Non Raceday Inquiry RIU v R C Udy – Reserved Written Decision dated 10 December 2018 – Chair, Mr T Utikere

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hearing_title: Non Raceday Inquiry RIU v R C Udy - Reserved Written Decision dated 10 December 2018 - Chair, Mr T Utikere

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

------IN THE MATTER of the Rules of Greyhound Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND-RC UDY

Respondent

Judicial Committee:-Mr T Utikere (Chairman)

Mrs N Moffatt (Member)

Parties:--Mr S Irving (for the RIU)

Mr R Udy (as the Respondent)

RESERVED WRITTEN DECISION OF THE JUDICIAL COMMITTEE DATED 10 DECEMBER 2018

FACTS

[1] The Respondent has been charged with a breach of Rule 62.1(o) of the New Zealand Rules of Greyhound Racing.

[2] The relevant Rule is as follows:

Rule 62.1 (o): “Any person (including an Official) commits an offence if he/she: has, in relation to a Greyhound or Greyhound racing, done a thing, or omitted to do a thing which is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct;

[3] The specific Information alleged:

Information No A7162 (as amended)

THAT on the 31st August 2018 at Hatrick Raceway Wanganui, Raymond Clarence UDY, Wanganui Greyhound Racing Club lure driver, did misconduct himself by speaking and acting in an intimidating manner”.

[4] The relevant Penalty provisions are contained in Rule 63.1 which states:

“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.”

PRELIMINARY MATTERS-

[5] The Committee had previously issued two Minutes dated 8 November and 16 November following a teleconference and communications between all parties. Those Minutes identified that the Committee was in receipt of the Notice of Appointment, the Charge Rules and Penalty Provisions and an Authority to Charge Letter from the General Manager of the Racing Integrity Unit (RIU), Mr M Godber. The Minutes also covered a number of process related matters and also identified that leave had been granted for the charge to be amended, as it appears at para [3] above.

[6] As a result of Mr Udy’s subsequent guilty plea to the amended charge, directions were issued for this matter to be dealt with on the papers with the consent of both parties. The Committee then indicated it would issue a Reserved Decision in writing once Penalty Submissions had been received from the RIU and Mr Udy. They have complied with that direction and we are now in a position to do so.

AGREED SUMMARY OF FACTS

[7] The RIU submitted an Agreed Summary of Facts that identified the following points:

The Respondent Raymond Clarence UDY was an official lure driver under the Rules of the New Zealand Greyhound Racing Association. He is 64 years old and was the lure driver for the Wanganui Greyhound Racing Club.

The Respondent was working at the Wanganui Greyhound Racing Club’s evening meeting at Hatrick Raceway on the 31st August 2018.

At 5.33pm the Respondent received a telephone call from his son, greyhound trainer Nathan Udy, who told him that Stephen McInerney had just mouthed off at him and that “the situation was crazy”. The Respondent replied by saying “don’t worry about it, I’ll sort it.”

At 5.47pm the Respondent and an associate walked out to the rear of the main stand where Stephen McInerney was sitting alone beside his van. The Respondent confronted Stephen, shutting the passenger door of the van to get closer to him, and said to him “you’ve been harassing my boy and it’s got to stop or else”.

Stephen reacted by backing away and walking around the rear of his van keeping his distance from the Respondent, who followed him. Stephen continued walking up the roadway toward the club office, stopping once to turn to the Respondent to explain that he had done nothing wrong. He immediately went to the office and reported the matter to the club secretary who in response radioed Steward Gavin Whiterod.

The Respondent returned to the official’s room and made comment to Mr Whiterod that McInerney got a fright and was “sh.....g himself."

The Respondent was interviewed on the 12th September. He admitted to speaking with Stephen by his van and taking an associate with him as a “witness”. He denied threatening Stephen but admitted that Stephen may have been intimidated by his actions.

The Respondent has been a lure driver for many years. He has had no previous charges before the JCA.

DECISION

[8] As the charge was admitted, the Committee deem the charge to be proved.

INFORMANT’S SUBMISSIONS

[9] Mr Irving provided the following written Penalty Submissions:

The respondent Mr Ray UDY was an official lure driver under the Rules of Greyhound Racing New Zealand. He is 64 years old and was the lure driver employed by the Wanganui Greyhound Racing Club (WGRC).

Mr Udy has admitted a charge of misconduct emanating from the WGRC meeting on 31 August 2018.

The circumstances are detailed in the agreed Summary of Facts.

The penalty provisions which apply in this case are detailed under Rule 63.1.

Rule 63.1

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

a fine not exceeding $10,000.00 for any one (1) Offence; and/or

Suspension; and/or

c. -Disqualification; and/or

d. -Warning Off.

Sentencing Principles –

The four principles of sentencing can be summarised briefly

Penalties are designed to punish the offender for his/her wrong doing. They are not meant to be retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.

A penalty should also reflect the disapproval of the J.C.A for the type of behaviour in question.

The need to rehabilitate the offender should be taken into account.

The first three principles are relevant in this case.

Aggravating Features –

At the time of this offence Mr Udy was an ‘official’ employed by the WGRC and licensed as a lure driver by GRNZ. One definition of misconduct is ‘unacceptable or improper behaviour, especially by an employee or professional person’. It can be inferred from this definition that there is added expectation that behaviour of a higher standard is expected by persons in positions of officialdom within their industry.

Mitigating Factors –

There has been ongoing issues between Mr Udy’s son and daughter (both GRNZ licence holders) and the ‘victim’ in this matter Stephen McInerney. The issues mainly involve verbal altercations and antagonistic comments by Mr McInerney. Some of these incidents have been reported to Stipendiary Stewards who have on occasion spoken to the parties warning them to desist, however the underlying issues have not been addressed. The resulting perceived lack of action has frustrated Mr Udy.

On this occasion Mr Udy’s actions were in response to a telephone call received from his son Nathan informing him that Mr McInerney had just “mouthed off at him” once again (while at the races) and that the “situation was crazy”.

As a result of this incident Mr Udy has been dismissed from his employment as the lure driver for the WGRC. The resulting loss of income from two days earnings per week has had a significant impact on Mr Udy’s financial situation.

Mr Udy has been the lure driver at WGRC for 18 years and had an unblemished disciplinary record. Prior to this he was a GR trainer for 10 years and has no previous charges.

Precedent Cases

There appear to be no similar cases involving an ‘official’ or club employee in the greyhound code acting against a licence holder. Other charges involving ‘misconduct’ in the code all appear to be directed at officials and have resulted in fines ranging from $200 - $750.

Conclusion

It is the RIU position that this case is at the ‘lower end’ of the misconduct spectrum and given the circumstances and factors outlined above, particularly the provocation, the RIU are seeking a fine of $250.

Costs

The RIU are seeking no costs.

MR UDY’S SUBMISSIONS

[10] Mr Udy provided written submissions for our consideration. He stated that he thought he was doing the right thing by taking a witness with him, and making sure it was all on CCTV when he went to see Mr McInerney on the day in question. He felt he was a victim of a case that he should have had nothing to do with, if the right people had done their job.

[11] He said that the issues started as a result of text message exchanges, that Mr N Udy had been the recipient of, from Mr McInerney and one of his associates. It had progressed to verbal exchanges that were also directed towards other membersof the Udy family, and that such verbal exchanges had been witnessed by officials and a security guard at a race meeting on 31 May. 

[12] Further verbal exchanges also took place after Race 3 at a meeting held on 31 August, and Mr Udy stated that Mr Whiterod was told about this, but no action followed. Mr Udy also believed that “this whole issue should have been dealt with when it was first brought to the stipes and the CEO attention 12 months ago, however it wasn’t (sic)”(Respondent's Written Submissions, Dated 27 November 2018).

[13] Mr Udy apologised that it had occurred and was disappointed that he was the one who “lost the most” (lbid) by thinking he was doing the right thing, because those that should have handled this matter did nothing.

[14] Mr Udy also provided written character references from Erin Woods and Terry Sullivan (Former Wanganui GRC Managers), Mr R Tunbridge (Community Member) and Tom Dinwiddle (Wanganui Veterinary Services Ltd.). They all spoke highly of his character and positive work ethic.

REASONS FOR PENALTY

[15] The definition of what constitutes misconduct has been well established in previous JCA decisions, and each charge is fact dependant and relies on the context of the circumstances at the time of the breach.

[16] In relation to this matter, it is a somewhat unique situation as there are no previous decisions that are similar. This is because, as Mr Irving has indicated, all other greyhound misconduct cases involving an official seem to be situations where the official is the recipient of the misconduct, not the perpetrator.

[17] We accept the inference that Mr Udy as an official, potentially carries a higher onus and expectation as to his behaviour. However, whilst him being a licensed person means he faces the current charge, we also note that he was not acting as a lure driver when he committed this offending. It appears that he was acting in his capacity as a concerned father, who happened to be a licensed person whose offending occured at his place of work.

[18] Mr Udy’s actions, while not appropriate, stemmed from issues between members of his own family and Mr Stephen McInerney. The RIU also accept that is the case. We do not intend to traverse the specifics of the issues, but needless to say, if the issues, which stewards were aware of, were nipped in the bud, matters may not have escalated to the level they got to.

[19] The respondent cites frustration at the lack of action after he had raised his concerns with officials. To that end, Mr Udy submitted that Mr Whiterod had been advised of the issues, but that no action followed. To be fair to Mr Whiterod, he has not had the opportunity to respond to that submission, and in any event Mr Irving’s Penalty Submissions identified that on occasion stewards had warned both parties to desist.

[20] In our assessment, we place the nature of the misconduct at the low-end. There was clear and sustained provocation that led to Mr Udy feeling as if there was no other avenue but to confront Mr McInerney to try and bring matters to a close.

[21] The JCA Penalty Guide starting point for misconduct charges is “fact dependent”. We do not consider there to be significant aggravating features of this breach, but there are significant mitigating factors. In relation to those, we have considered Mr Udy’s admittance of the breach and his good record over many years. It appears from the references that he has provided, his commitment to roles for which he has had responsibility has been exemplary. Of note, the references also identify him as being “forthright” and a person of “good intentions”; which is in line with what is contained in the agreed Summary of Facts.

[22] Of significance in mitigation is that as a consequence of his actions, Mr Udy has lost his employment with the Wanganui Greyhound Racing Club as it’s lure driver; a role he held for the last 18 years. This position provided him with work on two days per week, and as such he has suffered quite a financial disadvantage. Mr Udy has also apologised to racing authorities for his misconduct.

[23] Having said that, the behaviour that he displayed cannot be condoned, and while we accept that it arose out of frustration, it was still not appropriate for him to deal with the issues, and respond, in the manner that he did.

[24] When we consider the other greyhound misconduct charges over recent times, we confirm that penalties where a fine have been imposed have ranged from $200 to $750. We agree that a fine in this matter is appropriate and when we consider that the misconduct is at a low level along with the mitigating factors identified above, we consider a $200 fine as adequate.

PENALTY

[25] Mr Udy is fined $200.

COSTS

[26] There will be no costs orders in favour of the RIU or the JCA.

Signed at Palmerston North this 10th day of December 2018.

Mr Tangi Utikere

Chairman

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