Non-Raceday Inquiry – T Carter (Penalty)

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startdate: 01/01/2001

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hearing_title: Non-Raceday Inquiry - T Carter (Penalty)

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Following the Decision issued after the hearing on 14^th February 2006, which found that there had been a breach of Rule 304 of the Rules of Racing as alleged, the parties were invited to make submissions on penalty and have done so.

IN THE MATTER OF - the New Zealand Rules of Racing

BETWEEN - BF McKenzie, Informant

AND - TJ Carter, Defendant

Date of Hearing - Tuesday 14 February 2006

Venue - Te Rapa Racecourse, Hamilton

Judicial Committee - EF Doherty, Chairman.      DC Johnstone

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DECISION OF JUDICIAL COMMITTEE AS TO PENALTY

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Following the Decision issued after the hearing on 14^th February 2006, which found that there had been a breach of Rule 304 of the Rules of Racing as alleged, the parties were invited to make submissions on penalty and have done so.

Summarising submissions by Mr J McKenzie for the Informant he pointed out that it was unfortunate for a person of Mr Carter's experience and lengthy time as a licensed person to find himself in this position, facing the consequences of what could only be described as conduct, most unbecoming. The matter did no good for the image of the Racing Industry given the words expressed.

Most cases of misconduct involving licensed persons were unpremeditated, they were a direct reaction to an action they felt aggrieved about, often including language of an obscene or offensive nature, and all usually as a result of race day pressure.

The email sent by Mr Carter to Mr Hewetson did not appear to have been sent under any pressure of a time constraint. It was certainly premeditated and covered issues of the past. The language could only be described as obscene, lewd and degrading and while, he submitted, it might in some environments be an acceptable form of communication it had no place in the oral or written communications of a person, licensed under the Rules of Racing.

In terms of how to deal with a penalty for a case of misconduct such as this and addressing the principles of sentencing handed down by previous Appeal Judges in earlier racing judicial decisions he submitted that this case should be dealt with by way of a fine, rather than by suspension or disqualification.

Had it been before a public arena it would have been more serious and there would have been a very strong submission that it was appropriate to disqualify the defendant. It was only the fact the communication was on a one to one basis, although it did implicate other parties within the industry who found the comments made about them offensive, that a fine was suggested on this occasion but it should be for a substantial amount.

On the question of costs the Informant sought costs of $500 towards the investigation, preparation of the file and the prosecution plus an order for the cost of legal advice anticipated to be in the vicinity of $500 and any costs incurred by the JCA.

Mr Ryan, as Counsel for the Defendant, made submissions in summary as follows.

The charge arose out of sending a private email from Mr Carter to Mr Hewetson who then took the step of disseminating it to others, the number of whom was unknown. It was couched in colourful language, which the Committee found to be "inappropriate" and "improper and contrary to professional standards of behaviour" and "improper behaviour." The Committee's findings went no further than that and for Mr McKenzie to state that "the language can only be described as obscene, lewd and degrading" went beyond the Committee finding.

As NZTR did not seek suspension or disqualification then the only decision for the Committee was whether a penalty should be imposed and, if so, just what monetary amount it should be.

Mr Carter was appearing before a Judicial Committee for the first time in the 22 years he has held a license. He had an exemplary record in racing as covered in the evidence he gave. He had sponsored races at meetings held by the Cambridge Jockey Club and the Waikato Racing Club. He had sponsored the Leamington Rugby Club and at present was working with CYFS, assisting a 14 year old from a broken family providing that boy with experience in his Racing Stable. He was a family man with children of his own.

Mr Carter was remorseful at having sent the email and using the language complained of. Mr Hewetson had confirmed that the language used was everyday language within the racing fraternity, at least orally, and just why he chose to disseminate the email is a matter for conjecture.

Since the hearing there had been a great deal of publicity in relation to this charge, particularly on "Race Caf?" although it no longer appeared on the internet as "Race Caf?" had been prevailed upon to withdraw it. The publicity and the gossip around the industry have been difficult for Mr Carter and his family to deal with and the Committee should take this into consideration when fixing penalty.

In fixing the penalty there was little to go on by way of precedent because all other matters seemed to relate to incidents, which had occurred on race day. Two charges in May 2005 were mentioned and it was noted that fines of $1,250 and $500 had been imposed. They were, he submitted, much more serious misconduct on the part of a Licence Holder.

As for costs he submitted that any cost figure should not exceed $200.

The Committee has considered these submissions and reviewed evidence from the hearing. In particular it has noted the article by Aiden Rodley and references to the Defendant's considerable talent and achievements in the Racing Industry and previously having been a Maori rugby International with a record of more than 100 first class games including 25 matches for the Maori All Blacks. It has been made aware that 2005 had been a difficult year for him with personal health problems and bereavements involving his eldest and youngest brothers. All of these would have contributed to pressure that he had been under for some time and may have impacted his judgment. While it does not condone him for sending the email it helps to explain his action. It is also to his credit that he has now, through his Counsel, expressed remorse for his action in sending the email and for using the language complained of. The wider impact of events on his family is also noted.

On the other hand other parties have also been affected and there is no doubt, as Mr McKenzie stated, the whole incident has done no good for the image of the Racing Industry. It is not just a matter of the language used, which Mr Ryan described as "colourful," it is the offensive way in which it was conveyed and the premeditated nature of the communication that gives rise to concern and for which the Defendant must take responsibility. There is simply no place in the racing environment nor for that matter in the wider community for people to use language in this way in their communications. While rights to freedom of speech exist they carry responsibility for the consequences of any abuse of that freedom and in the racing context that involves licensed persons in particular who must be aware of their duties under the Rules of Racing.

Taking these matters into account and looking at previous penalties imposed to which the Committee has been referred a fine of $1,000.00 is now imposed and costs of $750.00 to NZTR and $450.00 to JCA are ordered to be paid.

E F Doherty                                                            D C Johnstone

Chairman

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