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Appeal A J Calder v RIU - Decision of Appeals Tribunal dated 15 January 2020 - Chair, Hon J W Gendall QC

Created on 17 January 2020

Before an Appeals Tribunal of the Judicial Control Authority for Racing

IN THE MATTER OF an Appeal against

a decision of a Judicial Committee made at

Tauranga on 2 January 2020

BETWEEN ANDREW J CALDER - Class A Licensed Jockey

Appellant

AND The RACING INTEGRITY UNIT

(M Williamson - Senior Stipendiary Steward)

Respondent

Hearing held at Ellerslie Racecourse, Auckland on 13 January 2020

Appeals Tribunal:

Hon J W Gendall QC (Chair)

Mr L N McCutcheon (Member)

In attendance:

Mr A C Calder - Appellant

Mr M Williamson - Respondent

Mr J Oatham (Chief Stipendiary Steward) representing the RIU

1. This was an Appeal by Class A Rider Mr A C Calder against a penalty imposed on him by the Judicial Committee at Tauranga on 2 January 2020, of a suspension of his licence to ride in races from the cessation of racing on 4 January 2020 to conclude after racing on 24 January 2020. This was assessed by the Committee as being 15 national riding days, discounting 5 and 16 January in such calculation as one meeting was for apprentice riders only, and declaration of riders had closed for the other meeting.

2. The penalty was imposed after the Committee found the Appellant guilty of careless riding under Rule 638(1)(d). The Appellant was originally charged with reckless riding under Rule 638(1)(b). After completing the hearing and its deliberations the Committee elected to amend the Information under Rule 915(5) the Appellant then noted the amended Information as “I admit this breach.”

3. At the conclusion of the Appeal hearing we delivered our decision dismissing the Appeal and gave brief reasons which are now recorded in expanded form.

4. A charge of reckless riding was laid by Mr Williamson, Senior Stipendiary Steward, following the running of race 6, a 1600 metre maiden race with a stake of $10,000, at the Tauranga race meeting on 2 January 2020. The Appellant rode the winner, SOFT HEARTED, which was pronounced favourite, earning a stake of $6,250. The winning margin was ¾ length, with a head between 2nd and 3rd, and a long head between 3rd and 4th. The 4th horse was MERSEY BEAT ridden by rider Mrs T Thornton. The Appellant pleaded not guilty and the Committee heard evidence from Mr Oatham regarding his assessment of the race films, Mrs T Thornton, Ms D Johnson (the rider of CAUGHT THE EYE which finished last) and the Appellant.

5. The essential facts as found by the Judicial Committee after hearing evidence and submissions from the parties and viewing the race films, were:

(a) As the field entered the home straight the Appellant’s horse was 5 wide and travelling strongly. At about the 300 metre point the Appellant turned his horse’s head inwards, and angled the horse in an abrupt manner in order to obtain a run to the finish. He was 1 length in front of Mrs Thornton on MERSEY BEAT. She had to firmly check her mount to avoid the heels of Mr Calder’s mount as he crossed over her horse. As a consequence, MERSEY BEAT lost approximately 3 lengths.

(b) Mr Calder then continued to ride forward while angling abruptly to be about ½-¾ length in front of Ms Johnson’s mount CAUGHT THE EYE, racing nearer the rail. She was required to check her mount despite it weakening, because of this interference.

(c) The Appellant told the Judicial Committee that he accepted his actions had been “high end careless” but denied that they were reckless. He said he “had a moment of neglect” as he did not realise the Mrs Thornton’s mount had “come out for a run”. He said that “there was no malice” in his actions and had made “an intentional movement which he said was careless but not reckless; he had been “looking for a run and made a mistake and no horses had clipped heels or fallen.”

THE JUDICIAL COMMITTEE’S DECISION

6. The Committee, after discussing what it considered “reckless” to mean, went on to say that it did not consider “the threshold between careless riding and reckless riding has been breached (sic) in this instance “, but the actions of the Appellant were at “the high end of careless riding”. It later described the actions as “a serious case of careless riding”, at a high level. It noted that there had been no correction by the Appellant. It pondered why no protest had followed. It stated that two horses had to be checked, one - MERSEY BEAT - severely. It referred to the JCA “Penalty Guide” for “high end” careless riding as “10 or more national riding days “ as a starting point (in fact the guide refers to 10 National Riding Days) and said that Judicial Committees have a discretion to “move beyond 10 days when the carelessness is so serious as to warrant this”.

It said it “bench marked” its decision against two cases (whilst noting that the were some points of difference) – RIU v. Goindasamy (16.5.2018) and RIU v. Hashizume (6.2.2019) – 16 and 17 days suspension – both involving apprentice riders, whereas “Mr Calder is an experienced Senior Rider which (sic) a higher standard of riding is expected” . The Committee said that the Appellant’s breach was “so serious that it warranted a significant uplift (from the starting point of 10 days)” and adopted 16 national riding days as “the appropriate starting point”. It then referred to mitigating factors of the Appellant admitting the amended charge and his good riding record and allowed a 1 day reduction so as to fix the penalty at 15 national riding days.

SUBMISSIONS OF THE APPELLANT

7. The Appellant’s Notice of Appeal sets out the grounds which he advances. They are:

“I think the incident didn’t have enough aggravating circumstances for such a high uplift on the careless riding charge. My horse wasn’t relegated and a fall didn’t occur. I also feel that not enough discount was applied for my record and guilt acceptance”.

8. The Appellant expanded in his oral submissions to us. These were carefully and comprehensively presented in a very able way, in writing (four typed pages), and three decisions between 4 August 2018 and 21 September 2019 in which he was suspended for 6,7,8, days for careless riding, and a further nine decisions involving suspensions of varying lengths against various riders as illustrations, he said of comparative serious types of careless riding. He also provided us with a document entitled “Careless Riding Template” of Racing NSW which sets out various arithmetical calculations and a process for fixing careless riding penalties. He expanded this submission orally that:

• Over the last 12 months he has had 500 rides with only 1 suspension of 6 days for careless riding.

• The only Rule he said he breached was the “crossing” rule. We add that the Rule breached was careless riding R 638(1)(b) whereas the “crossing rule “ R 642(2)(b) defines interference , but it was not disputed that there had been interference twice in breach of that Rule.

• That a protest did not eventuate was irrelevant. We agree but note that the Committee did not say that it took that into account in fixing penalty but was simply commenting on the serious consequences to Mrs Thornton’s mount, which were obvious.

• He carefully analysed the different cases he provided, the gravity of the various events, and penalties imposed, to submit that his penalty was disproportionate to what had eventuated in those cases.

• He said the penalty imposed was manifestly severe; his horse was not relegated; a fall never occurred; it was not a Group race and his record was not aggravating. He said that a greater discount for a guilty plea was required .

9. He responsibly conceded that there were two instances of “interference” and said to us “I did not exercise appropriate care when shifting ground”; as not clear of the other two horses and “it was a little bit rash decision, certainly impulsive” and “I accept it was lucky Mrs Thornton did not fall.”

SUBMISSIONS OF THE RIU

10. These likewise were comprehensive in writing and orally. On raceday, and we accept that was the case, Stewards contended that Mr Calder’s actions were reckless and irresponsible without giving any consideration to the horses on his inside. If not reckless they amounted to very high end carelessness, involving a vigorous, abrupt movement, without any correction, or exercising any duty of care, indicating a “win at all costs mindset.” Mr Williamson referred us to the cases mentioned in the Committee’s decision (RIU v Goindasamy and RIU v Hashizume) and the recent decision of RIU v Mrs Satherly (01.01.20) noting that in her case the breach occurred in a Group race and there were consequences to five runners. He also provided us with 21 examples of penalties imposed in “high end” careless riding cases. He summarised the RIU’s position as being that the JCA Committee gave proper consideration to all the relevant factors for such a serious breach of the careless riding rule and its sanctions could not be described as manifestly excessive.

DECISION

11. We have dismissed the Appeal on our assessment of all the relevant factors, in our view being:

(a) This was a case of very serious careless, at the highest level, and on the cusp of recklessness.

(b) The actions were deliberate in order to get a run so as to win. Two horses and their riders were affected, one to a very significant degree so as to extinguish its chances of finishing 2nd.

(c) It is not a mitigating factor that no horses fell, but simply an absence of that aggravating factor. But for the actions of the senior skilled rider, Mrs Thornton, a fall may have resulted and Mr Calder fairly said to us that “it was lucky” a fall did not occur.

(d) It does not matter that, as Mr Calder submitted, “there was no malice” (and we accept that was the case) because if there was malice the offence would be foul riding, and this was not the case.

(e) Whilst at the hearing before the Committee, the RIU said that the reckless riding charge only related to the one riding event which caused the hampering of two horses, and not two separate allegations. In fact once the Committee elected to amend the Information to allege careless riding, it would have been open to them to require there to be two charges of careless riding. This is because separately, and twice, the Appellant angled across two horses when not sufficiently clear. The breaches were not simultaneous but cumulative breaches of Rule 642(2)(b)(i) by causing interference, even though one affected horse did not gain a place.

(f) The examples of penalties in other cases may be helpful but are not determinative of the outcome as sentencing/imposing of sanctions involve a detailed evaluation of all the circumstances of the offence, offender, and the very important factor of deterrence to others who might be tempted to deliberately cause severe interference to other horses and riders so as to try to secure a win.

(g) Allowance, if any, for a guilty plea does not automatically arise or follow. As the JCA Appeals Tribunal in RIU v Lawson made clear (adopting the guidance of the New Zealand Supreme Court I R v Hessell SC 102/2009 [2010] NZSC 135), there is not automatic deduction but all the circumstances in which a plea of guilty was entered, not merely the time, if credit is to be given. These will include the degree to which the plea facilitated the administration of justice, the strength of the Prosecution’s case, the value of the plea in the circumstances (eg saving witness time, and expense), and the “first earliest opportunity “ will depend on the individual case. A raceday hearing of careless riding or excessive whip use, to which there is no realistic defence, is unlikely to attract any discount as defence would be futile, but it is always a matter for the discretion of the Committee – although licence holders ought not expect automatic reduction in a penalty for a plea. It will all depend. The discount for good record and plea from a proper level reached (it is sometimes called the “starting point”) but rather it is the level reached after factoring in all aggravating and mitigating factors of the offence from the notional starting point. (Thereafter what follows is allowance, for personal mitigating or an uplift for personal aggravating factors.) Sentencing is not a mathematical exercise, but a proper evaluation of all the circumstances. The NSW template referred to us has no relevance to NZ careless riding charges.

(h) The assessment of this offending justified a level of 16 national riding days, with a discount of 1 day for personal mitigating factors. Although stern, it was appropriate and not manifestly excessive.

(i) Accordingly, we have dismissed the Appeal.

COSTS

12. We make no order for costs on this Appeal to the RIU as it was heard at Ellerslie when the RIU Stewards/Witnesses were already there. However, the JCA has incurred significant expense in convening a panel at short notice, preparation, and travelling to Auckland.

The Appeal having failed, we order the Appellant to pay to the JCA a modest contribution of its actual expenses, which we fix at $750.

ADDENDUM

Although having no bearing on this Penalty Appeal for serious careless riding, we make some observations on what we see as the distinctions or “threshold” between reckless and careless riding, given there was some discussion of this by the Raceday Committee, and our remarks might be helpful to the RIU Stewards, and others.

RECKLESS is a normal word which simply means to act in a manner heedless of the danger or untoward consequences to others (or oneself). If a person has a reckless attitude, he is not concerned about what happens to others, or himself, who are affected by his actions. That is, he does not care about the possible outcome or effect the behaviour will have on others. “Reckless” is not really dependant on “intent”. Whereas the action or manner of behaviour must be intentional and deliberate, it is the acting with a lack of concern for others, and heedless of the consequences to others in which those deliberate actions may place them. Recklessness involves a behavioural attitude.

CARELESSNESS, as the Committee stated, is the failure to exercise the degree of care expected of a reasonable person to exercise in the particular situation. It also does not involve an intent to be careless or a fail to exercise reasonable care, just as to be reckless does not require an intent to harm others (though it might accompany the reckless act) . But it is rather a not heeding or caring about the harmful consequences that may or are likely to follow from the actions. But of course the manner of acting must be deliberate, not accidental.

Dated at Wellington this 15th day of January 2020

J W Gendall QC

(Chair)

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