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Non Raceday Inquiry RIU v C A Gately - Reserved Written Decision dated 17 December 2018 - Chair, Mr T Utikere

Created on 19 December 2018

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND CA GATELY

Respondent

Judicial Committee: Mr T Utikere (Chairman)

Mrs N Moffatt (Member)

Parties: Mr O Westerlund (for the RIU)

Mr P Cornegé (Counsel for the Respondent)

Mr C Gately (as the Respondent)

RESERVED WRITTEN DECISION OF JUDICIAL COMMITTEE DATED 17 DECEMBER 2018

FACTS

[1] The Respondent has been charged with a breach of Rule 340 of the New Zealand Thoroughbred Rules of Racing.

[2] The relevant Rule is as follows:

Rule 340: A Licensed Person, Owner, lessee, Racing Manager, Official or other person bound by these Rules must not misconduct himself in any matter relating to the conduct of Races or racing.

[3] The specific charge alleged:

Information No A8469

On Wednesday the 17th October 2018 at the Racing Te Aroha race meeting, did misconduct himself when he assaulted Licenced Class B –Track Work Rider <Name Suppressed> in breach of Rule 340 of the New Zealand Rules of Thoroughbred Racing and is therefore subject to the penalty or penalties which may be imposed pursuant to Rule 803(1) of the said Rules.

[4] The relevant Penalty provisions are contained in Rule 803(1) which states:

”A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere in these Rules shall be liable to:

(a) be disqualified for a period not exceeding 12 months; 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 $20,000.00.”

PRELIMINARY MATTERS

[5] A Minute (Dated 21 November), indicated that the Committee was in receipt of all the necessary documentation to proceed with this matter. At that time, Mr Gately had engaged Mr Dollimore as counsel. During the course of setting this matter down for further consideration, Mr Dollimore advised the Committee that he had restrictions on his availability; accordingly Mr Cornegé was engaged as new Counsel.

[6] A Teleconference was held with the RIU and Counsel on 27 November to progress matters. Post-Teleconference, a further Minute was issued, an Agreed Summary of Facts was submitted and both parties suggested that this matter could be dealt with without the need for an in person hearing.

[7] After consideration, the Committee directed that the matter be set down for an in person hearing at Te Rapa on Thursday 6 December. At the conclusion of the in person Hearing, the Committee reserved its decision and imposed interim non-publication orders relating to aspects of this case, which were time-bound to lapse at the time the Reserved Decision was issued. We are now in a position to issue our Reserved Decision.

AGREED SUMMARY OF FACTS

[8] The RIU submitted the following Agreed Summary to the Hearing:

Mr Carl GATELY is the holder of a Track Work Riders Licence issued by New Zealand Thoroughbred Racing (NZTR).

This matter relates to an incident that occurred at the Te Aroha Racecourse on Wednesday the 17th October 2018 involving staff employed by Mr Tony PIKE’s racing stable.

The PIKE Stables engage five horses to race at the Racing Te Aroha race meeting. The horses concerned were a colt, two geldings and two fillies. The stable staff were responsible for the care of the horses and their safe transportation to and from the races.

The staff included Mr GATELY and the victim in this matter <Name Suppressed>.

Mr GATELY was the more experienced stable hand responsible for leading the animals onto the truck and to drive them back to the stables safely.

At about 3.20pm Mr GATELY issued instructions that the horses can be loaded and stressed that the colt and a gelding be loaded first as one of them could become fractious and difficult to handle. The two fillies were to be loaded next with the other gelding last.

<Name Suppressed> assisted in loading the horses onto the truck and she loaded the horses in contradiction to Mr GATELY’s instructions. She loaded the colt and a gelding first and was about to load the second gelding on when Mr GATELY challenged her failure to heed his instructions. The fractious gelding which was being led onto the truck started to play up.

At that time, Mr GATELY became quite angry and told <Name Suppressed> that she was a ‘stupid slut.’ An argument ensued and voices were raised. Abusive and obscene language was used by both parties during the argument.

Mr GATELY then grabbed <Name Suppressed> by the collar and pushed her against the side of the truck.

He clenched his fist and was about to punch <Name Suppressed>.

<Name Suppressed> escaped his grip and ran to the swabbing officials nearby and reported the incident.

As a result of the assault she was frightened and upset.

Mr GATELY was spoken to on the 21st October 2018. He freely admitted his involvement in the incident and in explanation stated that he was angry because <Name Suppressed> did not follow his instructions regarding the loading of the horses in the order that he had instructed. He further stated that <Name Suppressed> does not seem to take instructions and orders kindly and probably thought that she knew better. He has had previous words with her regarding her behaviour.

Mr GATELY was apologetic for his actions and regretted that the incident ever occurred. He indicated that he would apologise to <Name Suppressed> and to his employer Mr Tony PIKE.

<Name Suppressed> did not suffer any significant injury and did not seek medical treatment.

Mr GATELY has been in the racing industry for 30 years in New Zealand.

Mr GATELY is aged 53 years and he has no previous Rule breaches for this type of occurrence.

He has had a previous Rule breach for a drug related matter (Cannabis).

[9] In response to questions from the Committee, Mr Westerlund confirmed that approximately 20 people were involved in the Pike stables operation and that Mr Gately had responsibilities with the operation as he was the senior person, he was basically the Foreman. He also confirmed that Mr Gately had been around horses for some time.

[10] In relation to the nature of the abusive and obscene language used by both parties, he confirmed that Mr Gately had instigated the language, the victim had fired back and that Mr Gately was quite angry. Based on the victim’s description, he identified that the anger he displayed related largely to the tone that he had used. Mr Westerlund described the incident as “not prolonged; short, sharp and then they left”. He confirmed that while he had not ascertained how long the incident had occurred for, the reason why the victim was swearing was to keep Mr Gately talking so she could escape.

[11] The informant also advised the Committee that the incident had occurred in the back of the truck and he described the actions associated with this offence, namely the grab of the collar, the pushing against the truck and the respondent’s clenched fist as occurring simultaneously.

[12] Mr Westerlund confirmed that he was located somewhere else during the incident but that the victim was quite upset and teary when she had exited the truck. She had gone straight to the swabbing box, approximately 10 metres away, and that a Swabbing Assistant spoke with her and took her straight to the Raceday Office where Mr Westerlund was contacted by phone.

[13] When he arrived at the Office some five minutes after the event, he found the victim to be “quite upset, tearful, crying”. He then waited with the victim until Vicky Pike arrived to take her from the racecourse. Mr Westerlund determined that given the victim’s state, it was not the right time to discuss what had happened. He subsequently arranged to meet the victim the following day instead.

[14] At this stage, Mr Gately had already loaded the horses onto the truck and had left the racecourse. Mr Westerlund confirmed that he spoke with Mr Gately three days later. When he interviewed him, he stated that he was going to arrange a meeting to apologise, but Mr Westerlund was unsure if this had taken place; but he did not believe that the victim wanted anything to do with Mr Gately.

[15] In response to a further question from the Committee, Mr Westerlund confirmed his understanding that the victim was holding a horse at the time of the incident and that Mr Gately had grabbed her whilst she had a hold of the horse.

[16] In response to the Committee’s questioning, counsel identified that the whole issue arose because the victim was not following the instructions that Mr Gately had issued regarding which horses were to be loaded onto the truck first, and that while this was not an excuse for the respondent’s actions, it was not the first time that his instructions had not been followed by the victim.

[17] Mr Gately was of the belief that she was potentially exposing a risk to the horses and herself, due to the order she was placing the horses on the truck. Mr Cornegé described it as a very quick exchange with abusive language both ways, for a matter of seconds, with Mr Gately submitting 20 seconds at the most.

[18] The purpose of pushing the victim by the collar was to move the victim out of the way so he could take control of the horse that was being led and then take it off the truck, so that he could put the horses on the truck in the correct order.

[19] Mr Cornegé accepted that Mr Gately should not have grabbed her by the collar. He also submitted that the respondent’s actions were not a grab, then a shove against the wall, as in the way intended as an attack or an assault. It was simply to move her out of the way for the purposes of taking control of the horses.

[20] He reiterated that the horse was fractious, and not all horses were going to the same location, and this was why he had instructed that they not be loaded in the way she had. He had simply pushed her out of the way and taken the horse off the truck.

[21] Her perception may have been that he was clenching his fist and about to punch her; but counsel submitted that Mr Gately had a brace on, and had taken himself off the riding roster, although he hadn’t sought medical attention.

[22] Counsel advised that while Mr Gately had apologised to his employer, it seemed the victim did not want to speak with him and that he was respecting that. He was also willing and able to attend mediation, which had been scheduled on two occasions but had not gone ahead, due to the victim’s withdrawal from the process, for which he was not critical about.

[23] Mr Gately had also been suspended from his duties at Pike Stables as soon as he arrived back to the stables, and continued to be suspended with pay until these matters were resolved. While the Pike operations were able to facilitate the continuation of some work off-site, his income had been cut by $300-$400 per week as a result of not driving the truck nor going to race meetings

[24] Mr Gately identified that this was the third time an altercation had taken place between the two of them at the races. He had complained to Pike management that she was very argumentative, but there had been no resolution.

[25] On this occasion he had noticed that the partition was not shut on the horse, so it got fractious, which is why he stepped in to get the horse off the truck. Mr Gately said that on the day in question they were short staffed, with a total of three in the truck, so they had to work together. On course that day there was a total of three staff in the truck. While Management had been trying to keep them apart this did not occur that day.

DECISION

[26] As the charge had been admitted, the Committee already deemed the charge proved in an earlier Minute.

RIU PENALTY SUBMISSIONS

[27] The RIU had provided the following Written Penalty Submissions:

1. INTRODUCTION:

1.1 The respondent Carl Anthony GATELY is a Class B Misc. Track Work Rider under the New Zealand Rules of Thoroughbred Racing.

1.2 He has been involved in the racing industry all his working life.

1.3 Mr GATELY is 53 years of age with a date of birth of 4th May 1965.

2. OFFENDING:

2.1 Mr GATELY has admitted the breach of the Rules in relation to the incident at the Racing Te Aroha meeting on the 17th October 2018.

2.2 The details of Mr GATELY’s offending are contained in the Summary of Facts which is agreed.

3. PENALTY PROVISIONS:

3.1 The penalties which may be imposed are fully detailed in the Charge Rule and Penalty Provisions document.

4. SENTENCING PRINCIPLES:

4.1 The four principles of sentencing can be summarised briefly:

-Penalties are designed to punish the offender for his/her wrong doing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence but the offender must be met with a punishment.

-In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.

-A penalty should also reflect the disapproval of the JCA for the type of offending in question.

-The need to rehabilitate the offender should be taken into account.

4.2 The first three principals have relevance in this case.

5. PRECEDENTS:

5.1 In support of this penalty I will refer to four previous decisions by the J.C.A which may be of some assistance.

5.1.1 RIU v D CROZIER (10.10.2016) – Misconduct himself by acting in a disorderly manner. Total fine imposed of $2000.

5.1.2 RIU v P RUDKIN (10.10.2016) – Misconduct himself by acting in a disorderly manner. Total fine imposed of $2000.

5.1.3 R.I.U v M McNAB (29.06.2016) - Misconduct – Assaulting another Jockey. One month disqualification.

5.1.4 RIU v T COWAN (18.07.2011) – Misconduct – Involved in a physical altercation with a Security Guard. Total fine imposed of $450.

6. MITIGATING FACTORS:

6.1 That he has admitted the breach at the first opportunity.

6.2 That he has been fully co-operative throughout the process.

6.3 That he was apologetic for his actions and regretted the incident ever occurred.

6.4 That he has offered to apologise to <Name Suppressed> and to his employer Tony PIKE.

6.5 That he has no previous Rule breaches for assault/disorderly.

7. AGGRAVATING FEATURES:

7.1 That Mr GATELY has been involved in the Thoroughbred racing industry for some time and should be aware of acceptable and unacceptable behaviours.

7.2 That the altercation took place in the loading area where other Trainers and Stable Hand Assistants were present.

7.3 That ‘Male assaults Female’ is punishable by a term of imprisonment under the Crimes Act 1961.

7.4 That he was the senior staff member and should have been more responsible for his actions.

7.5 That he has previously appeared before on a drug related breach. (Cannabis)

8. CONCLUSION:

8.1 The RIU believe that the breach can be dealt with by way of a fine and to that end the RIU seek a fine of $2000.

8.2 The RIU are seeking no costs.

[28] In addition, Mr Westerlund also submitted the recent decision of RIU v V for the benefit of the Committee, along with a Victim Impact Statement (VIS) at the request of the Committee. The VIS confirmed that the victim was 26 years old and had been a Licensed Track Work Rider for 4 years.

[29] Following the assault by Mr Gately, she had struggled with anxiety, vomiting and an on-going fear for her safety when travelling to work. Her throat was sore from the impact of being grabbed, and this settled after three days. She described the entire incident and process thereafter as a “horrible ordeal”. She also felt that “everyone is taking it as a joke, not a serious matter like an assault should be”.

[30] The RIU were asked by the Committee to comment on the rationale they had for arriving at a $2,000 fine. In response, Mr Westerlund identified that it was due to the severity of the offence, and that it was a Male assaults Female matter as well. If it was a Police matter, he submitted that it would be a high end penalty.

[31] He was also asked to comment on the comparisons on the disorderly and offensive descriptors contained in Crozier and Rudkin, with the Male Assaults Female context current before us, noting that disorderly and/or offensive behaviour was a Category 1 offence in the criminal jurisdiction, whereas Male Assaults Female was categorised as a higher offence. In response, Mr Westerlund still believed that the circumstances in Crozier and Rudkin were in parallel with the Gately manner.

THE RESPONDENT’S PENALTY SUBMISSIONS

[32] Mr Cornegé accepted that this matter was an assault, but one at the very minor level as it related to the intentional application of force. He suggested that the Committee needed to look at what had occurred, and then compare that with the circumstances of the other cases. In Crozier and Rudkin, he submitted there was a physical fight and it was plainly more serious than the current matter.

[33] In response to a question about the RIU’s stance about a person who was the Foreman and therefore had a position of responsibility, Mr Westerlund confirmed that after interviewing both parties, he believed this was something that had been brewing and had culminated on this particular day. Notwithstanding that, he did agree that this was an assault by a person of authority on a fellow co-worker.

[34] With reference to the RIU v V case, while the victim had been grabbed by the collar, then there was a scuffle before both parties were separated; Mr Westerlund believed that whether it was the throat or collar, it was still the same area of the body.

[35] He reiterated that the victim was really upset as a consequence of the event. She was crying, shaking and that was reflected in the VIS, which he had obtained from her within the week prior to the hearing. He agreed with some of the direct concerns that the victim had identified in her Statement, and with regard to penalty, the RIU left that to the Committee to determine.

[36] For the respondent, Mr Cornegé identified that while the circumstances of the offending had been discussed during the hearing, it was still regrettable. Mr Gately was not asking for his behaviour to be excused, but it was ultimately a very brief incident.

[37] He submitted that this was not a serious assault, and that it could not be categorised as a such. It was understandable that the victim had been upset, but it was not a sustained or serious assault, nor was it a fight. Mr Gately’s principal concern was getting the fractious horse off the truck so that the horses could be put on in the correct order.

[38] In aggravation, Mr Cornegé accepted that a factor was that the victim was a woman. While it was an assault in the sense that there was contact by the collar, the purpose was to move her away. Mr Gately was also a senior employee with more than 30 years in the industry, and he should have dealt with it better. Ultimately, Mr Cornegé submitted that he shouldn’t have behaved as he did. His previous breach was for a completely unrelated matter and he submitted it was not an aggravating feature.

[39] With regard to the VIS, while it was understandable, most of the concerns seemed to relate to how others had reacted to the incident, which was not Mr Gately’s responsibility, and he should not be punished for such a reaction.

[40] In mitigation, the respondent had over 30 years experience and this was the only incident of this type over that time. Mr Cornegé believed that his client was entitled to credit for good character and also submitted written references from Mr Dollimore and his employer, who both spoke positively about his skills as a horseman and about his conduct generally.

[41] Mr Gately had been apologetic to his employer, and was willing to apologise, to the victim; having agreed to attend mediation on two occasions, which had been cancelled. There was also a financial impact as a consequence of Mr Gately’s current stand down which equated to approximately $300-$400 in lost income per week. Mr Cornegé did not suggest that this weighed heavily on the Committee’s considerations, but that it was a consequence nonetheless.

[42] With regard to previous case law, counsel submitted that whatever label the Committee wished to place on the offending, while technically this was a Male Assaults Female, this was a very minor assault in the context of assaults. Mr Cornegé believed that most certainly the respondent would not be charged by police, but would rather receive a warning if anything at all.

[43] He invited the Committee to not look at the label, but rather what actually happened in previous cases. Counsel submitted that McNab was clearly more serious and that Crozier and Rudkin had two fights where both received physical injuries; also plainly more serious than what occurred here. He believed that the Cowan and V cases were most similar to the current offending before the Committee.

[44] Mr Cornegé accepted that Mr Gately was a senior staff member, and that there was no excuse. He submitted a fine of no more than $1000 as appropriate. He recognised it was an unpleasant incident, but was a relatively minor assault in the overall scheme of things, that Mr Gately had shown genuine remorse, tried to make amends and was of good standing. This was out of character for him and he had already suffered a financial impact.

[45] Counsel believed that the Committee could be confident that he had learnt his lesson and would not repeat this mistake again. A further offence, regardless of penalty imposed by this Committee, could mean the end of his career in the racing industry.

[46] Mr Westerlund was asked if the RIU had reviewed any other precedents for an assault that had resulted in a penalty other than a fine. He advised that he was not aware of any. When the Committee referred to the Black (NZTR v Black, 20 July 2011), Thornton (NZTR v Thornton, June 2008) and Bothamley (NZTR v Bothamley, 30 December 2008) decisions, which resulted in penalties other than a fine, Mr Westerlund stated that he was not aware of those. Mr Cornegé also advised that he had not reviewed any other cases in that category.

[47] The RIU confirmed their submission of a $2,000 fine but indicated they were open to the fact that that may not necessarily be the final outcome.

[48] When the Committee indicated that despite the fact that both parties had submitted a fine as the appropriate penalty, when one considered previous cases within the code which resulted in a penalty of something other than a fine, perhaps disqualification may be a more suitable option; neither party wished to make any further submissions.

REASONS FOR PENALTY

[49] The Committee has had regard to the submissions of both parties. We acknowledge that there were issues between the victim and the respondent, which has obviously led to a clash of personalities; we know nothing more of the history than that.

[50] We have been invited by counsel to consider the context of the current charge. Mr Gately has pleaded guilty to an assault, and ‘assault’ is the basis upon which Mr Godber has exercised delegation and given authority (Authority to Charge Letter from the RIU General Manager, Dated 2 November 2018) for the laying of the charge that Mr Gately faces.

[51] What has been identified in the Agreed Summary is that the incident before us consisted of three components: The grabbing of the victim by the collar; the pushing of her up against a wall; the raising of his clenched fist in close proximity to the victim.

[52] Whilst the RIU offer that these three components occurred simultaneously, in our view the three components provide collective impact to the overall incident. Mr Cornegé suggests a scale of assault exists, and while we accept that, such an approach cannot downplay what actually occurred.

[53] What is clear to us is that what did occur inside the truck, for a period of approximately no more than 20 seconds, left the victim upset and clearly shaken. This can be confirmed by Mr Westerlund’s observations five minutes after the incident.

[54] Mr Gately’s explanation was that he was moving <Name Suppressed> out of the way for her own safety, and that of the horses. We find it questionable that if there were imminent health and safety considerations that required immediate intervention, then it is highly unlikely that the application or use of all three components identified in para [51] above would have been engaged.

[55] Counsel had made submissions on the seriousness of the assault and had provided in-hearing commentary on racing-specific case law. In our view, this assault is quite different from a fight. That’s because in a physical sense, this incident was all ‘one-way’ from the respondent. There was no physical retaliation from the victim; she simply had a desire to keep him talking so she could escape and remove herself from the situation she found herself in.

[56] Even if Mr Gately had been frustrated by the victim’s non-compliance with his instructions, it was not an appropriate way for him to respond. This was especially important for someone who was exercising authority because of their position of responsibility.

[57] We have been referred to the previous decisions of V, Crozier, Rudkin and Cowan. We do not believe they provide a direct parallel with Mr Gately’s case. The V decision identified significant mitigating factors that are not relevant in the current matter. Crozier and Rudkin largely offset each other as they involved a scuffle and physical interaction between both parties on two separate occasions.

[58] The Cowan decision related to a licence holder and an external security guard just doing his job. Mr Cowan was on the racecourse socially with friends and the incident involved alcohol. A significant point of difference is that all of these four cases were altercations that involved men, rather than the Male assaults Female component that is evident in this case.

[59] While there is agreement between the RIU and the respondent, the perspectives offered by counsel have, in the Committee’s view, sought to minimise what happened. The reality is, the victim was assaulted by someone in a position of responsibility in her workplace. Regardless of the length of the incident, she was helpless and powerless in that moment.

[60] In determining an appropriate penalty to impose, it is not the Committee’s intention to punish the respondent, but rather to signal and reinforce that such poor behaviour will not be condoned, nor tolerated; and previous JCA decisions over many years have made that plainly clear to industry participants. We have also considered the references that have been provided by Mr Dollimore and the Pike Stable operation.

[61] While we are mindful of the consequences that a period of disqualification will bring, a sanction that signals a level of disapproval for such poor behaviour within the industry is required. After consideration, we have determined that based on our assessment of the facts as presented, a period of disqualification must follow.

[62] There are three cases that we have had regard to, where periods of disqualification have been imposed for misconduct breaches. We also note that all three of these cases were referenced in the Crozier and Rudkin decisions referred to in the RIU’s Penalty Submissions.

[63] In Thornton, a decision issued 17 years ago, the informant sought a three month disqualification. The Committee did not identify a starting point, but did identify at least three mitigating features before imposing a two month disqualification.

[64] In Bothomley, a decision issued in 2008, the informant sought a four to six week disqualification. No starting point was identified, but the Committee determined that the level of misconduct involving another male rider, was not as serious as Thornton and imposed a one month disqualification.

[65] In the 2016 McNab decision, also involving another male rider, the RIU sought a two month disqualification. No starting point was identified, but the Committee accepted a number of mitigating factors and imposed a one month disqualification.

[66] We consider the aggravating features of Mr Gately’s breach to be the fact that this was a Male assaults Female, and that the victim was someone for whom he had responsibilities for as the stable foreman. The assault occurred in the victim’s workplace where there is an expectation that she would be safe and free from such behaviour. The incident clearly left the victim upset and fearful for her safety. We do not consider the respondent’s previous unrelated Cannabis breach to be an aggravating feature.

[67] The JCA Penalty Guide for a breach of the Misconduct Rule provides for a “fact dependent” starting point. When we consider the aggravating features of this breach, we determine that a six (6) months period of disqualification as the appropriate starting point, which we adopt.

[68] In mitigation we apply Mr Gately’s good record under this rule for someone who has been involved in the racing industry for many years along with his admission of the breach. We also accept that he has been willing to engage in mediation with the victim on two occasions. For these reasons we afford Mr Gately a slight reduction from our starting point to an end result of a four (4) months disqualification.

PENALTY

[69] Mr Gately is disqualified for a period of four (4) months. The period of disqualification is to commence seven (7) days from the date of this Decision, that is on Monday 24 December 2018, and will conclude on 24 April 2019.

COSTS

[70] The RIU have not sought any costs. While the JCA have incurred costs, the Committee declines its discretion to award costs in favour of the JCA on this occasion.

ORDERS

[71] Given the nature of the offending, the Committee orders that the victim’s name and any details that may lead to the victim’s identity be permanently suppressed and subject to a non-publication order.

Signed at Palmerston North this 17th day of December 2018.

Mr Tangi Utikere

Chairman

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