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Adjourned Hearing RIU v A Beck - Written Decision as to Penalty dated 15 May 2017 - Chair, Prof G Hall

Created on 15 May 2017

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MR ALAN BECK

Open Horseman

Respondent

Information: A9359

Judicial Committee: Prof G Hall, Chairman

Mr V Munro, Member

Appearing: Mr L Tidmarsh, Stipendiary Steward, for the Informant

The Respondent in person

Date of oral decision: 13 May 2017

Date of written decision: 15 May 2017

DECISION OF JUDICIAL COMMITTEE AS TO PENALTY

[1] Mr Beck has admitted a charge of careless driving (r 869(3)(b)), namely that he drove BETTOR ENFORCE carelessly in race 10 at the Invercargill Harness Racing Club’s meeting on 30 April 2017, by shifting inwards entering the first bend when there was insufficient room between MISS FANDANGO (Ms Barclay) and LOUIE (Mr Williams), causing LOUIE, DACHY, MALIK, and MY GEORGIE BOY severe interference.

[2] The matter was heard at the Winton racecourse prior to racing on 13 May.

[3] Mr Tidmarsh demonstrated the incident on the videos.

[4] Shortly after the start of race 10, the FOVEAUX COMMUNICATIONS MOBILE PACE for 3yo and older pacers over 2200 metres, Mr Beck, who had drawn 7 on the front line, urged his horse BETTOR ENFORCE with the apparent intention of obtaining a prominent position in the race. This was evidenced by Mr Beck making several glances to his left.

[5] Whilst improving forward, Mr Beck commenced to shift inwards in the early stages and, passing the winning post, he positioned himself 3-wide and to the outside of MISS FANDANGO, driven by Ms Barclay. The head of his horse was outside the wheel of Ms Barclay’s cart.

[6] Mr Tidmarsh alleged that at this stage there was insufficient room for Mr Beck to improve and he was required to clear Ms Barclay’s wheel in order to fill the position behind her.

[7] Mr Beck continued his inwards manoeuvre and BETTOR ENFORCE’s right foreleg came into contact with Ms Barclay’s outside sulky wheel. Mr Tidmarsh pointed out that at this time Ms Barclay had to crouch forward and to the left whilst in the sulky to avoid being struck by the head of BETTOR ENFORCE.

[8] As a result of the contact, BETTOR ENFORCE paced roughly, and then continued to shift inwards, which in turn tightened LOUIE driven by Mr Williams, who was placed in considerable difficulty. Mr Williams attempted to restrain LOUIE when tightened for racing room to the inside of Mr Beck. This is demonstrated on the videos by LOUIE’s head being raised abruptly. LOUIE fell to the track soon after and, as a consequence, the trailing DACHY, driven by Mr Williamson, was brought down, with MALIK, driven by Mr Orange, and MY GEORGIE BOY, driven by Mr Hunter, being severely hampered, with each horse dislodging its respective driver.

[9] Mr Beck stated that LOUIE was a rough going horse. He said when he was shifting inwards he was “watching Mr Dunn’s legs to his immediate inside” and had been trying to keep clear of Ms Barclay at the same time. He said he was looking to see if there was sufficient room to clear Mr Dunn, and Ms Barclay had eased at this time and “things got a bit tight” and he came back on to Mr Williams. He added that Ms Barclay had said to him after the race that she was going to go to the lead but when she saw the stablemate was leading, she had decided to restrain her horse.

[10] Mr Beck said that he had not come into contact with LOUIE and Mr Williams had confirmed this to him when he had spoken to him after the race. Mr Williams had said to him he had grabbed his horse, its head had gone into the air, and it had then fallen to the ground.

[11] Mr Tidmarsh stated in reply that the RIU did not allege that the respondent had come into contact with Mr Williams, only that he had come into Mr Williams’ line of running, which had caused him to have to take hold. He added there had never been sufficient room for Mr Beck to improve into the gap behind Ms Barclay. Mr Beck had miscalculated when Ms Barclay had eased and he had struck her wheel.

Informant’s penalty submission

[12] The JCA Penalty Guide adopts a starting point of a 10-drive suspension or a $500 fine for a breach of r 869(3)(b). The Guide, however, identifies as aggravating factors the fact that a horse has fallen or a driver has been injured as a result of the breach.

[13] With reference to aggravating factors, the Stewards assessed the level of carelessness to be high. Mr Beck had looked inwards, seen there was not enough space, and gone there anyway. His actions, Mr Tidmarsh stated, were very close to being considered reckless.

[14] The RIU produced Mr Beck’s record. His most recent breach of this rule was on 6 November 2016 when he was fined the sum of $400. Whilst this was outside the four-month period identified in the JCA guidelines that would require the starting point to be a suspension, the RIU stated Mr Beck’s record could not be described as good. When taking into account the number of drives Mr Beck would have had since that time, Mr Tidmarsh stated his record should be considered as being “neutral”.

[15] Mr Tidmarsh emphasised Mr Beck’s driving in this incident had endangered the safety of all of those competing around him. Two runners, namely LOUIE and DACHY had fallen to the track, with another two horses, namely MALIK and MY GEORGIE BOY, being severely disadvantaged.

[16] As a result of the interference caused by Mr Beck, the horse LOUIE had to be destroyed. Drivers, namely Mr Williams, Mr Williamson, Mr Orange and Mr Hunter, were all dislodged from their sulkies and had their safety compromised.

[17] Mr Hunter, the driver of MY GEORGIE BOY, required hospitalisation for several days due to the concussion he incurred as a result of his fall. Mr Hunter was still suffering the effects of this injury and Mr Tidmarsh stated this might be so for some time.

[18] The race had had to be abandoned. This had severe financial repercussions for many people. Not only were the Club adversely affected, but so were the owners, drivers, trainers and punters who had had their chance to compete for stakes or dividends removed. The industry had also lost out on betting revenue.

[19] The RIU did not suggest that Mr Beck had intentionally caused the incident, but he should have been aware of the possibility of these consequences occurring as a result of his carelessness. Mr Tidmarsh submitted it could not be ignored that the consequential effects of the respondent’s driving error were “vast”.

[20] For that reason, the RIU submitted it was imperative that any penalty handed to Mr Beck was a meaningful one. It had to represent a significant deterrent to any like-minded driver who might consider this style of driving to be appropriate. It was fundamental, Mr Tidmarsh said, that any driver looking to shift ground made absolutely certain there was sufficient room to do so. An incident such as this demonstrated what might happen if a driver chose to throw caution to the wind and expected other horses and drivers to make allowances for him or her instead of undertaking the necessary checks. The penalty that was given to Mr Beck should, Mr Tidmarsh submitted, be such that it caused other drivers to think twice, to check there was sufficient room, and to make race moves with safety.

[21] The RIU’s position was that a fine was inappropriate and that the breach had to be dealt with by way of a suspension.

[22] Mr Beck had driven on 128 occasions this season. Last season he drove in 191 races. The Stewards described Mr Beck as a moderately busy driver who averaged 4-5 drives per race day in the Southland region.

[23] The occasions Mr Beck drove in the Otago region were so infrequent that the Stewards did not support his being classified as a Southland and Otago horseman. The RIU produced a list of the respondent’s drives this and last season. This demonstrated that last season 9 of his 191 drives were at Forbury Park. This season he had had 5 of his 128 drives at that racecourse.

[24] The starting point of 10 drives would equate to about two and half meetings for Mr Beck. The RIU submitted there had to be a substantial uplift on that starting point for the aggravating factors in this case and only a very small reduction applied for the respondent’s admission of the breach.

[25] When considering the matter of mitigation, the Stewards accepted that Mr Beck had admitted the breach at the earliest opportunity. However, they believed that Mr Beck had very little option but to do so. His driving on this occasion was described as “indefensible” and to constitute a clear breach of the Rules. For that reason, the RIU submitted that only a small amount of weight could be placed on his admission as a mitigating factor.

[26] Mr Tidmarsh said he could find no helpful precedents in Harness Racing. The repercussions of the respondent’s actions appeared to be a first in this code. However, in Thoroughbred Mr Moseley had had a four-day suspension increased to six, on appeal. Mr Moseley was a South Island rider and a jockey had been injured as a consequence of his actions, which had caused a horse to fall. He submitted the Committee might find guidance in that decision.

[27] The RIU submitted that a suspension of Mr Beck’s horseman’s licence for eight Southern meetings was the appropriate penalty. Mr Tidmarsh concluded by submitting that should the Judicial Committee take Forbury Park meetings into account, the number of drives Mr Beck had there would equate to one meeting. Any further meetings would not be justified.

[28] Mr Beck stated he had four horses in work and was contemplating taking them to Forbury Park. The number of horses would depend on how they were racing at the time. He explained he rarely went to Forbury midweek as there were usually races at the weekend in Southland, and the stakes were better there. In June, however, there was little racing in Southland. Mr Beck confirmed he drove mainly his own horses with only the odd outside drive. When questioned by this Committee, he acknowledged he had no record in the past two seasons of attending the June meetings at Forbury. He said he was not adverse to a suspension plus a fine, if the fine was not too high.

Decision

[29] We have not found the imposition of penalty in this case to be an easy matter. There are simply few, if any, relevant precedents in Harness Racing. For that reason we have gone to a recent case in the Thoroughbred code, which is that of Mr Terry Moseley. Mr Tidmarsh mentioned this case in his penalty submission. Mr Moseley is a busy South Island jockey and the penalty imposed on him by an Appeals Tribunal was six days’ suspension. We work out that at an average of seven rides per meeting, that penalty would equate to around 42 rides for Mr Moseley.

[30] The circumstances in the Moseley case were that he shifted wider on the track in the home straight and, in so doing, he brought two horses down and one jockey, Ms Morris, was injured and unable to ride for sometime. Indeed, she is currently not back riding. Mr Moseley’s response to the breach was similar to Mr Beck’s in that he admitted the breach and was remorseful. So there are some quite distinct parallels between that case and the one before us.

[31] We have referred to the JCA Penalty Guide, but it does not assist us greatly as gives a starting point for careless driving, generally, of 10 drives or $500, and simply states at page 2 that where is there is a fall, where there is an injury to a driver, then the starting point should be adjusted upwards. But the Guide does not give us any indication of the extent to which the starting point should be increased in the individual case.

[32] We agree with Mr Tidmarsh that the breach by Mr Beck is at the high end of the scale and we note one difference, if we go back to the Moseley case, in that the breach in that case was described by the Appeals Tribunal as being at the higher end of mid range.

[33] The breach in Mr Beck’s case is at the high end and is not at all in the mid range area. We would thus conclude that the breach was slightly graver than that in Moseley. This is not one of those difficult cases of low culpability with high-end consequences. Mr Beck’s driver error can rightly be described as high end in that he has attempted unsuccessfully to cross the field shortly after the start of the race and to slot into the one out one back position behind Ms Barclay. He was aware there were horses on his inside. He can clearly be seen on the videos to look across. He has explained that he was keeping an eye on Mr Dunn, who was racing to his inner, and had not realised that Ms Barclay, whose horse he was attempting to trail, had eased slightly.

[34] The result, as previously described, was contact between a leg of his horse and Ms Barclay’s sulky. Mr Beck’s horse paced roughly and came into the running line of Mr Williams, who had to severely restrain his horse, LOUIE. The horse’s head has come up abruptly and LOUIE has crashed to the track. DACHY also fell and became briefly entangled with LOUIE, which unfortunately suffered fatal injuries. Two further horses were inconvenienced and Mr Hunter was propelled from the sulky of MY GEORGIE BOY. He suffered severe concussion and was hospitalised for a number of days.

[35] We agree with Mr Tidmarsh that the penalty has to be a meaningful one and we believe Mr Beck knows this as well. The penalty has to act as a deterrent to other drivers and simply also has to be a penalty that holds Mr Beck accountable for his actions.

[36] We have viewed Mr Beck’s record and have identified two recent breaches of the careless driving rule. There is one breach on 19 January 2016 where the penalty was two days and a $250 fine. The circumstances were similar in that Mr Beck is described as having shifted inwards shortly after the start of the race (after 150 metres) and to have come into contact with a sulky wheel causing the tyre to deflate. The second breach was on 6 November 2016 when the penalty was a $400 fine. The circumstances were different in that Mr Beck shifted in on the bend with 300 metres to race. The only similarity was that it was also careless driving. We agree with Mr Tidmarsh, but with some reluctance, that Mr Beck’s record is a neutral factor. We are not in a position to give a discount for this factor and will accept the record as neutral.

[37] It is our view that the number of drives for which Mr Beck is suspended should equate roughly to the 42 figure, as in Moseley. As Mr Tidmarsh has said, he has looked at Mr Beck’s statistics for the past two seasons and he roughly has 4 to 5 drives a race day. It is probably closer to the 4 than the 5, but we are prepared to work from that figure. If we multiply 4.5 by 9 that gets us to approximately the 42 in Moseley, in fact, about 40. So it is our view taking into account Mr Beck’s admission of the breach, as was also the case in Moseley, that a nine meeting suspension is appropriate.

[38] We are aware that this is a large number of Harness meetings but on a comparative basis we believe this is the appropriate penalty. We emphasise that we obviously have had to take into account the consequences of Mr Beck’s breach of the rule, which was that the race was abandoned due to the fall, with horses and drivers lying on the track, and the subsequent injury to a driver and a horse having to be euthanased.

[39] This then takes us to the issue of where these drives should be. Mr Tidmarsh has asked us not to take into account Forbury Park because Mr Beck does not drive there regularly. We have seen that at this time last year he certainly did not drive at Forbury Park. We are talking here about the June meetings. We have gone back a year earlier and found that Mr Beck did drive there in May 2015 but again he did not drive in June.

[40] We have had a look at the number of drives that Mr Beck has had this season, the number of drives he had last season, and have ascertained proportionately how many drives he has had at Forbury. This works out to be a little less than 5% of Mr Beck’s total drives. On that basis we are prepared to accept that for 5% of the time Mr Beck drives at Forbury. We include one Forbury meeting in our calculation. We believe this is the best and fairest way to look at the matter; we are in an area where there is little or no precedence.

[41] Mr Beck has made no request for a deferment. The suspension will start from the end of the meeting today (13 May).

[42] The meetings encompassed by the suspension are:

20 May 2017 at Invercargill

27 May 2017 at Invercargill

1 June 2017 at Forbury Park

5 June at Invercargill

10 June at Invercargill

27 August at Gore

9 September at Winton

23 September at Invercargill

28 September at Winton

[43] This is a long period of time, calendar day wise, but in essence this is mainly the off season, and were this January or February we would have been looking at weeks’ and not months’ suspension. (We note that the dates in the new season are only provisional at this time and should the Southland dates change we grant leave to Mr Beck to approach this Committee.)

[44] We view this as being the penalty that is fair, reasonable and proportionate in the unusual and fortunately quite rare circumstances of this case.

Dated at Dunedin this 15th day of May 2017.

Geoff Hall, Chairman

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