those persons that invested on the horse to drive it out to the end of the race, where, as here, there was the reasonable chance of the horse finishing in a better placing. This was not the occasion to restore the horse’s confidence or to see if it was over its unsoundness issues.”
[23] Having further regard to this issue, we believe the reference in Mr Renault’s submission to corruption is inappropriate in the circumstances of this case and could be viewed as being unduly emotive. We accept, of course, that Mr Renault was not alleging corruption in Mr Allen’s case, but this issue need not have been raised and it may explain the tenor of indignance that is evident in Mr Allen’s penalty submissions.
[24] We have found Mr Allen guilty of a misjudgment; nothing more. Neither our decision finding the breach proved nor this decision questions his integrity or commitment to the sport.
[25] The breach itself we believe is mid-range. Other than calling to the horse, Mr Allen has sat there with only a slight movement of the wrist. We note his reference to the margin flattering ZACHARY SMITH and that ZACHARY SMITH was closer to the 4th horse than the winner, but those persons that invested on the horse were entitled to believe the horse would be well tried. The integrity of the sport is engaged to this extent, as Mr Renault has noted. We accept, as Mr Allen has stated, investors would have known that no whip was being carried and that the horse had a history of breaking, but they were entitled to expect some urging from Mr Allen. We understand Mr Allen’s reluctance to do anything that was likely to cause the horse to gallop, but the other side of the coin is his need to obtain the best from the horse, and in particular to give it every opportunity of winning the race. This as we have found, he failed to do on this occasion.
[26] Mr Allen had his first drive in the 1983/84 season and has had a total of 71 drives. As he correctly points out, although his record spans a number of years, he is still a relatively inexperienced driver. He has driven 3 winners in this time.
[27] We do not believe specific deterrence need be emphasised in this case, as is evidenced by Mr Allen’s record. It speaks for itself. General deterrence is relevant, if only to reinforce the fact that all drivers, experienced or inexperienced, have an obligation to take all reasonable measures to ensure that the horse is driven out to the finish of the race when it has any reasonable chance of running first, second, third, fourth, fifth, or sixth.
[28] We make reference to the cases raised in the parties’ submissions. None are on all fours with this case, and in particular none relate to a trotter where the driver was concerned that excessive vigour might result in the horse breaking, as was Mr Allen’s principal concern in this case. We thus obtained only very limited guidance.
[29] The JCA Penalty Guide provides a starting point of a fine of $600 or 12 drives, with particular regard being had to the placing involved.
[30] We have also examined the JCA penalty database with respect to this rule. It shows that over the past 5 years penalties have ranged from a low of a fine of $350 (chance of 4th placing) to a high of a suspension of 12 weeks for an inexperienced driver who drove infrequently. A fine in the range of $500 to $600 has not been uncommon where there was a chance of 1st placing. On only one occasion was a fine plus a suspension imposed and this was 2 days plus $200, when beaten by a nose for 3rd.
[31] We believe Mr Allen’s actions need to be marked by the imposition of a suspension. However, having regard to the infrequency with which Mr Allen drives, we believe a combination of a suspension and a fine, as submitted by Mr Renault is appropriate on this occasion. But this does not need to be at the level he has identified. To do so would be inconsistent with previous cases and would not recognise Mr Allen’s inexperience or that his lifetime involvement in the sport is without blemish, which is clearly a weighty mitigating factor in determining the appropriate penalty.
[32] Mr Allen has made an error of judgment on this occasion. It is out of character. We impose a 6-week suspension and fine Mr Allen the sum of $300. The suspension is from the end of racing on 19 October up to and including 29 November 2014.
[33] The RIU do not seek costs and there is no award in favour of the JCA.
Dated at Dunedin this 16th day of October 2014.
Geoff Hall, Chairman
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