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Non Raceday Inquiry RIU v K A Dixon - Decision as to Penalty and Costs dated 31 July 2019 - Chair, Mr R G McKenzie

Created on 06 August 2019

BEFORE A JUDICIAL COMMITTEE

AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A7227

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND KENNETH ANDREW DIXON of Prebbleton, Holder of Licence to Train

Respondent

Judicial Committee: Mr R G McKenzie (Chairman)

Mr S C Ching

Date of Decision: 31 July 2019

DECISION OF JUDICIAL COMMITTEE AS TO PENALTY AND COSTS

Background

[1] Following a defended hearing on 4 July 2019, in a written decision dated 12 July 2019, the Committee found a charge of doing an act detrimental to the interests of harness racing against the respondent, Mr Dixon, to be proved.

[2] In that decision, the Committee invited the parties to file submissions in relation to penalty and costs. The informant was required to file submissions by not later than 17 July 2019 and the respondent to file submissions within 7 days of receipt by him of the informant’s submissions.

[3] The informant’s submissions were duly received and were forwarded to the respondent by post on 15 July 2019.

[4] Clause 59.1 of the Rules of Practice and Procedure contained in the Fifth Schedule to the New Zealand Rules of Harness Racing provides:

Any information or other document which is required to be served on a person may be served in any of the following ways:

(c) by being sent to the person by letter addressed to the person’s last known or usual place of residence or at the person’s place of business.

[5] Clause 59.2 provides:

Unless the contrary is proved, service shall be deemed to have been effected on a person:

(b) where Clause 59(1)(c) applies, the earlier of the third working day after the day on which it was posted to the addressee’s last known address in New Zealand or the day on which it was received.

[6] In terms of those provisions, service of the informant’s penalty submissions is deemed to have been effected on the respondent on 18 July 2019.

[7] No submissions have been received from the respondent.

Submissions of the Informant

[8] (1) Mr Dixon has pleaded not guilty to a breach of Rule 1001 (1) (v) (i), when being a Licensed Trainer, he did an act that was detrimental to the interests of Harness Racing when disposing of a horse without the permission of the owners.

(2) The penalty provisions that apply in this case are outlined in Rule 1001 (2):

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.

(3) Sentencing Principles -

The four principles of sentencing can be summarised briefly:

• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that 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 like offences.

● A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.

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

The first three principles are particularly important here.

(4) Relevant Precedents –

In addition to the sentencing principles the Judicial Committee should have regard to the following precedents:

The following precedents are cases where death has occurred to an animal due to the actions or inactions of the trainer. These cases do not adequately outline the facts in this matter as there was no intent by these trainers.

RIU v J McInerney - 31/8/2018 - Greyhound Racing - fined $5,000

Subject: Rule 62.1(q) in: THAT on or about the 19th January 2018, being a Licensed Public Trainer, he omitted to do an act, that omission being detrimental or prejudicial to the interest, welfare, image, control or promotion of Greyhound racing, being his omission to give sufficient instruction to employee Ray Armstrong to ensure the safe transportation of five greyhounds trained by him. Five greyhounds died when being transported.

RIU v J McCook - 27/2/2019 - Greyhound Racing - fined $1,000

Subject: Rule 84: A Licensed Person shall at all times comply with the Welfare Code. In particular, and without limitation, the Licensed Person shall provide proper care and accommodation for the Greyhounds under his/her control and such accommodation shall be subject to the approval of the Association and be open to inspection by Officials or Stewards or Racecourse Investigators at any time. One Greyhound had to be euthanized after suffering injuries as a result of the trailer it was being transported in broke off the trailer.

The following charge was against a licensed Greyhound trainer who did not take into account the welfare practices in countries after exporting greyhounds without permission.

RIU v G Bate - 20/2/2019 - Greyhound Racing - fined $2,000

Subject: No registered Greyhound or Registered litter may be exported without the prior approval of the Chief Executive or his/her delegate. Such approval not to be unreasonably withheld. Prior approval will be granted by the Chief Executive if he or she is satisfied that the country of export has greyhound welfare practices similar to New Zealand.

(5) Aggravating Features –

Mr Dixon failed to lodge the lease with HRNZ within 14 days as required under the Rules. People invariably wait until they know the horse is good enough to race before lodging lease papers or transfer of ownership to save the $80 fee. It is not a defence that he did not lodge or sign them. Mr Dixon confirmed the lease agreement details when questioned and supplied the original lease papers. He was posted them by Bromac Lodge to sign and lodge. If he did not agree with the terms on the papers or that he was even leasing the horse then he should have returned the papers and the horse or made contact with the owners. No trainer would take on a horse for one or two years and not charge training fees if they had no intent to lease or purchase the horse.

Mr Dixon arranged with Bromac Lodge for TRIBECA BROMAC to be returned and tried by another trainer and owners after finishing with the horse but elected not to do so with HARLEY BROMAC.

There are on occasions acceptable reasons that a horse needs to be euthanized without the owner being contacted. This would be when a horse has a critical illness or sustained an injury that cannot be treated and it is in the horse’s best interest to have it euthanized. Every attempt should be made to contact the owner prior to disposing of a horse for either of these reasons as they may be prepared to try and pay for any treatment required and attempt to save the horse especially when a lessee may not be in a position to do so.

Now, with the racing industry under the microscope with animal rights campaigners and with the potential need for traceability of horses right from birth until they die, there has never been a more critical time for people to abide by the rules and ensure that horses are afforded the chance to continue to have the best quality of life even after racing. There are several organisations that re-educate horses to be used in many different disciplines. The standardbred horse has a very large following as many continue on to be extremely versatile horses and continue to have a life outside of racing. The choice should have been available for the owners to explore this as an option and they have indicated that they would have.

For any trainer or lessee to dispose of a horse without permission of the owner is detrimental to the interests of Harness Racing.

(6) Mitigating Factors –

Mr Dixon has cooperated fully throughout the investigation.

Mr Dixon has been training since 1976/77 and has a very good record for the length of time he has been training. He has not been charged with any similar breach.

(7) Conclusion –

Mr Dixon has directly caused the death of a horse when he was not legally entitled to make this decision. The Racing Integrity Unit seeks a penalty of a moderate fine of $5,000.

The onus is on trainers at all times to be aware of the Rules, the need to maintain a standard that is beyond reproach and that any actions are not detrimental to the interests of Harness Racing.

(8) Costs

The RIU are not seeking any costs.

The Respondent’s Position

[9] Mr Dixon has elected not to take the opportunity to make penalty submissions.

[10] In the course of the hearing of the charge, Mr Dixon (somewhat prematurely) presented a letter from Licensed Trainer/Open Horseman, Mr C J DeFilippi. The Committee has taken the letter as a character reference. That letter is set out hereunder:

“To Whom It May Concern. I have known Ken Dixon for a good number of years. I consider him a very capable horseman. He has had a good deal of success over a number of years. No horse trainer likes to put a horse down when it has finished racing or been retired through not being good enough, if it has the right nature to be rehomed. However, some aren’t and would never be suitable for a riding horse or a pet. If Ken said that this was the case with this horse, I would trust his judgement 100%”.

Reasons for Penalty

[11] Mr Dixon had the horse, HARLEY BROMAC, in his care for some time from about the end of 2017 under an informal arrangement with Mr Bob McArdle. The horse was registered in June 2017 and, in August 2017, was transferred from Dr M R Marlow to Bromac Lodge Limited, Mrs P D McArdle and B G Marlow. It remained in that ownership until its death in March 2019. Unfortunately, Mr McArdle died in January 2018.

[12] The horse remained with Mr Dixon and, in March 2018 following Mr McArdle’s death, a Registration of Joint Interest (lease), signed by Mrs McArdle, was sent to Mr Dixon for signing. Mr Dixon did not complete the lease papers.

[13] Sometime in January, 2019, twelve months after Mr McArdle’s death, Mr Dixon decided to finish with the horse. The Committee has earlier found that Mr Dixon then disposed of the horse, having unilaterally determined that it was dangerous and not a racing proposition.

[14] Mr Dixon naively believed that his arrangement with Mr McArdle gave him licence to do this which, of course, it did not. For some unknown reason, he made the decision to dispose of the horse, and did so without any reference to the horse’s owners. A possible explanation is that that he was reluctant to deal with Bromac Lodge Limited and/or Mr McArdle’s personal representatives.

[15] The Committee is not aware of any previous case, in any code, with a similar fact situation. The previous cases to which the informant referred us, in her penalty submissions, are of little assistance, and the JCA Penalty Guide does not include a starting point for a breach of the Rule. However, the charge in this case is a serious one.

[16] It is difficult to fix a starting point in such circumstances. The informant is seeking a penalty of a $5,000 fine, which she describes as “moderate”. Notwithstanding the difficulty in fixing a starting point, we adopt a starting point of $7,000 on the basis that figure is approximately 25% of the maximum fine for a serious racing offence, as this breach is.

[17] The principal aggravating factor is that the rightful owners of HARLEY BROMAC have been denied the opportunity to take the horse back from Mr Dixon and send it to another trainer of their choosing. Although Mr Dixon, clearly, did not like the horse, it did not necessarily follow that another trainer may not have been able to get the best out of the horse. The history of racing is littered with stories of horses which may have been rogues in their early days or shown little ability but, with patience and handling, have turned out to be good horses after all. The owners of HARLEY BROMAC will never know what might have been. Their loss cannot be calculated.

[18] While Mr Dixon showed no remorse for his actions, this of course in not an aggravating factor.

[19] Mr Dixon is 75 years old and has a long involvement in harness racing, going back over 50 years, Mr Dixon told us. He told us that he has been involved with many good horses over that time. He has no previous similar breaches. His record is, therefore, an excellent one and breaching the Rules is, clearly, out of character for him. Mr DeFilippi described him as a “very capable horseman”. This is a significant mitigating factor, which the Committee takes into account.

[20] For the aggravating factor (para [17]), the Committee uplifts the starting point to $8,000. The mitigating factor referred to (para [18]) warrants a discount, which we fix at 25% or $2,000.

[21] In fixing penalty, we have had regard to the need to:

(1) hold Mr Dixon accountable;

(2) to promote in him a sense of responsibility;

(3) to denounce Mr Dixon’s conduct; and

(4) to deter him or other persons from committing the same or a similar offence.

Penalty

[22] Mr Dixon is fined the sum of $6,000.

Costs

[23] The informant does not seek costs.

[24] The Rules of Harness Racing give Judicial Committees a power to award costs in favour of the Judicial Control Authority. As a general principle, it is desirable to recover costs, incurred as a result of a respondent’s conduct, from the respondent rather than passing those costs on to the industry as a whole. However, the amount of any costs awarded must be reasonable in all the circumstances of the case.

[25] The respondent is ordered to pay costs in the sum of $420.00 to the Judicial Control Authority on account of the hearing costs of the Committee.

R G McKenzie       S C Ching

CHAIR                  PANELLIST

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