Penalty Decision – CW Johnson

hearingid: 0448bba4ed54550dba8eafdae5fd463b

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startdate: 01/01/2001

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hearing_title: Penalty Decision - CW Johnson

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PENALTY DECISION

After receiving written submissions from New Zealand Thoroughbred Racing, and from Mr J Tannahill, Counsel for Mr Johnson, a telephone conference was convened on Tuesday 24th April 2007 to hear further oral submissions from Mr Tannahill.

1.1 After receiving written submissions from New Zealand Thoroughbred

Racing, and from Mr J Tannahill of counsel for Mr Johnson, a

telephone conference was convened on Tuesday 24^th April 2007 to

hear further oral submissions from Mr Tannahill. Further reference to

these oral decisions will be made later in this decision.

2.1 Mr George has submitted that by Mr CW Johnson having been found guilty of the charge pursuant to Rule 866(1)(b) of the Rules of Racing, that "Futurproof" should have won The Randwick Meats 1400m at Wairarapa on Tuesday 6^th February 2007.

2.2 At the outset, it should be noted that we have not made a finding that "Futurproof" should have won the race in question. We found the charge proved, namely that Mr Johnson failed, in terms of the Rule, to take all reasonable and permissible measures to win the race.

2.3 Mr George goes on in his submission to draw to our attention a number of aggravating features including:

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• The difference in stake money to the connections;
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• Losses to the betting public;
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• Negative impact of Mr Johnson's negligence on the reputation of New Zealand Racing.
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2.4 At this juncture, we observe that the first two points above are not, in our opinion, aggravating features because, as I have said above, we have not made a finding that the horse should have won. We will discuss the third aggravating feature later in this penalty decision.

2.5 Mr George referred us to the penalty options in Rule 1003.

Every person who commits ?a breach of these rules ?

for which no penalty is provided elsewhere in these Rules ?

shall be liable to:

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1. be disqualified for a period not exceeding twelve months;
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2. suspended from holding a licence ? for a period not exceeding twelve months'and/or
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3. a fine not exceeding $10,000.
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2.6 Mr George submits that a fine is not an appropriate penalty because of the serious nature of Mr Johnson's actions. Again, the thrust of his submission, revolves around his view that "Futurproof" was deprived of winning the race. We reiterate, that such was not our finding.

2.7 Mr George is of the view that a suspension is the most appropriate penalty to be imposed and in this regard, has properly referred us to penalties that have been imposed for breaches of Rule 866 (1)(b) over a period of ten years, of which there have been thirteen successful prosecutions.

2.8 Mr George has also referred us to penalties that have been imposed in Australia over the last six years on jockeys convicted of a breach of the Australian Rule, which is almost the same as the New Zealand Rule.

2.9 We comment, that whilst the Australia decisions of Sheehan and Cassidy were of some assistance to us jurisprudentially, in terms of considering the charge, that the Australia penalty decisions are not relevant, in our opinion, with regard to the imposition of penalty in this case. The climate of racing and the penalty regime generally in Australia, is quite different to this country. Thus, those decisions are, therefore, ignored in their totality.

3.0 Mr George also urges us to consider what he perceives as a negative impact on the reputation of New Zealand racing. We have to say that this, in our opinion, is somewhat of an overstatement. Whilst it is important that high standards must be observed by our jockeys in that they must utilise their skills to the best possible advantage of their mount, it goes too far, in our view, to say that this ride, on this day, at Tauherenikau by CW Johnson had a negative impact on the international reputation of New Zealand Racing.

3.1 However, we hasten to add that we hope that this decision will send a clear message to New Zealand jockeys that they must utilise their skills, and not simply ride for luck or to use Mr Johnson's words, as he did in the Stewards' Inquiry, be "left sweating for a run."

3.2 In summary, Mr George has submitted to us that a period of suspension between 7 and 13 weeks should be imposed.

4.1 Mr Tannahill filed a brief written submission and also requested the right to make oral submissions, which we heard in a telephone conference on Tuesday 24^th April 2007.

4.2 In his written submission, Mr Tannahill submitted that Mr Johnson committed a minor breach of the Rule "by a patient jockey and which justifies a fine only".

4.3 He also submits that the Australian cases have no relevance to New Zealand Racing, and neither do the penalties in respect of a breach of a similar Rule. We note that in our decision we have made it clear that the decisions in the various cases are not binding on us, but they were strongly persuasive in effect. We have already said that the Australia penalty decisions are not relevant to the imposition of penalty in this case, and that we disregard them.

4.4 In his oral submissions, Mr Tannahill drew our attention to the significant experience that Mr Johnson has as a jockey. He told us that Mr Johnson began his riding career in 1981 and, in fact, rode his first winner at the Tauherenikau course. After riding successfully, he had some six and a half years away from race riding but made a comeback in 2005 after recovering from quite a significant injury.

4.5 Mr Tannahill went on to say that Mr Johnson has ridden in excess of 1300 winners and that he has many fans in both the North Island and the South Island. He is currently third on the jockey's premiership for the 2006/2007 season, having ridden in excess of 80 winners so far this season.

4.6 He told us that Mr Johnson is a very busy rider, and rides everywhere he can. Included is his part time training career. He is currently training 6 horses.

4.7 Mr Tannahill submitted to us that having regard to the extent that Mr B Fletcher and Ms Marie Laursen ride, that a suspension of even four days would equate to a period well in excess of a month for Mr Fletcher or Ms Laursen.

4.8 Mr Tannahill observed that the new stipendiary steward regime seems to be looking for a different riding standard, and submitted that Mr Johnson should not be regarded as a scapegoat.

4.9 Mr Tannahill also drew our attention to the unsolicited letter that had been sent to the Judicial Control Authority by Mr Michael Pitman, Licensed Trainer, who was very supportive of Mr Johnson's ability as a jockey.

5.0 Mr Tannahill acknowledged that the charge was a serious one, but that in the circumstances he considered that a fine in the region of $2,000 to $3,000 should be imposed only.

5.1 He further submitted that if a suspension was to be imposed, that it should be expressed in terms of days and not in terms of weeks.

5.2 Finally, after a question from the Chairman, Mr Tannahill submitted that costs in favour of New Zealand Thoroughbred Racing should not be awarded on an indemnity basis.

6.1 Mr George did not have anything to add to his written submission but stated that he was opposed to a fine being imposed. He felt that it was an inappropriate penalty.

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2. He agreed that Mr Johnson was not an inexperienced rider, and that a deterrent penalty had to be the order of the day.
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                   7. DISCUSSION

7.1 Sentencing is not an exact science. Tribunals such as a Judicial Committee must carry out a balancing exercise, and have regard to all submissions made to it as well as to the facts of every case that it hears. Whilst it is always desirable for a committee to be consistent in the imposition of penalty, consistency in itself, when it comes to sentencing, is an elusive concept because every case is different in nature. In some cases, there are significant mitigating factors and in some cases, there are significant aggravating features.

7.2 Regard must be had to many matters and in particular, to the following, which is not intended to be an exhaustive list:

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• The seriousness of "the crime".
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• Aggravating features.
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• Mitigating features.
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• Rule 1122(2) of the Rules of Racing.
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We now turn to deal with these points.

8.1 In considering this, we have not been able to overlook the fact that Mr Johnson finished second in a race, on a horse, which had indifferent form. At the same time, we are not condoning "riding for luck". We have already mentioned the need for a jockey to demonstrate good skills, and when a jockey has the experience of Mr CW Johnson, the level of skill is expected to be high.

8.2 In this case, we take the view that Mr Johnson's breach of the rule was somewhat in the middle of the range. We have found, in our substantive decision, that he was left flat footed and during a crucial part of the race. He had not put his horse in a good position to win. He failed to take all reasonable and permissible measures.

9.1 A jockey's record may well be an aggravating feature. Mr George has produced Mr Johnson's riding record since 19^th July 1986. His list of "prior convictions" (encompassing some 14,500 rides) extends over some four and a half pages. However, we note that the practice, for at least the last five years, has been for Judicial Committees to take cognisance of a jockey's record over the past twelve months preceding the proof of a charge. We see no reason to depart from that practice. We observe, for the record, that Mr Johnson does not seem to have been convicted of a charge under Rule 866(1)(b) neither in the last year or over his riding career.

9.2 Thus, we do not find any aggravating features.

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11.1 This rule enables us, when considering penalty, to have regard to such matters as we consider appropriate including:

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• The status of the race.
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• The stake payable.
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• Any consequential effects upon any person or horse as a result of the breach of the rule.
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• The need to maintain integrity and public confidence in racing.
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11.2 We consider that the final point, namely the need to maintain integrity and public confidence in racing is an important factor in terms of considering penalty in this instance. The integrity of racing will inevitably come in to question if jockeys do not exercise the skills expected of them by the connections of the horse, and the betting public. It does not matter if the jockey is riding in a $5,000 maiden race at a remote country track or the New Zealand Derby at Ellerslie. A jockey is expected to use all his available skills. In this case, Mr Johnson did not display those skills, and had he not, by chance, got up to finish in second place, then the penalty which is to be imposed would have been significantly greater than it is to be.

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• Mr Johnson will be fined the sum of $3,000.
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• He will also be suspended from race riding for a period of two weeks, the period of suspension commencing at the conclusion of racing on Saturday 5^th May 2007 and finishing at the conclusion of racing on Saturday 19^th May 2007.
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• He will also pay costs to the Judicial Control Authority in the sum of $800 and costs to New Zealand Thoroughbred Racing in the sum of $200.
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1. As a footnote, as part of these sentencing notes, we are constrained to comment on the suggestion that Mr Johnson is being singled out as a scapegoat for the so called "new regime of stipendiary stewards". As far as this Judicial Committee is concerned, nothing could be further from the truth. We are, imposing a penalty on this jockey, for his proven breach of Rule 866(1)(b) on Tuesday 6^th February 2007 in Race 2 of the Wairarapa Racing Club's meeting at Tauherenikau - nothing more and nothing less.
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hearing_type: Old Hearing

Rules: 866.1.b, 1122.2

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