You are here: Home / Non race day hearings / Appeal S Lawson v RIU - Decision of Appeals Tribunal dated 29 May 2020 - Chair, Hon J W Gendall QC

Appeal S Lawson v RIU - Decision of Appeals Tribunal dated 29 May 2020 - Chair, Hon J W Gendall QC

Created on 05 June 2020

BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY

INFORMATION NUMBERS: A 8707 and A 8708

IN THE MATTER of the Racing Act 2003

AND

IN THE MATTER of an application under Rule 1205

of the NZ Harness Rules of Racing

BETWEEN

SIMON LAWSON

(Applicant)

AND

THE RACING INTEGRITY UNIT

(Opposing – Respondent)

Appeals Tribunal

Hon J W Gendall QC (Chair)

L N McCutcheon (Member)

Hearing on the papers (by consent of the parties) at Levin on 27 May 2020

1. This was an application made on 10 May 2020 seeking cancellation of an order made by an Appeals Tribunal on 10 May 2019 for disqualification for a period of 2 years 6 months commencing on 11 May 2019 against Mr Lawson. His period of disqualification ends on 11 November 2021.

2. The background to the offending of Mr Lawson is fully set out in the decision of the Appeals Tribunal and does not need repeating here. We simply record that it involved two charges of Serious Racing misconduct in placing bets (successful as it happened) on two horses in Harness races in which Mr Lawson drove other horses who were unplaced. The Tribunal said that the offending struck at the heart of the integrity of the Code, and damaged its reputation with the community, being seriously dishonest.

RULE 1205

3. The Rule relevantly provides:

(1) A person who has been disqualified for more than 12 months or who owns a horse that has been disqualified for more than 3 months may apply in writing to the Appeals Tribunal for a cancellation of the remainder of the disqualification.

(2) An application under sub rule (1) shall not be considered by the Appeals Tribunal until the expiration of:

(a) 5 years from the date the disqualification was imposed where the person was disqualified for Life.

(b) 12 months from the date the disqualification was imposed where the person was disqualified for more than 12 months.

(c) [not relevant].

4. The written submissions by Mr Lawson’s lay representative advanced on his behalf can be distilled to the following:

(a) He has faithfully complied with the order for disqualification and adhered to the conditions attaching to disqualification and promptly paid the significant costs ordered against him.

(b) The Rule provides a similar mechanism to that of the Criminal Justice System in that a person sentenced by a court will usually be entitled to parole after serving a certain period of that sentence so “is released”.

(c) He has accepted his sanction and “learnt“ that the offending behaviour was unacceptable. His behaviour has been exemplary, and the Tribunal should have sufficient confidence that he will not reoffend.

(d) He has not had an easy transition following the cessation of his training involvement but has found good employment in the thoroughbred breeding industry, has purchased a property with his partner, but has mortgage commitments. His partner is a licensed jockey and he is unable to support her in the sense of watching her ride in races and trackwork.

(e) His disqualification penalty is disproportionate to a penalty of suspension imposed on another harness racing driver for an improper driving offence.

(f) He does not intend to seek a licence to drive or train “at this stage” but wishes the application to be granted to allow him “the ability to support his partner at the racetrack and her place of work.”

5. The submissions advanced on behalf of the RIU opposing the application are summarised as follows:

(a) He has served less than one half of the term of disqualification imposed and there are no significant changes of or existing circumstances that mandate cancellation. Otherwise the fundamental purpose of the penalty for serious offending would be undermined.

(b) The penalty decision took into account the deliberate and dishonest actions, and the aggravating and personal mitigating factors relevant to Mr Lawson, was alive to the impact on him and his career, and allowed a 15 month discount for personal factors and his plea.

(c) The decision highlights the view that where a professional forfeits the privilege of being licensed, it is inevitable that he and others will suffer effects but that is of little significance when viewed against the public interest.

No evidence is presented as to how serving the remainder of a proper disqualification will seriously affect Mr Lawson.

(d) Comparison with the Criminal Parole system is inappropriate. Even if parole does occur, the sentence remains extant until the time period ends and recall to prison can, and does, occur if breaches of conditions occur before the actual sentence ends. As the Tribunal said in its decision, “the imposition of sanctions does not necessarily equate to that of the criminal sentencing process”.

(e) Generally, to cancel the significant balance of the sanction would severely undermine the penalty regime and public and industry confidence, if an applicant such as Mr Lawson could have a penalty reduced by 50% or more where no change or special circumstances exist. Any cancellation would also undermine the deterrent effect on other licence holders in the harness racing industry, and the need to uphold proper standards of conduct, being the key purpose of the penalty regime.

6. The representative of Mr Lawson was given the opportunity of making submission in reply to those of the RIU which we have considered and taken into account. These emphasise that Mr Lawson has changed his profession, is not seeking to obtain licences in the industry, has taken steps to rehabilitate himself. He submits that, if minded to do so, the Tribunal might cancel the disqualification for a later specific date with conditions imposed. The reply contends that another later case involving a harness racing driver/trainer imposing only a suspension (Mr Lawson says a “Claytons” penalty) illustrates how this disqualification is disproportionate.

DECISION

7. We have given careful consideration to all the submissions of the parties set out above and, in evaluating all the circumstances, have determined that the application be declined. Our reasons follow.

8. Whilst the Rule provides the jurisdiction to make an application after 12 months, for the cancellation of the balance of a disqualification, it is solely a discretionary matter for the Tribunal, as no criteria are provided. It is the task of the Tribunal in evaluating all the material facts and circumstances and reaching a considered decision. The exercise of that discretion, of course, cannot be arbitrary or capricious, but a proper evaluation and consideration of all the relevant circumstances is required. These will vary widely, depending on the particular individual, the offending, the length of the disqualification and period of time remaining to be served, the interests of the profession/code/community, the purpose of the sanction and any matters of compassion – and there may be infinite other factors relevant to the exercise of a discretion such as this - there can be no limitation in advance of matters to be taken into account. It will always depend on the particular or unique circumstances that exist at the time of the application. An evaluation of all relevant matters is necessary. This we have done.

9. The analogy with the parole system sought to be advanced by the applicant is not apt. As the RIU says, a prison sentence is not cancelled if a person is granted parole. It continues to run until the sentence end date. A prisoner must be released from a “short term sentence” (a term of 2 years or under) after serving 50% of that term, and a prisoner sentenced to a longer term may be considered for parole after 1/3 of the sentence (unless the sentencing court fixes a longer non eligibility period) but only if he/she is deemed to not be an undue risk to the community and they are subject to conditions which if not met results in recall to prison, usually to serve the balance of the sentence. The regime for permitting cancellation of the balance of a professional disciplinary disqualification (whether cancellation of the right to practise law, medicine, accountancy, or participate in the Harness Racing Industry) is entirely different to the prison regime which relates, amongst other things, to removal of a person’s liberty.

10. Whilst the consequences of the penalty imposed have been, and will be, painful, in some respects Mr Lawson’s circumstances may have taken a turn for the better, in the sense that he has a good position at a thoroughbred stud, and he has a sound relationship with a partner and acquired a home. These are to his credit and continuation of the disqualification would not apparently impact upon those matters. As he argues he cannot watch her ride in races, (although no doubt could do so on TV) but this is an inevitable consequence of his offending and sanction. If he were hereafter to return to racecourses, and be seen there by licence holders and others after serving less than 50% of his sanction, those observers would be entitled to look askance and query the purpose of the racing judiciary function in imposing a deservedly stern penalty yet cancelling it after such a period. The argument of the RIU that this would tend to undermine the sanction regime is well founded. The remaining length of time to serve of the disqualification is a significant consideration.

11. The fact that Mr Lawson has paid the costs awarded against him and served his disqualification so far is a matter that carries lesser weight on the evaluation process for consideration, as he would have been expected to comply. We accept it does illustrate a proper approach, for without an applicant having done so, no application under the Rule could properly be made.

12. We do not accept the submission that a sanction imposed on another licence holder at a judicial hearing can have any relevance to this application for cancellation. It was for a different breach of a different rule, with a different (and very much lesser) penalty provision of suspension, and it did not involve any proven or admitted charge of a serious racing offence, (with the RIU accepting the penalty imposed). The Tribunal is well aware of the accepted facts and plea of the licence holder. Mr Lawson’s submissions and efforts to seek to draw some advantage by making comparisons are without avail. And, in any event, that “disproportionate” submission by Mr Lawson has no bearing on an application for cancellation under Rule 1205, which cannot be used in a roundabout way to appeal the penalty imposed.

13. The essence of Mr Lawson’s wish to have his term of disqualification now cancelled appears to be his natural desire to support his partner as she rides. But in evaluating this, and all the other past and present circumstances of Mr Lawson, we are not persuaded that the discretion to cancel the balance, namely 18 months, of the 2 years 6-month disqualification should be exercised. We do not see that the provisions in Rule 1205 enable the Tribunal to adopt the process, suggested in Mr Lawson’s reply, of fixing a later date for cancelling the disqualification, with conditions. The Rule is quite clear.

14. Accordingly, the application is dismissed. There is no order as to costs.

Hon J W Gendall QC

Chair

29 May 2020

Document Actions