Non Raceday Inquiry – Written Decision dated 19 April 2023 – Masa Hashizume

Introduction

[1] This charge of Excessive Whip Use (r638(3)(g)(i)), arises from the running of Heat No 10, at the Avondale JC Trials meeting on 13 April 2023.

[2] Following a complaint raised with RIB Stewards, a post-meeting review of Trial films was conducted and this breach was identified.  The charge against Class B, Apprentice Rider Masa Hashizume (the “Respondent’), was authorised by Mr M Clement: RIB CE on 15 April 2023. Information No. A18964 refers.

[3] The charge was subsequently admitted by the Respondent and heard at the Matamata RC meeting on 19 April 2023. Mr Hashizume was supported at the hearing by Mr Stephen Marsh, the Trainer of JUST ONE and Mr N Harris, Rider Mentor.

[4] After hearing evidence and submissions, the Adjudicative Committee imposed a 7-day suspension, commencing after racing on 29 April 2023.

The Charge

[5] Information No. A18964 alleges that Class B Apprentice Rider, Mr Masa Hashizume, in Heat 10 at the Avondale Trials on 13 April 2023, “struck his mount JUST ONE with the whip 12 times prior to the 100-metre mark – seven (7) times more than permitted”. 

The Rule

[6] Rule 638(3)(g)(i) provides that in a Flat Race or trial, a Rider must not:

(i) strike a horse with a whip more than 5 times prior to the 100-metre mark (other than in a slapping motion down the shoulder with the whip hand remaining on the reins);

Decision

[7] As the charge is admitted, it is deemed to be proved.

Evidence

[8] Using the available films, the Applicant, Stipendiary Steward Mr Simpson identified Mr Hashizume’s mount JUST ONE in Heat 10. He pointed out that the Respondent struck his mount twelve times, from the straight entrance to the 100-metre mark.

[9] In response, the Respondent agreed with the number of strikes.

[10] Mr Marsh spoke on behalf of the Respondent. He said that his horse JUST ONE had trialled poorly 2 days previously. He said it was a $250,000 yearling purchase, and the trial which is the subject of the charge, was to be the last chance for the horse to perform. He said that he suggested to Mr Hashizume “do not let the horse stop,” meaning he wanted to ensure for the sake of the connections, it was well tried. This was because in its trial two days earlier it ran last, and its Rider reported it did not try to raise an effort. Mr Marsh, referring to the race films from Heat 10, pointed out that in the run up the straight, it appeared as though JUST ONE would run last, then picked it up and ran on well over the final 50 metres. He said that as a result of the horse’s improved performance, it is now accepted to run in a stakes race this coming Saturday.

Submissions for Penalty

[11] Mr Simpson produced the Respondent’s record which was clear over the preceding six months with regards to this Rule. He said that the Penalty Guidelines provide a starting point of a 5-day suspension where it is the Rider’s first breach, and it relates to 4 or more additional strikes. He said that 12 strikes are excessive and therefore sought an uplift from the 5-day starting point. Mr Simpson submitted that the Respondent has had 567 race rides in the past 12 months and his overall record is excellent.

[12] Mr Hashizume submitted that the Adjudicative Committee takes into account his excellent record. He also stated that he was not aware that breaches of the Rules during a Trial meeting would result in a charge. This was echoed by both Mr Marsh and Mr Harris who said that many Senior Riders and Trainers were not aware that charges could follow for breaches at Trial meetings. They recommended that a communication should be circulated by Authorities reminding Riders and Trainers of this. Mr Harris also pointed out that care needs to be taken by Trainers when giving Apprentice Riders instructions, as they can at times be taken literally.

[13] In addition, the Respondent sought a deferment to any proposed suspension until after racing on 29 April 2023.

Reasons for Penalty

[14] This is the Respondent’s first breach of the Whip Rule within the 6-month reset period. Such a breach would ordinarily be dealt with by way of a fine. However, due to the number of strikes involved in the breach (12 strikes), the Penalty Guide starting point is a 5-day suspension where the number of strikes is 4 or more than permitted.

[15] It must be said that 12 strikes are at the high end of culpability and there have been no other comparable breaches at this level since the revised NZTR Directive came into force on 1 September 2021. There have, however, been four breaches involving 9 or 10 strikes; namely:

11/03/23 – J Bayliss – 10 strikes – 11 days (poor record and Group Race)

12/10/23 – R Beemud – 9 strikes – 7 days (poor record)

06/04/22 – C Carmine – 9 strikes – 5 days (poor record)

27/05/22 – S Khetoo – 10 strikes – 3 weeks (poor record)

[16] Prior to the introduction of the revised NZTR Directive, there were several breaches involving 9 or more strikes, and they resulted in varying penalties being imposed. For example, at the high end, on 19/09/19, Apprentice Rider J Kamaruddin received a 10-day suspension for 18 strikes prior to the 100 metres. On 10/01/20, Rider S McKay received a 12-day suspension and $1000 fine for 12 strikes prior to the 100 metres. At the other end of the scale, Rider T Newman received a 6-day suspension for 9 strikes prior to the 100 metres.

[17] A feature of the above cases is that each of the breaches occurred during a race and the offending Riders all had prior poor records in relation to their use of the whip in races. Whereas the Respondent in this case has a clear record, which for the purpose of setting a penalty, is treated as a mitigating factor in his favour.

[18] The Rules specifically provide for penalties to be imposed for a breach whether it occurs in a race, a trial or jump out (refer paragraph 5). On that basis the status of the meeting, be it a race or trial, makes no difference in terms of setting penalty. Nor does it matter whether or not the Respondent was aware that the Whip Rules included a Trial meeting. It is a well-established principle that ignorance of the law (or Rules) is no defence to a charge. Furthermore, the NZTR Directive denounces unacceptable (excessive) use of a whip on a horse at any time and Riders have an obligation to familiarise themselves with the Rules of Racing, particularly those that are frequently breached, monitored and enforced. That said it is infrequent, in fact very rare, that charges arise from Trial meetings or ‘jump outs’; on that basis, the Adjudicative Committee understands why the Respondent and others, may believe that such events are not covered by the Rules.

[19] Perhaps this case serves as a timely reminder to Riders and Trainers that the Whip Rules can be enforced at Trial meetings or ‘jump outs’, and in certain circumstances at any time the whip should not be used inappropriately on a horse, and if outside of a race, excessive, unnecessary or improper whip use may be regarded as Misconduct under Rule 340 of the Rules.  Furthermore, Trainers and Agents should be reminded of Rule 638(3)(j) which provides that:

(j) A trainer, owner or their authorised agent must not give instructions or offer inducements to a Rider regarding the use of the whip which, if carried out, might result in a breach of this Rule 638 [Rule 802(1) applies]

[20 The issue for the Adjudicative Committee to determine in this case, is how much weight should be given to the Respondent’s clear record; balanced against the number of strikes involved in this breach and the need to denounce and discourage such high-end offending. In that regard, any penalty imposed must not only operate as a deterrent, but the Adjudicative Committee must also keep in perspective, the circumstances of the breach.

[21] In this regard, the Penalty Guide is structured on a graduated scale which provides for a penalty to increase based on a Rider’s prior offence history, as well as the number of additional strikes beyond the 5 which are permitted under the Rule. The Respondent has a clear record, and the number of strikes at 12, is 4 or more than permitted. Therefore, according to the Penalty Guide, this breach has a starting point of a 5-day suspension. It is envisaged that any penalty imposed would be increased commensurate with the number of strikes. On that basis after evaluating the evidence and balancing the Respondent’s culpability, which is assessed as high given the number of strikes, and taking into account his otherwise particularly good record, the Adjudicative Committee determined a 2-day uplift be applied to the 5-day starting point. This is consistent with penalties imposed for a first breach involving more than 4 strikes permitted under the Rule.

[22] Accordingly, in the circumstances, a 7-day suspension is deemed proportionate and appropriate.

Conclusion

[23] The Respondent, Mr Hashizume, is granted a deferment and his Licence to ride in races is suspended from the conclusion of racing on 29 April 2023, until after racing on 10 May 2023 (7 national days).

Costs

[24] This matter was heard on a raceday. On that basis, there is no order for costs.