You are here: Home / Non race day hearings / Non Raceday Inquiry RIU v K Gommans, A Jenkins and D Poutama - Written Penalty Decision dated 24 July 2017 - Chair, Mr P Williams

Non Raceday Inquiry RIU v K Gommans, A Jenkins and D Poutama - Written Penalty Decision dated 24 July 2017 - Chair, Mr P Williams

Created on 27 July 2017

BEFORE THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the Rules of New Zealand Greyhound Racing Authority (Incorporated)

BETWEEN

RACING INTEGRITY UNIT (RIU) - Informant

AND

KELLIE GOMMANS - Respondent

ADAM JENKINS - Respondent

DARCY POUTAMA - Respondent

Judicial Committee: Mr Paul Williams (Chairman), Mr Noel McCutcheon (Committee Member)

Appearing:

Mr Nick Webby, for the RIU as the Informant

Mr Simon Irving, Investigator, Racing Integrity Unit

Miss Kellie Gommans, Licensed Trainer, as the Respondent

Mr Adam Jenkins, Registered Owner, as the Respondent

Mr Darcy Poutama, Licensed Person, as the Respondent

Also Present: Mr Neil Goodwin, Registrar

Mr John Gommans, support person for Miss Gommans

Mr Jono Galuszka, Reporter from Fairfax Media

Mr Andy Cruickshank, RIU

Venue: Awapuni Racecourse Palmerston North

Date of Hearing: 27-28 June 2017

Date of Written Penalty Decision: 24 July 2017

DECISION OF JUDICIAL COMMITTEE AS TO PENALTY

1] In our decision of 7 July 2017 the Committee found the following Informations to be proved with each Respondent therefore in breach of Rule 87.1q of the Rules of Greyhound Racing as follows: -

2] THAT on the 31st March 2017 at Manawatu Racecourse Kellie Gommans being a Licensed Person, together with Adam Jenkins and Darcy Poutama, engaged in conduct which is detrimental to the image of Greyhound racing - Information A4192

3] THAT on the 31st March 2017 at Manawatu Racecourse Adam Jenkins being a Licensed Person, together with Kellie Gommans and Darcy Poutama, engaged in conduct which is detrimental to the image of Greyhound racing – Information A4191

4] THAT on the 31st March 2017 at Manawatu Racecourse Darcy Poutama being a Licensed Person, together with Kellie Gommans and Adam Jenkins, engaged in conduct which is detrimental to the image of Greyhound racing – Information A4193

5] Rule 87.1q...... states

“Any person (including an Official) commits an offence if he/she: commits or omits to do any act or engages in conduct which is in any way detrimental or prejudicial to the interest, welfare, image, control or promotion of Greyhound racing”.

6] The penalty Rule is Rule 88.1. This provides:

“Any person found guilty of an Offence under these Rules shall be liable to:

a) A fine not exceeding $10,000 for any one (1) Offence; and/or

b) Suspension; and/or

c) Disqualification; and/or

d) Warning Off.

7] The Committee required the Informant’s submission on penalty by 14 July 2017 and the Respondent’s submission on penalty by 21 July 2017.

SUBMISSION BY THE INFORMANT

8] The respondent Adam Paul JENKINS is a registered owner under the Rules of the New Zealand Greyhound Racing Association (NZGRA). He is a Christchurch based businessman, sponsoring a race on the night of the incident – Red Snapper Seafoods Christchurch C0 Final. He is involved in the ownership of approximately 15 greyhounds, the majority trained by Kellie GOMMANS.

9] The respondent Kellie Anne GOMMANS is a Licensed Public Trainer under the NZGRA Rules and now trains from her parent’s property in Tangimoana, Palmerston North. She was previously involved in a training partnership and defacto relationship with Darcy POUTAMA at Turakina.

10] The respondent Darcy Tekuru POUTAMA is a Licensed Owner / Trainer under the NZGRA Rules. He was previously involved in a training partnership and defacto relationship with Kellie GOMMANS at Turakina.

11] All three respondents have been found in breach of Rule 87.1(q) in relation to their behaviour at the Manawatu Raceway on the 31st March 2017. On this occasion all three engaged in conduct which was detrimental to the image of Greyhound racing.

12] Historical penalties for breaches of the industry behavioural laws show some divergence dependent on circumstance.

13] The detail of the three Respondents offending is contained in the RIU’s Summary of Facts (forwarded to Mr Anderson on 24 May 2017).

14] The penalty provisions for this matter are contained under Rule 88.1:

Any Person found guilty of an Offence under these Rules shall be liable to:

a] A fine not exceeding $10,000 for any one (1) Offence; and/or

b] Suspension; and/or

c] Disqualification; and/or

d] Warning Off

Sentencing Principles

15] 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 behaviour in question.

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

16] The first three principles are particularly relevant in this matter.

Precedent

17] It is submitted that the most relevant recent case involving similar disorder or fighting was under the NZTR Rules - RIU v RUDKIN and RIU v CROZIER where both parties were charged with ‘misconduct’ following a race-day fight between the pair in the stabling area of the Ashburton Raceway in August 2016. Both parties were fined $2000.

18] The following are decisions involving behavioural acts committed by GRNZA licence holders:

RIU v PE SEQUE and WJ SIMONSEN (04.08.2014) – both found proved on two charges of committing an act detrimental to the image of Greyhound Racing involving abusive language and serious assaults on other licence holders and a club official. SEQUE head butted and punched an elderly trainer and verbally abused another, receiving five months disqualification and $250 fine. SEQUE was also convicted criminally of Common Assault; 16yo SIMONSEN repeatedly punched the elderly trainer and a club official and received a 12 month disqualification.

GRNZ v GC FARRELL (Appeal 17.03.2009) – two charges of ‘misconduct’ admitted for a serious assault involving “six viscous punches to the head” of another licence holder and pushing a Club Official who intervened. FARRELL was disqualified for nine months.

Aggravating Factors

19] Despite the number of witnesses and the weight of evidence against the three respondents, particularly JENKINS and GOMMANS, they have continued to deny any wrongdoing, contrary to advice from JENKINS’ legal counsel Chris ANDERSON (Senior Associate of Lane Neave, Christchurch).

20] From the Judicial Committee Minute No.3 following a teleconference on the 29th May indications were that all three respondents would admit the charge:

Mr Irving confirmed that he had advised Mr Anderson of the range of fine the RIU would be seeking for each of the defendants. Mr Anderson said on that basis he had advised Mr Jenkins to admit the breach but had not received any written instructions from him. He confirmed he would attempt to get those written instructions in the next 24 hours and forward confirmation of the pleas from all three Respondents by 4.00pm Wednesday 31 May.

On the basis that all charges would be admitted it was agreed the hearing would still go ahead at the Awapuni racecourse on the previously agreed date of Tuesday 13 June commencing at 9.30am. Mr Irving will forward the RIU’s penalty submissions to Mr Anderson and the JCA by noon on Tuesday 6 June and Mr Anderson will forward the Respondent’s penalty submissions to Mr Irving and the JCA by 10.00am Monday 12 June.

21] It is unclear what changed in the following week resulting in ANDERSON withdrawing as counsel for the respondents.

22] The costs incurred by the RIU for the two day hearing are extensive, including legal costs and travel for seven witnesses from Auckland, Christchurch and Wellington.

23] During the final teleconference JENKINS indicated that he required all the RIU witnesses to give viva voce evidence yet was only prepared to call one of seven of the Respondents’ witnesses even though they lived locally “because they all work”. All RIU witnesses, including the GRNZ Board members also have full time employment.

24] None of the Respondents have fully acknowledged or taken responsibility for their actions. They fail to realise the significance of and the negative implications that their collective behaviour has had on the greyhound racing industry, as in their opinion it was “blown out of proportion.”

25] During the hearing JENKINS accused RIU witnesses of blatantly lying and colluding and that the investigation was bias (sic).

26] Following the initial altercation JENKINS and POUTAMA “walked away” from the situation after it was ‘broken up’. JENKINS then chose to engage in the ‘second incident’ by returning to the scene. POUTAMA has also returned and been involved in further disorder.

27] Approximately 20 seconds of the ‘aftermath’ of the fight was filmed by various Trackside cameras as the field ran past the disorder in the home straight, with a percentage of this footage broadcast live to viewers on Trackside TV.

28] The incident was initially reported on the Stuff.co.nz website under the headline ‘Investigation follows public scuffle at race meeting’ with the article content including “Sources have described the actions of those involved as "disgusting", especially given how hard many people across the three codes have worked to make the Gold Cup festival successful.”

29] The negative publicity continued with the reporting of the two day hearing also featuring on Stuff.co.nz and the NZ Herald newspaper.

30] The incident also featured as a topic on Social Media discussion sites such as Race Café and Race Chat and an anti-greyhound racing Facebook page, again casting dispersion on the stereotypical character of participants involved in the greyhound industry, particularly from followers of the other two racing codes.

31] Several Licensed Greyhound Trainers expressed the view that the incident was ugly and embarrassing to greyhound people in general and the behaviour witnessed was disgraceful and disgusting.

32] Although the incident has not affected the renewal of the Manawatu HRC’s standard Liquor Licence, a Special Licence was issued for the Gold Cup event. The District Licensing Committee is aware of the incident and should the club apply for another Special Licence it may impact on that application.

33] GRNZ Head of Racing Greg KERR stated in the hearing that “there was zero tolerance for this sort of behaviour and the code needed to clean its game up.” He stated that the Anti Greyhound Protection League had sent the media articles to all MP’s and these incidents just added fuel to the fire. He also stated that he had received several messages from the NZ Racing Board following the incident and Harness Racing officials were also unimpressed. He concluded by saying the incident had done a reasonable amount of damage to greyhound racing.

34] POUTAMA has one very recent charge for a behavioural offence – using offensive language toward Wanganui GRC staff on 22.02.2017 - receiving a $250 fine (RIU v D POUTAMA 26.04.2017).

35] JENKINS was served with a RIU Formal Written Warning on 28.07.2016 for breaching Rule 87.1(f) after sending an improper and offensive text message to Head Greyhound Steward Gavin WHITEROD.

Mitigating Factors

36] GOMMANS has no previous charges before the Committee.

Penalty

37] The starting point adopted in both RUDKIN and CROZIER was $3000 based on a maximum fine of $20,000. It can therefore be reasoned that under the GRNZ Penalty Rule 88.1 with a maximum fine of $10,000 that a starting point in the vicinity of $1500 is appropriate.

38] The RUDKIN and CROZIER fight occurred in the stabling and float park area of the racecourse and was witnessed only by 2-3 racing participants.

39] In RUDKIN and CROZIER both were given a one third discount for admitting the breach, cooperating with the investigation and a clean record.

40] In this case there can be no such concession for the factors stated above, except for GOMMANS who has no previous charges.

41] The aggravating factors are considerable in this case, especially the fact the incident occurred in the front of the public stand in front of a large crowd at a ‘show-piece’ event, was part broadcast on Trackside television and the negative publicity that followed.

42] It is submitted that given the overwhelming aggravating factors an additional $750 be added to the $1500 starting point and an additional $250 to both JENKINS and POUTAMA as per their prior recent behavioural indiscretions.

Conclusion

43] The Committee needs to send a clear message that behaviour like this will not be tolerated in the racing industry. A significant fine and costs is the only option that can achieve this.

44] In relation to Adam Paul JENKINS the Racing Integrity Unit is seeking a fine of $2500.

45] In relation to Darcy Tekuru POUTAMA the Racing Integrity Unit is seeking a fine of $2500.

46] In relation to Kellie Ann GOMMANS the Racing Integrity Unit is seeking a fine of $2250.

SUBMISSION BY THE RESPONDENTS

47] The Committee has received 2 penalty submissions from the Respondents. 1 is from Phillip Drummond, Barrister, from Drummond Law in Palmerston North on behalf of Miss Gommans and Mr Poutama. The other is from Mr Jenkins on behalf of only himself.

SUBMISSION BY MISS GOMMANS AND MR POUTAMA

Introduction

48] I am counsel for Miss Gommans and Mr Poutama ("Respondents'). Both Respondents have been found to be in breach of Rule 87.l(q) in relation to their conduct being detrimental to the image of greyhound racing.

Facts

49] The Respondents fall to be dealt with based upon the facts as found by the Judicial Committee.

Penalty Provisions

50] Penalty provisions are set out in Rule 88.1 in that: Any person found guilty of an offence under these Rules should be liable to be:

a} A fine not exceeding $10,000 for any one offence; and/or

b} Suspension; and/or

c} Disqualification; and/or

d} Warning.

Penalty Submissions

51] I have read and considered the Informant's penalty submissions.

52] Those submissions are directed to the imposition of a financial penalty. I submit that a fine is the appropriate response in terms of providing the appropriate level of personal and general deterrence. Neither Respondent having any previous convictions for being engaged in conduct which is detrimental to the image of greyhound racing.

Sentencing Principles

53] I do not take issue with the sentencing principles as set out in the Informant's submission.

Other Relevant Cases

54] The Informant refers to the cases of RIU v Rudkin and RIU v Crozier following a race day fight on a charge of Misconduct (maximum penalty $20,000). The start point was set at $3,000.

55] The Informant submits that it can be reasoned under the GRNZ Penalty Rule 88.1 with a maximum fine of $10,000 that a starting point of $1,500 is appropriate.

56] I agree with that analysis, and I submit that the appropriate start point is $1,500.

Aggravating Features

57] Where I differ from the Informant is in relation to the issue of any uplift for aggravating factors.

58] The Informant argues that there are a number of aggravating features which warrant an uplift of $750. In my submission, no uplift is warranted and I say that for the following reasons:

i] Referring to paragraph 6.1 of the Informant's submissions (paragraph 19 above), the Informant argues that there should be an uplift for denying the offence, and acting contrary to the advice received from Mr Jenkins' legal counsel. I comment as follows:

ii] Denying the offence is not an aggravating feature. The Respondents should not receive an additional penalty because they denied the offence; they simply do not derive the benefit of discount associated with admitting the offence.

iii] Neither is an aggravating factor that a person does not follow legal advice. Further, that advice was not provided to either Respondent, but rather to the other Respondent (Adam Jenkins).

59] Neither should there be uplift because the hearing was delayed as the result of an adjournment.

60] Mr Poutama should not receive an uplift for the behaviour offence of using offensive language (RIU v D Poutama 26 April 2017). That offence involved language; this offence involves conduct. There is no allegation relating to language used by Mr Poutama, but rather was his physical conduct/behaviour that is in issue.

61] The Informant argues in paragraph 8.5 (paragraph 41 above) that the aggravating factors are considerable, especially in view of the fact the incident occurred in front of a large public stand in front of a large crowd at a showpiece event, was part broadcast on Trackside TV and has received negative publicity. However, that is an ingredient of the offence (conduct detrimental to the image of greyhound racing) rather than an aggravating feature.

62] The fact that the conduct was published should not be categorised as being an “aggravating factor" when in fact it is an ingredient of the offence. Neither Ms Gommans or Mr Poutama are responsible for the subsequent publicity.

Mitigating Factors

63] Ms Gommans potentially has 4 mitigating factors available to her, namely.

i] There is no previous conviction under the code for any offences.

ii] Ms Gommans' conduct in the first part of the incident appears to be motivated by becoming involved in the incident to break it up, as opposed to being an active participant (or being the instigator). It was more an error of judgement by her becoming involved in that part of the incident.

iii] The second part of the incident with Mr Poutama appears to be more of a domestic related incident, and while Ms Gommans can take no credit for her behaviour, there was no injury to Mr Poutama.

iv] Ms Gommans is remorseful for her actions, and is accepting that it was inappropriate conduct from a person in her position.

v] It is submitted that these mitigating factors may well warrant a discount from the starting point, perhaps in the region of 20% for Ms Gommans.

Costs

64] Rule 66.12 provides the Committee can order costs as it sees fit (i.e. it is a matter of discretion).

65] I do not dispute that there should be an award of costs against the Respondents and in favour of the Informant, however I dispute the level of costs sought on the grounds set out below.

66] As to the earlier discussions referred to in paragraph 9.2 of the Informant's submissions (paragraph 96.ii below), those discussions did not involve either of the two Respondents who I act for. Both of the Respondents are cost-conscious, and it is in effect a double whammy with the costs coming out of the same household.

67] The Informant claims that it has incurred costs of $7,820.60 which is to be divided equally amongst the three Respondents. I do have some issues/concerns in relation to costs claimed, and I will set those out below:

i] $5,903.60 is claimed for advice, preparation and for attendance for the two day hearing. There is no breakdown as to how these costs have been calculated. The Respondent parties should not have to pay for the Informant’s legal advice.

ii] Without wishing to be nit-picky, travel costs of 77 cents per kilometre, with a total of $673 and seem out of kilter. Firstly, the current Government rate is 73 cents per kilometre (not 77 cents). The number of kilometres travelled is not recorded. It would appear to have been more economical to have rented a car for a rate of say $150 per day plus a tank of petrol.

iii] As to witness's costs and relevance to the District Court rates to this code, if we are applying the Standard District Court rates, then the costs of $130 would apply, as opposed to a contribution towards the actual costs of prosecution.

68] In my submission, a global approach is appropriate in view of the lack of detail and supporting material provided to support the costs claim. I submit that costs should be capped to say $5,000.

69] As I understand it from the Informant's submissions, (paragraph 96.v below) the standard practice is to award up to 60% of the costs incurred and in my submission, there is no reason to depart from that established principle. Costs are not to be used punitively.

70] In adopting that principle, the total costs against the Respondents would be $3,000 ($3,000 being 60% of $5,000) and that amount should be apportioned amongst each of the three Respondents (i.e. $1,000 each).

71] It is submitted that a costs award of $1,000 from each of the 2 Respondents whom I act for, is appropriate in the circumstances”.

SUBMISSION BY MR JENKINS

72] The following is the submission from Mr Jenkins

73] I, Adam Jenkins represent myself and wish to present the following.

Aggravating Factors

74] The informant wrongly stated, referring to paragraph 6.1/6.2 of the Informant’s submissions (paragraphs 19 and 20 above): -

i] That I had received advice from Mr Chris Anderson (legal counsel) to plead guilty, at NO point was this the case.

ii] Given my busy schedule and likely hood (sic) of obtaining time off for the infact hearing, I had asked Chris to obtain a likely penalty if we had in fact chosen that path. For no other reason, than to prevent me from any further loss of income to myself.

iii] At no point did he advise me to plead guilty; in actual fact, he had a conversation with Mr Irving. Mr Irving was quoted as saying the RIU would be seeking a fine of no more than $1000 each.

iv] Following this conversation between Mr Anderson and Mr Irving, I was contacted and made aware of the likely outcome; it was at this point I asked for these penalty submissions to be put in writing. At which point Simon replied, “I can confirm the RIU will be seeking a financial penalty only for all three respondents – probably ranging from $750 - $1750”. Thus, differentiating substantially from the initial conversation and agreed figure.

v] It was at this point I had lost all confidence in the way the case was being dealt with and after a brief conversation with my legal counsel, it was decided we would defend all charges and did not see the need to be represented at the hearing.

vi] Denying the offence is not an aggravating factor. It is in fact a legal right.

Mitigating Factors

75] I refer to paragraph 45 of the WRITTEN RESERVED DECISION OF THE JCA.

i] Mr Taylor confirmed that I (Adam Jenkins) DID NOT throw the first punch. Thus, agreeing that the fight started through no fault of my own. Exactly what sort of response you would expect, to being attacked from behind I am unsure, however at any point someone is in FEAR OF THEIR LIFE I would expect it be the given right to defend yourself. Hence what I would call a natural reaction.

ii] I am thus devastated in the way this entire case has played out, in particular in the public eye; I have been made to look a fool.

iii] And in the event of being found guilty I wish to surrender my license, effective immediately, and will have no further part in an industry in which I see a rather rapid decline imminent, if this is in fact the way you treat your own”.

REASONS FOR DECISION

76] The Committee has carefully considered all the oral, written and visual evidence and the penalty submissions provided by the RIU and the Respondents. The JCA Penalty Guide does not provide a starting point for breaches of this particular Rule but makes reference to the penalties being “fact dependant”. It is therefore incumbent on the Committee to fully consider the specific circumstances of this case when assessing an appropriate penalty.

77] The RIU detailed three previous cases that it believed were relevant when considering an appropriate penalty to be imposed. In the two cases involving NZGRA license holders the penalties imposed included periods of disqualification. That penalty is not being sought in this case and the Committee places little relevance on the two cases. In the case involving NZTR licence holders whilst fighting took place, there are also significant differences in that only two people were involved, the incident took place out of the view of the general public and was only witnessed by 2-3 industry participants.

78] Judicial Committees when considering what penalty should be imposed are often referred by both the Informant and Respondent to decisions which they believe are precedents to consider when reaching their decision on the matter before them. In this case the RIU have referenced the “Rudkin/Crozier” decision as being the most relevant when considering what penalty to be imposed and submitted a starting point fine for the three Respondents based on the penalty handed down in that case.

79] We believe the matters before us in relation to the three Respondents can be seen as precedent setting in their own right. This is because whilst some aspects of the incidents that occurred have been seen in other proven breaches of the Rules across all three Codes the actions of Miss Gommans, Mr Poutama and Mr Jenkins in their totality mean that the charges being faced are the first of its kind. As such we have determined the starting point penalty for the breach of Rules by the three Respondents with little reference to the decisions detailed by the RIU or the Respondents in their submissions on penalty. There will always be some subjectivity in what to consider when setting a starting point. There are countless matters that fall under the umbrella of “(engaging) in conduct which is in any way detrimental or prejudicial to the interest, welfare, image, control or promotion of Greyhound racing”. Many of those matters could undoubtedly be seen as more serious than the actions of the three Respondents just as many could be viewed as less so.

80] It is totally unacceptable for experienced license holders to engage in fighting and disruptive behaviour. Such behaviour is detrimental to the image of racing and it is a significant aggravating factor that the incidents took place during a high profile dual-code meeting in front of the main public stand where both greyhound and harness racing enthusiasts were present. The actions of the respondents constitute a clear breach of the Rules. Any physical contact by a licence holder upon anybody, be they another licence holder or a member of the public, is a serious matter and cannot be condoned under any circumstances and the Respondents should be ashamed of their actions. The integrity, public perception and promotion of greyhound racing are always paramount and were clearly compromised on this occasion by the actions of the Respondents.

81] The actions of the respondents have also resulted in significant negative publicity across the media and social media and the frustration of all of the RIU’s witnesses that the image of greyhound racing had been tarnished by the events of 31 March was plain to see and hear. The Committee does not accept that the Respondents are not responsible for the subsequent publicity that occurred for without the Respondents acting as they did there would have been no media interest. Mr Kerr said that he had been asked for a “please explain” from the New Zealand Racing Board, MP’s had been sent media articles on what had happened and the incident had done a reasonable amount of damage to the image of greyhound racing.

82] In assessing the level of seriousness of the charge facing each Respondent, any physical violence or a threat of physical violence must be considered as being a serious breach of the Rule and any penalty should reflect that. Whichever party provoked the incident, the provocative conduct was such that the reaction to it by way of physical assault and the subsequent general mayhem each Respondent was involved in over the following several minutes was unreasonable and out of proportion to the nature and degree of the initial “difference of opinion” between Mr Jenkins and Mr Poutama.

83] In considering the involvement of Mr Jenkins there is no doubt his actions in being involved in an initial minor scuffle with Mr Poutama, a later fight where he had to be forcefully restrained from trying to continue, his assault of a male when starting to leave the course when in the presence of Mr Irving and the serious threats made against the person he assaulted in the passageway leading from the car park clearly support the imposition of a significant penalty. These are significant aggravating factors that need to be taken into account. It is accepted that the fight referred to above started because Mr Jenkins was hit by another person but his continuing actions after being hit negate any mitigating factors that might be considered.

84] The Committee does not consider the warning given to Mr Jenkins on 28 July 2016 as an aggravating factor in determining the penalty to be imposed in this case.

85] In considering the involvement of Miss Gommans she, being by her own admission a person who doesn’t like confrontation but perhaps with good intentions, got herself involved in the fight between Mr Jenkins and the other male and continued to try and restrain Mr Jenkins which caused her, him and Mr Jenkins’ father to end up rolling around on the ground. When she got to her feet she was yelling out at various people to let Mr Jenkins go which, in Mr Irving’s view, was inflaming an already tense situation because Mr Jenkins’ father was restraining his son against the fence “using force”. Miss Gommans, on the seeing Mr Poutama close by, then lashed out at him kicking him once and was yelling at him whilst attempts were made to restrain her. The Committee does not accept her argument that her “medical issue” means she did not know what she was doing from her time by the fence with Mr Jenkins through to the time she was moved away from Mr Poutama after kicking him. The Committee notes in her interview with Mr Irving on 10 April she said there were personal issues going on between her and Mr Poutama and believes it is whatever those issues were that was the catalyst for her kicking him. In mitigation, Miss Gommans was not initially involved in the fight between Mr Jenkins and the other male but from the time she got to where the fight was taking place she was a “key participant” in the events that continued on. Miss Gommans has no previous breaches of this Rule and the Committee notes her expression of remorse for her actions. The committee does not believe the penalty imposed should be the same as that to be imposed on Mr Jenkins.

86] Mr Poutama clearly had a part to play in all of this. He had an initial disagreement with Mr Jenkins and was seen by one witness to throw something at him which hit him on the back of his head. Soon after that he had another very minor altercation with Mr Jenkins which then led to a friend of Mr Poutama’s assaulting Mr Jenkins. Mr Poutama admitted during questioning that he encouraged Mr Jenkins to get stuck in when he was being assaulted by the unknown male. Then, after the fighting had ceased, he was kicked by Miss Gommans who was clearly angry with him for some reason although why was not established at the hearing. The Committee however, notes that Mr Kerr in his evidence said that both Mr Poutama and Miss Gommans were arguing when she was lashing out at him. Mr Poutama then punched the passage way wall on his way out to the car park and by his own admission was playing up in the car park and it is because of his behaviour there that he was bundled into his parent’s car and taken home. In mitigation, Mr Poutama was not involved in any of the fighting that followed the initial altercations with Mr Jenkins and was not seen in any of the images shown of the incidents.

87] Mr Poutama was fined $250 on 1 May 2017 for a breach of Rule 87.1.f.iv for using offensive language towards the Wanganui Greyhound Racing Club track staff at a race meeting on 22 February 2017. The circumstances in that case are different, and in particular did not involve the use of force, and as such whilst noting the breach of Rule 87.1.f.iv the Committee does not consider that breach of the Rules to be a significant aggravating factor. That said it may suggest the possibility of Mr Poutama having anger management issues.

88] The RIU have said that an aggravating factor that must be taken into consideration is the fact that despite the number of witnesses and weight of evidence against the three Respondents, and in particular Mr Jenkins and Miss Gommans, they continued to deny any wrongdoing contrary to the advice from Mr Jenkins’ legal counsel Mr Anderson. The decision to admit or not admit the breach of the Rule is, of course entirely over to each and all the Respondents as was their decision, in the end, to have Mr Jenkins represent all three of them at the hearing. The Committee does not see those decisions taken by the Respondents as an aggravating factor when determining the penalty. However, further comment on this issue is made at paragraphs 96 - 102 below in considering the matter of costs to be awarded.

89] In arriving at penalty, the Committee has taken into account the need to satisfy the general principles of sentencing which are well-established - that is to say, to hold the offender accountable for his actions, to promote in the offender a sense of responsibility, to denounce the conduct of the offender and to deter the offender or other persons from committing the same or a similar offence. The penalty to be imposed also needs to mark our disapproval of each Respondent’s actions.

90] In his penalty submission Mr Jenkins makes mention of the discussions that were had around the possible quantum of a fine were one to be imposed. The reference to a fine in the range of $750 - $1750 was mentioned by Mr Irving during the teleconference of 24 May 2017 and was discussed in a follow up telephone call between him and Mr Anderson who was then representing the Respondents. Confirmation that conversation took place was provided to the Committee during the 29 May 2017 teleconference. The Committee is not aware if any other figures were talked about in relation to possible penalties. What is very clear, however, is that when Mr Irving mentioned a range of $750 to $1750 on 24 May 2017 all the Respondents were advised by the Chairman that any penalty to be imposed would be based on the evidence presented and submissions of all parties at the substantive hearing as well as the consideration of any other relevant matters. Mr Anderson then attempted to get the Committee to at least agree that any fines imposed would be within the range mentioned by Mr Irving, however, no such assurance was given.

91] Having regard to all of the details above in relation to the nature of the offending of each Respondent and the sentencing principles set out above the Committee believes a fine is an appropriate penalty for each of the Respondents.

92] After careful consideration, especially with reference to precedent setting comments in paragraphs 76-79 above the Committee has decided that on this occasion the starting point for this breach of the Rules is a fine of $2000.

PENALTY

93] In relation to Miss Gommans, from the starting point of $2000 the Committee imposes an uplift of 25%. Ms Gommans is fined the sum of $2500.

94] In relation to Mr Jenkins, from the starting point of $2000 the Committee imposes an uplift of 50%. Mr Jenkins is fined the sum of $3000.

95] In relation to Mr Poutama, from the starting point of $2000 the committee imposes an uplift of 25%. Mr Poutama is fined the sum of $2500.

COSTS

96] The RIU has submitted the following in relation to costs: -

i] Rule 66.12 (amended May 2017 – previously Rule 91.12) of the Greyhound Rules of Racing provides the Committee can order costs as it sees fit.

ii] Early in discussions the RIU raised the potential costs associated with a NRI Hearing with both John GOMMANS and JENKINS who both indicated that money was not an issue.

iii] The RIU has incurred costs totalling $7820.60 in these proceedings and seeks a full award of these costs divided equally among the three respondents ($2606.87). These costs comprise of:

(a) Advice, preparation for and attendance at the two day hearing: $5903.60.

(b) Travel costs associated with seven witnesses: $1567.00 (Flights $758; Parking $136; Travel at the standard government rate of 77c / km $673.

(c) Witness costs at $50 per witness (excluding RIU employees) per the standard District Court Witness half day rate: $350.

iv] The RIU respectfully submits and abides by the JCA’s decision as to what costs are appropriate to the JCA for the hearing.

v] While the standard practice is to award up to 60 per cent of the costs incurred, the RIU submits that full award of costs is appropriate in this case, given that the evidence was compelling and that the defence advanced at the hearing was misguided. There is no basis for the respondents to have believed that their behaviour was reasonable or appropriate and that it did not impact negatively on the industry.

97] The Committee has carefully considered the views of the RIU in relation to costs. The Respondents received full disclosure from the RIU on 15 May 2017 with a further copy sent to their counsel, Mr Anderson, on 24 May 2107. It is clear that Mr Anderson thought the evidence against the Respondents was overwhelming especially when he was told there was Trackside footage of some of the incidents and, on the basis that all three Respondents would admit the breach of the Rule, he even asked the Committee in a teleconference if the matter could be dealt with on the papers to minimise the costs to all involved. Once it became clear to him that the Respondents were not going to admit the breach of the Rule he withdrew from the case.

98] The Respondents having indicated they wished all the RIU’s witnesses to attend the hearing in person provided very little, if any, robust questioning of those witnesses. The main focus of Mr Jenkins’ questions to all witnesses was whether any had seen Mr Poutama hit him (as stated by Mr Cole) and whether Miss Gommans was being restrained when kicking Mr Poutama. Significantly, and given the importance the RIU placed on Mr Cole’s evidence in relation to Mr Poutama’s involvement in this matter, there was no detailed questioning by Mr Jenkins or Miss Gommans or Mr Poutama of Mr Cole when he was asked about his previous dealings with Mr Poutama. Why that was the case, when Mr Jenkins said Mr Cole was lying when giving his evidence, is only known to the Respondents.

99] Lastly, the Respondents chose not to call any witnesses who actually saw any of the incidents knowing that the Affidavits produced would not carry as much weight as had those providing them appeared in person. The Committee also believes it is significant that Adam Jenkins’ father – Bruce Jenkins – who attempted to intervene when the fighting erupted was not called as a witness by the Respondents or asked to submit an Affidavit in support of any of the three of them.

100] The Committee has considered the issues raised by Mr Drummond in relation to costs and in particular his comment that neither Miss Gommans or Mr Poutama were involved in the early discussion between the RIU, Mr Jenkins and Mr John Gommans when Mr Jenkins and Mr Gommans indicated that money was not an issue. Mr Gommans was clearly and understandably looking after his daughter’s interests, and probably Mr Poutama’s given the personal relationship between them at the time, but simply because they were not involved in the discussions is not seen as a valid reason to reduce the costs that are to be awarded against them.

101] The Committee has decided not to award the RIU costs of 100% it was seeking although the amount is greater than the total of $3000 or 38.4% sought by Mr Drummond. The Committee awards costs to the RIU of $6150 being 80% (rounded down) of its total costs of $7820.60, ie $6256.48 rounded down to $6150, and that this amount be divided equally among the three Respondents, ie $2050 each.

102] The JCA has also incurred considerable costs in relation to this matter. Prior to the hearing there were five teleconferences together with the issuing of the relevant minutes thereafter, the re-arranged hearing took place over two days and there was a considerable amount of time spent on writing the decision dated 7 July as well as the decision on penalty dated 24 July 2017. A very conservative estimate of the JCA’s costs is $5500 and a contribution to those costs is also just and reasonable. 60% of that sum is $3300 which the Committee has rounded down to $3000. We order the three Respondents to pay that sum to the JCA to be divided equally among them, ie $1000 each.

SUMMARY OF PENALTY AND COSTS IMPOSED

103] For completeness the penalty and costs imposed on each Respondent is as follows: -

Miss Kellie Gommans is fined $2500 and ordered to pay costs to the RIU of $2050 and to the JCA of $1000.

Mr Adam Jenkins is fined $3000 and ordered to pay costs to the RIU of $2050 and to the JCA of $1000.

Mr Darcy Poutama is fined $2500 and ordered to pay costs to the RIU of $2050 and to the JCA of $1,000.

Dated at Wellington this 24th day of July 2017.

Paul Williams

Chairman

APPENDIX 1

LIST OF DOCUMENTS DISCLOSED TO EACH RESPONDENT

BY THE RACING INTEGRITY UNIT ON 15 MAY 2017

1 Evidential Statement - C Rendle
2 Evidential Statement - D Emerson
3 Evidential Statement - T Taylor
4 Evidential Statement - G Kerr
5 Evidential Statement - G Calverley
6 Evidential Statement - M Flipp
7 Incident Report - Red Badge security
8 Interview Transcript - K Gommans
9 Interview Transcript - D Poutama
10 Jobsheet - P Lamb
11 Evidential Statement - B Cole
12 Evidential Statement - A Poutama
13 Evidential Statement - S Irving
14 Photographs (16) of the Manawatu Raceway Grandstand and immediate surrounding area

 

DOCUMENT DISCLOSED TO EACH RESPONDENT

BY THE RACING INTEGRITY UNIT ON 24 MAY 2017

1 RIU’s Summary of Facts

 

LIST OF EXHIBITS ENTERED AT THE HEARING BY THE

RACING INTEGRITY UNIT ON 27-28 JUNE 2017

1 Trackside film of the incidents at the Manawatu Raceway on 31 March 2017
2 Still images taken from the Trackside film of the incidents
3 Recording of interview with K Gommans
4 Recording of interview with D Poutama

Document Actions