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Decision on Penalty - BJ Dyke



1001.1.p

By a written decision dated 9th day of July 2008 the Committee found that Mr Dyke had committed a breach of Rule 1001(1)(p) of the New Zealand Rules of Racing. No finding was necessary upon the alternative charge.

1.2          The proceedings were adjourned in order that both counsel could make submissions as to the appropriate penalty.

 DECISION OF JUDICIAL COMMITTEE ON PENALTY

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1.            The charge found proved

1.1          By a written decision dated 9th day of July 2008 the Committee found that Mr Dyke had committed a breach of Rule 1001(1)(p) of the New Zealand Rules of Racing. No finding was necessary upon the alternative charge.

 

1.2          The proceedings were adjourned in order that both counsel could make submissions as to the appropriate penalty. Detailed submissions have now been received from Mr Colson for NZTR and from Mr Ryan on behalf of Mr Dyke. The Committee has carefully considered those submissions.

 

2.            The position of NZTR

2.1          NZTR seeks a disqualification of six (6) months together with a fine of $15,000.00 and a significant contribution by Mr Dyke towards the costs of the hearing.

 

2.2          NZTR points to the well known decision of Mr J W Gendall (now Justice Gendall) delivered in 1994. There are four principles of sentencing which emerge from that decision. These are as follows:

(a)          Penalties are designed to punish the offender for his 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.

(b)          In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offences.

(c)           A penalty should also reflect the disapproval of the Judicial Committee for the type of behaviour in question.

(d)          The need to rehabilitate the offender should also be taken into account. This will be influenced by the position the offender occupies in the industry, whether they are a licence holder, an owner, a punter or neither.

It is contended that Mr Dyke as a licensed trainer occupies a position of trust particularly in relation to his dealings with horse owners. The relationship was characterised by Mr Colson as akin to a fiduciary relationship. In the Committee’s view the relationship of a horse trainer with owners is essentially contractual in character. The relationship does not have attaching to it an equitable duty founded upon a relationship of trust that is characterised in a fiduciary relationship.  Importantly it must be noted that the breach of which Mr Dyke has been found guilty does not relate to his dealings with owners. NZTR then points to the fact that Mr Dyke knew that his actions would impact upon the individual operators of the TAB. Mr Dyke must also have known that the honest and successful operation of the TAB was in the wider interests of racing across the country.

 

2.3          With reference to the events themselves NZTR acknowledges that the circumstances which led to the issuing of the incorrect ticket were unintended. It is emphasised however that Mr Dyke was twice spoken to by Mr Rutherford in the bar and in those circumstances had ample opportunity to correct the position. It is said that Mr Dyke took advantage of an opportunity, after he had been warned and that this went well beyond a spur of the moment action.

 

2.4          Mr Colson was critical of the approach taken on behalf of Mr Dyke at the hearing. He said that there was muck raking. The Committee’s view is that some of the evidence proposed for Mr Dyke was not relevant. Mr Dyke himself should not be further penalised on that account.

 

2.5         The NZTR submissions on the question of penalty make reference to a number of decided cases and these will be considered later in this decision.

 

3.            The position taken for Mr Dyke

3.1          Following a direction given by the Committee the submissions on the question of penalty were first made by NZTR and these were then responded to by counsel for Mr Dyke. In his submissions Mr Ryan is strongly critical of the level of penalties which NZTR seeks. These are described as grossly excessive and inappropriate. Some of the NZTR submissions are characterised as having gone over the top.

 

3.2          In summary Mr Ryan points to the following:

(a)          Mr Dyke’s previous good character. This is accepted by the Committee and was noted in the decision of the 8th July.

(b)          The breaches of the Rules of Racing of which Mr Dyke has been previously found guilty are very minor. The Committee accepts that is the case.

(c)           There was no premeditation.

(d)          That there has been extensive damaging publicity. It is contended that some of this was orchestrated by the owners of the TAB.

(e)          That once the matter was placed in the hands of a Racecourse Inspector Mr Dyke and his legal advisors replied promptly to requests for information.

(f)           An attempt was made – ultimately unsuccessful – to come to some accommodation with the TAB operators. The significance of this circumstance is difficult to assess one way or the other. If Mr Dyke had genuinely believed that his actions were blameless then it is curious that he should seek to negotiate some financial settlement with the TAB operators. In the event no arrangement was made and because those discussions were by their nature without prejudice the Committee knows nothing of what was proposed or why the negotiations failed.

 

3.3          Responding directly to the NZTR submission that there should be a significant period of disqualification Mr Ryan pointed to the following:

(a)          That this was the first occasion upon which a charge has been brought under this particular rule. The Committee understands that to be a reference to the part of the rule which makes direct reference to the operation of the totalisator. In these circumstances, it was contended, a deterrent penalty was not appropriate.

(b)          There would be very serious financial consequences for Mr Dyke if he were disqualified. It is said that he has no other source of income and no training for any other occupation.

(c)           Mr Dyke was entitled to defend the charge(s) and should not be further penalised on that account.

 

4.            Relevant principles in determining penalty

4.1          Reference has already been made to the principles set out in the 1994 decision of Mr Warwick Gendall as he then was.  Those principles still hold good.  No subsequent changes in the Rules of Racing or in judicial decisions have detracted from the validity of these principles. It is however important, in the view of the Committee, to look at more recent decisions in order to try and ensure that the penalty imposed here is consistent with penalties imposed in other contemporary cases. While consistency is desirable the Committee recognises that there are no other cases which are an exact parallel to the present and it follows that the circumstances of this case must be compared, as best as possible, with other cases where serious racing offences of a different character have been dealt with.

 

4.2          The Committee has had particular regard to the following decisions:

(a)          NZTR v W Judicial Committee August 2000, Appeals Tribunal December 2000.

(b)          NZTR v M  Judicial Commuttee June 2001

(c)           NZTR v S Judicial Committee February 2005

(d)          NZTR v C&C  Appeals Tribunal November 2007.

(e)          NZTR v C  Judicial Committee December 2007.

(f)           NZTR v B  Judicial Committee March 2008.

 

4.3          Mr Colson placed particular reliance upon the decisions in C&C and B. He contends  that the offending here was more serious. In reference to C&C his submission was that there was a financial gain intended by Mr Dyke when that was not so in the breach committed by Messrs C&C. The Committee considers that it is unlikely that Mr Dyke would ever have been able to obtain a payment from the TAB on a bet for more than $16,000.00 which had so plainly been issued in error. It may have been in the mind of Mr Dyke that this could happen but it is almost certainly the position that had the selected horses in the Trifecta been successful the mistake would have been revealed and the payment of a winning dividend problematical.  With reference to B Mr Colson contended that the licence holder in that case had immediately co-operated with the authorities and pleaded guilty at the first opportunity. Reference was made to the discount to Mr B on that account.

 

4.4          Mr Ryan argues that there should be no suspension or disqualification. He contends that the matter can be adequately dealt with by a monetary penalty. He relies strongly upon the decision of the Judicial Committee in the M ruling of June 2001. That was a case where Mr M pleaded guilty to committing a serious racing offence which was detrimental to the interests of racing. That rule is the same rule under which the jockey B was dealt with. It is not the same rule in respect of which Mr Dyke has been found guilty. There is a material difference between an act which is detrimental to the interests of racing and an act which of itself involves dishonesty connected with the off-course totalisator. There are, in any event, a whole range of actions which can be detrimental to the interests of racing some vastly more serious than others. A comparison of the M and B cases plainly demonstrates that proposition. In the decision of the Judicial Committee in M it is clear that the licence holder sought and obtained no benefit for himself. Moreover the words spoken by Mr M were characterised as having been unrehearsed and off the cuff.

 

4.5          In both the C&C and B cases the serious racing offences were committed while the persons concerned were acting in their professional role. In the C&C case as trainers with a horse at a trials meeting. In the B case a jockey with an engagement in an important upcoming race. In the present case Mr Dyke was attending the TAB bar at the Cambridge Raceway outside standard business hours. He was not there doing business as a trainer. He was in a position no different from other patrons in the bar save for the critical fact that the Rules of Racing require that he and all other licensed persons behalf with integrity towards the TAB. It was his failure to do that which led to the charge not some shortcoming or misconduct in his capacity as a horse trainer. The Committee considers this distinction to be of real significance. It has not been noted in the submissions of either counsel. The Committee is reinforced in its view by the fact that in the cases of W, S and C the licence holders were in each case acting in their respective capacities as trainers or jockey. It was their conduct in those roles which led to the allegation of a serious racing offence. The Committee believes it is because these persons were acting in their professional capacity that the significant penalties were imposed and such penalties reflected that consideration. The same considerations applied in both C&C and B  particularly in the latter case where there was widespread adverse publicity – damaging to racing in both New Zealand and overseas.

 

4.6          Here Mr Dyke was not doing his business as a trainer on the afternoon of the 26th January 2008. While the offending is serious it was not directly related to Mr Dyke’s work as a trainer nor did it have anything to do with his relationship with the owners of horses in his stable.

 

4.7          For the reasons which have been explained the Committee takes the view that the offending by Mr Dyke is less serious than the offending by licence holders while those persons have been undertaking their professional work. Essentially for that reason the Committee takes the view that disqualification would be too harsh a penalty in this case. A period of suspension is appropriate. There must also be a meaningful financial consequence. This to make clear that there will be a significant cost attached to breaches of this rule. A period of suspension of three (3) months is appropriate. In fixing the financial penalty the Committee is conscious of the costs incurred by both NZTR and the JCA in the conduct of a two day defended hearing and the overall financial penalty, inclusive of costs, is intended to reflect the totality of the position. In addition to the period of three (3) months suspension there will be a fine of $7,500.00. Mr Dyke will pay $7,500.00 towards the costs and expenses of NZTR and a further $2,500.00 towards the costs of the JCA : a total of $17,500.00.

 

4.8          The suspension shall take effect from Monday the 4th day of August 2008 and will run until Tuesday 4th day of November 2008.

 

4.9          The Committee is grateful to both counsel for their assistance throughout the proceedings.

 

 

DATED this  1st day of August 2008

 

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MURRAY MCKECHNIE Chairman

 

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RUSSELL MCKENZIE        

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