Waikato BOP H 4 April 2024 – R8 – Tony Herlihy

Summary of Facts:

Following the running of Race 8, the McMillan Equine Feeds Pacers Flying Mobile (Group 2), the Respondent T Herlihy  admitted a breach of Whip Rule 869(2).  The particulars of the charge were that Mr Herlihy used his whip in more than a wrist flicking motion in the home straight.

Rule 869 provides that:

(2) No Driver shall during any race use a whip in a manner in contravention of the Use of the Whip Regulations made by the Board.

Stipendiary Steward S Mulcay used available video footage to demonstrate the breach.  He said that the Stewards had concerns with up to 3 strikes of the whip by Mr Herlihy in the final straight, however conceded that while one was definitely outside the Guidelines, the other 2 may have been questionable.

In response, Mr Herlihy advised that he thought only one strike was outside of the Guidelines, and in his opinion, this was debatable. He also suggested that other Drivers may have breached in the same race and questioned Mr Mulcay as to whether any other Drivers’ whip use had fallen outside of the Guidelines.

Decision:

The charge is admitted and therefore proved.

Submissions for Penalty:

Mr Mulcay produced the Respondent’s record which was clear.

He said that Stewards assessed the breach to be low-level, and had this been a “normal” race, it may have been dealt with by way of a warning, however due to it being a Group 2 event, a charge needed to be brought.

Mr Mulcay said that the Guidelines suggested a starting point of a 5 day suspension for a breach in a Group 2 event, but credit should be given to Mr Herlihy for his exemplary record and admission of the breach.

Mr Mulcay also submitted that there were a number of premier meetings in the North that were about to commence and the Adjudicative Committee might like to consider that when affixing penalty.

The Respondent submitted that he would take any proposed suspension after the 12th of April, but asked if the Adjudicative Committee might like to consider a fine.

Reasons for Penalty:

After consideration of the evidence from all parties concerned and viewing the race films of the concluding stages of the race, the Adjudicative Committee assessed the breach as low level.

In the Adjudicative Committee’s opinion, there was more than one strike which breached the Regulations, however this occurred over a short distance and Mr Herlihy reverted back to a compliant style soon after.

A low-level breach is defined as when a driver inadvertently reverts to the old style (freehand, loose reining and or more than a flicking motion) but promptly takes corrective action to return to a compliant style.

The Guidelines point to a 5 day suspension as a starting point of a whip breach in a Group 2 Race. This assumes that the breach is in the mid-range.  Having considered that this was a low level breach, Mr Herlihy’s record and admission, the Adjudicative Committee determined that an appropriate penalty to be a 3 day suspension.

Conclusion:

The Respondent is granted a deferment and is suspended for a period of 3 days commencing after racing on the 12th of April, and concluding after racing on the 26th of April.