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Non Raceday Inquiry RIU v J Habraken - Written Reserved Decision as to Penalty dated 12 March 2019 - Chair, Prof G Hall

Created on 15 March 2019

BEFORE A JUDICIAL COMMITTEE OF

THE JCA AT HAMILTON

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MR JON HABRAKEN

Stablehand

Respondent

Information: A8710

Judicial Committee:  Prof G Hall, Chairman

Mr D Jackson, Member

Appearing: Mr S Symon, and Ms E Smith, for the Informant

The Respondent in person, with the assistance of Mr E Clarke and Mr H Habraken

RESERVED DECISION OF JUDICIAL COMMITTEE AS TO PENALTY

[1] The informant, the RIU, has laid an information with respect to the respondent, Mr J Habraken.

[2] Information No A8710 alleges: “On Thursday the 19th July, 2018, at the Pukekohe TAB in Auckland, did aid and/or abet in the commission of a serious racing offence, by assisting licensed open horseman Simon Lawson to commit a breach of Rule 505(1) & (2) of Harness Racing New Zealand Rules by placing a futures bet on a horse for Simon Lawson, namely “Madam Connoistre” in a race, namely Race 1, the “Owners Night 10th August @Alex Park Mobile Pace”, in which he knew Simon Lawson was driving the horse “Ziyad”, and by doing so therefore committed a breach of Rule 1001(1)(y) and/or (z) and therefore liable to the penalties which may be imposed in accordance with Rule 1001(2)(a)(b) and (c) of the New Zealand Rules of Harness Racing.”

[3] Rule 1001(1) provides:

Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:-

(y) does or omits any act for the purpose of aiding any person to commit a serious racing offence; or

(z) abets any person in the commission of a serious racing offence.

[4] Rule 1001(2) provides:

Every person who commits a serious racing offence shall be liable to the following penalties:

(a) a fine not exceeding $30,000; and/or

(b) suspension from holding or obtaining a licence, for any specific period or for life; and/or

(c) disqualification for a specific period or for life.

[5] Mr Habraken signed the information stating that he admitted the breach and confirmed this fact at a hearing in Hamilton on 19 February last.

[6] Authorisation from Mr N McIntyre, General Manager of Stewards, dated 14 January 2019, to lodge the information was before us.

[7] An agreed summary of facts was before the Committee. We reproduce this in full.

The Respondent Mr Johannes (Jon) Habraken is a Licensed Stablehand under the Rules of New Zealand Harness Racing. He is 35 years of age and has been involved in the racing industry his entire life.

Mr Habraken works for his father in a part time capacity but is employed full time as a Farmer. Last year the RIU had cause to investigate Race 10 at the Auckland Trotting Club meeting on 25 May 2018. The indications were that the result of this race may have been fixed.

A detailed investigation into betting records was undertaken by the RIU Betting Analyst. This analysis confirmed that there were some betting irregularities. At the time police were undertaking a covert operation involving various HRNZ licence holders. This operation has subsequently become known as Operation INCA.

The betting records showed that Open Horseman and Public Trainer Mr Simon Lawson and a Licensed Trainer Mr Gareth Dixon had been jointly betting on races in which Mr Lawson was driving.

The records also showed that at about 5.39pm on Thursday 19 July 2018 Mr Lawson went in to the Pukekohe TAB. He saw the Respondent Mr Habraken. Mr Lawson approached Mr Habraken and said “can you back one for me tomorrow night? Don’t tell anyone”. Mr Lawson explained to Mr Habraken that he was unable to place the bet as he was driving another horse in the same race.

Mr Lawson then gave Mr Habraken $200 cash and at 5.40:36pm Mr Habraken, with the assistance of Mr Lawson placed the following bet on one of the self-service terminals.

Auckland Trotting Club meeting on 20 July 2018

Race 1 $100 Final Field Win #8 @ $21.00                      #8 Madam Connoistre

Race 1 $100 Final Field Place #8 @ $3.50

At the time the bets were place Mr Lawson had accepted an offer from Licensed Trainer Matthew Salaivao to drive #1 “Ziyad” in Race 1.

“Madam Connoistre” finished second in the nine-horse field. Mr Lawson collected $350.00 for this bet.

As a result of the information obtained in the initial RIU investigation the file was forwarded to Police for consideration regarding possible race fixing and to be assessed along with their ongoing Operation INCA inquiry. On Thursday 6 December Mr Lawson and others were formally interviewed by police. Mr Habraken was not one of those questioned. As a result of those interviews and other enquiries Police returned the file to the RIU. This matter is now separate and distinct from Operation INCA and can be treated as a stand-alone prosecution and proceed on its own merits.

On Tuesday 18 December Mr Habraken was interviewed by RIU Investigators. Mr Habraken admitted the facts as outlined. He said that he knew that Mr Lawson shouldn’t be betting on another horse in a race that he was driving in but believed that he may have been able to back his own drive.

Mr Habraken stated that Mr Lawson had never asked him to bet for him before and on reflection said it was a stupid thing to do. He also stated that he has difficulty saying no to people when they ask him to do something.

Mr Jon Habraken is a licensed Stablehand. He has no previous rule breaches.

Informant’s submissions as to penalty

[8] Mr Symon commenced the RIU’s penalty submission by stating that the most important principle in determining the appropriate penalty in this case was the need for deterrence. The penalty imposed must have the effect of deterring others from committing similar offences and should denounce this type of behaviour. The conduct engaged in by Mr Habraken could seriously compromise the integrity of the harness racing industry and the confidence of the public when betting on races.

[9] In Harper v Racing Penalties Appeal Tribunal of Western Australia (1995) 12 WAR 337, the Supreme Court of Australia said (we note in a different context):

If it is correct to think that the financial wellbeing of the industry depends significantly on the maintenance of betting turnover, the need to maintain integrity in horse racing, and to do so manifestly, is easily seen to be imperative and of paramount importance. It may well be anticipated that unless racing is perceived to be fair and honest, people may be discouraged from betting.

[10] That principle, the informant submitted, was equally applicable to harness racing.

[11] In Walker v RIU 10 December 2014 at [5.2], an Appeals Tribunal said that “other than in the most exceptional circumstances”, offending of this type will attract a substantial period of disqualification. The Tribunal said that this type of offending:

[G]oes in a very fundamental way to the heart of the integrity of horse racing, upon which participants and the industry and those associated with it rely. The description of it as match-fixing, in context, is not entirely inapt. On that basis alone such offending must call for a condign response.

[12] The informant identified the aggravating features of the breach to be:

Knowing and deliberate breach: Mr Habraken is an experienced participant in the racing industry who was aware of the relevant betting rules. He acknowledged that he knew Mr Lawson was driving in the race and that he knew Mr Lawson was not permitted to back another horse, at the time of the bet.

Damage to public confidence in the racing industry: Mr Habraken’s actions have severely compromised the integrity of the harness racing industry and the confidence the public can have when betting on races.

[13] The informant submitted the fact that the breach was one of aiding/abetting was not a mitigating feature, although the RIU acknowledged that the respondent’s offending overall was less serious than Mr Lawson’s. However, to the extent that Mr Habraken might seek to minimise his culpability by reference to his secondary liability, the RIU submitted that the Committee should resist that approach. Mr Symon emphasised that Mr Habraken was at all material times aware of the relevant racing rules and the reason why Mr Lawson could not place the bet himself. Mr Habraken was responsible for the physical act of placing the bet.

[14] Mr Symon emphasised that r 1001, which sets out the various acts that constitute “serious racing offences”, does not contain any distinction between r 1001(1)(y), which provides that it is a serious racing offence to do any act for the purpose of aiding any other person to commit a serious racing offence, and any other type of conduct listed in that rule. That, he said, was consistent with the criminal law approach, where the liability and potential sentence for a person convicted as a party to an offence (for example, by aiding in the commission of an offence) is the same as for a principal offender. In any event, the detrimental effect of Mr Habraken’s actions on the integrity of racing was not any less just because he was not the driver or the primary offender.

[15] The RIU referred to the decisions in RIU v Larsen 16 January 2017 and RIU v R Dunn, J Dunn and Smith 16 January 2017. There, a horse Mr Larsen was responsible for training was found to have been administered a prohibited substance. However, it could not be established how that had occurred, and Messrs Dunn admitted aiding and abetting another person, Mr Smith, to administer the substance. The Judicial Committee imposed fines on all respondents: Mr R Dunn was fined $4,000; Mr Smith and Mr J Dunn were fined $2,000 each; and Mr Larsen was fined $750. While the offending in this case was of a different nature and was significantly more serious, and the RIU did not consider a fine to be an appropriate outcome, these decisions were submitted to be of relevance because Mr Larsen was fined, despite the Judicial Committee finding he had no part in the horse being given the prohibited substance and Mr R Dunn was given the most substantial fine, because he was the most senior person involved and ought to have had knowledge of the relevant rules, notwithstanding that he was not the primary offender.

[16] The informant submitted that Mr Habraken’s involvement in the present offending was more culpable than that of Mr Larsen, as he knew that placing the bet was aiding Mr Lawson to commit an offence and he performed the physical act of placing the bet. The fine in Dunn illustrated that a person’s culpability should be assessed by reference to their actual involvement in the offending and their knowledge of the rules rather than their role as a primary offender or as a person who aids/abets the primary offender.

[17] In its submissions filed regarding the appropriate penalty for Mr Lawson, the RIU referred to a number of authorities where a disqualification was imposed following race betting offending: viz RIU v Bull, 4 November 2013, Walker v RIU (above) and McDonald v Racing NSW, 22 December 2016 and 10 April 2017. The informant submitted that these authorities were of similar relevance to this case.

[18] However, the RIU acknowledged that Mr Habraken’s conduct was less serious than Mr Lawson’s, in that he placed a bet on only one race (Mr Lawson’s conduct affected the integrity of two races and involved another person as well), he did not instigate the offending, and there was no evidence that he made any personal financial gain as a result or that he was motivated by personal financial gain.

[19] Notwithstanding that, the RIU submitted that a period of disqualification was necessary to preserve public confidence in racing and to deter others who might be minded to act as Mr Habraken did. His position as a Licensed Stablehand meant he had access to a number of participants in the racing industry and could influence the commission of serious racing offences in a number of races. It would look poor to the public if he were able to continue working in the harness industry immediately after being found guilty of a charge based on race betting.

[20] In that regard, the decision in McDonald v Racing NSW was said to be apt: there, the Appeals Tribunal noted the seriousness with which race betting offending must be treated, as reflected in the mandatory minimum disqualification period of two years under the New South Wales rules. The RIU submitted that Mr Habraken’s offending was worse than Mr McDonald’s, although Mr Habraken was not personally involved in the race, he facilitated Mr Lawson betting on a horse other than the one he was driving, which had the potential to influence the outcome of that race as well as the integrity of the harness racing industry more generally.

[21] Accordingly, the informant submitted that a starting point of approximately three years’ disqualification was appropriate.

[22] Mr Habraken has not previously committed a serious racing offence or a betting offence, which the RIU accepted was a mitigating factor and a 5 per cent discount was appropriate to reflect this. Mr Habraken admitted the breaches when interviewed by the RIU and the informant believed he should be given credit of approximately 25 per cent to reflect his early admissions and demonstration of remorse.

[23] The informant submitted that the appropriate end sentence was a period of two years’ disqualification. Mr Habraken knew what he was doing and his actions damaged public confidence in harness racing.

[24] The RIU sought costs of counsel.

Respondent’s submissions

[25] Mr E Clarke and Mr Habraken’s father, Mr H Habraken, assisted the respondent.

[26] Mr Clarke spoke first. He said two years’ disqualification was too harsh. Mr Habraken was in the wrong place at the wrong time. He saw a friend (Mr Lawson) who asked him to place a bet and he did what the friend asked.

[27] Mr Clarke said the respondent was not fully aware of the rules and it was not until he read the Rasmussen decision that he understood the implications of what he had done.

[28] Mr Clarke said if penalty was up to him, he would give Mr Habraken “a kick up the backside and a zero fine”.

[29] The respondent explained he had gone to the TAB on the Thursday night and had placed a few bets. He was approached by Mr Lawson who asked him to place a bet. Mr Lawson told him that he had a drive in the race. He said he did not really understand at the time what he was doing. He did not back the horse himself.

[30] The respondent said he had been bullied in the past and this made him indecisive at times. Mr Lawson had wanted a hand and he had therefore helped him. He felt under pressure at the time and had said, “Yes”.

[31] Mr Clarke said Mr Habraken was “an honest guy who has never put a foot wrong”. It was unfortunate to see him in this position. He did not believe Mr Habraken’s actions were deliberate. The respondent just did not understand the rule.

[32] Mr Habraken said he thought a driver could back his own horse in a race. He was helping out a friend who had told him he could not bet. He had never done it before and would not do it again. He emphasised Mr Lawson was not a good friend. He was someone he played rugby with and he would see him every couple of weeks.

[33] Mr Habraken said he was a Stablehand. He worked for his father and helped out others. He would feed the horses and would work two or three horses. He said, “It’s all income”. His father had one horse in work and three young ones. Recently fencing was his primary source of income. Mr Clarke said the respondent was currently between jobs and was wanting to establish himself in a horse transport business. He was intending use his father’s six-horse truck for this purpose. He had already taken horses to Palmerston North on occasion.

[34] Mr H Habraken recounted personal issues which the respondent has had in the past. Due to privacy concerns we do not recount these, but it would be fair to say that it had not been an easy time for the respondent. Mr H Habraken said his son did not like saying “No” to anyone. The respondent had originally worked for him on the family dairy farm, but compliance costs had led to the family leaving that industry. Since that time the respondent had “struggled to get a consistent job”. This was not helped by his having three operations on an ankle due to a rugby injury.

[35] Mr H Habraken said he would go away every eight weeks or so to the South Island and the respondent would do everything with the horses in that time. He said he would struggle if the respondent were not able to do this. When questioned, he stated his daughter lived 5 kms away and could feed the horses but could do little else.

[36] The respondent said he was struggling financially and had a mortgage. He had had flatmates that were assisting him in this regard, but they had recently moved out. He was currently living by himself. Any financial penalty would have a significant impact.

[37] We questioned the informant as to the practical effect of a suspension on a Stablehand. The RIU’s view was that this would in essence be meaningless.

Decision

[38] The respondent has not indicated whether the admission before us is to the charge under r 1001(y), or (z), or both. The charges were laid both in the alternative and as a breach of each of these subparas of r 1001(1). To abet the commission of a breach carries with it an element of active encouragement. When we have regard to the summary of facts and Mr Habraken’s responses when questioned by Mr Cruickshank, we do not believe this is an accurate description of Mr Habraken’s actions. He did not have the benefit of legal counsel and Mr Symon’s penalty submissions at [5.2] and [5.3(a)] refer to Mr Habraken aiding Mr Lawson. We believe it is appropriate we find that the breach of r 1001(1)(y) is proved as a consequence of Mr Habraken’s admission and we impose penalty on that basis.

[39] The respondent has admitted a breach of r 1001(1)(y) in that he placed a bet for Mr S Lawson when he knew Mr Lawson could not bet on the race because Mr Lawson was driving in that race. The bet was placed on a horse Mr Lawson was not driving. Somewhat perversely Mr Habraken has said he thought a driver could bet on a race but only on the horse the driver was driving. That, of course, was the former position under the rule. This misapprehension does not assist Mr Habraken.

[40] When questioned by Racecourse Investigator, Mr Cruickshank, and asked to tell him about the conversation he had had with Mr Lawson, Mr Habraken confirmed Mr Lawson had said: “Can you back one for me tomorrow night. And he said don’t tell anyone. I didn’t tell anyone and I just put the bet on and gave him the ticket back.” When asked if he knew Mr Lawson was driving in the race, he said, “Yeah he told me.”

[41] When Mr Habraken was asked what went through his mind when Mr Lawson asked him to place the bet, he said, “I didn’t really think about it and yeah in hindsight yeah it’s a big no no.” And when asked if he knew it was wrong what he was doing, he said, “Yeah, I suppose, yeah.”

[42] Mr Cruickshank pointed out to Mr Habraken that in placing the bet he was potentially compromising himself, so why would he do it. Mr Habraken replied, “Probably because they know I’ll do it, I’m not strong enough to.”

[43] We are thus faced with a breach of a rule that is a serious racing offence by a Stablehand who felt pressured by another licence holder into placing the bet in circumstances where he knew it was wrong to do so, and whose character traits are such that he succumbed to this pressure.

[44] The informant submitted the fact that the breach was one of aiding/abetting was not a mitigating feature. Mr Symon emphasised that Mr Habraken was at all material times aware of the relevant racing rules and the reason why Mr Lawson could not place the bet himself. Mr Habraken was responsible for the physical act of placing the bet. Mr Symon pointed to the fact that r 1001, which sets out the various acts that constitute “serious racing offences”, does not contain any distinction between r 1001(1)(y), and the other conduct listed in that rule. The detrimental effect of Mr Habraken’s actions on the integrity of racing was not any less just because he was not the driver or the primary offender.

[45] The informant referred to the decision of Walker v RIU, 10 December 2014 in the submission that two years’ disqualification was appropriate and that we should adopt a three year starting point. Mr Walker was found to be in breach of two rules of Thoroughbred Racing. He deliberately rode his horse to finish behind another horse in two races. The two horses were subject to a head to head bet by the TAB, and Mr Walker had bet on the opposing horse. Mr Walker took the matter to a hearing and was found guilty in respect of one race, and pleaded guilty in respect of the other race at the hearing. Mr Walker collected approximately $2,050 from the two bets. The two occasions were little more than a fortnight apart and Mr Walker’s conduct was calculated, which the Committee treated as an aggravating factor. The Committee found this to be at the highest level of seriousness, and disqualified Mr Walker for a total of seven years. On appeal, the penalty was revised to five and a half years, on the basis of further material adduced on appeal (that such a lengthy disqualification period would cause hardship to Mr Walker as he would not be able to earn an income over that period). The betting charge resulted in a concurrent penalty of one year’s disqualification.

[46] Mr Symon argued that on the basis of a seven-year starting point in Walker, after allowing for the fact this included the more serious charge of race fixing, that a three year starting point was appropriate for Mr Habraken. This starting point had regard to the fact that Mr Habraken’s culpability was less than that of Mr Lawson.

[47] The other case highlighted by the informant is that of McDonald v Racing NSW, 22 December 2016 and 10 April 2017. Both the nature of the breach and the personal circumstances of Mr McDonald and Mr Habraken are polar opposite. The case before us does not involve premeditated, calculated offending, whereas Mr McDonald was using an agent to place a bet on a horse that he was riding. Mr Habraken happened to be at the Pukekohe TAB when Mr Lawson was looking for someone to place a bet for him. There was nothing planned about the placement of the bet or indeed with their meeting on that day. Mr Habraken can fairly be described as being on the fringe of the harness industry. He helps his father out and assists other trainers from time to time. It is well-known that Mr McDonald is a leading jockey in NSW and has had many winning rides in Group and listed races.

[48] We believe the relevance of these two cases is to be found in the emphasis that is given to the need to protect the integrity of the racing industry and to reinforce public confidence in race betting, no matter what the code. We have had regard also to RIU v Larsen 16 January 2017 and RIU v Dunn, Dunn and Smith 16 January 2017 that were cited by the informant. We take notice of the basis upon which penalty was imposed in these cases. We are aware that the informant does not believe a fine is appropriate in this case. However, with suspension not being a viable option, we are led to consider either disqualification or a fine. The objective seriousness of the breach leads us in the direction of disqualification but the circumstances of the breach itself and, in particular, the degree of culpability of Mr Habraken, point in our view to a fine.

[49] We have no difficulty in accepting the broad proposition of the RIU that the penalty that is imposed for a serious racing offence should give emphasis to deterrence, both general and specific. However, we do not believe that this needs be to the extent of preventing the respondent from having any connection at all with the industry by way of disqualification, as Mr Symon has submitted. To do so would be financially crippling for Mr Habraken. His current financial situation is far from solid. He has mortgage commitments and is between jobs. We understand that there is some family assistance for him by way of the setting up of a transport business. A period of disqualification would prevent him establishing this business.

[50] While, as we have said, we recognise that a breach of the betting rule is a serious racing offence, this case is a bottom end example of a breach of this rule. Mr Habraken’s offending is characterised by a complete absence of any sophistication. We believe Mr Clarke accurately summed up the situation in the opening words of his oral submission on behalf of the respondent, when said Mr Habraken was “in the wrong place, at the wrong time”.

[51] The difficulty in this case is that Mr Habraken is a very poor choice for the imposition of a deterrent sentence. He can fairly be described as a vulnerable individual who, when asked by Mr Lawson to place the $200 bet, simply complied despite his knowing he should not do so. Mr H Habraken gave quite extensive evidence on this particular issue.

[52] We believe a fine of $5,000 is the appropriate penalty. The penalty has to have some “bite” for Mr Habraken and we are satisfied that a fine of this magnitude will do so. The fine is a little over half of that imposed on Mr Lawson who stood to make a financial gain from the placing of the bet (and another not involving the respondent), whereas Mr Habraken had no financial interest in the transaction at all and indeed did not follow it up with a bet of his own.

Costs

[53] We require the parties to submit written submissions as to costs. The RIU’s submissions are to be with the Executive Officer of the JCA by 4 pm Tuesday 19 March and respondent’s by 4 pm Tuesday 26 March.

Dated at Dunedin this 12th day of March 2019.

Geoff Hall, Chairman

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