You are here: Home / Non race day hearings / Appeal RIU v J Habraken - Reserved Decision (Reasons) for Decision of Appeals Tribunal dated 13 May 2019 - Chair, Hon J W Gendall QC

Appeal RIU v J Habraken - Reserved Decision (Reasons) for Decision of Appeals Tribunal dated 13 May 2019 - Chair, Hon J W Gendall QC

Created on 16 May 2019

BEFORE THE APPEAL TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003 and in the matter of an appeal under Part XII of the NZ Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Appellant / Informant

AND JOHANNES HABRAKEN, Licensed stablehand

Respondent

APPEAL TRIBUNAL

Hon J W Gendall QC – Chair

Mr L N McCutcheon – Member

APPEARANCES

Mr S Symon for RIU

Ms M-J Thomas for Johannes Habraken

PRESENT: Messrs. A. Cruickshank and N. Grimstone ( RIU)

Messrs. Rob Lawson and Hank Habraken

The respondent did not attend

Hearing held at Hamilton on 6 May 2019

Reserved Decision (Reasons) for Decision of Appeal Tribunal

[1] This is an appeal by the RIU against a penalty of a fine of $5000 imposed by a Judicial Committee on 12 March 2019 after Mr Habraken admitted a charge under Rule 1001 of aiding licensed horseman Simon Lawson to commit an offence against Rule 505.

[2] At Mr Lawson's request, he placed a bet for Mr Lawson of $100 to win (at fixed odds of 21-1) and $100 to place (at fixed odds of 3.5 -1) on a horse in a race on 20 July 2018 at Alexandra Park in which Mr Lawson was to drive, and did drive, another horse. The bet was placed at the Pukekohe TAB on 19 July 2018.

[3] Mr Lawson admitted the charge against him of breaching Rule 505 (as well as another similar serious racing offence that had occurred on 25 May 2019) and Mr Habraken likewise admitted the charge of being a party to the offence through his actions in aiding the principal offender.

[4] Whilst it was alleged that he “aided and abetted” Mr Lawson’s offence, the Judicial Committee proceeded on the basis of “aiding” only, given that “abet” requires an element of active encouragement.  To aid, whether under section 60 of the Crimes Act as well as under the Rules requires the doing of an act for the purpose of assisting or aiding a person to commit an offence, with knowledge the offence is to occur and intending to assist in it.

[5] The relevant facts are summarised as follows.

• Mr Simon Lawson was a licensed Open Horseman and trainer. He had successfully achieved financial benefit through placing bets on a long odds on a horse in a race in which he was driving another horse, he had the assistance of another licensee. Although the latter has not been found guilty on the basis that it had not been proved to the satisfaction of that Committee that he knew that Mr Lawson was driving another horse. Mr Lawson, having succeeded handsomely on the first occasion. He decided to chance his arm again and place a significant wager on a horse in a race in which he was to drive a different horse. Mr Habraken was not aware of the earlier events.

• On the evening of 19 July 2108 Mr. Habraken was in the Pukekohe TAB as was Simon Lawson, who asked him “to back one for me tomorrow night; don’t tell anyone.”

[6] Mr Lawson told him the name of the horse and race. He gave Mr Habraken $200 cash and instructed that the bet be $100 to win (the fixed odds were 21- 1) and $100 to place (at fixed odds of 3.5 -1). Mr Lawson told Mr Habraken that he could not place the bet himself as he was driving another horse in the race. That fact was initially disputed by Mr Lawson in the proceedings of charge against him. But he did not pursue any dispute at his appeal hearing. We are satisfied that was said whether or not Mr Habraken fully understood what that meant. He told the Judicial Committee that he thought a driver could bet on a horse he was driving (he cannot) but as the Committee observed, this inconsistent explanation does not assist the Respondent. In fact later he told the Committee that he knew Mr Lawson was driving another horse “as he told me.”

[7] He was asked to place the bet and keep it secret for the obvious reason that Mr. Lawson ought not do so, and he wanted no one to know. He gave the bet slip to Mr Lawson of the $200 wager who drove the next day in the race, finishing last. Mr Lawson was later adamant that he drove his horse on its merits and did not face such a charge. His bet was partially successful as the wagered horse ran second and he later cashed the bet slip and received $350.

Penalty considerations before the Judicial Committee

[8] The RIU sought a disqualification because this was a serious racing offence which impacted on the integrity of racing, and both specific and general deterrence was essential. Mr Habraken told the Committee that he was stablehand for his father, he helped around stables, fed and worked horses for him and another trainer.

[9] He said “I don’t get paid – I do it for love”. At times he drove horse floats transporting horses from which he received a modest income, but his primary income had been from fencing and other farm work. He was “between jobs” and had financial commitments through mortgage and family requirements but hoped to develop his own horse transporting business with the aid of his father’s float. We did not have the opportunity of hearing from Mr Habraken.

[10] The Judicial Committee said that a disqualification was "unduly harsh" and that a suspension would have no effect as counsel for the RIU had explained that a stablehand’s licence was not necessary for a person to assist with horses whether around stables or at the races. A licence is only required under Rule 319 if he /she is in the employment of an owner or trainer as a stable hand. Although there is reference in the Committee’s decision to Mr Habraken saying “it’s all income,” that does not accord with has statement that he was not being paid for his help with horses in the stables, and appears to be related only to driving floats and other intermittent farm work. The Committee said he was “struggling financially,” had personal characteristics that led him succumbing to pressure by another licence holder; and the practical effect of a suspension “would be meaningless,” as he could still do all the things he was doing even if his licence was suspended. It acknowledged that “emphasis was to be given to the need to protect the integrity of the racing industry and to reinforce confidence in race betting no matter what the code”. It concluded that disqualification would be financially crippling to Mr Habraken and prevent him establishing a business and “with suspension not a viable option” there was only disqualification or a fine available. It said that the difficulty for it was that the Respondent, a vulnerable individual, was “a very poor choice for the imposition of a deterrent sentence.” 

[11] In imposing a fine of $5000, the Committee (at para (49) said “We accept the broad proposition of the RIU that the penalty that should be imposed for a serious racing offence should give emphasis to deterrence, both general and specific we do not believe it need to be to the extent of preventing the Respondent having any connection at all with the industry.”

Submissions on the appeal

[12] Counsel for the RIU contended that the Judicial Committee erred in taking into account irrelevant considerations and because of the serious nature of this particular "serious racing offence" involving dishonest, disqualification for two years was necessary. Mr Habraken's counsel emphasised that this was a one off offence by an otherwise blameless young man who succumbed to what he saw was pressure from Mr Lawson.

Decision

[13] That the prescribed sanctions for serious racing offences are disqualification for periods up to life, suspension and fines of up to $30,000 illustrate the gravity of such offending. Naturally, there will be gradations of seriousness with penalties ranging across a wide sphere so as to reflect severity, culpability and the type of offending. Whilst an offender who aids the principle is still guilty of the offence/crime, it is often, if not usually, the case for his/her penalty or sentence to be less to reflect the true culpability. That is the case here, as the Judicial Committee recognised.

[14] The issue must be what sort of sanction (disqualification/suspension/fine) and at what level, (or none) is the minimum required to satisfy sentencing principles. These are discussed in this Appeal Tribunal’s decision relating to Simon Lawson and need no lengthy discussion here, but they include the need to denounce the offending, punish the offender, reflect the gravity of the offending, deterrence both specific and general protection of the community, assist in rehabilitation and reintegration of the offender, take account of the personal circumstances of the offender, and be proportionate to his wrongdoing and personal features. But, crucially as we made clear, in the context such as this of professional disciplinary proceedings, sanctions are not just designed to simply to punish and deter. There is the important consideration of protection of the profession, its standing in the community, and the public, and all who deal with it, and whose livelihoods are dependent on it, and ensuring these are not jeopardised. The confidence of the community in the integrity, honesty and probity of members of any profession is a crucial consideration, and if its reputation is tarnished by those who transgress in those respects, the privilege of retaining membership, and a licence or ability to practice in that profession, is likely to be forfeited. The sanctioning process is designed for a very different purpose and wider needs of the sport and licence holders, and all who participate in the racing industry must clearly understand that.

[15] The life blood of racing depends upon millions of dollars wagered in New Zealand. Loss of confidence of punters and the community in the integrity of the sport/industry inevitably carries grave risk to its wellbeing.

[16] We agree with the view of the Judicial Committee that the limited involvement of Mr Habraken and his personal mitigating features do not require disqualification. His rehabilitation in hopefully earning a living transporting horses, whilst only an ambition at present, is a relevant factor. But we do not share the view that a suspension of his stablehand’s licence would be “meaningless.” Naturally he could still frequent a racecourse, be involved in helping with feeding and working horses, but he could not enter any area on a course to which only licensed holders could be admitted (eg stable areas where a club has prohibited public areas). Likewise , whilst he can continue to assist his father and others, without having a licence he cannot do that for reward, as a trainer cannot “employ” a person in that capacity if not licensed - and the respondent himself said he was not paid, so does not require such a licence to do that work. And he can still do this without being paid.

[17] We conclude that the Committee erred in deciding not to impose a suspension because it thought it would be "meaningless". Yet it will have "meaning" to Mr Habraken and importantly to all other licence holders so all understand that dishonest offending which strikes at the public's expectation in the integrity of the Code, will usually to lead to disqualification or suspension. What is important and is part of the need for deterrence - properly referred to by the Committee – is that all licence holders may see that stern sanctions will follow if they similarly offend. A fine only does not in our view sufficiently meet that need in a case such as this. Further the element of protecting the racing industry and maintaining confidence in its integrity, so as to protect its financial wellbeing and all the many who depend on it, exists whether or not a suspension may “bite” in any significant way on the respondent. Where there is knowing assistance to dishonest activity, it inevitably impacts upon the perception of the community including punters and all licence holders. They require confidence that suspension (at least) is likely to follow. How any particular suspension will impact upon a licence holder will vary from case to case depending on the licence and individual. But it is not, on its own, a reason for not imposing a suspension.

[18] We accept that suspension may not be "harsh" or greatly affect Mr Habraken but such an order is required to meet proper applicable principles. The proper starting point in our view would be 2 years 6 months suspension. We give credit, and make allowance for Mr Habraken’s mitigating factors, so as to reduce this by 12 months, as he was

• a party only

• genuinely remorseful (we accept) and having personal and individual factors that mitigate

• admitted his offending early

• it was an isolated offence on his part

[19] Because suspension is to follow, the fine is removed as an ameliorating factor.

Result

[20] The appeal of the RIU is allowed.

(a) Mr Habraken’s licence is suspended for 18 months from 6 May 2109 to conclude on 6 November 2020

(b) The fine of $5000 is remitted and quashed

(c) The order for costs of $500 to be paid by Mr Habraken to the RIU and $200 to be paid by Mr Habraken to the JCA imposed by the Judicial Committee on 17 April 2019 is confirmed

(d) Mr Habraken is ordered to pay costs on the appeal of $1000 to the RIU and $1000 to the JCA

Dated at Wellington this 13th day of May 2019

Hon J W Gendall QC

Chair

Mr L N McCutcheon

Member

Document Actions