Waikouaiti RC 1 January 2015 – R 9 (Decision of Judicial Committee on Penalty)

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hearing_title: Waikouaiti RC 1 January 2015 - R 9 (Decision of Judicial Committee on Penalty)

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Decision:

Decision of Judicial Committee on Penalty

Rule: 340
Information Number: A3879

Informant
Mr B Kitto – Racing Investigator – RIU
Respondent
Mr W McCraw – Plate Inspector

Date of Decision – 4 February 2015

Background
Mr McCraw was charged with a breach of r 340 at the Waikouaiti Racing Club’s meeting on 1 January 2015. He denied the charge and the matter was heard during the course of the meeting at the Waikouaiti Racecourse.

In our decision of 12 January last we found the charge of misconduct to be proved and we requested the parties provide written submissions as to penalty. We have received these submissions.

The relevant penalty provision is r 803(1) (a), (b) and (c), which states:

A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere in these Rules shall be liable to:

(a) be disqualified for a period not exceeding 12 months; and/or

(b) be suspended from holding or obtaining a Licence for a period of 12 months …; and/or

(c) a fine not exceeding $20,000.

Informant’s Submissions

Mr Kitto commenced his submission as to penalty by stating to the RIU’s knowledge there had not been a similar case with respect to the shoeing of a horse that would assist the Committee in arriving at a penalty. He emphasised that the RIU and Racing Codes take animal treatment and safety extremely seriously.

Mr Kitto identified the decision in RIU v Du Plessis 24 August 2013 as being of assistance. This case involved a jockey kicking his mount in the region of the head as a consequence of his “sheer frustration” at the actions of the horse during its preliminary and when in the starting gates. The penalty was a fine of $500.

Mr Kitto submitted that the actions of Mr McCraw were more serious than those of Mr Du Plessis. Miss Kelly and Ms Black described Mr McCraw as being in a “shitty, growling and shouting” mood and their evidence indicated that he may have been adding to the pain of the horse by the way he was twisting FANTAMO’s knee side-ways. While the mare had attempted to cow kick Mr McCraw, she had never made contact with him. He had then struck the horse at least twice with his farrier’s hammer in the flank area. The witnesses, quite rightly, he said, were very concerned with what they observed.

Mr McCraw, he believed, had gone much further than he should have, in striking the horse. The offending was more serious than that in Du Plessis, as the horse suffered an injury and had to be scratched. This had consequences for the connections, jockey, the Club and the public.

Mr Kitto also emphasised that the charge was unsuccessfully defended and had resulted in a lengthy hearing on race day. Mr Kitto recognised the fact that Mr McCraw had been involved with the industry for some 25 years and had not previously offended was a significant mitigating factor. The RIU submitted a fine of $1000 was the appropriate starting point. They did not seek costs.

Respondent’s Submissions

Mr McCraw has had the assistance of Mr Belcher who has prepared written submissions as to penalty on his behalf. He asked the Committee not to impose a monetary penalty but to issue a warning or impose a suspension. If this submission was not accepted, then the monetary penalty, he said, should be in the region of $250.

The respondent emphasised that a farrier and three trainers all gave evidence on his behalf to the effect that in similar circumstances they had used a shoeing tool to discipline a horse when being shod. They believed it was either acceptable for this purpose or as a matter of self-preservation. Two of the trainers stated they had never seen Mr McCraw use a shoeing implement to strike a horse that was fractious during the time they had used his services.

Having regard to this evidence, the respondent submitted the conduct complained of was “at the least end of the scale of seriousness; and was out of character.” He emphasised Mr McCraw had no previous history of breach of the Rules.

Reasons for Penalty

Mr Kitto has responded to the respondent’s submission that a suspension be imposed by stating that Mr McCraw is not licensed under the Rules of Racing and therefore such a penalty is inappropriate. We agree with this submission. Mr McCraw was charged in his capacity as an “Official” of the Club and not as a “licenceholder”. (These expressions are defined in r 104.) Mr McCraw does not hold a licence. There is thus no licence to suspend him from holding and it is not appropriate to rule pursuant to r 803(1)(b) that he be prevented from obtaining any licence of the type described in r 104, as these do not pertain to Mr McCraw’s personal circumstances in that he is a farrier by trade. In addition, we do not believe disqualification is an appropriate penalty in the circumstances of this case, as it is too severe a penalty.

There is no express provision in the Rules of Racing empowering a Judicial Committee to issue a warning. We do not intend to consider whether we have such a power as its use in the circumstances of this particular case, we believe, would clearly be an insufficient response to the respondent’s actions.

We are reluctant to attempt to categorise this breach as being low, mid or high range. We believe that any action that deliberately causes pain and/or injury to a horse is to be denounced and the person responsible held accountable. That is the starting point for our imposition of penalty.

That said it is then appropriate to consider the nature of the breach and the circumstances in which it occurred. In our earlier decision we found that Mr McCraw used a shoeing hammer to strike the near flank of FANTAMO twice in a baseball type backhanded swing with his left hand. We found the hammer was not used in a downward motion to hit the horse with the head of the hammer but rather the horse was struck with the full length of the hammer as it was swung perpendicular to the ground. This action resulted in a palm sized tissue injury to the mare’s flank. We indicated in that decision that we were unable to determine whether Mr McCraw deliberately twisted the knee of the mare, as alleged by Ms Black, and thus we accept the respondent’s submission that it is inappropriate to sentence on this basis. This allegation is disregarded.

The incident took place in a public area of the racecourse. The actions of Mr McCraw were seen by a member of the public, and the horse attendant who both described Mr McCraw’s mood as either “shitty or growly” and he was heard by Miss Kelly and her friends to be shouting at the horse.

The injury was such that the horse was late scratched from her engagement at the meeting, resulting in a loss to the connections, the Club, and the jockey. The TAB would have refunded any investments on the horse by the betting public but more generally they were denied the opportunity to invest on the horse.

A significant mitigating factor with respect to the nature of the breach was that FANTAMO was fractious throughout the shoeing process to the extent on at least one occasion attempting to cow kick Mr McCraw. We accept Mr McCraw’s statement that the mare had come close to making contact with him. In addition, the injury FANTAMO suffered, whilst of sufficiently serious a nature to prevent the horse racing on the day, did not prove to have any long-term consequences. We are aware the horse has had two starts subsequent to 1 January and has won and run second on those occasions.

A further factor that we believe to be relevant is that Mr McCraw’s actions arose as a consequence of his doing a favour for Ms Black in agreeing to shoe the horse. It did not arise out of his official duties as Plating Inspector on the day. It is clear his frustration at a horse being presented for racing without the appropriate front shoes and his having to remedy this, despite the fact it was not the job he was employed to do on race-day, and all-the-while the mare being fractious, got the better of him. This was out of character.

We accept horses are dangerous animals and that shoeing a horse can place a farrier in danger, and that a fear of again being injured (Mr McCraw told us he had recently suffered a broken arm) influenced his response to FANTAMO’s cow kick. Three trainers, who are very experienced in the industry, have given evidence that the application of force to a horse as a disciplinary measure is appropriate, and two (not three) have stated, as the respondent has emphasised in his written submissions, that the use of an implement might on occasion be justified, and that they had had recourse to such in their time in the industry. The evidence of Mr Fox, a farrier himself, was to similar effect to that of the two trainers.

In our earlier decision we found it was Mr McCraw’s frustration when shoeing FANTAMO, and not the fact that his safety was in immediate peril and he was acting in self-preservation as a last resort that had led to his striking the mare twice with his farrier’s hammer. We held the use of the hammer in these circumstances was beyond the realms of any reasonable disciplinary measure.

We accept for the purpose of determining culpability that Mr McCraw has used the implement at hand at the time and to this extent his actions were not premeditated. We take some assistance from Du Plessis where the fine was $500. This was a deliberate kick with the inside of the riding boot to the head of the horse when it became fractious in the starting gates. The horse in throwing its head towards the ground had caused a whiplash sensation in the jockey’s neck. We do not accept Mr Kitto’s submission that the respondent’s actions are clearly worse than those in this case. Mr McCraw’s left (wrong) handed use of an implement is offset by the fact his actions were not to the head of the horse but rather her flank.

The starting point in Du Plessis is not stated in the decision but a reduction in penalty was given for the admission of the breach, very good record, remorse and the fact his actions were out of character. Having regard to these factors, we believe it would have been in the region of a fine of $800 and that figure is adopted as an appropriate starting point in this case.

We identify as personal mitigating factors the fact that Mr McCraw cooperated fully with the Racecourse Inspector’s investigation, he admitted striking the mare from the outset and defended the charge solely on the basis he believed his personal safety was at risk. He has an unblemished record over a period of some 25 years, and is very highly regarded in the industry (as we have recognised in our earlier decision and will not recount).

Penalty

We believe these factors merit a reduction of $300 from our starting point. Mr McCraw is fined the sum of $500.

As the matter was heard on race-day, there is no order as to costs.

Mr P Knowles         Chairman

Prof G Hall             Committee Member

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Rules: 340

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