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NZ Metro TC 6 September 2019 - R 1 - Chair, Mr R McKenzie

Created on 10 September 2019

Rules:
868(2)
Committee:
RMcKenzie (chair)
HWeston
Name(s):
D J Butt
Licensed Open Horseman
Informant
N M Ydgren
Chief Stipendiary Steward
Information Number
A10764
Plea:
Denied
Charge:
Failing to Take Reasonable and Permissible Measures
Evidence:

Following the running of Race 1, Probuild ITM Trot, an information was filed by Chief Stipendiary Steward, Mr N M Ydgren, against Licensed Open Driver, Mr D J Butt, alleging a breach of Rule 868 (2) in that Mr Butt, as the driver of PALISADE in the race, “failed to take all reasonable and permissible measures to ensure his horse was given full opportunity to win the race when failing to show sufficient vigour in the home straight”.

Mr Butt was present at the hearing of the information and he indicated that he denied the breach. Mr Butt was offered the opportunity by the Committee to have the hearing of the charge adjourned but he opted to have the hearing proceed.

Rule 868 provides as follows:

(2) Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race and to obtain the best possible finishing position and/or finishing place. 

Submission For Decision:

Mr Ydgren said that Stewards would be relying solely on the video replays. He said that Stewards were alleging that Mr Butt over the final stages was “very reserved in his driving style”. It came to the attention of Stewards at the time and they subsequently questioned Mr Butt as to why he had driven in that manner. After considering Mr Butt’s explanation, Stewards were of the opinion that Mr Butt had failed to “exhaust every available opportunity to him” over the final stages to ensure that his runner had finished in the best possible finishing position.

PALISADE, driven by Mr Butt, had finished 2nd in the race, beaten by a short head.

Mr Ydgren then went to a video replay. He pointed out PALISADE, driven by Mr Butt, racing 3-wide with cover behind MEGA PIXELS (B Hope), approaching the home turn. Mr Butt then drew PALISADE to the outside of MEGA PIXELS, to be the widest runner on the track.

Mr Butt’s explanation to Stewards was that he was urging the horse by placing his whip on its rump and applying some downward pressure on it. Stewards, however, alleged that approximately 35-40 metres from the finish there was a “flick” with the whip (which Mr Ydgren pointed out on the video replay) – the only form of “driving” over the final stages that Stewards could see that is “demonstrable and discernible”, Mr Ydgren said. Any use of the whip was mere “resting”, with no hand or arm action from Mr Butt to move the whip other than for the single “flick” referred to. In reply to a question from the Committee, Mr Ydgren was not sure whether the “flick” had made contact with the horse.

Mr Butt told the Committee that the horse was not one that could be driven out with the whip. He was a “learning trotter”. He believed that he had made every effort to win the race. He had been attempting to get the horse into the race from the 800 metres but was frustrated in his efforts, he submitted.

He had turned into the straight and had kept a good hold of the horse which, he submitted, it was necessary to do. With about 100 metres to run, he had placed the whip on the horse’s rump and placed pressure on it to urge the horse to keep going without hitting it. To use the whip on the horse too much will be bad for its confidence. He still thought he was “just about” going to win the race, he said.

Mr Butt then showed to the hearing the horse’s race at Rangiora on 11 August last when, he submitted, he had driven it in exactly the same way. The Committee made the observation to Mr Butt that, on that occasion, the horse finished 2nd, some 3 lengths from the winner, and was in no danger of losing 2nd place in the run home as he was some 3 lengths ahead of the 3rd placed runner.

The Committee also made the observation to Mr Butt that were other actions that he could have taken to urge the horse, short of using the whip. Mr Butt said that it was a horse that one “had to hang on to” to keep it balanced to ensure that it trotted all the way. He observed that, to an observer, it was a case of a young trotter being driven by an experienced driver who should have known what he was doing. He accepted that not everyone would see it that way.

Mr Butt, asked by Mr Ydgren, agreed that there were no issues with the horse’s gait over the relevant part of the race. The horse was doing his best, Mr Butt submitted. 

Reasons For Decision:

The Committee listened to the submissions of both parties and has carefully viewed the video replays of the final stages of the race. Mr Ydgren relied, largely, on the video evidence to prove his allegation that Mr Butt had failed to take all reasonable and permissible measures on PALISADE.

The video replay showed Mr Butt improving widest on the track with his whip drawn and, he claimed, resting on the horse’s rump over the final 100 metres. The Committee observed one small flick with the whip near the finishing line but, other than that, Mr Butt took no other discernible action to urge his runner which we would have expected him to do in the tight finish that it was and which the Rule requires.

We accept Mr Butt’s explanation as to why he drove the horse in the manner which he did but the test is an objective one and a reasonable observer would not have considered that Mr Butt took all reasonable and permissible measures to win the race. That reasonable observer would have expected Mr Butt, at a very minimum, to take some action such as running the reins over the horse’s rump or pushing the whip through the horse’s tail. Mr Butt’s action of holding the whip on the horse’s rum, which we accept he did, did not in the Committee’s view satisfy the obligation to take all reasonable and permissible measures.

Significantly, Mr Butt admitted that there were no issues with the horse’s gait in the run home.

The Committee is, therefore, satisfied that Mr Butt has, on this occasion, failed to take all reasonable and permissible measures to win the race and, accordingly, we find the charge proved.

Decision:

The charge was found proved.

Submission For Penalty:

Mr Ydgren referred to the Penalty Guide recommended starting point of a 20 drives suspension or a $1,000 fine. He submitted that it was an aggravating factor that the breach involved possible 1st placing. However, Mr Butt’s good record, as a mitigating factor, would result back at that starting point, Mr Ydgren submitted.

While a suspension would normally be the appropriate penalty in this case, Mr Butt no longer drives very frequently (last season 22 drives, the previous season 15), Mr Ydgren said. This drive was Mr Butt’s second for the current season. Mr Ydgren acknowledged that the exercise of suspending a driver who drives only very infrequently is a difficult one and, on that basis, he submitted that the penalty should be a combined one of a period of suspension combined with a fine.

Mr Butt submitted that the breach was low-end and that his preference was for a fine. He wished to keep on driving the horse to teach it. He declined the Committee’s offer of a deferment of suspension. He said that he would, in the coming weeks, be continuing to drive the two runners that he had racing tonight.

Mr Butt said that he driven in 10,000 races and won 1,200 races and has never been charged with this breach in all of that time.

Mr Ydgren said that a term of suspension expiring prior to Cup Week in November would be reasonable. When asked for his views on the matter, Mr Butt said that he would leave it to the Committee and that a suspension would be in order if the Committee felt that was appropriate. By this point, Mr Butt had, unfortunately, become rather agitated.

Reasons For Penalty:

The task of fixing a suspension penalty in the case of a driver who does not drive regularly is a difficult one for Judicial Committees. Often the Committee is dealing with an Amateur Driver when confronting this problem, but Mr Butt requires a different approach.

We accept that Mr Butt is a very experienced and successful driver with a record which, accepting his submission, is an outstanding one and he is entitled to significant credit for that. However, we cannot accept his submission that the breach was low end as PALISADE was beaten into 2nd placing by the very narrow margin of a short head, which margin, the Committee observed, was an ever-diminishing one. Mr Butt has made an error of judgement and it is possible that he may have felt he was going to win the race. His error of judgement may have cost punters – the horse was a well-supported runner being 2/1 in the order of favouritism for the race. That is an aggravating factor.

For the aggravating factor, we uplift the starting point to 24 drives, but we give a discount of 25%, or 6 drives, from that uplifted starting point for Mr Butt’s record. We would, therefore, be looking at a period of suspension of 18 drives but, to accommodate the rather special circumstances of this case, we set the period of suspension at 2 months and a fine of $600. 

Penalty:

Mr Butt’s Open Driver’s Licence is suspended for a period of 2 months – from after the close of racing on 6 September 2019 up to and including 6 November 2019. In addition, Mr Butt is fined the sum of $600.

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