NZ Metro TC 14 February 2020 – R 1 – Reserved Penalty Decision – Chair, Mr R G McKenzie

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hearing_title: NZ Metro TC 14 February 2020 - R 1 - Reserved Penalty Decision - Chair, Mr R G McKenzie

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BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

-IN THE MATTER of Information No. - A12365

BETWEEN-N M YDGREN, Chief Stipendiary Steward (Harness Racing) for the Racing Integrity Unit

Informant

AND-JONATHAN WILLIAM COX of West Melton, Licensed Open Driver

Respondent

Date of Hearing:-Friday, 14 February 2020

Venue:-Addington Raceway, Christchurch

Judicial Committee:-R G McKenzie (Chairman)

S C Ching

Date of Decision:-3 March 2020

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY

THE CHARGE

[1]-After Race 1 at the meeting of New Zealand Metropolitan TC held at Addington Raceway on 14 February 2020, Mr Cox was charged with dangerous driving in that he shifted his runner, DIEGO, inwards to make contact with MEMPHIS TENNESSEE (T S Chmiel) near the 100 metres.

[2]-At a hearing before this Judicial Committee on racenight, Mr Cox admitted the breach and the charge was found proved accordingly.

[3]-The matter of penalty was reserved and both parties were required to file written penalty submissions.

[4]-Written penalty submissions have now been received from both parties.

PENALTY SUBMISSIONS

[5]-Mr Ydgren presented the following written submissions:

1.-Mr Cox has admitted a breach of Rule 869 (3) (d) in that he drove dangerously near the 100 metres in Race 1 at the NZMTC meeting at Addington on Friday 14 February 2020.

2.-Dangerous driving involves a quality in the manner of driving which, in all the circumstances, is potentially dangerous to others participating in the race. It involves more than momentary inattention or carelessness, whether realised by the driver or not, and involves causing or creating an actual or possible hazard that jeopardises the safety of others. It occurs when the way the driver drives falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving that way would be dangerous. In addition, it involves a lack of consideration being given to the circumstances of the driver and also to the circumstances of those around him.

3.-The films of the incident shown to the Committee on the night are clear and show Mr Cox (DIEGO) and Mr Chmiel (MEMPHIS TENNESSEE) racing alongside each other with 250 metres of the race to run. Both horses are being driven with vigour. Approaching the 150 metres mark, both horses are still side by side with Mr Chmiel close to the back of KRUIZER, which was in front of him, and attempting to shift outwards to obtain clear running.

4.-Approaching the 100 metres mark, both horses are still side by side when Mr Cox was seen to apply a considerable and significant amount of pressure to the left rein causing DIEGO to abruptly shift inwards onto MEMPHIS TENNESSEE, with both horses’ heads coming into contact. The sulkies make heavy contact and MEMPHIS TENNESSEE is shunted inwards and across the wheel of EUREKA (T Williams). DIEGO then goes into a break as a result of the contact and MEMPHIS TENNESSEE paced roughly for some distance. EUREKA was also hampered in the incident although it was weakening at the time.

5.-A charge of dangerous driving is very serious and, fortunately, quite rare. The standard of proof must be higher than for lesser driving charges. In relation to this charge, the aggravating factors are that Mr Cox’s actions caused his horse to shift in abruptly, when such a movement was unnecessary and not in accord with accepted driving practices. Further, there was contact between the two horses with Mr Chmiel being pushed sideways in his sulky. Had it been a driver of lesser experience than Mr Chmiel, it is possible the consequences of Mr Cox’s actions could have been more serious. Stewards believe there was a degree of premeditation in Mr Cox’s actions as is evidenced by the clear pulling on the left rein immediately before contact between the horses occurred. Those actions prejudiced the safety of Mr Cox and Mr Chmiel, their horses and those horses and drivers who were in close proximity. Put bluntly, the actions of Mr Cox fell well short of what is expected of an experienced senior driver, were dangerous and the penalty to be imposed must be seen to hold Mr Cox accountable for his actions and deter others from similarly breaching the rule.

6.-It is noted that Mr Cox has admitted the breach at the earliest opportunity and has a clear record in relation to this rule. This incident is extremely out of character for Mr Cox. He is known amongst Stewards as a respectful, polite and obliging participant who rarely falls foul of the rules. He has made a successful living out of racing and clearly will continue to do so. Mr Cox frequently assists Junior Horsemen in Stewards’ matters and, aside from this incident, is an excellent role model. There are no other mitigating factors that can be considered. Mr Cox had 353 drives in the 2017/2018 season, 395 in 2018/2019 and has had approximately 225 drives this season (255 as at 3 March 2020).

7.-This season Mr Cox is averaging 9 drives per week.

8.-Rule 869 covers a range of driving breaches including careless, incompetent, reckless, dangerous, in a foul manner and improper. Within the JCA Penalty Guide, the highest starting point penalty for a breach of Rule 869 is an 80 drives penalty (with the period of suspension encompassed in that number being dependent on how often the driver drives) for incompetent driving. The Guide does not state a starting point for a breach of Rule 869 (3) (d). The penalty for such a breach must therefore be fact dependent. There are no recent cases of dangerous driving that could be used to assist in setting an appropriate penalty.

9.-It is the position of the Stewards that the level of offending is mid-to-high range. The consequential effects are mid-range. This was not worse only through good luck. We accept that Mr Cox has not properly thought through his actions at the time. He has, at best, done a poor job of attempting to hold his position to prevent Mr Chmiel from gaining a run.

10. -The position of the RIU is that dangerous driving is the most serious breach of rule 869 and that any penalty should be a suspension described as a period of time rather than drives.

11. -Taking all the matters referred to above, it is submitted that Mr Cox’s driving licence be suspended for a period of 8 weeks.

12. -The affected party, Mr Chmiel, has forwarded to Stewards a copy of a Vet Certificate. That examination suggests the horse has suffered some back soreness and is short striding in all four feet as a result of the interference. Mr Chmiel advises the cost of that examination and consequent treatment to be $243.00 It is a matter for the Committee to consider whether any additional financial penalty be imposed upon Mr Cox and directed towards Mr Chmiel’s owner as a matter of recompense.

RESPONDENT’S PENALTY SUBMISSIONS

[6]-The following written penalty submissions have been received from Mr Cox:

1.- I have admitted the breach of rule 869 (3) (d) in that I drove dangerously.

2.- I have never been charged with this rule in the 18 seasons I have been driving.

3.-I believe Mr Chmiel never had a clear advantage over me to ease me out to obtain clear racing room. He attempted to move me out three times while not in a position to do so. This leading to my actions at the 100 metres mark.

4. -A less experienced driver or any other driver would not have attempted to make the move Mr Chmiel tried to make and there would not have been the consequences to Mr Chmiel.

5.-Mr Chmiel’s chances of finishing in a stake betting [sic] place was [sic] not affected.

6. -No other horse or driver was affected in this incident.

7.-In the last 8 weeks I have had approximately 115 drives, an average of 14 drives per week for just over $11,000, an average of $1300 per week.

8. -I believe a suspension of 6 weeks would fit with the starting point of rule 869.

REASONS FOR PENALTY

[7]-Mr Cox has admitted a breach of rule 869 (3) (d) – dangerous driving.

[8]-As pointed out by Mr Ydgren in his submissions, the Penalty Guide does not provide a starting point for penalty for a breach of rule 869 (3) (d). It is not a breach that often comes before a Judicial Committee, so neither is there any helpful guidance for this Committee by way of previous penalties.

[9]-Any incident of dangerous driving must be regarded as serious but, as dangerous driving goes, it is probably fair to say that the present case is not the worst imaginable. The Committee would place it in the mid-range category. Likewise, the consequences are within the scope of a mid-range breach. The lack of any serious consequences was fortuitous for Mr Cox.

[10]-Mr Cox told us on racenight that he had been trying to hold his position and that he had overreacted. He expanded on this in his penalty submissions and said that Mr Chmiel at no stage had a clear advantage over him and, while in no position to do so, had attempted three times to push him out.

[11]-The Committee sees Mr Chmiel’s actions as being the catalyst for the breach. There is no other explanation. Mr Cox’s actions were not actions he would normally take. His record says that. Having said that though, we can attach no fault to Mr Chmiel other than, perhaps, being guilty of competitive driving. He did not deserve the degree of retaliation from Mr Cox, which potentially put Mr Chmiel and his horse at risk of a nasty accident. We note that his horse, MEMPHIS TENNESSEE, did sustain injuries in the incident.

[12]-In the absence of any guidance from either the Penalty Guide or earlier cases, the Committee has decided on a starting point of an 8-weeks suspension – the penalty submitted by Mr Ydgren – for this mid-range breach.

[13]-Mr Ydgren submitted that it was an aggravating factor that “Mr Cox’s actions caused his horse to move in abruptly when such a move was unnecessary and not in accord with accepted driving practices”. The Committee does not agree that it is an aggravating factor. Of course, this factor is implicit in the charge of dangerous driving.

[14]-When we come to consider mitigating factors, there are several quite persuasive factors. Firstly, Mr Cox’s immediate admission of the breach, despite being given the opportunity by the Committee to go away and consider the matter. This is to his credit, as the elements of a dangerous driving will not always be easy to prove. Mr Cox wished to and did enter a plea of guilty to the charge on racenight. Secondly, there is his obvious remorse, which was clear to the Committee at the racenight hearing. Thirdly, the Committee accepts that the breach was totally out of character as far as Mr Cox is concerned, as is evidenced by his excellent record over 18 years. The Committee notes that Mr Cox has had in excess of 6,500 lifetime drives, a lot of drives, without driving dangerously in any of those. A discount of 2 weeks from the starting point of 8 weeks is appropriate for those mitigating factors.

[15]-Mr Cox has, helpfully, provided us with details of his income from race drives. On the basis of the information he supplied, we are satisfied that a suspension of his Open Driver’s licence for a period of 6 weeks will be a meaningful penalty and will adequately punish him for the particular breach, as well as deterring him and others from breaching the rule in the future.

PENALTY

[16]-Mr Cox seeks a deferment of suspension until after racing at Reefton TC on Sunday, 8 March next. That deferment is granted.

[17]-Mr Cox’s Open Driver’s licence is suspended for a period of 6 (six) weeks from 9 March 2020 to 18 April 2020, both dates inclusive.

R G MCKENZIE        S C CHING

Chair                      Panellist

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