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Appeal D D McCormick v RIU - Reasons for Decision of Appeals Tribunal dated 23 March 2021 - Chair, Hon J W Gendall QC

Created on 24 March 2021

BEFORE THE APPEALS TRIBUNAL

JUDICIAL CONTROL AUTHORITY FOR RACING

AT CHRISTCHURCH

IN THE MATTER OF the New Zealand Rules of Harness Racing

BETWEEN David Douglas McCormick

of Ashburton, Licensed Open Driver

Appellant

AND Racing Integrity Unit

Shane Renault, Stipendiary Steward

Respondent

Appeals Tribunal: Hon JW Gendall QC, Chair

Mr G Thompson, Member

Present: Mr DD McCormick – Appellant

Mr K Barron – Horsemen’s Association assisting Mr McCormick

Mr S Renault – Respondent

Date of hearing: 18 March 2021

Date of Oral Decision: 18 March 2021

REASONS FOR DECISION OF APPEALS TRIBUNAL dated 23 MARCH 2021

1. Mr McCormick appealed against a penalty of suspension of his Driver’s Licence for a period of 3 months from the close of racing on 27 February 2021 until the close of racing on 27 May 2021, imposed upon him for a breach of Rule 869(2) [the whip Regulations] during the running of Race 6 at Ashburton Trotting Club meeting on 27 February 2021.

2. The Stipendiary Steward’s Information A11475 alleged that:

“Driver D McCormick used his whip with more than a flicking motion in the home straight”. Mr McCormick was driving the horse MAUI, which was placed 4th.

3. Mr McCormick admitted the charge and said to the Raceday Committee that he was conversant with the Rule 869. This provides that no driver shall during any race use a whip in a manner in contravention of the Use of the Whip Regulations made by the Board. The Committee recorded that the applicable Use of Whip and Rein Regulations were:

(3.1)1.1. A Driver may only apply the whip in a wrist only flicking motion whilst holding a rein in each hand with the tip of the whip pointed forward in an action which does not engage the shoulder

(3.3)1.1. A driver shall not use the whip in an unapproved manner

(3.3)1.2. For the purposes of clause 3.3 a driver shall be deemed to have used the whip in an unapproved manner in the following circumstances which are not exclusive:

(3.4.1)1.1.1.1. If the whip is applied other than is permitted in clause 3.

4. The Raceday Committee heard from the Stipendiary Steward who illustrated from the race film the manner in which the Appellant drove his horse in the home straight when racing in the trail behind the leader. He referred to the Appellant striking his horse on several occasions using more than a wrist flicking motion, and he had “engaged his elbow and shoulder far too many times and has fallen well short of the requirements”.

5. The decision of the Committee records the submissions of both Informant and Mr McCormick as being:

• the Stewards viewed the breach at the “high range” of offending against the Regulation

• Mr McCormick had offended soon after the Regulations were promulgated and had continued in the ‘old style of driving”

• the new Penalty Guidelines required a suspension for a high range breach

• Mr McCormick drove infrequently with 15 drives last season and 13 to date this season; had a clear record under the Rule and had been spoken to once about his whip action.

• Mr McCormick is recorded as saying that he had not been treated fairly as other drivers had received several warnings, before being charged; he did not drive often and had not had the same practice that other drivers had to be able to adapt to the new Regulations.

The Committee’s reasons for the penalty

6. The Committee concluded that the Appellant’s breach fell within the category of high-level offending, as defined as when a Driver shows a total disregard for the requirements of the Regulation and makes no effort to return to a compliant style of driving. It found the breach reached this level as the Appellant drove for the last 200 metres without regard for the new whip use requirements. The Committee said that from 1 November 2020 the JCA Penalty Guide for a high-level breach” will be a period of suspension (3days) … . this race the Group 3 Hambletonian Classic was the feature of the day’s racing which is an aggravating factor”.

7. The Stipendiary Steward told the Raceday Committee that the Informant “would leave it up to the Committee to find an appropriate penalty’.

8. The Committee recorded that the Appellant is an infrequent driver, which always presents “a challenge for Committees to arrive at a penalty that is both apposite and fair”. The Committee concluded that a 3-month suspension was appropriate.

SUBMISSIONS BY THE APPELLANT

9. Mr McCormick reaffirmed what his submissions had been to the Raceday Committee and elaborated by contending:

a) The penalty was too harsh for such an infrequent Driver who only drove his own 3 horses

b) He made an effort to abide by the Rules, used the whip and reins as prescribed in the new Regulation so was doing his best and was not deliberately trying to drive under the old restrictions

c) The Committee erred in “equating a 3-day suspension to 3 months without [my] licence” as without the Covid intervention which “cut the season short by at least 4 months I would likely have had a lot more drives”

d) He said he had had 5 drives in the 2-month period before his suspension on 27 February 2021

e) The horse MAUI that he had been driving on the day was to race at Westport and Reefton in the week of 8-13 February, so he missed those, and that he had 2 other horses that been spelled but that he expected to be racing during the period of suspension. He submitted that “therefore he would be getting penalised a lot more than 3 days”

f) The Committee has used the fact that he had “a small number of drives to give [me] a long suspension, yet disregarded the fact that [he] “had less time to adapt to the new Rules’’

g) He had since discussed the case with senior persons involved in the Harness Racing Code – whom he names - and “the feedback “he had received, he said, was that the “penalty was very harsh”

h) The JCA Penalty Guidelines are not more than that, not set in stone, and “fairness and justice requires to be taken into account”

i) He says the Committee erred in concluding that because the Race was a Group 3 Race it was an aggravating factor. He refers to another decision of a Raceday Committee at Auckland on 26 February 2021 in which it said “that although the Race with which it was concerned carried a stake of $17,000 and was a Listed Race, …it does not meet the $40,000 Major Race Threshold. Therefore we have not unduly penalised [the driver].”

10. Mr Barron, assisting the Appellant, contended that the penalty was too harsh and that his Association was very concerned at the length of suspensions imposed upon infrequent or “hobby” drivers.

SUBMISSIONS OF THE RESPONDENT

11. The Stipendiary Steward Informant told the Raceday Committee that he would leave it up to it “to find an appropriate penalty”.

12. Before this Appeal Committee the RIU contended:

a. the breach was high end

b. all drivers had been warned of the new rule and for the first 2 months for education purposes only had been spoken to advisedly

c. Mr McCormick had been spoken to at Rangiora about his whip use

d. there needed to be an uplift from the starting point of 4 days because of the status of the race so that any penalty was “meaningful”

DECISION

13. Appeals such as this are required to be by way of “rehearing”.

14. Whilst the Raceday Committee was referred to and mentioned “Penalty Guide” as Stage 2 “from November 1 onwards” in fact the applicable Penalty Guide, if to be followed, was a new one effective from 1 December 2020. But that is of no moment as the substance is the same. Although the relevant Guide uses the suspension periods in terms of “meetings” rather than “days”, we do not see any difference. But for many driving offences (careless, improper, causing interference, diminishing chances, pushing out etc) the Guide speaks in terms of number of “drives, “which can be very much different to “days” or “meetings”.

15. For Contravention of the Whip Regulations the original Guide effective from 1 November 2017 refers to a schedule of penalties for “whip matters”, which encompass fines, or “case by case on merits “, or suspensions in terms of days for repeat offences. These were revised on 1 October 2020, then on 1 November 2020, and again on 1 December 2020. As mentioned, they were first framed in terms of “meetings” and now in terms of “days”. There is no reference to “drives“. But in coming to an appropriate sanction, one factor to be considered is the loss of realistic opportunity to earn income from driving during a period of suspension.

16. But there are other factors or principles to be considered in the balancing exercise required in fixing a proper sanction. They will include

(a) deterrence to others, so that they are aware of possible outcomes if the likewise transgress as well as personal deterrence,

(b) upholding required standards of the profession or Code,

(c) public or community interests (especially in the area of animal welfare concerns)

(d) the disapproval of those who administer the operation of Harness Racing

(e) and of course, the “punishment” factor. But that factor is not to be elevated to the sole purpose of the penalty.

17. It remains proper for a Committee to consider driving opportunities that will be lost, but, as the Committee properly noted, the “challenge for Committees [is] to arrive at penalty that is both apposite and fair”, and it is but one of several considerations and the weight to be given to it may vary from time to time depending on the importance or weight to be given to other considerations in the particular case.

18. It is unquestionably correct that the Guidelines are no more than that and are designed to provide assistance to Raceday Committees. The task of imposing of sanctions cannot be reduced to a simple arithmetical exercise. Fine and measured judgment is required. There always remains the task of a Committee to factor in all personal, industry wide considerations in the proper exercise of its discretion. In this case the Raceday Committee took as a starting point a 3-day suspension for the high-level breach and regarded the Group 3 Race status as an aggravating factor to provide an uplift. That is immaterial as the new Guide incorporates the status of the race into the starting point, and it is for this type of Race, 4 days suspension. What then is the appropriate calendar period in which the suspension should be served?

19. Obviously if a driver works only in the North Island for example on grass tracks or in the Manawatu or Cambridge, a 4 meeting or a 4-day suspension, expressed in those terms, would be nugatory if those 4 days were only encompassed by meetings in the South Island where he/she would never have the opportunity to drive. That is why the Committee described it as a “challenge” to fix an appropriate sanction that met all the principles of sentencing. It looked at the high-end breach and noted that Mr McCormick was an infrequent driver. It noted that – leaving aside drives in last season’s truncated meetings- he had 13 drive in the current season – a period of a little over 6 months.

20. A recent example of the “challenge” Raceday Committees face is in the decision of A Dooley v. B Mangos heard on 12 March 2021. The driver was found guilty of breach of the Whip and Rein Regulations, in a non-Group/Listed Race, at a medium level breach. Given that Mr Mangos was a repeat offender, this being his 4th offence within a short period, the Committee said it took as a starting point a “5-day suspension and fixed an uplift of “2 days”. Without doubt it meant those to be only those venues/meetings/days at which, it said “Mr Mangos would most likely be driving”. So, it framed the term of suspension as from 12 March 2021 until after racing on 8 April, which is a term of 4 weeks, although the Committee adds that it meant only “7 days”, being 7 named meetings at Palmerston North, Cambridge, and Auckland over that 4-week period.

21. As we have said an Appeal is by way of rehearing (Rule 44.1 5th Schedule) and require the Appeals Tribunal to come to its own conclusion. We are comfortably satisfied that:

1) The breach which was admitted was a high-level breach

2) It occurred in a Group 3 Race, and even though carrying a somewhat lesser stake, it falls within the Guideline starting point of a 4-day suspension. The status of the race naturally cannot again be regarded alone as a separated aggravation as it is already incorporated in the starting point

3) Mr McCormick’s reliance on the decision involving M Jones at Auckland on 26 February 2021, (to the effect that despite being a Listed Race, a stake of $17,600 did not meet the Major Race threshold of $40,000 as an aggravating factor) does not assist him. That is because that case involved careless driving, and the uplift in penalty arises only where, as the Rule for those offences state, it is in a Major Race as defined ($40,000 and over). But the “Major Race” test is not referred to so as to have any application in the separate Whip and Rein Regulations which fix their own reference points as aggravations being Group or Listed Races.

22. We conclude:

(a) A proper starting point is a 4-day suspension given the high-level breach and status of the race.

(b) It is not a mitigating factor that Mr McCormick, as he asserts, had not been warned for a breach of the new Rule. But he was trying his best to not deliberately break the Rule, but nevertheless erred to a high level.

(c) We bear in mind the infrequency of Mr McCormick’s driving opportunities. Whilst future predictions are always difficult and may be imprecise, if a guide is taken from his having approximately 2 drives per month this season, and each of those occurred on separate meeting days, a 3-month suspension might involve in terms of “punishment” the inability to drive in races on any raceday had he wished on 6 occasions. But, as we have said, there are other important and wider principles involved in the sentencing exercise.

(d) We prefer to adopt a baseline test as probably Mr McCormick having 2 driving days per month. From the proper starting point, of a 4-day suspension, for this level of breach in a Group 3 Race, there are no personal aggravating factors such as prior offending. And admittance of a charge on raceday, where a realistic defence cannot be advanced, does not usually entitle a discount.

OUTCOME

23. We have reached the view that a suspension of Mr McCormick’s Driver’s licence for a period of 2 months is required. To that extent the Committee’s decision is varied.

24. The period of suspension is from the close of racing on 27 February 2021 until the close of racing on 22 April 2021. The 2 months, or 8 weeks, period in fact expires on 24 April 2021, with racing at Rangiora on 25 April 2021, but it is preferable to describe the suspension period as ending at the close of a racing date.

25. As the Appeal has been partially successful, we direct in our discretion that the Appeal deposit of $250 be refunded.

Hon JW Gendall QC

Chair

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