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Non Raceday Inquiry RIU v B McLellan - Penalty Decision dated 14 March 2018 - Chair, Prof G Hall

Created on 16 March 2018

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 BRENDON MCLELLAN

Open Horseman/ Licensed Trainer

Respondent

Information: A10153

Judicial Committee: Prof G Hall, Chairman

Mr V Munro, Member until 20 February

Appearing: Mr S Wallis, for the Informant

The Respondent in person

Mr R Lawson, assisting the Respondent

PENALTY DECISION OF JUDICIAL COMMITTEE

[1] In its decision of 5 March last the Judicial Committee found information A10153 with respect to the respondent, Mr B McLellan, proved in that at a race meeting conducted by Wyndham Harness Racing Club at Wyndham on 18 January 2018 in race 9, as the driver of PASS THE SPEIGHTS, he failed to drive the horse out to the end of the race when having a reasonable chance of winning. This is a breach of r 868(3) of the New Zealand Rules of Harness Racing.

Informant’s submissions

[2] Mr Wallis submitted that the evidence in this case had been found to prove that Mr McLellan had failed to drive PASS THE SPEIGHTS out over the concluding stages of the race to satisfy those who had invested on him and that this was “hugely detrimental to the image and interests of our sport”.

[3] Mr McLellan’s actions also had a detrimental effect on not only the punters who invested on this race but also any potential punters who would have been turned away by his actions. Through disadvantaging the public in this fashion, the actions of Mr McLellan, Mr Wallis believed, had only served to dent the reputation of Harness Racing. The penalty imposed had to enhance public confidence and integrity within racing.

[4] The Stewards were of the belief that this breach should be dealt with by way of a suspension. A breach of r 868(3) was a serious charge and was deserving of a significant penalty. The penalty should reflect the serious nature of this breach and at the same time serve as a deterrent to any participants who believed this style of driving was acceptable.

[5] The Stewards viewed the degree of offending by Mr McLellan to lie at the high end given the lost opportunity to win the race.

[6] Mr McLellan has had 87 drives this season. He had 156 drives last season.

[7] The starting point for a breach of this rule in the JCA guidelines, which were updated 1 November 2017, is determined according to the placing lost – for 1st, the starting point is a $750 fine or a 15 drive suspension. Since this time there had been no charges laid under r 868(3), so there was no previous case to refer to for relevance.

[8] The RIU submitted that the uplift for the fact 1st placing was involved should be set at 10 drives.

[9] Mr McLellan had not been charged under this rule before, however he had been charged under r 868(2) in 10 June 2015, which the RIU submitted was a similar offence. Given this, the RIU submitted his record was neutral.

[10] With the starting point of 15 drives and the uplift of 10 drives for the level of seriousness, the RIU contended for a suspension of 25 drives. In the past 18 months Mr McLellan had averaged 2.5 drives per meeting, so this equated to 10 racing days.

Respondent’s submissions

[11] Mr R Lawson, lay advocate, presented submissions on behalf of Mr McLellan. He said that Mr McLellan accepted the Judicial Committee’s findings after the extensive hearing on the case.

[12] Mr Lawson said it should be noted that at the hearing Mr McLellan was originally charged with a breach of r 868(2) and, in the alternative, r 868(3). The Judicial Committee found r 868(3) to be proved but not r 868(2). This was a lesser charge. He believed after reading the RIU submissions that they wanted a penalty as if r 868(2) had been found proved rather than r 868(3).

[13] Mr Lawson viewed r 868(3) as being a “perception” rule. In other words, he said, “This rule is very much how the public might perceive how a driver should act.” There was absolutely no suggestion that Mr McLellan might have erred in his judgement (r 868(2)) or in fact cheated (r 868(1)). Mr McLellan clearly was of the view that in his opinion his horse had come to the end of his run. An opinion that was agreed to by Mr Williamson and not in any way disputed by the RIU and in fact accepted by the JCA. Mr Lawson acknowledged, however, that did not mean that the rule had been complied with and, in retrospect, Mr McLellan accepted the drive in the last 30 metres of the race fell below the standard required under the Rules.

[14] Mr Lawson submitted that the punting public had not been disadvantaged by the drive. PASS THE SPEIGHTS was being beaten by a better horse on the day. The question was whether it was tried to the line and in the last 30 metres. Clearly it was not, but there was no evidence to suggest the horse would have won the race. Although this was a clear breach of r 868(3), and it was accepted that this rule rates as one of the more serious driving rules in the book, it was far from the most serious. The degree of offending was not at a high level. It was moderate or middle offending under this rule; certainly not high. If had been, other more serious rules could have been invoked.

[15] The JCA Penalty Guide starting point for a breach of this rule is a $750 fine or a 15 drive suspension. The respondent believed that is was the correct penalty level for this breach. The penalties were reviewed, effective from 1st November 2017, and a sliding scale was incorporated for this rule, dependent on the placing of the horse involved. This indicated that the penalty scale was correct for this breach. Whilst this was a clear breach of the rule, it was not at a high level. Therefore, the respondent classed the breach as “moderate”, and the starting point should be the JCA guideline amount of $750 or a 15 drive suspension.

[16] Mr Lawson accepted that no mitigation could be given to Mr McLellan for admitting the breach. However, participants were entitled to defend themselves and, in this case, given the “dual” rule charge, it was important for Mr McLellan to defend the more serious charge under r 868(2), in respect of which he had been successful. No “plea bargain” opportunity had been offered to accept a r 868(3) charge; therefore Mr McLellan had to defend at least one of the charges. The respondent agreed with the informant that this was a ”neutral factor” in assessing penalty.

[17] Mr McLellan also agreed that as he had not breached r 868(3) previously but had breached r 868(2), his record was correctly considered to be “neutral”.

[18] It was for the JCA Committee to determine whether a suspension or a fine was applicable, however the fine should be no more than $750 and, in the alternative, a suspension of no more than 15 drives.

[19] Mr McLellan added that further to Mr Lawson’s submission he believed the RIU’s average of 2.5 drives per meeting was not a fair reflection of his upcoming drives. He emphasised that this part of the season is the busiest for his stable and he currently had nine racehorses in work, five of which had been entered for Wyndham on 17 March.

Decision

[20] The JCA Penalty Guide provides a sliding scale for a breach of this rule. For first, the starting point is a $750 fine or a 15 drive suspension. The starting point for second is $600 and 12 drives; third is $500 and 10 drives, etc. The need to uphold the integrity of Harness Racing would have been considered when promulgating starting point penalties at these levels. The starting point for first was increased in the 17 November 2017 update from $600 and 12 drives. This would have been a significant reason for the increase.

[21] The starting point is a $750 fine or a 15 drive suspension. With reference to the informant’s submission, an increase to this starting point because the respondent’s actions may have cost him first place is not appropriate. This factor is built into the starting point and is the reason for the sliding scale.

[22] Mr Wallis submits a suspension is appropriate. The Committee agrees that a suspension is necessary to mark the seriousness of the charge, the gravity of this particular breach and the culpability of the respondent, and to hold him accountable.

[23] Mr McLellan is not an aggressive driver. It is accepted he is far from heavy handed with the whip, as Mr B Williamson emphasised in his evidence. On this occasion the respondent has erred in not ensuring he obtained the very best from his horse by pushing it out to the line, with vigorous use of the reins, or if he thought appropriate, by use of the whip.

[24] Mr Lawson is correct when he says this is a matter of perception. The integrity of Harness Racing is at issue.

[25] The 5th schedule of the Rules of HRNZ states:

5.1 The purpose of proceedings before a Judicial Committee or Appeals Tribunal includes:

(a) to ensure that racing is conducted in accordance with the code rules;

(b) to uphold and maintain the high standards expected of those participating in the sport of racing and the racing industry;

(c) to uphold and maintain the integrity of the sport of racing and the racing industry; and

(d) to protect the participants in the sport of racing, the racing industry, and the public.

[26] These principles are clearly applicable in this case.

[27] Mr McLellan’s record under a related rule evidences a previous breach in June 2015. This breach of r 868(2) is relevant in that the rules are similar in purpose, to ensure that the horse is given every chance to obtain the best placing. Mr Wallis submitted the respondent’s record be considered to be a neutral factor and Mr Lawson supported this response in his submission.

[28] The Committee has given careful thought to this issue. The previous breach could be thought to be aggravating, as the purport of the rules is similar. It is agreed that a breach of r 868(3) could be seen to be a lesser breach. The crucial issue in this case is the reason for the respondent ceasing his urgings. There is certainly no suggestion of an intention to cheat or a decision to stop urging the horse when the driver believed he had a chance of winning. It is accepted that Mr McLellan was of the view PASS THE SPEIGHTS had come to the end of its run. However, as Mr Lawson has acknowledged in his submission, and as the decision of 5 March notes, this would not have been evident to racegoers who would have expected that Mr McLellan would have asked PASS THE SPEIGHTS to give of its best in one final effort.

[29] Weighing up these circumstances, the Committee accepts that his record can be viewed as a neutral factor. Mr McLellan’s failure to admit the breach is of course not an aggravating factor but, in contrast, is the absence of a mitigating one. There are therefore no aggravating or mitigating personal factors.

[30] A penalty equivalent to the starting point in the JCA guide is appropriate.

[31] The submission that this is a busy period of the season for Mr McLellan is accepted, as is the fact that he has nine horses currently in work. A penalty that is equivalent to three drives per meeting would be close to the mark, however one of the meetings encompassed by a suspension is Oamaru, which is the day immediately following Winton and the day immediately before Forbury Park at Wingatui. It is doubted that Mr McLellan would have had 3 drives, indeed any drives, at that meeting or, at least, 3 drives at each of those meetings.

[32] Mr McLellan is suspended from driving after the meeting at Wyndham on 17 March up to and including 5 April. This encompasses 6 meetings: Forbury 22 March; Winton 24 March; Oamaru 25 March; Forbury 26 March; Forbury 29 March; and Forbury 5 April.

Dated at Dunedin this 14th day of March 2018.

Geoff Hall, Chairman

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