Non Raceday Inquiry RIU v TR Vince – Decision dated 21 October 2014
ID: JCA10861
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL
CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
RACING INTEGRITY UNIT (RIU)
Informant
TIMOTHY ROBIN VINCE, Licensed Trainer
Respondent
Information: No. A7055
Appearing: Mr N Grimstone, Manager Quality Assurance, for the Informant
Mr T Vince, with the assistance of Mr T Quinn
Judicial Committee: Prof G Hall, Chairman - Mr A Dooley, Committee Member
DECISION OF JUDICIAL COMMITTEE
[1] The RIU has alleged that the respondent, Mr T Vince, is in breach of r 1001(1)(v)(ii) of the NZ Rules of Harness Racing in that he wrote and sent an insulting and abusive email to Mr John Green, which was copied to the complainant, Mr Kevin Smith, a paid official of the Auckland Trotting Club (ATC).
[2] A telephone conference was held on 26 September last in the course of which Mr Vince confirmed his email of 3.35 pm 23 September to the JCA in which he indicated that he admitted the charge. We discussed the manner in which the matter would proceed. The parties agreed that written submissions as to penalty were appropriate. We have now received these submissions.
[3] Rule 1001(1)(v)(ii) states:
Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country either by himself or in conjunction with any person at any time writes or causes to be written, publishes or causes to be published, or utters or causes to be uttered, any insulting or abusive words with reference to a Judicial Committee, Appeals Tribunal, an official of HRNZ, the Chairman, the Vice-Chairman, the Board, a paid official, or any person engaged by a Club or by HRNZ in a professional capacity and/or as an independent contractor.
[4] The penalty provision is r 1001(2). It provides:
Every person who commits a serious racing offence shall be liable to the following penalties:
(a) a fine not exceeding $30,000; and/or
(b) suspension from holding or obtaining a licence, for any specific period or for life; and/or
(c) disqualification for a specific period or for life.
[5] The complainant in this matter, Mr Smith, is the Racing Manager, employed by the ATC. He is a “paid official” as defined in the NZ Rules of Harness Racing.
[6] The respondent is a licensed person who is licensed to train, also as defined in the NZ Rules of Harness Racing.
Summary of facts
[7] Mr Smith and Mr Vince have trained, owned and raced a number of horses together since approximately 2007. In more recent times this relationship has soured over disputes concerning finances and other racing matters, with the matter culminating on 8 August 2014 when Mr Smith received an email, which had originated from the address of [email protected].
[8] This email was sent to Mr John Green, who is a Board member of the ATC. Copied into this email were Ms Dominique Dowding CEO Alexandra Park, Edward Rennell CEO of NZ Harness Racing, the complainant Mr Smith, and two other unnamed persons.
[9] The insulting and offensive contents of this email form the basis of the charge. Quotes from the email are as follows:
"... why don't I s**k yours and smiths c**ks as well- u power crazy c***s"
"u need to know smith is a thief a nark and a POWER CRAZY c**t who's mission in life is to f**k me over"
". . . what a w**ker u are for suggesting that"
"f*k u f*k the board u win".
[10] Mr Smith made a formal complaint to the RIU on 14 August 2014.
[11] Mr Vince along with a support person met with RIU investigators at the RIU office in Ellerslie on 15 August 2014 where Mr Vince was asked to explain the situation. The meeting began with him being reasonably calm and collected. However, as things progressed he became loud, argumentative and unwilling to listen to reason. At one point Mr Vince admitted to being the author of the subject email. He stated, "I sent the email, I stand by what I said and I have no regrets".
[12] During this meeting Mr Vince was served with a trespass notice banning him from entry at any time to Alexandra Park for a period of two years. He proceeded to screw up the notice. Shortly after this he terminated the meeting with the words, "You blokes at the RIU are a bunch of f**kwits."
[13] Mr Vince is a 59 year-old bloodstock consultant. He has been involved in Harness Racing for a period in excess of 40 years. He has had no other breaches that have come before the JCA.
Informant’s submissions
[14] Mr Grimstone identified four principles of sentencing:
Penalties are designed to punish the offender for his or her wrongdoing. They are not 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 like offenses.
A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.
The need to rehabilitate the offender should be taken into account.
[15] The first three principles were submitted to be particularly important in this case.
[16] The informant referred to previous cases involving the use of offensive language.
[17] In RIU v Y 24 December 2013 Y sent an abusive, offensive email to a person in authority and copied it to three others. The email had repeated use of the "f***" word. Y was fined $1,500.
[18] RIU v P 19 June 2013 was a case of abusive and offensive language directed at another industry participant in an open and public form. This was done with a loud voice and within hearing of a number of females. P was fined $850.
[19] RIU v M 7 May 2013 and RIU v V 25 June 2014 were also noted to relate to the use of insulting and abusive language, one via social media and the other in relation to a one on one phone call. The RIU believed the circumstances of these cases differed considerably from that of Mr Vince and were therefore of limited value.
[20] Mr Grimstone submitted a fine of $2500 was appropriate and identified a number of aggravating features of the breach.
[21] Firstly, the distinct lack of remorse, which was aptly demonstrated in the respondent’s comments to investigators that, "I sent the email, I stand by what I said and I have no regrets."
[22] Secondly, the actual words used, and in particular the sexual references and the repeated use of the "c***" and "f***" words. That one of the recipients was female was said to make the use of the c*** word clearly more offensive.
[23] Thirdly, the degree of premeditation as this was sent in written form. In many cases of abusive and offensive language words had been spoken on the spur of the moment, on a race day, and under considerable race day pressure. Mr Vince sent the email a little after midday on a Friday afternoon.
[24] Finally, the respondent’s attitude towards the investigators. These were officials who were only doing their job and endeavouring to do it in a professional manner. Reference to their being “a bunch of f***wits” and “other arseholes” was to be deprecated. He noted that the respondent is 59 years old and he had been involved in the racing industry for in excess of forty years. He should have known better what avenues he had open to him to air his grievances and looked into these without reverting to offensive, abusive and insulting emails.
[25] The RIU identified as a personal mitigating factor the fact that in over forty plus years in the racing industry the respondent had contributed in a positive manner on many occasions.
Respondent’s submissions
[26] We received submissions as to penalty from both the respondent and his lay adviser, Mr T Quinn.
[27] Mr Vince informed us that the ATC had decided to trespass him for two years as a consequence of his email.
[28] In effect, he said, he had suffered a six-week disqualification so far, which had meant he could not drive or race horses at Alexandra Park or indeed attend any meeting there. This was a sufficient penalty and was indeed excessively punitive.
[29] Mr Vince said the reason for the email was born out of “complete frustration”. This was to a point directed at the whole trotting club administration but particularly the complainant, Mr Smith. This stemmed from a dispute concerning the horse PERIGO, which they raced and trained together. Mr Vince said Mr Smith refused to pay him any of the $30,000 plus it had earned. The stake money had gone to Mr Smith. He believed HRNZ needed to take responsibility when paying out stake money, in that it should be paid individually. Otherwise, if not paid, owners had to enter civil proceedings to recover stake money that was rightly theirs. That was “a nightmare”. He stated he had decided not to take the matter through the courts because of the embarrassment it might have caused the ATC. He had complained to the RIU and the CEO of ATC but had got no satisfaction whatsoever.
[30] Because he was training at Alexandra Park under Mr Smith’s control, Mr Vince alleged he was always subject to bother. The crunch came when he had an accident with a horse. A report was prepared but neither he nor his staff were interviewed or asked for input. This resulted in his being evicted from Alexandra Park, which he did without any bother.
[31] Mr Vince said he had asked a director Mr John Green if he was able to bring horses to work at the Park. Mr Green told him he could, except on a Sunday. There were witnesses to this. Having relocated to Kumeu, Mr Vince said he purchased a vehicle and float on this basis only to be told by Mr Green that Mr Smith had overruled him. This, in Mr Vince’s view, was out of spite.
[32] Mr Vince had also made complaints to the CEO about a Board member harassing him and his partner but this was never acknowledged. There were also witnesses to this.
[33] The result was, in effect, that Mr Vince could not train. His owners had been penalised, as had his junior driver, who was the second top cadet in New Zealand. Mr Vince said he no longer trained any horses. Moreover, he could not attend Alexandra Park to watch horses he owned.
[34] In regard to the email, he noted of the people to whom it was sent, only Mr Smith had laid a complaint. Mr Smith had himself been the subject of a complaint over disgraceful language in public to trainers but the CEO and the Board, in his view, had brushed it aside. But not so in his case. Mr Smith had also insulted him in public to which he had witnesses. He alleged a double standard.
[35] The email had been leaked and made public. He had thus had further humiliation as it was in the hands of many people.
[36] Mr Vince said he had been in harness racing for 40 years with an unblemished record. He had pleaded guilty to save his family. He emphasised the email was not intended for public consumption, and was addressed only to Mr Smith (we interpolate it was addressed in fact to Mr Green and copied to Mr Smith), who was “being very precious in lodging a complaint considering his actions.”
[37] Mr Vince submitted Mr Grimstone was exaggerating his response when Mr Grimstone had interviewed him. Mr Vince believed he was “ambushed” as Mr Grimstone had served the trespass order under instructions from the ATC.
[38] In summary, the respondent asked that no further penalty be imposed. Considering he was serving a quasi disqualification, a penalty imposed by the ATC with no hearing and in respect of which he had no right of appeal, he further asked that we recommend to the ATC it set aside the trespass order, as it was “totally out of kilter with the offence”.
[39] Mr Quinn stated the email of the 8 August was the result of the extreme frustration the respondent was feeling towards the ATC. He was blamed by the Club for the cessation of training at Alexandra Park (due to a loose horse) when “the ultimate Club aim was to provide a home for the Auckland Blues.” Nevertheless, Mr Vince had abided by the order to close down stabling by 31 July 2014.
[40] Having accepted that, he said Mr Vince had spent approximately $25,000 on a vehicle and a float so he could use Alexandra Park on a casual basis (Monday to Saturday) for fast work while based at Kumeu, as per the assurance to him by Mr Green (Independent Board Member).
[41] Mr Vince had received an email rescinding the previous advice, and stating that he needed permission for every visit. He stated, “Tim has gone off, although with the spin, half truths and bad info he was receiving, I have ultimate sympathy for him.”
[42] Mr Quinn further stated, “what was shocking in terms of language some 20 years ago, now seems common place even on TVNZ channels and women have become emboldened and liberated. Most people would move on to the next email. This was a private email, not distributed to any wide audience and certainly not on a racecourse. Not like Race Café.”
[43] Mr Quinn emphasised the recipient had not complained although it was to his personal appendage that most of the respondent’s invective was directed.
[44] The irony was that Mr Vince lobbied to have Mr Smith appointed as the ATC Race Secretary and still today regarded him as doing an excellent job at the Club, as did Mr Quinn.
[45] Mr Quinn drew the Committee’s attention to the cases of V (2014), where a fine of $350 was imposed, and M (2013) where M was fined $350 on three charges, after originally some 60 charges had been laid.
[46] The JCA, he said, must make a distinction where free speech ends and any realistic offence under the Rules of Harness Racing had occurred.
[47] Based on precedent, he submitted a fine of between $50 and $450 would be appropriate with no costs, as suggested by Mr Grimstone.
[48] Mr Vince had suffered a huge impost by the issuing of a trespass notice dated 15 August 2014, which Mr Quinn said, had destroyed the respondent’s training career, and had caused substantial collateral damage re ownership / partnerships. He said the respondent had “sportingly elected to suffer in silence rather than break up the partnership.”
[49] Mr Quinn concluded his submission by urging the JCA to take into account “a lifetime of good against impetuous correspondence and punching the send button.”
[50] We also received positive character references from a number of persons in the Harness Racing industry. Some of these were to the effect that not all of the blame in the dispute between Mr Vince and Mr Smith lay with Mr Vince. The rights and wrongs of this issue is beyond that which this Committee has to consider with respect to this charge before us, although we will consider the context in which the email was sent in determining the gravity of the matter.
Decision
[51] Mr Vince has admitted a breach of r 1001(1)(v)(ii) in that he sent an email, which contained offensive language, to Mr Green, a member of the ATC Board. This was copied to five other people, one of whom is the complainant, Mr Smith. We do not accept that society standards have lowered to such extent that the wording of this email is acceptable, as Mr Quinn has submitted, and indeed Mr Vince’s admission of the breach accepts as much.
[52] We take into account the fact that the email had its origins in a long-running and festering dispute between Mr Vince and Mr Green. Mr Vince has informed us that this dated back to stake money paid to Mr Smith in respect of the horse PERIGO. Matters escalated when Mr Green informed Mr Vince that his right to work horses at Alexandra Park would be curtailed. Mr Vince was particularly angered, as he has stated he spent $25,000 on purchasing a vehicle and a float to be able to travel regularly from his stable at Kumeu to the Park.
[53] The leaking of the email, which we are told has caused embarrassment for Mr Vince, is unfortunate but once an email is sent, the author loses control over to or by whom it may be forwarded, copied, downloaded, etc. There is a clear lesson there for Mr Vince. We do not view this as a mitigating factor.
[54] As to personal circumstances, Mr Vince is a 59 year-old bloodstock consultant. He has been involved in Harness Racing over 40 years and has not previously breached the Rules of Harness Racing. We have received a number of positive references to Mr Vince’s character and attesting to the fact he has given both sponsorship support and unstinting time and effort to Harness activities over the years.
[55] We are cognisant of the need to impose a penalty upon Mr Vince that will not only denounce his conduct and specifically deter him from reoffending but will also be at a level that will deter others.
[56] However, in determining penalty it is appropriate to take account of the not insignificant collateral consequences of Mr Vince’s actions. This, of course, is his being trespassed from Alexandra Park for two years. This has already had a significant impact upon his ability to train horses and his enjoyment of seeing those that he owns compete in races at the premier venue in the north. We believe when regard is had to this mitigating factor, a penalty at the level that the RIU has submitted is appropriate would be manifestly excessive. The need to reinforce to Mr Vince the error of his ways through our penalty is lessened, although we recognise the need to denounce his disgraceful conduct and to deter others similarly minded to abuse officials undoubtedly persists.
[57] Taking guidance from the cases, our starting point, as the RIU has submitted is appropriate, is the fine imposed in Y of $1500. This case is the closest on the facts and is of the most assistance to us. The facts in both M and NcN are very different to those before us. The Committee in V, to which the respondent makes reference, only had the cases of M and P cited to it, and the reference to P was limited solely to the penalty imposed. The Committee in V did not consider the case of Y. The penalty in that case was a fine of $350. V was a very experienced trainer with an excellent record and like Mr Vince he admitted the breach. In contrast to Mr Vince, however, he cooperated fully in the RIU inquiry and expressed a willingness to apologise to the official he had verbally abused.
[58] We note the aggravating features identified by Mr Grimstone. We agree that the use of the “f” and “c” words in an email where one recipient is female is to be deprecated but we place only limited weight on the fact that the communication was in written form. We accept, as Mr Quinn has emphasised, that emails can also be sent in the heat of the moment. Of concern, however, in determining the gravity of the breach, is the extent of the profanity contained within the email. This is more than the heated inclusion of the odd invective. It is an email the purpose of which is to direct personal insult and abuse of a grievous kind at two persons, Mr Green and Mr Smith, and also the ATC Board. We believe a 20% increase in the starting point is appropriate for this factor.
[59] We thus uplift our starting point to $1800.
[60] We accept that Mr Vince may have acted in haste. However, we are concerned that there is very little evidence of remorse in his subsequent conduct when questioned by the RIU, which we view as both inappropriate and troubling. Similarly, his written submissions to this Committee as to penalty often appeared to be directed at providing a justification for his email rather than recognising the inappropriateness of his conduct. We accept he has a grievance with the ATC, or more specifically with Mr Smith, but the email in question, was clearly not the way to deal with this issue. However, this lack of remorse is an absence of a mitigating factor not the presence of an aggravating one.
[61] We give a 30 per cent discount for the mitigating factors of good character and the impact, both professional and personal, of the trespass notice. After initially indicating he wished to play no part in the hearing of the matter, Mr Vince stated at the first teleconference that he would defend the matter, before later indicating by email and confirming at a further teleconference that he admitted the breach. We believe a 15 per cent reduction is appropriate for this factor. This is a total reduction of 45 per cent.
[62] We thus impose a fine rounded to the sum of $1000.
[63] The RIU does not seek costs. We make no order in favour of the JCA.
[64] We have no jurisdiction with respect to the issue of the trespass notice. However, we believe that two years is a lengthy time for a person with a previously unblemished record and for whom Harness Racing is clearly a passion. Mr Vince has positive references from industry participants. We would recommend that the ATC Board consider obtaining a written undertaking from Mr Vince as to his future good behaviour and then revisiting the trespass notice with a view to reducing its term. The notice has had an obvious punitive effect, as was no doubt intended, and its deterrent purpose might perhaps be viewed to have been achieved through Mr Vince’s enforced absence from the Park these past few months.
Dated at Dunedin this 21st 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.
hearingid: 04563a3e910fb9b715d63173f114b1cc
informantnumber:
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 17/10/2014
hearing_title: Non Raceday Inquiry RIU v TR Vince - Decision dated 21 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
IN THE MATTER of the New Zealand Rules of Harness Racing
RACING INTEGRITY UNIT (RIU)
Informant
TIMOTHY ROBIN VINCE, Licensed Trainer
Respondent
Information: No. A7055
Appearing: Mr N Grimstone, Manager Quality Assurance, for the Informant
Mr T Vince, with the assistance of Mr T Quinn
Judicial Committee: Prof G Hall, Chairman - Mr A Dooley, Committee Member
DECISION OF JUDICIAL COMMITTEE
[1] The RIU has alleged that the respondent, Mr T Vince, is in breach of r 1001(1)(v)(ii) of the NZ Rules of Harness Racing in that he wrote and sent an insulting and abusive email to Mr John Green, which was copied to the complainant, Mr Kevin Smith, a paid official of the Auckland Trotting Club (ATC).
[2] A telephone conference was held on 26 September last in the course of which Mr Vince confirmed his email of 3.35 pm 23 September to the JCA in which he indicated that he admitted the charge. We discussed the manner in which the matter would proceed. The parties agreed that written submissions as to penalty were appropriate. We have now received these submissions.
[3] Rule 1001(1)(v)(ii) states:
Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country either by himself or in conjunction with any person at any time writes or causes to be written, publishes or causes to be published, or utters or causes to be uttered, any insulting or abusive words with reference to a Judicial Committee, Appeals Tribunal, an official of HRNZ, the Chairman, the Vice-Chairman, the Board, a paid official, or any person engaged by a Club or by HRNZ in a professional capacity and/or as an independent contractor.
[4] The penalty provision is r 1001(2). It provides:
Every person who commits a serious racing offence shall be liable to the following penalties:
(a) a fine not exceeding $30,000; and/or
(b) suspension from holding or obtaining a licence, for any specific period or for life; and/or
(c) disqualification for a specific period or for life.
[5] The complainant in this matter, Mr Smith, is the Racing Manager, employed by the ATC. He is a “paid official” as defined in the NZ Rules of Harness Racing.
[6] The respondent is a licensed person who is licensed to train, also as defined in the NZ Rules of Harness Racing.
Summary of facts
[7] Mr Smith and Mr Vince have trained, owned and raced a number of horses together since approximately 2007. In more recent times this relationship has soured over disputes concerning finances and other racing matters, with the matter culminating on 8 August 2014 when Mr Smith received an email, which had originated from the address of [email protected].
[8] This email was sent to Mr John Green, who is a Board member of the ATC. Copied into this email were Ms Dominique Dowding CEO Alexandra Park, Edward Rennell CEO of NZ Harness Racing, the complainant Mr Smith, and two other unnamed persons.
[9] The insulting and offensive contents of this email form the basis of the charge. Quotes from the email are as follows:
"... why don't I s**k yours and smiths c**ks as well- u power crazy c***s"
"u need to know smith is a thief a nark and a POWER CRAZY c**t who's mission in life is to f**k me over"
". . . what a w**ker u are for suggesting that"
"f*k u f*k the board u win".
[10] Mr Smith made a formal complaint to the RIU on 14 August 2014.
[11] Mr Vince along with a support person met with RIU investigators at the RIU office in Ellerslie on 15 August 2014 where Mr Vince was asked to explain the situation. The meeting began with him being reasonably calm and collected. However, as things progressed he became loud, argumentative and unwilling to listen to reason. At one point Mr Vince admitted to being the author of the subject email. He stated, "I sent the email, I stand by what I said and I have no regrets".
[12] During this meeting Mr Vince was served with a trespass notice banning him from entry at any time to Alexandra Park for a period of two years. He proceeded to screw up the notice. Shortly after this he terminated the meeting with the words, "You blokes at the RIU are a bunch of f**kwits."
[13] Mr Vince is a 59 year-old bloodstock consultant. He has been involved in Harness Racing for a period in excess of 40 years. He has had no other breaches that have come before the JCA.
Informant’s submissions
[14] Mr Grimstone identified four principles of sentencing:
Penalties are designed to punish the offender for his or her wrongdoing. They are not 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 like offenses.
A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.
The need to rehabilitate the offender should be taken into account.
[15] The first three principles were submitted to be particularly important in this case.
[16] The informant referred to previous cases involving the use of offensive language.
[17] In RIU v Y 24 December 2013 Y sent an abusive, offensive email to a person in authority and copied it to three others. The email had repeated use of the "f***" word. Y was fined $1,500.
[18] RIU v P 19 June 2013 was a case of abusive and offensive language directed at another industry participant in an open and public form. This was done with a loud voice and within hearing of a number of females. P was fined $850.
[19] RIU v M 7 May 2013 and RIU v V 25 June 2014 were also noted to relate to the use of insulting and abusive language, one via social media and the other in relation to a one on one phone call. The RIU believed the circumstances of these cases differed considerably from that of Mr Vince and were therefore of limited value.
[20] Mr Grimstone submitted a fine of $2500 was appropriate and identified a number of aggravating features of the breach.
[21] Firstly, the distinct lack of remorse, which was aptly demonstrated in the respondent’s comments to investigators that, "I sent the email, I stand by what I said and I have no regrets."
[22] Secondly, the actual words used, and in particular the sexual references and the repeated use of the "c***" and "f***" words. That one of the recipients was female was said to make the use of the c*** word clearly more offensive.
[23] Thirdly, the degree of premeditation as this was sent in written form. In many cases of abusive and offensive language words had been spoken on the spur of the moment, on a race day, and under considerable race day pressure. Mr Vince sent the email a little after midday on a Friday afternoon.
[24] Finally, the respondent’s attitude towards the investigators. These were officials who were only doing their job and endeavouring to do it in a professional manner. Reference to their being “a bunch of f***wits” and “other arseholes” was to be deprecated. He noted that the respondent is 59 years old and he had been involved in the racing industry for in excess of forty years. He should have known better what avenues he had open to him to air his grievances and looked into these without reverting to offensive, abusive and insulting emails.
[25] The RIU identified as a personal mitigating factor the fact that in over forty plus years in the racing industry the respondent had contributed in a positive manner on many occasions.
Respondent’s submissions
[26] We received submissions as to penalty from both the respondent and his lay adviser, Mr T Quinn.
[27] Mr Vince informed us that the ATC had decided to trespass him for two years as a consequence of his email.
[28] In effect, he said, he had suffered a six-week disqualification so far, which had meant he could not drive or race horses at Alexandra Park or indeed attend any meeting there. This was a sufficient penalty and was indeed excessively punitive.
[29] Mr Vince said the reason for the email was born out of “complete frustration”. This was to a point directed at the whole trotting club administration but particularly the complainant, Mr Smith. This stemmed from a dispute concerning the horse PERIGO, which they raced and trained together. Mr Vince said Mr Smith refused to pay him any of the $30,000 plus it had earned. The stake money had gone to Mr Smith. He believed HRNZ needed to take responsibility when paying out stake money, in that it should be paid individually. Otherwise, if not paid, owners had to enter civil proceedings to recover stake money that was rightly theirs. That was “a nightmare”. He stated he had decided not to take the matter through the courts because of the embarrassment it might have caused the ATC. He had complained to the RIU and the CEO of ATC but had got no satisfaction whatsoever.
[30] Because he was training at Alexandra Park under Mr Smith’s control, Mr Vince alleged he was always subject to bother. The crunch came when he had an accident with a horse. A report was prepared but neither he nor his staff were interviewed or asked for input. This resulted in his being evicted from Alexandra Park, which he did without any bother.
[31] Mr Vince said he had asked a director Mr John Green if he was able to bring horses to work at the Park. Mr Green told him he could, except on a Sunday. There were witnesses to this. Having relocated to Kumeu, Mr Vince said he purchased a vehicle and float on this basis only to be told by Mr Green that Mr Smith had overruled him. This, in Mr Vince’s view, was out of spite.
[32] Mr Vince had also made complaints to the CEO about a Board member harassing him and his partner but this was never acknowledged. There were also witnesses to this.
[33] The result was, in effect, that Mr Vince could not train. His owners had been penalised, as had his junior driver, who was the second top cadet in New Zealand. Mr Vince said he no longer trained any horses. Moreover, he could not attend Alexandra Park to watch horses he owned.
[34] In regard to the email, he noted of the people to whom it was sent, only Mr Smith had laid a complaint. Mr Smith had himself been the subject of a complaint over disgraceful language in public to trainers but the CEO and the Board, in his view, had brushed it aside. But not so in his case. Mr Smith had also insulted him in public to which he had witnesses. He alleged a double standard.
[35] The email had been leaked and made public. He had thus had further humiliation as it was in the hands of many people.
[36] Mr Vince said he had been in harness racing for 40 years with an unblemished record. He had pleaded guilty to save his family. He emphasised the email was not intended for public consumption, and was addressed only to Mr Smith (we interpolate it was addressed in fact to Mr Green and copied to Mr Smith), who was “being very precious in lodging a complaint considering his actions.”
[37] Mr Vince submitted Mr Grimstone was exaggerating his response when Mr Grimstone had interviewed him. Mr Vince believed he was “ambushed” as Mr Grimstone had served the trespass order under instructions from the ATC.
[38] In summary, the respondent asked that no further penalty be imposed. Considering he was serving a quasi disqualification, a penalty imposed by the ATC with no hearing and in respect of which he had no right of appeal, he further asked that we recommend to the ATC it set aside the trespass order, as it was “totally out of kilter with the offence”.
[39] Mr Quinn stated the email of the 8 August was the result of the extreme frustration the respondent was feeling towards the ATC. He was blamed by the Club for the cessation of training at Alexandra Park (due to a loose horse) when “the ultimate Club aim was to provide a home for the Auckland Blues.” Nevertheless, Mr Vince had abided by the order to close down stabling by 31 July 2014.
[40] Having accepted that, he said Mr Vince had spent approximately $25,000 on a vehicle and a float so he could use Alexandra Park on a casual basis (Monday to Saturday) for fast work while based at Kumeu, as per the assurance to him by Mr Green (Independent Board Member).
[41] Mr Vince had received an email rescinding the previous advice, and stating that he needed permission for every visit. He stated, “Tim has gone off, although with the spin, half truths and bad info he was receiving, I have ultimate sympathy for him.”
[42] Mr Quinn further stated, “what was shocking in terms of language some 20 years ago, now seems common place even on TVNZ channels and women have become emboldened and liberated. Most people would move on to the next email. This was a private email, not distributed to any wide audience and certainly not on a racecourse. Not like Race Café.”
[43] Mr Quinn emphasised the recipient had not complained although it was to his personal appendage that most of the respondent’s invective was directed.
[44] The irony was that Mr Vince lobbied to have Mr Smith appointed as the ATC Race Secretary and still today regarded him as doing an excellent job at the Club, as did Mr Quinn.
[45] Mr Quinn drew the Committee’s attention to the cases of V (2014), where a fine of $350 was imposed, and M (2013) where M was fined $350 on three charges, after originally some 60 charges had been laid.
[46] The JCA, he said, must make a distinction where free speech ends and any realistic offence under the Rules of Harness Racing had occurred.
[47] Based on precedent, he submitted a fine of between $50 and $450 would be appropriate with no costs, as suggested by Mr Grimstone.
[48] Mr Vince had suffered a huge impost by the issuing of a trespass notice dated 15 August 2014, which Mr Quinn said, had destroyed the respondent’s training career, and had caused substantial collateral damage re ownership / partnerships. He said the respondent had “sportingly elected to suffer in silence rather than break up the partnership.”
[49] Mr Quinn concluded his submission by urging the JCA to take into account “a lifetime of good against impetuous correspondence and punching the send button.”
[50] We also received positive character references from a number of persons in the Harness Racing industry. Some of these were to the effect that not all of the blame in the dispute between Mr Vince and Mr Smith lay with Mr Vince. The rights and wrongs of this issue is beyond that which this Committee has to consider with respect to this charge before us, although we will consider the context in which the email was sent in determining the gravity of the matter.
Decision
[51] Mr Vince has admitted a breach of r 1001(1)(v)(ii) in that he sent an email, which contained offensive language, to Mr Green, a member of the ATC Board. This was copied to five other people, one of whom is the complainant, Mr Smith. We do not accept that society standards have lowered to such extent that the wording of this email is acceptable, as Mr Quinn has submitted, and indeed Mr Vince’s admission of the breach accepts as much.
[52] We take into account the fact that the email had its origins in a long-running and festering dispute between Mr Vince and Mr Green. Mr Vince has informed us that this dated back to stake money paid to Mr Smith in respect of the horse PERIGO. Matters escalated when Mr Green informed Mr Vince that his right to work horses at Alexandra Park would be curtailed. Mr Vince was particularly angered, as he has stated he spent $25,000 on purchasing a vehicle and a float to be able to travel regularly from his stable at Kumeu to the Park.
[53] The leaking of the email, which we are told has caused embarrassment for Mr Vince, is unfortunate but once an email is sent, the author loses control over to or by whom it may be forwarded, copied, downloaded, etc. There is a clear lesson there for Mr Vince. We do not view this as a mitigating factor.
[54] As to personal circumstances, Mr Vince is a 59 year-old bloodstock consultant. He has been involved in Harness Racing over 40 years and has not previously breached the Rules of Harness Racing. We have received a number of positive references to Mr Vince’s character and attesting to the fact he has given both sponsorship support and unstinting time and effort to Harness activities over the years.
[55] We are cognisant of the need to impose a penalty upon Mr Vince that will not only denounce his conduct and specifically deter him from reoffending but will also be at a level that will deter others.
[56] However, in determining penalty it is appropriate to take account of the not insignificant collateral consequences of Mr Vince’s actions. This, of course, is his being trespassed from Alexandra Park for two years. This has already had a significant impact upon his ability to train horses and his enjoyment of seeing those that he owns compete in races at the premier venue in the north. We believe when regard is had to this mitigating factor, a penalty at the level that the RIU has submitted is appropriate would be manifestly excessive. The need to reinforce to Mr Vince the error of his ways through our penalty is lessened, although we recognise the need to denounce his disgraceful conduct and to deter others similarly minded to abuse officials undoubtedly persists.
[57] Taking guidance from the cases, our starting point, as the RIU has submitted is appropriate, is the fine imposed in Y of $1500. This case is the closest on the facts and is of the most assistance to us. The facts in both M and NcN are very different to those before us. The Committee in V, to which the respondent makes reference, only had the cases of M and P cited to it, and the reference to P was limited solely to the penalty imposed. The Committee in V did not consider the case of Y. The penalty in that case was a fine of $350. V was a very experienced trainer with an excellent record and like Mr Vince he admitted the breach. In contrast to Mr Vince, however, he cooperated fully in the RIU inquiry and expressed a willingness to apologise to the official he had verbally abused.
[58] We note the aggravating features identified by Mr Grimstone. We agree that the use of the “f” and “c” words in an email where one recipient is female is to be deprecated but we place only limited weight on the fact that the communication was in written form. We accept, as Mr Quinn has emphasised, that emails can also be sent in the heat of the moment. Of concern, however, in determining the gravity of the breach, is the extent of the profanity contained within the email. This is more than the heated inclusion of the odd invective. It is an email the purpose of which is to direct personal insult and abuse of a grievous kind at two persons, Mr Green and Mr Smith, and also the ATC Board. We believe a 20% increase in the starting point is appropriate for this factor.
[59] We thus uplift our starting point to $1800.
[60] We accept that Mr Vince may have acted in haste. However, we are concerned that there is very little evidence of remorse in his subsequent conduct when questioned by the RIU, which we view as both inappropriate and troubling. Similarly, his written submissions to this Committee as to penalty often appeared to be directed at providing a justification for his email rather than recognising the inappropriateness of his conduct. We accept he has a grievance with the ATC, or more specifically with Mr Smith, but the email in question, was clearly not the way to deal with this issue. However, this lack of remorse is an absence of a mitigating factor not the presence of an aggravating one.
[61] We give a 30 per cent discount for the mitigating factors of good character and the impact, both professional and personal, of the trespass notice. After initially indicating he wished to play no part in the hearing of the matter, Mr Vince stated at the first teleconference that he would defend the matter, before later indicating by email and confirming at a further teleconference that he admitted the breach. We believe a 15 per cent reduction is appropriate for this factor. This is a total reduction of 45 per cent.
[62] We thus impose a fine rounded to the sum of $1000.
[63] The RIU does not seek costs. We make no order in favour of the JCA.
[64] We have no jurisdiction with respect to the issue of the trespass notice. However, we believe that two years is a lengthy time for a person with a previously unblemished record and for whom Harness Racing is clearly a passion. Mr Vince has positive references from industry participants. We would recommend that the ATC Board consider obtaining a written undertaking from Mr Vince as to his future good behaviour and then revisiting the trespass notice with a view to reducing its term. The notice has had an obvious punitive effect, as was no doubt intended, and its deterrent purpose might perhaps be viewed to have been achieved through Mr Vince’s enforced absence from the Park these past few months.
Dated at Dunedin this 21st day of October 2014.
Geoff Hall, Chairman
sumissionsforpenalty:
reasonsforpenalty:
penalty:
hearing_type: Non-race day
Rules:
Informant:
JockeysandTrainer:
Otherperson:
PersonPresent:
Respondent:
StipendSteward:
raceid:
race_expapproval:
racecancelled:
race_noreport:
race_emailed1:
race_emailed2:
race_title:
submittochair:
race_expappcomment:
race_km:
race_otherexp:
race_chair:
race_pm1:
race_pm2:
meetid:
meet_expapproval:
meet_noreport:
waitingforpublication:
meet_emailed1:
meet_emailed2:
meetdate: no date provided
meet_title:
meet_expappcomment:
meet_km:
meet_otherexp:
tracklocation:
meet_racingtype:
meet_chair:
meet_pm1:
meet_pm2:
name: