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Non Raceday Inquiry RIU v B Morgenrood - Written Decision dated 9 June 2020 - Chair, Mr T Utikere

Created on 12 June 2020

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Thoroughbred Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND B MORGENROOD

Respondent

Judicial Committee: Mr T Utikere (Chairman)

Mr N McCutcheon (Member)

Appearances: Mr C Lange (Counsel for the Informant)

Ms K Williams (from the RIU)

Mr J Oatham (from the RIU)

Mr M Wallace (Counsel for the Respondent)

Hearing: 4 June at Riccarton Racecourse

Date of Oral Decision: 4 June 2020

Date of Written Decision: 9 June 2020

WRITTEN DECISION OF JUDICIAL COMMITTEE DATED 9 JUNE 2020

[1] The Respondent faces three Serious Racing Offences that are outlined in Informations A6428, A6429 and A6430. They allege a breach of Rules 801(1)(s)(i), 801(1)(p) and 801(1)(w) of the New Zealand Rules of Thoroughbred Racing.

[2] There have been a number of Minutes (Minutes of the Judicial Committee Dated 13 March, 17 April and 18 May 2020) along with two teleconferences (held on 12 March and 18 May 2020) and supplementary communication to progress these matters. The Committee is in receipt of the Notice of Appointment, the Authority to Charge from the RIU’s General Manager, Mr M Godber, and the Charge Rules and Penalty Provisions. Due to Covid-19 Pandemic restrictions there have been delays in progressing this which has been understandable in the circumstances.

[3] Counsel had suggested that this matter could be determined on the papers. However, following the receipt of written Penalty Submissions, a teleconference was held and it was directed that given the seriousness of the charges, and the potential penalty options available to the Committee (as identified at Para 3 of Minute of Judicial Committee Dated 18 May 2020), an in person Penalty Hearing would be held at Riccarton on Thursday 4 June 2020.

[4] The specific Charges allege that the Respondent:

Information No A6428

On 21 February 2020 threatened to cause Class A Jockey Miss Tina Comignaghi to fall in Race 4 at the Canterbury Jockey Club meeting at Riccarton on 21 February 2020 in breach of Rule 801(1)(s)(i) of the New Zealand Rules of Thoroughbred Racing.

Information No A6429

Between 11 and 18 February 2020 did an act that caused undue suffering to the horse VIVACE LADY by pulling on its mouth unnecessarily while riding the said horse in track work which resulted in the said horse suffering cuts and abrasions to the inside of its mouth in breach of Rule 801(1)(p) of the New Zealand Rules of Thoroughbred Racing.

Information No A6430

On 18 February 2020 counselled Jockey Brett Murray to commit a Serious Racing Offence by encouraging the said Jockey to ride in a manner that would assist him to cause Jockey Tina Comignaghi to fall in Race 4 at the Canterbury Jockey Club meeting on 21 February 2020 being an offence under Rule 801(1)(w) of the New Zealand Rules of Thoroughbred Racing.

[5] The relevant provisions of Rule 801 state:

“801(1) A person commits a Serious Racing Offence within the meaning of these Rules who:

(p) inflicts undue suffering on a horse by any means.

(s) either by himself or in conjunction with any other person:

(i) does or permits or suffers to be done any act which a Judicial Committee deems fraudulent, corrupt or detrimental to the interests of racing.

…(w) counsels, procures or incites a person to commit a Serious Racing Offence.“

[6] Mr Wallace confirmed via an email on 2 April 2020 that Mr Morgenrood entered Guilty pleas to all three charges. Following that, and in response to a Committee direction, counsel were able to file an Agreed Summary of Facts with the JCA (via email on 5 May 2020).

[7] At the in person Hearing on 4 June, Mr Morgenrood was not present, due to his obligations surrounding recent employment he had secured in Southland. This was signalled to the Committee in advance of the Hearing, and Mr Wallace confirmed that the Respondent, and counsel, were content for the Hearing to proceed in his absence. At the Hearing, the Committee issued an Oral Penalty Decision, and indicated a full Written Decision would follow. This Written Decision now fulfills that requirement. In issuing this Decision, we note that there were some particulars placed before the Committee that have been redacted in order to protect personal privacy considerations.

AGREED SUMMARY OF FACTS (ASOF)

[8] The following ASOF was filed with the Judicial Committee:

“1. Mr Morgenrood is a Class A Jockey under the Rules of New Zealand Thoroughbred Racing. He has been licensed in New Zealand for four years after having ridden in South Africa from 1992/93 to 2015/16 previously. He is 42 years old.

2. The first complainant in this matter, 30yo Miss Tina Comignaghi is also a Class A Jockey having been licensed in New Zealand for four years.

3. Miss Comignaghi and Mr Morgenrood were in a relationship from September 2018 until December 2019. The relationship ended on 9 December 2019.

4. Since the relationship ended Mr Morgenrood has regularly left and sent inappropriate messages to Miss Comignaghi.

5. The following are some of the messages left by Mr Morgenrood on Miss Comignaghi’s phone on 20 January 2020. [Content Redacted from the Written Decision by Committee Direction]

6. Via text on 9 February Mr Morgenrood told Miss Comignaghi that “I’m gona fxxx u over big time!”.

7. As a result of the threatening and abusive texts Miss Comignaghi ‘blocked’ Mr Morgenrood from communication on 10 February.

8. These measures however did not prevent Mr Morgenrood from continuing to harass and intimidate Miss Comignaghi.

9. On the 17 February Mr Morgenrood put 1 cent into her bank account with the particulars as “fxxx u”, “2x” and “again”.

10. On Tuesday 18 February the second complainant, Licensed Class A Trainer Mrs Anna Furlong, was advised by her employee, Jockey Brett Murray, that Mr Morgenrood had been pulling unnecessarily on the racehorse VIVACE LADY’s mouth when riding it in trackwork.

11. Mr Morgenrood had also been doing so for several days prior. The horse sustained mouth injuries as a result of Mr Morgenrood’s actions. He did this with the intention of causing VIVACE LADY, if it was to be restrained in a race, to overreact and become unstable as he was aware that Miss Comignaghi was engaged to ride it at the Canterbury JC meeting on 21 February.

12. Mr Murray also advised Ms Furlong that Mr Morgenrood had asked him to push up on his mount ARCTIC WARRIOR drawn 1 in Race 4 which would prevent Miss Comignaghi, VIVACE LADY drawn 2, from crossing, leaving her exposed to Mr Morgenrood who was riding CHORISTER which had drawn 4. Mr Morgenrood would therefore be able to cause interference to Miss Comignaghi.

13. As a result of this information Ms Furlong removed Mr Morgenrood as the trackwork rider on VIVACE LADY.

14. These facts were discovered after an incident at the Canterbury Racing Club meeting at Riccarton on Friday 21 February which caused the Racing Integrity Unit to initiate an investigation. On this day Mr Morgenrood was engaged to ride in Race 4 and Race 5.

15. Two trials were programmed to run before the commencement of the race meeting. Prior to the first trial Mr Morgenrood entered the female jockey’s room to talk to Miss Comignaghi.

16. A heated discussion took place in which Miss Comignaghi told Mr Morgenrood to “drop it, drop it” and to leave the room. Mr Morgenrood replied “the only thing that’s going to drop is you in the race”.

17. Mr Morgenrood repeated this to Miss Comignaghi when she questioned him about what he had said. The interaction was witnessed by another jockey who reported it to Stewards.

18. Mr Morgenrood was interviewed and admitted making the comment to Miss Comignaghi.

19. As a result of his threats and fears for the safety of Miss Comignaghi and any other riders who could be affected, he was ‘stood down’ from riding.

20. Having been stood down by the Chief Steward in charge on that raceday and the concerns that RIU Investigators had with Mr Morgenrood’s behaviour he was taken for a workplace drug test and this screen proved to be negative to any class A, B or C drugs.

21. Full complainant and witness interviews were later conducted which resulted in the detailed Summary of Facts outlined above.

22. The Racing Integrity Unit Vet examined VIVACE LADY on 26 February 2020 and her findings were, ”the mare had a healing wound in the commissure of the mouth on the right side…. This type of wound is consistent with excessive force applied by a bit during exercise, often if a horse is fractious or pulls strongly in work. The above described mare works quietly on a loose rein and has never been reported to pull. This mare has been evaluated by this practice on eight occasions since June 2019…. At no time on these instances did she have wounds present on the commissures of the mouth. ” The history and the healing nature of the wound corroborate that the wound occurred in accordance with facts presented to the Racing Integrity Unit.

23. As a result of the investigation undertaken to date and rider safety concerns Mr Morgenrood has had his Class A Jockey licence suspended by New Zealand Thoroughbred Racing until further notice.

24. When interviewed regarding the additional incidents Mr Morgenrood denied pulling on the VIVACE LADY’s mouth and denied asking Brett Murray to push up on his mount in Race 4 at Riccarton.

25. Mr Morgenrood has an extensive offence history in South Africa between 1993 and 2015 and two minor breaches of the Rules in New Zealand since his licence was granted in 2017.

26. A copy of the RIU licence application report dated 2 May 2017 is annexed to this summary of facts explaining Morgenrood’s racing background.”

[9] It is not the Committee’s intention to detail the full specifics of the ‘Licence Application Report’, except to indicate that it was authoured by Racing Investigator, Mr Andy Cruickshank following his and Mr Oatham’s interview with Mr Morgenrood in April 2017. The Report, which was addressed to the ‘Racing Integrity Committee’ did capture the Respondent’s extensive offence history in South Africa, with the final sentence of the Report stating “It is unlikely that if Mr Morgenrood was granted a Class A Riders Licence that he would abuse the privilege”.

[10] Mr Lange confirmed that Mr Morgenrood was subsequently granted a Class A Riders Licence by Thoroughbred Racing New Zealand even after his significant previous offending in South Africa and other discrepancies in his Licence Application surfaced.

[11] In response to questions from the Committee, Ms Williams confirmed that the messages that were left on Miss Comignaghi’s phone were on six separate occasions over one morning. The Voicemail messages had also been downloaded, and were able to be played to the hearing. That did occur for the Committee to listen to them.

[12] Mr Lange also confirmed that VIVACE LADY had raced in Race 4 at the Canterbury Jockey Club’s Meeting on 21 February and that there were no issues of concerns raised in the Stewards’ Raceday Report. While Ms Furlong had made the decision to remove Mr Morgenrood as the trackwork rider of her horse, she had not informed the RIU of any concerns.

[13] The knowledge that the Respondent had been causing undue suffering to VIVACE LADY on more than one occasion only came to light as a result of the investigation that followed Mr Morgenrood’s stand down on 21 February. This information came to light after interviewing another stable employee (not Mr Murray), which explains why the RIU vet undertook the examination of the horse some five days after it raced.

[14] Mr Wallace had no comments to make regarding the Agreed Summary of Facts.

DECISION

[15] As the Serious Racing Offences had been admitted, the Committee proceeded on the basis that all three charges are deemed to be proved.

PENALTY SUBMISSIONS OF THE RIU

[16] Mr Lange filed written Submissions which reflected the RIU’s following views on Penalty:

1. Mr Morgenrood has admitted a breach of the following rules: Rule 801(1)(p), Rule 801(1)(w) and Rule 801(1)(s)(i) of the New Zealand Rules of Thoroughbred Racing.

2. Each breach is a serious racing offence and the respondent is liable to the following sanctions under rule 804(2):

a. disqualification for any specific period or for life;

b. suspension from holding or obtaining a licence for a period not exceeding 12 months; and

c. a fine not exceeding $50,000

3. Under rule 920(3) the Committee may also make a costs order against the respondent for the whole or any part of the costs of the:

a. Racing Integrity Unit;

b. Judicial Committee.

Approach to sanctions.

4. In RIU v Lawson(RIU v Lawson Appeals Tribunal 13 May 2019 ) the Appeals Tribunal at [25] commented:

Proceedings under the Rules of Harness Racing, as is the position in all cases involving professional disciplines, are designed not simply to punish the transgressor, but crucially are to protect the profession/public/industry/and those who are to deal with the profession. Disciplinary sanctions are designed for some important different purposes, and although guidance can be gained from the criminal jurisdiction, there are broader considerations. The Harness and Thoroughbred racing "industry " is a profession where key participants are required to be licensed in order to practice in various ways within that sphere. Comprehensive rules of practice, behavior, procedure and the like are set down in extensive detail in the Rules which govern the codes and behavior. As with most professions, a careful internal disciplinary and regulatory process is set up. Those who practice within professions (whether law, accountancy, medicine, teaching, real estate, and the like) are subject to sanctions for breaches of standards of conduct or rules designed to protect members of the profession as well as the public. Such sanctions can at the highest end include removal from a profession for serious breaches of professional rules and standards involving dishonest or immoral conduct. Such behavior if unchecked may greatly harm the reputation of the profession and "bring it into disrepute" – that is, the public loses confidence in it.

5. The decision marks a clear shift in the approach in imposing sanctions for a breach of racing rules and correctly brings a disciplinary approach.

6. In the context of disciplinary proceedings, the Supreme Court commented in Z v Complaints Assessment Committee [2009] that punishment was not a purpose of disciplinary proceedings. The Supreme Court developed the principles at several points in its judgement:

a. Elias CJ remarked that punishment was the “responsibility of the criminal justice process” at [70]:

… The professional standards are properly the focus of the disciplinary inquiry. Where a distinct finding that a conviction reflects adversely on fitness is made, the Tribunal cannot exercise its usual powers to fine the dentist. Again, this seems to me to be recognition that punishment is the responsibility of the criminal justice process. What remains are the professional sanctions for public protection: removal from the register, suspension of registration, the requirement to practise only under supervision, and censure. The overlay of professional discipline in this way meets the purpose explained by Lord Devlin in Ziderman v General Dental Council:

The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession. … [I]t would be the duty of the committee, before deciding to inflict the only and draconian penalty which lies within their power, to satisfy themselves that the offence of which the dentist had been convicted was if so grave a character to show that he was unfitted to continue to practice his profession.

b. McGrath J for the majority (Blanchard, Tipping and McGrath JJ), acknowledged that while statutory disciplinary proceedings do not have the purpose of punishing a practitioner, they may have that effect. His Honour remarked at [97]:

… the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure appropriate standards of conduct are maintained in the occupation concerned.

c. Anderson J compared the purpose of disciplinary proceedings with that of a criminal trial and considered that the essential functional purpose of professional disciplinary bodies is different:

[128] ...The purpose of disciplinary proceedings is materially different to that of a criminal trial. It is to ascertain whether a practitioner has met the appropriate standards of conduct in the occupation concerned and what may be required to ensure that, in the public interest, such standards are met in the future. The protection of the public is the central focus.

….

[149] The function of the criminal law is to ascertain if the defendant has committed a crime and if so, to impose criminal consequences. The essential functional purpose of the professional disciplinary bodies are different. As Gresson P pointed out in Re A, Medical Practitioner:

[T]he exercise by the Medical Council of its powers is not by way of punishment, but rather to enforce a high standard of propriety and professional conduct.

[150] In the same case Cleary J, writing for himself and North J, stated:

[W]hen [the Medical Council] becomes concerned with conduct which constitutes an offence, it is not for the purpose of punishing that conduct as an offence against the public, which is the purpose of the criminal law, but because it is conduct which may show that the practitioner concerned is no longer fit to continue to practise the profession.

[151] Lord Diplock pointed out in Ziderman v General Dental Council that the purpose of disciplinary proceedings is to protect the public who may come to a practitioner and to maintain the high standards and good reputation of an honourable profession.

7. The purposes of protection of the public and the maintenance of high professional standards percolate the remarks of the Supreme Court Justices. More specifically, the purpose of disciplinary proceedings can be summarised as:

a. To enforce a high standard of propriety to maintain the high standards and good reputation of a profession; and

b. To protect the public from a specific practitioner or others who might be likeminded to act.

8. When one applies the principles of professional disciplinary proceedings to a disciplinary proceeding in a sport the purpose are to:

a. enforce a high standard of propriety to maintain the high standards and good reputation of a those involved in the sport; and

b. to protect the betting public and others involved in the sport from future breaches by the individual or others who might be likeminded to breach the Rules.

Factual Background

9. Mr Morgenrood has been licensed in New Zealand for four years after having ridden in South Africa from 1992/93 to 2015/16. At the relevant time he held a Class A Jockey licence. He is 42 years old.

10. Mr Morgenrood and Ms Comignaghi were in a relationship from September 2018 until 9 December 2019. Ms Comignaghi also holds a Class A Jockey licence.

11. Following the end of the relationship Mr Morgenrood sent a number of abusive messages to Ms Comignaghi including the messages detailed at paragraph 5 of the summary of facts.

12. On 9 February Mr Morgenrood told Ms Comignaghi via a text message that “I’m gona f*** u over big time!”. Ms Comignaghi ‘blocked’ Mr Morgenrood from communication on 10 February 2020.

13. Ms Comignaghi was engaged to ride VIVACE LADY at the Canterbury JC meeting on 21 February 2020.

14. Mr Morgenrood had been a trackwork rider for VIVACE LADY in February 2020. For several days before 18 February 2020 Mr Morgenrood had been pulling unnecessarily on VIVACE LADY’s mouth when riding it in trackwork. As a result, the horse sustained mouth injuries. Mr Morgenrood’s intention was to cause VIVACE LADY to overreact and become unstable if it was to be restrained by Ms Comignaghi in a race on 21 February 2020

15. For the race on 21 February 2020:

a. ARCTIC WARRIOR to be ridden by Mr Brett Murray has drawn 1.

b. VIVACE LADY to be ridden by Ms Comignaghi had drawn 2.

c. CHORISTER to be ridden by Mr Morgenrood had drawn 4.

16. On 18 February 2020 Mr Morgenrood approached Mr Murray and asked him to push up on his mount ARCTIC WARRIOR to prevent Ms Comignaghi’s mount VIVACE LADY from crossing, leaving her exposed to Mr Morgenrood who was riding CHORISTER. Mr Morgenrood would then be able to cause interference to Ms Comignaghi.

17. Mr Murray informed the trainer, Mrs Furlong, of Mr Morgenrood’s unnecessary pulling on VIVACE LADY mouth and of being approached by Mr Morgenrood as set out above. The trainer removed Mr Morgenrood as the trackwork rider on VIVACE LADY.

18. On 21 February 2020 two trials were programmed to run before the commencement of the race meeting. Prior to the first trial Mr Morgenrood entered the female jockey’s room to talk to Ms Comignaghi. A heated discussion took place in which Ms Comignaghi told Mr Morgenrood to “drop it, drop it” and to leave the room. Mr Morgenrood replied, “the only thing that’s going to drop is you in the race”. The interactions between Mr Morgenrood and Ms Comignaghi were witnessed by another jockey who reported it to Stewards. Mr Morgenrood was interviewed and admitted making the comment to Ms Comignaghi. As a result of his threats and fears for the safety of Ms Comignaghi and any other riders who could be affected, Mr Morgenrood was ‘stood down’ from riding.

19. A RIU veterinarian examined VIVACE LADY on 26 February 2020. Her findings were, “the mare had a healing wound in the commissure of the mouth on the right side…. This type of wound is consistent with excessive force applied by a bit during exercise, often if a horse is fractious or pulls strongly in work. The above described mare works quietly on a loose rein and has never been reported to pull. This mare has been evaluated by this practice on eight occasions since June 2019…. At no time on these instances did she have wounds present on the commissures of the mouth.”

20. The above demonstrate Mr Morgenrood used his privilege as a licence holder:

a. caused unnecessary injuries to a horse;

b. placed a rider at risk if VIVACE LADY was restrained in the race;

c. placed other horses and riders at risk if VIVACE LADY overreacted or become unstable;

d. to encourage another jockey to ride in a manner that would assist him to cause Ms Comignaghi to fall; and

e. threatened to cause Ms Comignaghi to fall in race.

21. These actions are a significant departure of the high standards expected of person who holds a licence. Whatever the reasons Mr Morgenrood perceived was for the breakdown of the personal relationship between him and Ms Comignaghi they had no place when undertaking racing activities.

Sanction

22. The appropriate sanction for the three serious racing offence breaches is a term of disqualification. The issue is the disqualification period.

23. As submitted above the Appeals Tribunal decision in Lawson marks a clear shift in the approach in imposing sanctions. Lawson concerned an appeal by the RIU against penalty. Before the Judicial Committee, Mr Lawson admitted two breaches of betting on another horse in a race in which he was driving, a serious racing offence. The Committee imposed a suspension of his open horseman licence for a period of 18 months, a fine of $8000, and costs of $3500. On appeal, the Tribunal started at three years nine months disqualification for both breaches of the rules, and after mitigating factors imposed a disqualification of 2 years six months.

24. Two decisions that pre-date Lawson are RIU v Waddell and RIU v O’Riley. In Waddell the Committee imposed a six-month disqualification on a charge of improper riding and a 12-month disqualification for a serious racing offence of using threatening language. O’Riley involved the attempted extortion of money from a licenced trainer by threatening to expose the alleged wrongful and unlawful activities of, and associated with, the trainer by reporting her to the RIU and to otherwise impugn the trainer’s reputation in the industry. The Committee adopted a three and a half years disqualification but imposed a three-year disqualification due to a good record. In both decisions the criminal approach to sentencing was adopted and they pre-date the Appeals Tribunal decision Lawson.

25. Mr Morgenrood’s conduct was premeditated and occurred over a sustained period of time following the ending of his relationship with Ms Comignaghi. His actions demonstrate lack of regard for physical welfare of other riders, a lack of regard to the welfare of horses, was intended to compromise the race, and damages the public perception and image of racing

26. In the past decade there has been increased emphasis and focus on welfare of horses. The New Zealand Thoroughbred Racing Horse Welfare Guidelines state “[t]he … training of racehorses should be consistent with good horsemanship and must not compromise their welfare. Any practices whether in stables, training or racing which are inconsistent with legislative requirements must not be tolerated”.

27. The Animal Welfare (Care and Procedures) Regulations 2018 requires that any person in charge of a horse must ensure that equipment used on a horse’s head does not cause a cut or skin abrasion that bleeds or discharges or causes swelling.

28. As set out above Mr Morgenrood for several days pulled unnecessarily on VIVACE LADY’s mouth when riding it in trackwork. As a result, the horse sustained mouth injuries. A healing wound was detected by the veterinarian on 26 February 2020.

29. Horse welfare imposes an obligation and relies on the trust of those involved in training horses, including trackwork riders, not to inflict harm. Not only did Mr Morgenrood inflict unnecessary harm to VIVACE LADY he did so for the purpose of causing the horse to overreact and become unstable when ridden by Ms Comignaghi with whom his relationship had ended.

30. Mr Morgenrood has an extensive history of non-compliance in South Africa between 1993 and 2015. This includes:

a. Accepting an inducement (race fixing) for which he was “warned off” (lifetime ban), subsequently reduced to 5 years on appeal.

b. Three drug positives (Cocaine x 2 and Methamphetamine x 1).

c. Four abusive or foul language charges (some towards officials).

d. One charge of bringing the racing industry into disrepute which was linked to one of the abusive language offences.

e. Four charges of failing to present medical record.

f. Numerous race day offences for excess use of the whip, failing to make weight or riding offences committed during the course of a race.

31. The Licence Application Report demonstrates a lack of candour by Mr Morgenrood when applying for a licence in New Zealand. Racing Investigator Cruickshank concluded his report “[i]t is unlikely that if Mr Morgenrood was granted a Class A Riders Licence that he would abuse the privilege”. Despite having been given the opportunity to hold a licence in New Zealand and the privileges that offers, Mr Morgenrood has abused that privilege.

32. The RIU submits that having regard to all the circumstances a period of disqualification of between three and a half to five years is appropriate.

33. Having regard to the significant aggravating feature relating to the welfare of the horse, the time period over which it occurred, the purpose for which the harm to the horse was inflicted, and Mr Morgenrood’s history of failing to meet the standards required by racing rules it is further submitted the period of disqualification should be up upper end of the range submitted.

34. Mr Morgenrood has informed the Committee the penalty hearing may proceed on the basis of written submissions without an in-person hearing. In the circumstance where there is not to be an in person hearing the RIU does not apply for an order as to its costs.

[17] The RIU confirmed that in relation to Information A6428 the RIU alleged that the act was detrimental to the interests of racing; not fraudulent or corrupt. Mr Wallace also accepted that was the basis upon which the Respondent pleaded guilty to the charge. Both counsel also accepted that the other two charges related to inflicting undue suffering on a horse and counselling a person (Mr Murray) to commit a Serious Racing Offence.

[18] Mr Lange emphasised that there had been a pendulum shift in the approach to penalties and the types of penalties imposed. He said a sentencing indication in this jurisdiction would allow for a person to make an informed decision and that broader guidance could be something for future consideration as it would assist all industry participants in the context of judicial proceedings.

[19] For completeness, the RIU also provided the Committee with a copy of Mr Morgenrood’s National Horseracing of South Africa Penalty Report, and a Victim Impact Statement from Miss Comignaghi which was obtained at the request of the Committee (Para 4 of Minute of Judicial Committee Dated 18 May 2020). Speaking to his Submissions, Mr Lange re-emphasised that the Rules of Racing govern the conduct expected of a licenced person along with their activities. He submitted that any conduct within someone’s private life was not governed by the Rules, but rather that such conduct may inform someone’s actions and that the Rules of Racing were not designed to punish someone for activities that occur in their private life.

[20] In response to a question from the Chairman, he did however concede that there were situations where conduct or decisions taken in a private capacity; such as taking drugs, would be relevant, where that had an impact on the expectations of a licence holder in carrying out their racing duties or obligations as a member of the profession.

[21] The current hearing was a disciplinary one and concerned the conduct that was expected of licensed persons and the extent to which such conduct had fallen below what was expected. The RIU submitted that the Committee needed to consider the specific circumstances, whilst having regard to the conduct of the person within the profession, alongside the requirement for deterrence as well.

[22] When questioned about the comparability of the nature of previous Serious Racing Offences that had been identified by the RIU (such as Lawson, O'Reilly, Waddell and Walker) as one of financial loss/gain or corruption viz a viz potential physical harm, animal welfare issues and collusion in the current context; Mr Lange reiterated that what was important for the Committee to look at was the extent to which Mr Morgenrood’s conduct fell below that which was expected of him. Mr Lange believed the Committee should follow the decision of the Appeals Tribunal in Lawson, when approaching an appropriate penalty; by looking at how far Mr Morgenrood’s conduct had fallen below that expected standard.

[23] He encouraged that we not look at the substance of the phone calls and messages left on Miss Comignaghi’s phone, but rather that Mr Morgenrood had brought issues from his personal life into his professional life and that the Committee should be focussing on his wider compliance with the Rules. Further, that the extent to which a licence holder had disregard or serious disregard for the Rules also formed part of the ‘factual matrix’ the Committee was required to consider.

[24] When looking at Mr Morgenrood’s previous offending in South Africa, the RIU confirmed that the ‘Accepting an Inducement (race fixing)’ Charge (offence occurred at Durbanville, 5 January 2000), for which he received a five years Disqualification on Appeal, and the ‘Bringing the Racing Industry into Disrepute’ Charge (offence occurred at Kenilworth Racecourse, 24 February 2010) would carry equivalent Serious Racing Offence status in New Zealand.

[25] When looking at previous breaches of Rule 801(1)(s)(i), Mr Lange confirmed that those breaches (RIU v M Breslin (2017), RIU v O'Reilly (2018) and RIU v Quirke (2016)) were not similar in context. He also confirmed that he was not aware of any previous breaches of Rule 801(1)(p) or Rule 801(1)(w).

[26] Counsel accepted that the offending, over three charges, would be best viewed as a package for the purpose of penalty as it was a matter of a course of conduct that had resulted in three charges. As the actions had been taken with an intention, the charges must be viewed seriously, especially when animal welfare concerns were at play.

[27] The RIU Penalty Submission of a starting point of three and a half to five years Disqualification was filed prior to the receipt of the Victim Impact Statement. When asked whether the RIU stood by the original submission, or whether it wished to amend its submission in light of what Miss Comignaghi had identified in her Statement, Mr Lange confirmed no change in their position. He also confirmed that the RIU were not seeking any costs, despite an in person hearing being held.

PENALTY SUBMISSIONS OF THE RESPONDENT

[28] Mr Wallace submitted the following written submissions as to penalty:

1. Mr Morgenrood pleads guilty to all offences, and accepts the Summary of Facts. Mr Morgenrood agrees to have the penalty determined on the papers.

2. It is submitted that a period of disqualification of 12 months from the date of suspension (3 March 2020) with no monetary penalty and no costs award is the appropriate penalty.

3. It is apparent from the Summary, and from the investigation, that all of these offences effectively stem from the breakup of the intimate relationship between Mr Morgenrood and Ms Comignaghi.

4. it is not intended to seek to diminish the seriousness of the allegations, but rather to place them into context. While Mr Morgenrood’s actions were conducted in public and within the Racing Industry, the allegations all derived from personal actions arising out of a personal relationship .

5. Mr Morgenrood is remorseful. He is ashamed that it is thought of him that he would deliberately set about hurting a fellow jockey whom he respects, or that he would deliberately injure a horse for whatever reason.

6. Attached to these submissions is a letter written personally by Mr Morgenrood to Ms Comignaghi. It has not been sent by him to her in case it is unwelcome, and the RIU is invited to ask Ms Comignaghi if she would like to receive it (which is Mr Morgenrood’s wish). Certainly it is requested that this Judicial Committee consider its contents

7. it will become apparent from that letter that Mr Morgenrood does not willingly accept that his actions amounted to being guilty of the offences, but he does accept his guilt, and had no desire to put Ms Comignaghi through the ordeal of even a contested fact hearing

8. Mr Morgenrood accepts that his actions were a significant departure from the high standards that were required of him as a licenced rider.

9. Mr Morgenrood has lost his employment as a result of these matters. He has very little in the way of employment prospects, except ironically in the Racing Industry, having been offered work which he has been obliged to turn down.

10. Given his age, a period of disqualification of the magnitude submitted by the RIU will end his riding career, which it is submitted is a penalty that is not required in the circumstances.

11. Mr Morgenrood is in a very parlous financial position, and would not be able to pay any usual costs award (not sought by the RIU), let alone a financial penalty.

12. It is not proposed to conduct any comparison with penalties imposed in other cases, reflecting different circumstances.

13. Mr Morgenrood has pleaded guilty at what is effectively the earliest proper opportunity. He was fully co-operative during the inquiry. His answers are candid. While he denied deliberate acts, he accepted that Ms Comignaghi would have felt threatened, and that threats could be inferred from his actions. Mr Morgenrood has reduced the cost of this prosecution process as much as was reasonably possible, given the seriousness of the matters at issue. Mr Morgenrood has also spared Ms Comignaghi and other witnesses from having to attend this process.

14. For all of these reasons it is submitted that a 12 months disqualification from 3 March 2020 is an appropriate penalty that will achieve the purposes of:

a. Enforcing a high standard of propriety and maintained the high standards and good reputation of those involved in Racing; and

b. Protecting the betting public and others involved in Racing from future breaches by Mr Morgenrood.

15. The penalty that should be imposed for this offending should not, it is submitted, include any penalty for any perceived deception by Mr Morgenrood when applying for his New Zealand licence. Again in that process Mr Morgenrood was candid when challenged over any omissions.

[29] In addition, Mr Wallace submitted that his understanding was that the reference to Lawson was related to the principle the Tribunal adopted in approaching penalty, rather than by way of it being a comparable case or conduct that was similar to his client’s offending. He also agreed with Mr Lange in that the Judicial Committee was not circumscribed by the submissions of counsel, but that a considered approach to penalty was required.

[30] With reference to Lawson (at Para 28 of that Decision), Mr Wallace believed the focus to be on the interests and reputation of the industry rather than the personal circumstances. It also identified that there was a requirement to consider all the available sanctions, starting with the lowest sanction. There was also a requirement under Lawson to ensure that the sanction was sufficient when looking at the balance of public interest, the offending member, the industry considerations and the specific aggravating and mitigating factors; with no particular hierarchy attaching to those considerations.

[31] Lawson (lbid., at Para 30) also identified that exclusion from the profession was the most serious sanction, and Mr Wallace flagged this in light of the possibility that a ‘Life ban might be on the cards’; without suggesting that there had been a notion of predetermination on the part of the Committee. Mr Morgenrood’s conduct was also not to be dealt with as a crime, and his removal from the industry would be the ultimate and most serious sanction available.

[32] Mr Wallace advised that if the threats had come to fruition then that would obviously be a more serious offence. He suggested that it would be easy to think of more serious circumstances where a sanction of a Lifetime period of Disqualification would be more appropriate, and encouraged the Committee to reserve the ultimate sanction for a worse case.

[33] Counsel had conferred and corresponded in advance of the hearing. The RIU had indicated to Mr Wallace that they would be seeking a three and a half to five year period of Disqualification, and that his client informed by that approach, had made the decision to enter Guilty pleas and not subject persons to a Contested Facts or Defended Hearing. Mr Morgenrood had admitted the Summary and done all he could to allow this process to be conducted in the most appropriate manner. The Respondent was in a parlous financial position and counsel submitted a 12 months period of Disqualification as appropriate.

[34] The relationship between he and Miss Comignaghi had simply impinged on the Respondent’s behaviour in an inappropriate way. The ‘package’ of offending was driven out of a very messy end to a domestic relationship. While it did not excuse his behaviour, it did explain the offending. Put simply, Mr Wallace submitted that the offending would not have occurred if the relationship had not ended, and that the relevant context of the offending was in relation to the personal relationship.

[35] With reference to the previous offending in South Africa, counsel acknowledged that Mr Morgenrood had far from a blameless record and that much of his previous offending was a result of pressure from others and bad decisions made in his youth.

[36] From Mr Wallace’s perspective, it was inappropriate to punish Mr Morgenrood for seeking to gain a licence in New Zealand, and the hearing was not an opportunity to right a wrong decision to grant him a licence. He did not believe this was the opportunity to revisit the decision; but suggested it did have relevance in that a one to five year period of Disqualification meant that if the Respondent wanted to re-enter the industry in the future, he would have a hard road to hoe in convincing the industry to let him back in.

[37] The Penalty Submissions from the RIU had also reflected the level of culpability in respect of Morgenrood’s conduct and that it was not tied to the tariffs of another case, which counsel submitted was appropriate. Mr Wallace initially suggested that his client’s intention was not proven, as he had admitted making a threat and his responses were spontaneous on the day. While he had admitted that he had counselled another rider to interfere, there was no intention on his part. In response to the Committee identifying Para 11 of the ASOF noting Mr Morgenrood’s intention, Mr Wallace then conceded that such an intention on the part of his client did then exist as the Summary had been agreed and accepted.

[38] As referred to in the Written Submissions, a copy of the letter written by the Respondent addressed to Miss Comignaghi was provided for the Committee’s consideration. The RIU confirmed that Miss Comignaghi was aware that Mr Morgenrood had written a letter but she did not wish to receive it. This had been confirmed with her on two occasions, and as such, it had not been given to her.

[39] Mr Wallace identified that Mr Morgenrood was simply trying to explain himself via the letter and that its purpose was not to be seen as one that was carefully crafted in an attempt to influence the Committee. When questioned by the Committee as to the actual extent to which Mr Morgenrood had accepted responsibility, Mr Wallace conceded that there were elements of the letter that demonstrated his client to not wholly accept full responsibility for some aspects of his offending.

[40] The Victim Impact Statement identified that Mr Morgenrood had continued to try and make contact with Miss Comignaghi. Mr Wallace could not comment on the extent of his client’s on-going attempts to contact Miss Comignaghi, but he did confirm that the Respondent had received a copy of the Statement but that he had not taken any specific instructions in response. Counsel had no further issue with any contents contained within the Statement.

COMMITTEE COMMENTARY ON THE OFFENDING

[41] Brandon Morgenrood is a 42 year old Class A Jockey who has pleaded Guilty to three Serious Racing Offences as outlined in the documents before this Judicial Committee. He has been licenced in New Zealand for four years after spending some time riding in South Africa between 1993 and 2015.

[42] Fellow Class A Jockey Tina Comignaghi has also been licenced in New Zealand for four years, and both individuals were in a relationship from September 2018 through to mid-December 2019; a period of some 15 months.

[43] Approximately three weeks before the particulars outlined in Information A6429, the Respondent left a number of voice messages on Miss Comignaghi's phone. There were six separate messages left over the course of a morning, and the Committee has heard each of those messages as they were played during the course of the hearing.

[44] The content of those messages can be described as manipulative, jealous, controlling and quite frankly non-civil in nature. It has been helpful for the Committee to hear the messages in order to appreciate the tone in painting a picture of the Respondent’s character alongside the nature of the relationship between the two, in the lead up to the offending that Mr Morgenrood has committed.

[45] Approximately three weeks after those messages were left, the Respondent indicated via a text message that he would “…f*** you over big time”. As a result of receiving that, along with other threatening and abusive texts, Miss Comignaghi blocked Morgenrood the following day.

[46] However, those measures did not prevent him from continuing to attempt to contact her and one week later Mr Morgenrood authorised a minimalistic one cent bank transaction into her personal bank account. He went so far as to use expletives in the Payee Reference fields, so that they subsequently appeared on the victim's bank statement(s).

[47] On 18 February, Licenced Trainer Anna Furlong was advised by her employee, and fellow jockey, Brett Murray that the Respondent had been pulling unnecessarily on the racehorse VIVACE LADY’s mouth when riding it in trackwork. It subsequently was confirmed during the course of the hearing that Mr Morgenrood had been doing so for several days prior. This information was obtained as part of the investigation that followed the specific conduct on 21 February.

[48] A fellow stable employee of Ms Furlong’s who was interviewed, was responsible for advising the RIU that Mr Morgenrood had been pulling unnecessarily on VIVACE LADY’s mouth for several days prior to 18 February. The horse sustained mouth injuries, in the form of cuts and abrasions to the inside of the mouth, as a result of Mr Morgenrood’s conduct.

[49] His motive for doing this was an intention to ensure that the horse in question (VIVACE LADY), would react in a particular way or manner; along with the knowledge that Miss Comignaghi was engaged to ride that horse at the Canterbury JC Meeting on 21 February. In addition, Mr Murray had also advised Ms Furlong that the Respondent had asked him to be a party to tactics that would allow him to carry out what he was seeking to do to Miss Comignaghi in Race 4 of that Meeting. As a result of this information Mr Morgenrood was subsequently removed as the trackwork rider for VIVACE LADY.

[50] At Riccarton on 21 February, two trials were scheduled to run prior to the commencement of the Meeting. Prior to the first trial, Mr Morgenrood entered the female jockeys’ room to have a conversation with Miss Comignaghi. The conversation was heated. Some words were exchanged between the two, to the point that the Respondent had repeated a second time to her that “the only thing that's going to drop is you in the race”. This was overheard by a fellow rider who reported it to Stipendiary Stewards.

[51] When interviewed immediately after this, the Respondent was frank, and admitted making the comment to Miss Comignaghi. As a result of that, along with concerns that the RIU had for fellow riders, he was stood down and subjected to a workplace test which tested negative for prohibited drugs.

[52] The RIU’s vet carried out an examination of VIVACE LADY on 26 February which revealed a healing wound in the commissure of the mouth on the right side. The wounds that were suffered by the horse in question were deemed to be consistent with the allegations that the respondent faced as a result of the investigation.

[53] As a result, Mr Morgenrood’s Class A Jockey Licence was suspended by New Zealand Thoroughbred Racing until further notice.

REASONS FOR PENALTY

[54] The Penalty Submissions of both parties have been well canvassed in writing and as part of the in person hearing.

[55] The relevant Penalty Provisions are contained in Rule 804 which states:

“Rule 801 (2) A person who commits a Serious Racing Offence shall be liable to:

(a) be disqualified for any specific period or for life; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

c) a fine not exceeding $50,000.”

[56] The Committee in Minutes issued as part of these proceedings confirmed the serious nature of this offending. Counsel have conferred in advance of the hearing, and we are told that informed by the Penalty Submissions to be advanced by the RIU, Mr Morgenrood had entered guilty pleas to all charges. Whilst Mr Lange is accurate in that no provision for sentencing indications currently exist under the Rules, that is a matter outside the scope of this Committee’s current considerations.

[57] The RIU have submitted a starting point of a period of Disqualification of between three and a half and five years, citing the upper end of that range as appropriate. Mr Wallace submits a 12 months Disqualification as appropriate. While the result of both submissions seek a disqualification period of varying degrees, both parties accept that it is the responsibility of the Judicial Committee to ultimately determine the appropriate penalty.

[58] We have maintained an open mind in reviewing the submissions and in approaching the question of penalty. In considering the submissions alongside the application of the Rules of Racing, Mr Morgenrood’s three Serious Racing Offences on their own, required a degree of pre-calculation. When they are considered collectively, they paint a picture of offending within the racing jurisdiction for which it would in our assessment be difficult to find any similar offending by a licensed rider in the Industry's history. The offending was sustained, that is, over a period of time. It was not simply an ad hoc or off the cuff reaction to an issue he was facing at the time.

[59] Inflicting undue suffering to a horse is a serious animal welfare issue. To then do this on more than one occasion for the express purpose of ensuring the animal would react in a particular way for Miss Comignaghi, and potentially others in the race, simply compounds the significance of the offending.

[60] Under normal circumstances in a race, when horses are travelling at speeds between 55 and 65 kilometres per hour, and racing in tight formation, untoward incidents can and do occur. This is without riders intentionally setting out to cause a horse, or horses, to fall. Racing requires trust, professionalism and integrity. While the expectation is that personal circumstances remain outside of licence holders’ professional obligations, Mr Morgenrood fell well short of that in relation to his actions on the charges he faces.

[61] The Committee has the benefit of a Victim Impact Statement from Miss Comignaghi. We accept that must not have been an easy exercise for her to have done, but we thank her for doing so. It is insightful as it describes the ongoing impact and sense of unease that Mr Morgenrood’s actions have caused her. We do not intend to delve into the detail, except to say that we have had regard to it in the sense that it provides an understanding of the impact of the respondent’s offending on Miss Comignaghi as a victim of the charge(s).

[62] Mr Wallace has invited us to have regard to the letter that Mr Morgenrood has written. While it appears on face value to be light on accepting sole responsibility for what has occurred, we accept Mr Wallace’s submission that it should perhaps be viewed through the lense of someone who has gone through the breakup of a personal relationship and we apply adequate weight in light of that. Even if we look at it through that lense, it remains clear that while he accepts sole responsibility for the text messages he may have sent, he fails to take sole responsibility for little else.

[63] The overall plan, as the Respondent may have seen it, was for he and Mr Murray to ride in a specified and tactical manner which would therefore place Miss Comignaghi in a potentially grave predicament, along with other riders and horses.

[64] Such calculated, premeditated and intentional offending has no place in racing. The industry and the general public detest such behaviour as demonstrated by the Respondent. It is clear that a period of Disqualification is inevitable. The question for this Committee relates to what is the appropriate quantum. When viewed independently, each of these charges in isolation could attract a significant period of Disqualification.

[65] We accept that Lawson (RIU v Lawson Appeals Tribunal 13 May 2019) calls for a focus on the interest and reputation of the industry, rather than the personal circumstances of industry participants. We also accept that Lawson is not comparable in context as that relates to betting offences. The current offending is much more serious than that, and is also more serious than that of O'Riley, Waddell, and Walker referred to in submissions. In our analysis, when we consider the specifics of Mr Morgenrood’s offending, previous breaches under similar Rules also bear no relevance.

[66] In mitigation we have considered Mr Morgenrood’s admission of the breaches and his co-operation with the process. His record must be considered an aggravating factor. Whilst not in New Zealand, he has previous Serious Racing Offences committed in South Africa. Mr Morgenrood has an extensive offence history in that country, including at least two offences which we assess to carry comparable Serious Racing Offence status in this country.

[67] Of note, it is in the South African jurisdiction that Mr Morgenrood has already been subject to a five year period of Disqualification for a Serious Racing Offence. The entries on his South African Riding Record remain relevant because of the type of offences they are and also because the restrictions that are applied in that country are reciprocal and must carry weight. His record clearly demonstrates a significant history of non-compliance.

[68] Mr Morgenrood’s charges are not before us in the criminal justice context, but rather the racing context. In determining penalty we accept that punishment is the responsibility of the criminal justice process as identified in Z v Complaints Assessment Committee (Z v Complaints Assessment Committee [2009] 1 NZLR 1). The fact that there is the provision for a significant sanction, such as a lengthy period of Disqualification, including that of Life, contained in the Rules of Racing indicates that there nonetheless is still a place for such a sanction to be applied within this jurisdiction, if the nature of the offending warrants it. We believe that approach is a relevant consideration in this matter.

[69] What is also part of our consideration is the question of whether or not Mr Morgenrood is a fit and proper person to be involved in the racing industry, in light of his conduct falling well below the standard expected of a licenced person? We have reached the conclusion, by no fine margin, that he is not.

[70] On the issue of reserving the ultimate sanction for a more serious offence, when we consider the circumstance(s) of this offending, the only thing more serious would have been for the Respondent to have carried out his intention. Thankfully he was prevented from doing so due to a jockey who overheard the threat advising the RIU, who immediately stood him down.

[71] It is possible that if the threat had not been overheard then an investigation may not have taken place which led to the other instances of offending being discovered. What is a further concern is that VIVACE LADY raced on 21 February, under the Trainer’s expectation that Mr Morgenrood had caused undue suffering to her on only one occasion during trackwork. It has become apparent that in actual fact the number of occasions had been higher than that. This only came to light via the investigation that followed Mr Morgenrood being stood down on 21 February.

[72] When viewed as a package, which we consider these offences on this occasion to be, along with the consideration and application of the totality principle, a significant period of Disqualification must follow. This, in our assessment, is the only viable, fair and appropriate sanction to denounce such serious offending, which has no place in the New Zealand Racing Industry.

[73] In our considered view, no penalty short of a Lifetime period of Disqualification would be appropriate. Therefore, in relation to Informations A6428, A6429 and A6430 that will be the outcome. In making this determination, we are cognisant that this is the most serious sanction available, and believe as such it is warranted in the circumstances of the offending.

PENALTY

[74] Mr Brandon Morgenrood is Disqualified for Life under the provision of Rule 801(2)(a). The period of Disqualification has immediate effect.

COSTS

[75] The RIU seek no costs. The Committee also declines to exercise its discretion in relation to making any costs order in favour of the JCA.

Signed at Palmerston North this 9th day of June 2020.

Mr Tangi Utikere

Chairman

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