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Non Raceday Inquiry RIU v B N Orange - Penalty Reasons and Decision dated 9 February 2021 - Chair, Hon J W Gendall QC

Created on 31 December 2020

Before a Judicial Committee of the Judicial Control Authority for Racing

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN THE RACING INTEGRITY UNIT

(Ms K R Williams, Investigator)

Informant

AND BLAIR NATHAN ORANGE

Open Driver

Respondent

Information Number: A13231

Judicial Committee:

Hon J W Gendall QC (Chair)

Mr A Harper (Member)

Present: Mr C Lange, Counsel for RIU

Mr J Eaton QC, Counsel for Mr B N Orange

Ms K R Williams, Investigator for RIU

Mr B N Orange, Respondent

Mr S Renault, Registrar

Hearing Date: 4 February 2021 at Addington Raceway, Christchurch

Oral Decision: 4 February 2021

PENALTY REASONS AND DECISION DATED 9 FEBURARY 2021

REASONS FOR DECISION

(1) Prior to racing commencing at the banks Peninsula TC meeting on 24 January 2021 RIU Officials required some drivers to undergo breath alcohol testing under Rule 513(1) of the NZ Rules of Harness Racing.

(2) Mr B Orange, Licensed Driver, the Respondent, was tested and this breath alcohol levels were recorded, first, at 199 micrograms per litre of breath (mcg/l) and, 10 minutes later, at 190mcg/l.

(3) The permitted level under Rule 513 is 100mcg/l, so the recorded levels were almost two time that limit.

(4) As a consequence, Mr Orange was stood down from the 7 races (of 11 on the card) on which he had driving engagements that day.

(5) The RIU Informant presented an Information to the Raceday Judicial Committee alleging that, there was a breach of Rules 513(3)(a)(c) and 4(c) in that:

Driver B Orange returned a breath alcohol level greater than 100 micrograms (0.02%).

(6) Mr Orange then admitted in writing the breach of the Rule. The Raceday Committee, later that day, adjourned the hearing of the charge so as to ensure it was dealt with without undue haste.

(7) This Committee has now dealt with the charge and heard submissions by Counsel on behalf of Mr Orange, and Counsel for the RIU.

(8) At the conclusion of the hearing and after deliberation for some time, the Committee imposed the following penalty and sanctions on Mr Orange:

(a) His Driver's Licence is suspended from the conclusion of racing on 8 February 2021 until the close of racing on 5 April 2021 (8 weeks).

(b) He is fined $1,000.

(c) The RIU did not seek an order for costs; none is made.

(d) He is to pay $750 as a contribution to the JCA costs.

(9) The following are our reasons:

We recognise that a term of suspension will exact different levels of punishment on different offenders depending on the likely future opportunities to earn income through number of drives. A profession (whether racing, medicine, law, accountancy, education and so on) allows persons only licensed to participate. It is an inevitable consequence that if the privilege (for that is what it is) to participate in the profession, is curtailed during any period of suspension, the licensee will be financially hurt, and we keep in mind that primary purpose of sanctions by this regulatory today are not punitive. The task involves a proper balancing of several factors as discussed by an Appeals Tribunal in RIU v Lawson (13 May 2019).

(10) The Summary of Facts record that Mr Orange's two breath tests results were at levels almost twice the prescribed limit. In explanation he said that he had stopped drinking at a social function "at midnight" the previous night. He was not further questioned as he failed to engage in a conversation and due to his demeanour in the Stipendiary Stewards' Room. He was stood down from his seven drives that day to the distinct disadvantage of owners. trainers, and punters who may have placed wagers on his drives, he being the leading driver in New Zealand, with a large following who might expect he would have been a distinct aid to their expectations.

(11) Mr Orange had previously been charged and with a breach of this Rule on 2 January 2016 at the Central Otago TC meeting when his breath alcohol level was 334 mcg/l. He was then suspended from driving for 5 driving days and fined $1050.

(12) More recently, on 30 April 2020 he was fined $1000 for misconducting himself by directing abusive language to an Investigator of the RIU. The JCA Committee's decision records that alcohol consumption at that time during the afternoon played a part in his conduct.

Penalty Submissions

(13) Written penalty submissions were received from Counsel for the RIU and Mr Orange. The RIU referred to well-known principles on "sentencing" and more particularly as they relate to Harness and Thoroughbred Racing. These were namely to punish for wrongdoing, to provide a personal deterrent to an offender and particularly a general deterrent to others in the profession from like offending. There is a need to promote the public confidence in the Racing Industry and its integrity; to reflect the disapproval of the JCA, ad to rehabilitate the offender. It contended that drug and alcohol testing, and the Rule, exists to ensure the safety and welfare of drivers and horses and to maintain the support of the public and punters. In this case the RIU says that all trainers, owners and punters were seriously disadvantaged as there had to be changes of drivers in 7 races. Mr Orange was acknowledged as the leading New Zealand driver with 109 winners in 675 drives, during the current season, as at 25 January 2021.

(14) The RIU contended, strongly, that:

"Mr Orange needs to recognise he has an ongoing problem with alcohol .... and needs assistance to commit to a treatment plan. This is for his own welfare and to ensure that he does not put himself and others at risk in the future and that he has professional support that will enable him to return to racing."

(15) The RIU referred to a number of cases for breaches of Breath Alcohol Rules by Licensees in both Thoroughbred and Harness Racing Codes, where penalties generally had ranged from fines to (and) suspensions at times expressed in terms of months or weeks, or raceday, or drives, with fines up to $2500 (a trainer). But all cases depend on their own facts, with some relating to Non Raceday tests, some by riders or drivers, some by licensees, and a wide variety of circumstances existed. We do not regard the approach adopted by a Raceday Committee in RIU v Orange (hearing 2 June 2016, decision 4 June 2016), where the penalty was fixed through a largely arithmetical process of "drives" to be missed by a suspension, as appropriate to the present case. Sentencing or the fixing of sanctions is always to be a balancing exercise of many factors, not just drives "lost" (ie punishment through a required suspension).

(16) In one case a payment of a fine of $5000 by a trainer was "suspended" pending "successful" completion of a rehabilitation treatment course. It can be possible for payment of a fine to be suspended in part in some circumstances, but we doubt its practicality, even if it was possible, to abridge any sanction of suspension. But genuine intention to seek and continue admitted needed treatment will be a mitigating factor - if the remorse and insight is genuine - so to have some impact on the eventual suspension term. In a recent case of RIU v Butt his undertaking and honest insight to the JCA to pursue counselling was regarded as genuine and taken as a point of mitigation.

Submissions on behalf of Mr Orange

(17) Mr Eaton QC presented references or letters of support by nine persons in the Harness Racing Industry, family, owners, trainers, media, friends. They all support and speak highly of him. We have taken into account the views expressed, including that of his immediate family. We mention only two statements, amongst the many in the references.

(a) By a TV media person:

"He has clearly shown remorse and knows he has let a lot of people down, including himself. He showed a commitment to improve himself and avoid this happening again in the future starting with his attendance at an AA course."

(b) By a friend who separately is involved in Southern Harness Racing, but his reference was not presented in that capacity:

"The game needs a person like Blair where young followers ie Kid Kartz people can aspire to be just as good as him."

(18) He submitted, in essence:

 Mr Orange made a mistake in believing he was not above the required level in the Rules, but was not "under the influence of alcohol" and the actual level is relevant in fixing culpability." The level is well below that of Mr Butt who was dealt with last week.

 His good character and remorse are relevant.

 Whilst his 2016 offence is relevant, it does not justify a "significant uplift".

 Mr Orange has competed in thousands of races over 25 years and only returned two positive breath alcohol tests.

 It is not correct for the RIU to say that he has an ongoing problem with alcohol.

 He was fully co-operative, is remorseful and has approached the Salvation Army to learn about alcohol related rehabilitative programmes and has reached the view that it would benefit himself and set a positive example for him to participate. This it was submitted was “strong motivation”.

 There has to be “consistency” in imposing penalties so as to “make a fair and just penalty when viewed as against other offenders”.

 It is wrong for the RIU to ask for a severe penalty based upon Mr Orange being the leading and prominent driver.

 The “punishment” exacted upon Mr Orange by a lengthy suspension is far greater than would be the case with other drivers because of the number of drives he would miss.

 He contended that a suspension of no more than 4 weeks was appropriate.

Reasons for Decision

(19) The Rule 513(c) relates to safety of drivers and horses without a competitor being compromised by the presence of excess alcohol.

(20) The general principles or considerations of punishment, personal and general deterrence, public confidence in the profession/industry of racing and the desirability of rehabilitation, as contended by the RIU, come into play in the balancing exercise of a Tribunal reaching appropriate sanctions. We need not repeat what was said by an Appeal Committee in the RIU v Lawson (6 May 2019) at paras [26] – [32].

(21) We do not accept the argument that because Mr Orange has so many drives as the leading Reinsman as any suspension has to be measured against his probable number of drives or driving days rather than in terms of calendar weeks or months. Counsel said that the Harness Penalty Guideline referred to “Drives to missed”. But the Guideline is no more than that, it is not a Rule, and in any event the submission overlooks the fact that the Guideline speak only of DRIVING offences for which penalties may be measured against drives to be lost. It does not refer to misconduct or breath alcohol offences. What is important, certainly in the present case, is the application of sentencing principles, already referred to, of rehabilitation, personal and general deterrence, which may outweigh the “punishment” concept in any particular case. Naturally a calendar based suspension results in some punishment, but where, as here, there is a need for rehabilitation, then any suspension and its length ought to be set so as to promote and hopefully achieve total rehabilitation. In that way the Driver, other Licensees, the Industry and the Code all benefit as the scope for similar offending in the future has gone.

(22) It is not the consumption of alcohol that is the issue but the CONDUCT that follows it, and a Driver choosing to drive irrespective of consumption that leads to breath alcohol beyond the prescribed limit.

(23) In Mr Orange’s case, a factor is that of rehabilitation. He recognises that when he says he has met once this week, with a counsellor to engage in an “alcohol rehabilitation course, I have committed to a further 6 weeks of meetings …” and there are references to “he is getting help” [for personal health issues] and “he showed a commitment to improve himself and avoid this happening again in the future starting with his attendance at an AA course”. That is a good sign.

(24) This is encouraging and we have given the rehabilitation criteria considerable weight in the balancing exercise required in imposing penalties. It predominates over the inevitable punishment element that follows from the term of suspension.

(25) Remorse and insight have to be genuine rather than simply claimed (as the Supreme Court in Hessell v R made clear) but Mr Orange has taken actual steps to initiate help. We accept he has a desire to become fully rehabilitated. His issue may not be a serious alcohol problem (as he contends) but clearly there are issues of conduct when alcohol is being, or has been taken and if his present intentions illustrate insight, then that is a good sign.

(26) It is accepted that for driving breaches of the Rules, a more severe penalty ought not follow simply because, and without more, of the status, success, and seniority of the offender. But the conduct of such offender may reflect upon his standing and confidence with the public, punters, owners, in him and in the integrity of the profession as a revered Licence Holder. In other words, if a person is seen as a role model and an asset to the profession or sport misconducts himself, it diminishes the confidence in him held by the public and punters, to the detriment of the Code/profession which is likewise affected. An illustration is the reference (already quoted in para 17(b) above) that “young followers … can aspire to be just as good as him”. That is one of the reasons that we give proper weight to his acknowledged rehabilitation needs.

(27) In balancing all the relevant considerations, we came to the conclusion that a starting point of 6 weeks suspension was fixed to reflect the breach, level of breath alcohol, and the effect on 7 owners and trainers who could not use Mr Orange’s services that day, and who were disadvantaged. We regard as aggravating factors:

• The previous offence and its level.

• The inevitable effect upon punters who (prior to race day) had invested on those 7 races in the expectation that the nation’s leading driver would aid their chances of a successful wager. The Industry crucially needs the punters’ wagers and confidence if it is to succeed.

• His misconduct offence early in 2020.

(28) We factor an uplift of 4 weeks for these matters.

(29) From that 10 weeks level there are mitigating personal factors such as family needs and the action and intention of pursuing the further 6 weeks AA rehabilitation programme. A discount of 2 weeks is allowed. So, the suspension is to be 8 weeks.

(30) Admission of the breach and guilty plea does not in this case require a discount as any defence was impossible.

(31) Mr Orange maintains his non race day driving work with another licensee so will have some income, and he tells us that he earned $37,000 in December and January. A fine of $1,000 is also required.

(32) To conclude, we add that the term of 8 weeks is fixed also to recognise the further 6 weeks of treatment and the additional 2 weeks to enable the “success” of the treatment to be established. That may enable the RIU to utilise if it wishes Rules 512 or 513(1) to enable Stipendiary Steward or Investigator “at any time” to require a breath sample from a driver. During the term of suspension Mr Orange is able to drive at trials and workouts but Rule 513(4) only applies to presentation on a Raceday, whereas Rule 513(1) applies at any time.

(33) We recognise that Mr Orange will miss the opportunity of driving engagements in a Group 1 Race at Auckland Harness Racing on 5 March 2021, but as was observed in the recent Thoroughbred Racing case of RIU v Bosson, the wish by a leading licensee to compete in important and lucrative races is not to be a reason for diminishing what otherwise is an appropriate suspension.

Penalty

(34) Mr Orange’s Drivers Licence is suspended for 8 weeks from the completion of his committed driving engagements namely at the conclusion of racing on 8 February 2021 until the conclusion of racing on 5 April 2021.

(35) Mr Orange is fined $1,000.

(36) Mr Orange is to pay $750 as a contribution to the costs incurred by the JCA. No order for costs is made to the RIU as it was not sought.

Dated this 9th day of February 2021.

Hon J W Gendall QC (Chair)

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