Non-Raceday Inquiry – S Kennedy

hearingid: 0ca12f4c25d263142b39df2b8293d4ca

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non-Raceday Inquiry - S Kennedy

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JUDICIAL COMMITTEE'S DECISION ON PENALTY AND COSTS

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Information No. 62109 has been laid by Mr R. D. Scott, Racecourse Inspector, and alleges a breach of the Fifth Appendix to Rules 105(4) and 1002(1)(b) of the Rules of Racing by the defendant by Mr Kennedy.  The charge reads as follows.

“I, the abovenamed informant allege that the abovenamed Defendant committed a breach of the Fifth Appendix pursuant  to Rules 105(4) and 1002(1)(b) IN THAT on the 13^th May 2008, the Doncaster Turf Club held trials at Ashburton AND THAT you being a licensed trainer and the person responsible for the nomination and acceptance of the unnamed 2 years old brown gelding by Summer Suspicion out of Shadwell Lass AND THAT the afore mentioned horse was an acceptor for heat four the Maiden 2 year old Catch weight 800 meter event on that day AND THAT you were responsible for having the unnamed 2 year old bay gelding by Summer Suspicion out of Ballymoney brought to the Ashburton Racecourse for  the purpose of competing in such event in place of the Shadwell Lass gelding AND THAT you thereby have committed a breach of Fifth Appendix (Trial Regulations) pursuant to Rule 105(4) and 1002(1)(b) of the Rules of Racing AND THAT you are liable for the penalty/penalties which may be imposed upon you pursuant to Rule 1003(1) of the said Rules.”

Rule 105(4) reads as follows.

“(4)      In addition to the provisions of (2) of this Rule, the Board may from time to time make and amend such Regulations as its sole discretion thinks fit in relation to Trials.  Such Regulations shall have full force and effect as part of these Rules such Regulations to be set out in the Fifth Appendix.  Every person who or body or other entity which contravenes or in any way fails to comply with any provision of any such Regulations commits a breach of these rules.”

The Fifth Appendix to the Rules of Racing, so far as they relate to this charge,

provide as follows.

“4        ENTRY

(a)    Particulars of horses, including the name, and in the case of non Qualifying Trials where the horse entered is unnamed, the full breeding, sex, age and colour must be advised at time of entry.

(b)   Horses can only be entered and started by a licensed trainer, permit to train holder or those registered as owner-trainers who have such horses under their direct charge or control.   Any person who enters a horse and supplies false information in regard to that horse, or races in a trial a horse which is not the horse so entered or described commits a serious racing offence within the meaning of that expression as described in the New Zealand Rules of Racing.”

Rule 1002(1)(b) of the Rules of Racing provides as follows.

“(1)      Every person commits a breach of these Rules who:

(a)    ….

(b)   Acts in contravention of or fails to comply with any provision of these Rules or any Regulations made thereunder, or any notice, direction, instruction, restriction,  requirement or condition given, made or imposed under these Rules.”

Mr Kennedy attended this hearing and he admitted this breach of the Rules.

Mr Scott presented an authority from the Chief Executive of New Zealand

Thoroughbred Racing (“NZTR”) to proceed with this charge. Mr Scott also presented and read a summary of facts relating to this matter and a copy is attached to this decision.

            On 13 May 2008 Mr Kennedy took an unnamed horse that he trained to the Doncaster Turf Club’s trial meeting at the Ashburton Racecourse intending to start it in Heat 4, a Maiden 2 year old catchweight 800 metre race.  Although Mr Kennedy believed that this horse was a 2 year old brown gelding by Summer Suspicion out of Shadwell Lass, a routine check showed it to be a 2 year old bay gelding by Summer Suspicion out of Ballymoney.

            Enquiries established that two horses had been bought by the same owner at a clearance sale in 2007, and both horses were sent for pre-training.  One of these two horses was deemed to be unsuitable as a racing proposition and it was sold as a hack.  The other horse went to Mr Kennedy’s stable for training, and he mistakenly believed that this was the Shadwell Lass gelding.  When interviewed Mr Kennedy said that he had made no attempt to confirm the identity of the horse.

            Mr Kennedy agreed that the Summary of Facts was accurate, and he gave more details as to the circumstances of this case. 

Submissions on Penalty: 

Mr Scott presented and read Submissions on Penalty, and a copy of these submissions is also attached to this decision.  Firstly Mr Scott submitted that this was not a case where the breach should be declared to be a serious racing offence, and we agree. 

            Mr Scott also accepted that Mr Kennedy had been “lulled into a false belief” that the horse he was training was the Shadwell Lass gelding.  However it was the responsibility of every trainer to ensure that a horse taken to trials or to the races was correctly identified.

            For the past 2 - 3 years registration papers for racehorses have been superseded by new systems for identification.  A micro chip can be scanned, a web site visited to check the brand on the horse, or the Racing Bureau can be phoned for the same purpose.

Mr Scott reminded the Committee of the rules set down in the NZTR v P case when

assessing an appropriate penalty.  These four rules deal with the aspects of punishment, deterrence, prevention of future offending, and the rehabilitation of the offender. Of the four rules we have referred to we believe that only the aspects of punishment and deterrence need to be considered in this case.

            Mr Scott also advised that Mr Kennedy had a clear record and had co-operated fully during the investigation.  As the breach occurred at a trial meeting there had been no effect on investors, and the Club holding the trials had not been adversely affected. 

Mr Scott also presented a list of cases between 1997 and 2007 where penalties had been imposed for a breach of this Rule.  It was submitted that this matter could be dealt with by way of a fine in the order of $750-00.

            Submissions on Penalty were also available from Mr Kennedy’s Counsel, Mr A. J. Ryan.  These submissions canvassed the circumstances of this matter, and also referred to several relevant decisions.  We will deal with these decisions shortly.

            These submissions as to the quantum of the fine were as follows.

1.                  No member of the public had suffered.

2.                  Mr Kennedy’s early guilty plea and his co-operation during the enquiry.

3.                  That Mr Kennedy was less culpable than the other defendants in the cases referred to.

4.                  That this case was on a par with the first NZTR v H case.

Mr Ryan submitted that a fine of $600-00 would be appropriate in this case.

Decision on Penalty:

            Having heard the facts relating to this charge, and having heard the submissions on penalty, we make the following findings.

-          Mr Kennedy had an honest but mistaken belief that he was training a 2 year old gelding out of Shadwell Lass.

-          The informant accepts that Mr Kennedy was “lulled” into a belief that the horse was the Shadwell Lass gelding.

-          Mr Kennedy had a responsibility; indeed there is a strong obligation, to ensure that this horse was correctly identified before it went to a trial meeting.

-          Mr Kennedy has admitted this breach of the rules.

-          The offence is very much at the lower end of the scale in that the horse was presented to a trial meeting rather than a race meeting.

            Of the number of cases which have been referred to by both parties, we are satisfied that the cases that are most similar to the present circumstances are NZTR v. H(2004) and NZTR v. L(2005). In both of these cases a fine of $600-00 was imposed. 

          In the H and L cases the new systems for identifying horses were in the process of being implemented, and this was given as an excuse for not properly identifying the horses concerned.  There can be no such excuse in the present case, as the new systems are well established and easy to use, and there is no valid reason for a trainer to fail to positively identify a horse in his care. 

          In the H and L cases both horses were presented at a race meeting, and it was necessary to scratch both horses.  In the present case the horse was presented at a trial meeting, and no harm was done.  In fact we were informed that Mr Kennedy was able to correct the “paper work” and trial his horse later in the day.

          There are therefore two main differences between the present case and the H and L cases.  Firstly this breach was more serious because Mr Kennedy had no excuse for not checking the identity of his horse.  Secondly this case is less serious because the horse was presented at a trial meeting and there was no loss incurred through scratching the horse as there would have been at a totalisator meeting. We are satisfied that these two matters cancel each other out and we have decided that an appropriate penalty is a fine of $600-00, and Mr Kennedy will be fined this amount. 

Costs:

No costs were sought by NZTR.  There will however be an order that Mr Kennedy pays costs of $250-00 to the Judicial Control Authority.

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J.       M. Phelan                           

Chairman                                    

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hearing_type: Old Hearing

Rules: 1002.1.b, 105.4, 1003.1

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