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Non Raceday Inquiry RIU v B Wallace - Decision dated 18 December 2020 - Chair, Prof G Hall

Created on 21 December 2020

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Harness Racing

VINNY MUNRO, Stipendiary Steward for the Racing Integrity Unit (RIU)

Informant

BRUCE WALLACE, Trainer/Graduation Driver

Respondent

Information: No. 12746

Judicial Committee: Prof G Hall, Chairman

Appearing: On the papers

DECISION OF THE JUDICIAL COMMITTEE

[1] Information A12746 alleges the Respondent, Mr Wallace, at the Wyndham workouts at Young Quinn Raceway on 17 October 2020, when driving BELLE’S BOY in Heat 3 “used his whip free of the rein with 9 strikes”.

[2] These are alleged breaches of r 869(2) of the NZ Rules of Harness Racing and the Whip and Rein Regulations.

[3] Rule 869(2) provides: “No driver shall during any race use a whip in a manner in contravention of the Use of the Whip Regulations made by the Board.”

[4] The Whip and Rein Regulations (which came into force on 1 October last) provide:

3. USE OF THE WHIP

3.1 A driver may only apply the whip in a wrist only flicking motion whilst holding a rein in each hand with the tip of the whip pointed forward in an action which does not engage the shoulder.

3.2 For the purposes of clause 3.1, “wrist only flicking motion” means:

3.2.1 Ensuring no force is generated by the use of the elbow or shoulder when applying the whip.

3.2.2 The forearm is not raised beyond forty-five degrees relative to the racing surface.

3.2.3 Not applying the whip with overt force.

[5] Mr Munro produced authorisation to lay the Information.

[6] Mr Wallace has signed the Information admitting the charge.

[7] Mr Munro produced a summary of facts.

[8] Mr Wallace is a licensed person under HRNZ Rules and holds a “Licence to Train” and a Graduation Driver’s licence.

[9] On 17 October 2020, Mr Wallace drove a horse that he trains, BELLE’S BOY, in Heat 3 at the Wyndham workouts at Young Quinn Raceway.

[10] BELLE’S BOY drew barrier 4 in a field of 9, in a 2400 metre mobile pace.

[11] Mr Wallace presses forward from the dispatch and sits parked outside the leader for the entire journey.

[12] When the field enters the home straight Mr Wallace moves his right rein to his left hand, reaches forward with his right hand and activates the removable gear.

[13] Immediately, with his whip drawn in his right hand, free of the rein, he strikes the horse.

[14] He then strikes the horse a further 8 times in the home straight — a total of 9 strikes.

[15] Each of the 9 strikes are very forceful with his right hand being lifted up to beside his helmet to gain extra purchase.

[16] When spoken to by Stipendiary Steward, Mr Munro, by phone a few days after the race, Mr Wallace said, “I was wrong, throw the book at me. He needed a hurry up as he hadn’t been finishing his races off.” He further stated, “I didn’t know the workouts were being filmed.”

Decision as to breach

[17] As Mr Wallace has admitted the breach of r 869(2), is it found to be proved.

Informant’s penalty submissions

[18] Mr Munro commenced his submission by stating the HRNZ Penalty guide for a whip breach has a starting point of $200.

[19] This breach was at the high-end level of offending, due to the fact that it has been 9 uninterrupted, free of the rein, full strikes with the whip.

[20] In the current environment of “animal welfare” this incident is totally unacceptable.

[21] Mr Wallace is a hobby trainer who drives his own horses sparingly. He has had 2 raceday drives in the past 2 seasons. Mr Wallace has had a licence since 1988 and in that time has had 295 drives.

[22] Mr Wallace admits this breach, has shown remorse and has a clear record under the Whip Rule.

[23] Mr Wallace has shown a blatant disregard for the Whip Rule and Regulations and the fact that the Workouts were filmed and posted for public viewing.

[24] There are clear requirements in place for a fair and reasonable use of the whip in Harness Racing and there is a need for the penalty to be a specific and general deterrent.

[25] The RIU seeks a fine of $1,500, of which $750 is suspended for a period of 12 months unless Mr Wallace breaches this Rule under any circumstances in that time frame, which must act as a deterrent.

[26] With the lack of precedents in New Zealand, Mr Munro referred the Committee to a recent case in Victoria, HRV v Ryan (25 October 2020). The onus, he said, will be on Mr Wallace to drive within the Whip Rules and Regulations in this period.

Respondent’s penalty submissions

[27] Mr Wallace said he has had his Trainers and Trial licence for over 30 years and his Graduated Horseman’s licence for over 20 years. He has had only two charges in that time, both of which were unrelated to the Whip Rule. He was found in breach on one occasion and the JCA had dismissed the other charge.

[28] Mr Wallace acknowledged he had struck the horse nine times with the whip being free of the rein. He said he was deeply regretful of his actions on that day.

[29] Mr Wallace stated he was not aware that the Workouts were being filmed and, while that made no difference to the charge, he accepted responsibility and that it was not a good look for the sport of Harness Racing.

[30] Mr Wallace said he served on the Gore Trotting Club committee and was an assistant starter at many Southern Harness meetings. He gave a lot of free time to the sport.

[31] Mr Wallace submitted that the penalty of $1,500 was too severe.

[32] Mr Wallace referred to RIU v Shirley 17 April 2020 where the Respondent in that case was charged with “striking a horse at the workouts with severe force and way in excess of the 10 strikes that was at that time not within the guidelines.” Mr Shirley was fined $750 which was reduced to $500 because it was within the Covid lockdown period.

[33] Mr Wallace concluded his submission by stating he believed a fine in the range of $250 to $350 was appropriate.

Reasons for decision as to penalty

[34] Mr Wallace has used his whip nine times from the time the field entered the home straight in Heat 3 at the Wyndham workouts on 17 October last. Significantly, these were uninterrupted, free of the rein, full strikes with the whip to his horse, BELLE’S BOY.

[35] The video demonstrates that these were forceful strikes with the Respondent’s hand being raised to above shoulder height. The fact that Mr Wallace believed the horse was bludging explains but does not excuse his actions. The issue of animal welfare is clearly raised by the nature of the breach. The Committee accepts the Informant’s submission that the breach is high end.

[36] Penalty should not be reduced because of the occasion of the race and, to his credit, Mr Wallace does not submit that it should. The impact of his actions upon BELLE’S BOY was not the lesser because it occurred at a workout rather than at a race meeting.

[37] Mr Wallace has stated he did not realise the Workouts were being filmed. While publicity would be lessened by the fact the breach was not featured on Trackside, as would have been the case were this incident at a race meeting, it would be evident, nonetheless, to those industry participants on the day and to those racing enthusiasts who viewed the video of the Workouts on the HRNZ website that the Respondent’s actions were both unacceptable and in breach of the Rules.

[38] The HRNZ Penalty Guide for a whip breach has a starting point of $200 for a breach committed in the month of October. After this one month lead in time, the penalty range is $200 to $400 for a low level, a $500 starting point for mid-range, and a 3-day suspension starting point for a high level breach. Because this breach was committed in October, the starting point is $200. This figure is a guide only, of course.

[39] Mr Munro has submitted a fine of $,1500 is appropriate. He has referred the Committee to the Victorian Harness Racing decision in Ryan. The number of strikes in that case was 12 free of the rein and the penalty was $1,500, of which $1,000 was suspended for two years. The decision refers to the HRV Minimum Penalty Guidelines but does not stipulate the relevant starting point or final penalty in those Guidelines. In any case, the penalty was one of $500 should Mr Ryan not commit a further breach of the Whip Rule in that two year period. 

[40] Mr Munro submits that a fine of an identical amount should be imposed in this case but that only $750 of the $1500 fine be suspended. Mr Wallace submits a fine in the range of $250 to $350. It is not usual for a penalty to be imposed and then for part or indeed all of the penalty to be suspended. The Committee sees no need for the sword of Damocles to hang over Mr Wallace’s head, especially as he has not previously breached the Whip Rule.

[41] The Committee believes a fine appropriate to the gravity of the breach, the Respondent’s culpability and any relevant mitigating personal factors should be imposed. The Committee is confident that Mr Wallace’s remorse and the knowledge that any subsequent breach of this Rule is likely to be met with a significantly harsher penalty (reflecting the fact that the penalty imposed on this occasion has not had the intended deterrent effect) will have the necessary impact.

[42] Mr Wallace has referred the Committee to the case of Shirley. In that case the number of strikes in the last 400 metres was 15, and a number were with considerable force. The dropping of a foot from the sulky enabled Mr Shirley to use more force than had it remained in the footrest. There were at least 10 strikes in this manner. Mr Wallace’s actions are of similar magnitude to the forceful strikes in Shirley.

[43] Credit must be given for the Respondent’s good record and, in particular, that this is his first whip related breach, his remorse, and his admission of the breach, although this was inevitable given the clear video evidence.

[44] The video was the record of the workout and, as previously observed, was placed on the official HRNZ website for all those interested in the performances of the horses on the day to view. This breach calls in question the integrity of Harness Racing. Mr Wallace has acknowledged it is not a good look for the sport. Over the past few years HRNZ, the RIU and the JCA have taken measures to ensure horse welfare. The previous reduction in the number of allowable strikes with the whip in the last 400 metres of the race and the new restrictions upon the manner in which the whip may be used, are examples of this. In addition to holding Mr Wallace accountable, there is a need for general deterrence. Mr Wallace’s evident remorse suggests personal deterrence need not be to the fore.

[45] The frequency of the strikes and the degree of force that is apparent from the video, requires an uplift from the $200 starting point to one of $600. The need for consistency requires a comparison with Shirley where the penalty on the whip charge was a fine of $500. It was imposed on the understanding that it was Mr Shirley’s first breach of the Whip Rule. There was also a footrest charge in that case. Considerations of totality and Covid-19 impact led to the overall penalty being reduced from $750 to $550.

Decision as to penalty

[46] The penalty imposed upon Mr Wallace is a fine in the sum of $500. This takes into account record, remorse, admission, and the voluntary service that he gives to the industry on a regular basis. The serious nature of the breach and the interests of animal welfare cannot be met with a lesser penalty.

Costs

[47] The matter has been heard on the papers. There is no award of costs in favour of the RIU or the JCA.

Dated at Dunedin this 18th day of December 2020.

Geoff Hall, Chairman

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