Manawatu RC 16 December 2023 – R1 – Joe Kamaruddin

Evidence:

Following the running of Race 1, the “Tui Backing a Winner Since 1889  1200”, Ms Algar presented an Information charging Mr Kamaruddin with the offence of “excessive use of the whip in the home straight.”  His mount was “DELPHINE”, which finished 4th.

Mr Kamaruddin admitted the breach.

The race films presented by Ms Algar disclosed that:

• From the 350 metre mark, Mr Kamaruddin forcefully struck his mount 7 times with his whip prior to the 100 metre mark.
• Thereafter, from that 100 metre mark, he struck his mount a further 7 times with his whip.

Decision:

As the charge was admitted, it was deemed proved.

Submissions for Penalty:

Mr Kamaruddin made no submissions as to penalty apart from advising he was required to ride at Wingatui on 26 December 2023.

Ms Algar advised that Mr Kamaruddin had a previous breach of the Whip Rule in October 2023 (use of the whip above shoulder height) and, in addition, he was recently warned for breach of the Whip Rule on 9 December 2023. She submitted that a term of suspension had to follow.

Mr Kamaruddin did not dispute that provided he could meet his obligations to ride at Wingatui on 26 December 2023.

Reasons for Penalty:

The Adjudicative Committee’s decision was that Mr Kamaruddin’s Licence to ride be suspended for 6 days from the conclusion of racing on 26 December 2023 and to end at the conclusion of racing on 1 January 2024.

The Adjudicative Committee needs to record the following.

Some time after the conclusion of the hearing and the delivery of its Decision, an Agent of Mr Kamaruddin, accompanied by him, approached the Adjudicative Committee in its “retiring room”.  He contended that the Rule or “Penalty Guide” did not permit the Adjudicative Committee to fix a term of suspension for 6 days.  He requested it convene again to reconsider its Decision.  This was declined.  The Agent said he would lodge an Appeal on behalf of Mr Kamaruddin and the Adjudicative Committee advised that that was the Rider’s prerogative.

The Adjudicative Committee is aware of some Riders having a view that unlimited strikes with the whip are permitted after the 100 metre mark provided that not more than 5 strikes have occurred before that point.  So they think (as Mr Kamaruddin’s Agent argued) that it is only the number of excessive strikes before the 100 metre mark that are to be considered when a penalty is fixed.  That is, in this case, he said 2 additional strikes, rather than the total of 4 (14, instead of the permitted 6 plus 4 or 7 plus 3) is the only factor to consider.

The Adjudicative Committee does not agree with that thinking.

First, it confuses or ignores the distinction between “guilt” of an offence and the proper sentencing considerations of penalty.  Sentencing requires the Adjudicative Committee to take all aggravating (and mitigating) factors into account, which may include the total number of strikes which lead to the exemption provided by Rule 638(3)(g)(iii).  Not applying that subrule provides for an exemption to apply where the pre-100 metre strikes exceed 5 but not more than 6 or 7, and the later strikes do not exceed 4 or 3 respectively, so that the total strikes do not exceed 10.

But that subrule expressly provides that it is subject to all requirements of Rule 638(3), which includes  in 638(3)(e) that:

“…a Rider must not use his or her whip in an excessive, unnecessary or improper manner”

That consideration for penalty purposes predominates.  Once the exemption provided in Rule 638(3)(g)(iii) does not apply so that a breach/conviction has to follow, the type and extend of any penalty is to be separately determined taking into account all relevant factors, which may include the total number of strikes which occurred.  It is the totality of  the aggravating factors which may be considered in fixing ultimate sanction which, in this case, totalled  4 prohibited strikes.

Quite apart from those reasons, the actual offence created by Rule 638(3)(g)(i) (if the exemption does not apply) is not to exceed 5 strikes before the 100 metre mark.  But only if it exceeds that by 1 or 2 strikes, when combined with no more than 4 or 3 later strikes, as the case may be.  So, once there is a total exceeding 10 strikes, the exemption does not apply, but the gravity may be assessed based upon the total strikes which are exceeded, not just the pre-100 metre amount.  It cannot be that for considering penalty purposes, the Adjudicative Committee must disregard the actual facts and actions that occurred.  To ignore the total number of strikes which exceed the exemption overlooks the intent of the entire Rule to sanction for excessive use, and does not make sense.

Here there were a total number of 14 strikes after the 350 metre mark, being 7 in 250 metres plus a further 7 over the final 100 metres to the finish.  In the Adjudicative Committee’s opinion, it was “excessive”, and obviously not permitted.  Mr Kamaruddin admitted this.  It is behaviour of an entirely different category to where, say, there are 7 strikes before the 100 metre mark (permitted unless the remaining strikes to the finish do not exceed 3).

The NZTR “Penalty Guide” is no more than that, and is not a Rule.  For some to suggest that considerations for penalty purposes can only relate to the number of “pre-100 metre” strikes is wrong.  An uplift for all aggravating factors is a proper sentencing principle.  It is for NZTR to consider if it needs to clarify, its “Guide” if there is confusion.  But the Rule and established sentencing principles apply, including the need of the Adjudicative Committee to be cognisant of Animal Welfare considerations.

Conclusion:

The Adjudicative Committee fixed a starting point of 5 days suspension and applied an uplift on 1 day to reflect the considerable aggravating factors of a total of 14 strikes, 4 of which were not permitted.

Accordingly, (as said earlier in this Decision), Mr Kamaruddin’s Licence to ride is suspended  for 6 National Riding Days, to commence at the conclusion of racing on 26 December 2023 and to end at the conclusion of racing on 1 January 2024.