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Non Raceday Inquiry RIU v M J Calder - Reserved Decision dated 21 March 2017 - Chairman, Prof G Hall

Created on 22 March 2017

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

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 MAURICE JAMES CALDER

Licence to Train/Open Horseman

Respondent

Information: A6643

Judicial Committee: Prof G Hall, Chairman

Mr P Knowles, Member

Appearing: Mr C Allison, for the Informant

The Respondent in person

Date of written decision: 21 March 2017

RESERVED DECISION OF JUDICIAL COMMITTEE

[1] Mr C Allison, Racecourse Investigator, on behalf of his employer, the RIU, has charged Mr M Calder with a breach of r 303(2) of the New Zealand Rules of Harness Racing.

[2] Rule 303(2) of the Rules of Harness Racing states:

No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stablehand, unlicensed apprentice or racing manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter.

[3] The penalty provisions which apply in this case are found in r 1003, which states

(2) Every horse which commits a breach of any Rule shall be liable to the following penalties:

(a) to be disqualified or scratched from any race; and/or

(b) to be disqualified for a period not exceeding 12 months.

In addition to or substitution of any penalty imposed pursuant to sub-rule (2) hereof, the driver, owner and/or the person in charge of the horse shall be liable to:

(i) a fine not exceeding $10,000; and/or

(ii) (ii) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(iii) (iii) disqualification for a period not exceeding 12 months

[4] Mr Allison produced written permission, in accordance with r 1108(2), from the General Manager of the RIU, Mr M Godber, to file an information charging the respondent with a breach of r 303(2). The letter was dated 21 February 2017.

[5] Mr Calder is the holder of a Licence to Train and an Open Horseman’s licence pursuant to the Rules of New Zealand Harness Racing. He indicated on the signed information and at a teleconference held on 2 March last with this Committee that he admitted the charge. We thus find the breach proved.

Facts

[6] At about 11.30am on Tuesday 7 February 2017 Mr Calder was at Ascot Park Raceway working a three-year-old pacer. As he left the stabling area driving the horse in the sulky he was met at a driveway area of the stables by a vehicle driven by Mr Tresidder.

[7] Mr Tresidder was on his way to the stabling area to shoe a horse for another trainer. Mr Allison said Mr Tresidder was unable to carry all his gear and that was why he was using his vehicle. When Mr Tresidder attempted to drive past, Mr Calder advised him he was not permitted to drive his vehicle in this area. Both parties indulged in a conversation where the tone of the conversation deteriorated and words were exchanged.

[8] Mr Tresidder eventually drove past to the stabling area where he was going to shoe the horse. Mr Calder returned to his stabling area and tied his horse up then walked over to where Mr Tresidder was. Once again words were exchanged between the two parties.

[9] Mr Calder confronted Mr Tresidder and then pushed him in the chest region with both open hands. The push was with sufficient force that Mr Tresidder, who was standing on the edge of the concrete, fell to the ground landing on the concrete in front of the horse boxes.

[10] Mr Tresidder, who is aged 72, suffered a suspected broken rib, cut thumb, sore hip and some bruising to an elbow. He suffers from emphysema and had difficulty breathing. He went to the Southland Hospital Accident and Emergency Department and was examined by a doctor. Mr Tresidder was given pain killing tablets to assist him with the pain he was suffering. He was not admitted to hospital.

Informant’s penalty submissions

[11] The respondent Mr Calder has been licensed with Harness Racing New Zealand since 1991. He is 47 years old and trains from Ascot Park Raceway in Invercargill.

[12] The RIU described the breach as a one-off incident involving a licence holder and a semi-retired farrier who attended the racecourse to tidy up the plates on a thoroughbred racehorse. Both parties were previously unknown to one another.

[13] Rule 303(2) covers the conduct of licence holders in relation to any matter relating to the conduct of racing and is in place to ensure that they conduct themselves in a professional and orderly manner.

[14] The purpose of proceedings before a Judicial Committee pursuant to cl 5.1 of the Rules of Practice and Procedure in the 5th Schedule to the Rules of Harness Racing state:

(a) to ensure that racing is conducted in accordance with the code rules;

(b) to uphold and maintain the high standards expected of those participating in the sport of racing and the racing industry;

(c) to uphold and maintain the integrity of the sport of racing and the racing industry; and

(d) to protect the participants in the sport of racing, the racing industry, and the public

[15] The RIU submitted the need for the penalty imposed by this Committee to uphold the integrity of the racing industry and the appropriate penalty was one that had the effect of deterring others from committing similar breaches and reflected the disapproval of the JCA for the type of behaviour in question.

[16] Previous cases which were believed to be of assistance to the Judicial Committee were identified as:

HRNZ v Cowan 18 July 2011 — Mr Cowan become involved in a scuffle with a security officer after being asked to leave a restricted area. Mr Cowan was fined $450 plus $250 JCA costs.

RIU v Crozier 10 October 2016 — Mr Crozier engaged in a physical confrontation with another licence holder on a race day. Punches were exchanged and Mr Crozier was fined $2,000.

RIU v Rudkin 10 October 2016 — Mr Rudkin engaged in a physical confrontation with another licence holder on a race day. Punches were exchanged and Mr Rudkin was fined $2,000.

[17] The RIU identified the aggravating features as being: Mr Calder had a previous breach of r 303(2) in 2000 when he was fined $250 for using offensive language to another driver; Mr Tresidder suffered injuries which resulted in him attending hospital — although he was not admitted, he was given pain killing medication to assist him with his recovery; Mr Tresidder is aged 72 years and suffers from emphysema and also had a previous head injury and heart issues; he was considerably smaller and frailer than Mr Calder; the reaction of Mr Calder was totally unnecessary as Mr Tresidder had passed his horse without any incident of note; and Mr Calder tied up his horse and walked back to where Mr Tresidder had driven to speak with him a second time.

[18] Mitigating circumstances were: the push was open handed onto the chest region and the assault was not with a closed fist; the incident did not occur on a race day in front of members of the public; when spoken to by RIU Investigators Mr Calder was co-operative and openly admitted his actions; he was remorseful and described his actions as embarrassing; and Mr Calder admitted the breach at the first available opportunity.

[19] The RIU concluded their penalty submission by stating that the incident was totally unnecessary and had had a significant impact on an industry participant who had had a lifetime involvement as a farrier. The purpose of the penalty imposed should be to support the racing community’s endeavours to ensure participants act within their respective code rules.

[20] The RIU sought a fine of $1,500. It did not seek a suspension or a disqualification.

[21] The RIU did not make an application for costs.

[22] We questioned Mr Allison as to Mr Tresidder’s current health. He responded he believed Mr Tresidder was still on medication for pain but he was back working, including on racedays.

Respondent’s submissions

[23] Mr Calder presented oral submissions.

[24] Mr Calder acknowledged immediately that there was no justification for his actions, which were an overreaction in the heat of the moment. He said Mr Tresidder was not listening to what he was saying and “I just lost my rag”. He gave him an open-handed push to the chest. His actions were the result of his frustration. He said Mr Tresidder had stumbled backwards over a concrete lip. He accepted he had no right to push Mr Tresidder and stressed he had not meant to hurt him. He was ashamed of his actions.

[25] Mr Calder emphasised the danger of driving vehicles near horses and stated he believed Mr Tresidder’s actions were contrary to both the health and safety laws and bylaws governing the use of the stabling area at Ascot Park. He had rung the track manager to get him to deal with the matter but he had not answered his phone. The respondent had thus spoken to Mr Tresidder a second time. He said Mr Tresidder’s response was to tell him to “f**k off” and he had said that he could do anything he liked.

[26] Mr Calder said he was shocked when he learned that Mr Tresidder was 72 years of age. He had not appeared to him, at the time, to be elderly. He said he had never seen Mr Tresidder before this incident. He had endeavoured to meet with Mr Tresidder in order to apologise but Mr Tresidder did not want to know him.

[27] The respondent submitted that a fine at the level proposed by the RIU was steep and that he would have to pay by instalment. He emphasised he worked as a machinery operator. He only trained one horse and harness racing was very much a hobby these days, although in earlier times he had been more heavily involved in the industry. He had been involved in harness racing for over 30 years, including stints in the US and Canada.

Decision

[28] The actions of the respondent constitute a clear breach of the Rules. Any physical contact by a licence holder upon another is a serious matter and Mr Calder is right to be ashamed of his actions. Mr Calder has over-reacted and there was no justification for his behaviour.

[29] We first note the application of force was with an open hand to the chest in the course of a heated discussion. It was a push rather than a punch. The degree of force was such that Mr Tresidder stumbled backwards and suffered injuries, including a suspected broken rib, which resulted in him being examined at hospital. There is a disparity in age and physique between the two men, although we accept that this latter issue might not have been evident to Mr Calder.

[30] An unusual aspect of this breach is that the reaction of Mr Calder was totally unnecessary, as Mr Tresidder had passed-by his horse without any incident of note. Mr Calder has said his horse got a fright as it came around a corner and was confronted by Mr Tresidder’s vehicle but he accepts the vehicle was not travelling fast. The breach seems to have been the culmination of Mr Calder’s concern at vehicles being in the stabling area generally. The original incident appears to have been momentary but Mr Calder has sought Mr Tresidder out for a further confrontation after earlier having words.

[31] Denunciation is the principal sentencing purpose here; followed closely by deterrence, both general and specific, although with respect to the latter, we are satisfied Mr Calder has learned his lesson and clearly feels chagrin as a result of his actions.

[32] The cases cited to us evidence quite a disparity in penalty. Where punches were thrown, the penalty was $2000. Those incidents were during the course of a race meeting, as was the breach arising out of a scuffle (Cowan), which resulted in a fine of $450. The Committee in that case took a $500 starting point, which was the recommended starting point in the JCA Penalty Guide in force at the time. We note the current version has no starting point for a breach of r 303(2). This is understandable as the circumstances of the breach will obviously be determinative.

[33] We also note the pushing of one amateur driver by another at a race meeting resulted on a fine of $200 (Beagley 7 April 2013).

[34] The cases thus offer little guidance, although the respondent’s actions are clearly of a far lesser nature than the punches in Rudkin and Crozier. In those cases, there were two separate fights, some minutes apart, despite the first being broken up by the intervention of a member of the public. And a licence holder had to break up the second fight. One participant suffered a black eye.

[35] The consequences to Mr Tresidder appear to have been more severe than in any of the cases to which we have referred. These may be down to his pre-existing medical conditions rather than the force of the respondent’s push. Without further information being put before us, we can reach no firm conclusion. However, the fact that the respondent thought it appropriate to use force against a fellow licence holder is of concern, and this is only accentuated when the victim is a frail 72-year-old man going about his legitimate business. The fact there were no witnesses, as it was not a raceday, is the absence of an aggravating factor, rather than the presence of a mitigating one.

[36] Mr Calder has a previous breach of this rule, and the fact there have now been two breaches may be considered to suggest the possibility of his having anger management issues. However, we attach little weight to this earlier breach; it is some years ago and the circumstances are different, and in particular, it did not involve the use of force. We note also the ready admission of the breach, the co-operation with the RIU investigators, and his very evident remorse.

[37] The penalty needs to mark our disapproval of Mr Calder’s actions. He has to be held accountable. Mr Calder is a man with a family to support. His financial circumstances are such that a substantial fine will be a significant impost and will reinforce the foolishness of his actions, it being evident to us during the course of the teleconference that he is extremely embarrassed by his actions and is remorseful. The effective total financial ‘penalty’ in Cowan was $700. That case was in 2011 and is the closest in the Harness code to the facts in the case before us.

[38] Balancing these matters, and emphasising it was a push not a punch, we believe a fine that is not quite in the four-figure region is appropriate.

[39] Mr Calder is fined the sum of $850.

The RIU have not sought costs and the matter has been dealt with on the papers. There is no award in favour of the JCA.

Dated at Dunedin this 21st day of March 2017.

Geoff Hall, Chairman

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