Non Raceday Inquiry – Decision dated 19 October 2021 – Troy Harris

1. Following the completion of Mr Harris’ riding engagements (Race 9) at the Hawkes Bay Racing Club meeting on 16 October 2021, Information’s were presented to the Committee alleging that on each of 3 occasions – in Races 3, 4 and 8 – Mr Harris breached rule 638(3)(g)(i) in that he struck each of his mounts, in those races, more than 5 times prior to the 100 metre mark.

2. Because Mr Harris was required to depart from the course, and time pressures existed late in the day, and the Committee had just received notice of the 3 Information’s – which had been presented together to it – was deferred to be heard as a Non Raceday hearing by this Committee the next day.

3. Mr Harris admitted the 3 breaches of the Rule.

4. The race films disclosed that:

(a) In Race 3, Mr Harris struck his mount SOLID IMPACT 6 times prior to the 100 metre mark. The horse won the race and Mr Harris’ share of the stake was $1436.

(b) In Race 4, Mr Harris struck his mount PALAMOS 6 times prior to the 100 metre mark. The horse finished 3rd, and Mr Harris’ share of the stake was $224.

(c) In Race 8, the Group 1 Livamol Classic, Mr Harris struck his mount PRISE DE FER 6 times prior to the 100 metre mark. The horse finished 3rd and Mr Harris’ share of the stake was $1124.

In each race the 6th strike with the whip occurred very close to the 100 metre mark.

PENALTY:

5. Mr Oatham advised the Committee that this was a very unusual and unique case of which he had not seen before.  He said that Mr Harris had no previous breaches of the Rule, and the breaches were at a low level, each being one strike over the limit and occurring close to the 100 metre mark.  He referred to the Penalty Guideline as it relating to “1st, 2nd and 3rd offences” but apart from (correctly) saying the case was a difficult one, he made no substantive submission as to the level of penalty, or penalties, that he sought to be imposed.

6.  Mr Harris confirmed that he had no prior relevant breaches of the Rule and had no committed riding engagements, after today, that would be affected by any suspension.

DECISION:

7. The Penalty Guidelines provide an ascending level of penalties – or at least “starting points” – for 1st, 2nd, 3rd and 4th “offences”.  They are guides only, but well known and should be applied in ordinary cases.  Where the starting points are escalated, for 2nd, 3rd and the 4th offences, obviously a Jockey must have committed the earlier offence(s).  The dilemma faced by the Committee is whether it is reasonably arguable (for “sentencing” purposes) that until there has been an earlier finding that an offence occurred, and penalties were then imposed, that there do not exist earlier “offences” within the Guidelines.  Whilst there have been 3 breaches of the Rule, later admitted and dealt with now, the earlier breaches of the Rule on this day in the Races 3 and 4 had not been established (proved) or penalties imposed, by an Adjudicative Committee.  That is, there were no offences in Races 3 or 4, established before Race 8.

8. There are several aspects of this case to which some thought is required.

(a) First, ought a Rider be sanctioned and subject to increased penalties for “offences” and “penalties” which have not earlier been established?  As a matter of human nature – (basic fairness) – a Jockey who ‘knows he has already been found to have committed an offence and been fined or punished’, is very much more likely to be careful not to offend again.  He is on notice.  But, if when he later acts in breach of a Rule, he does not actually know he is in jeopardy of a higher sanction for an earlier “offence” for which he has not been dealt with, could it be just or fair to punish him on the escalating scale?

(b) If Mr Harris had been charged, and found “guilty” after Race 3 this would have been a first breach.  So he could not avoid the “second offence” if  he had been charged after Race 4.  And likewise if he had been dealt with on that breach before Race 8.  Ideally that is what these unusual circumstances would seem to require, but it did not, only because of the very busy day the Stewards, and others had, and the fact that this situation had never previously occurred.  No criticism can be levied, but lessons may be learned with Whip Rule breaches – where penalties escalate for later offences – it is desirable to get the Information’s heard as soon as possible, so that the Jockey knows exactly where he/she stands – and credible decisions as to penalty can be realistically made.

(c) The imposition of cumulative penalties can in this rare circumstance, offend the “totality principle” universally applied when imposing a sentence or sanction.  A person who commits several related crimes together, or closely linked, does not receive the required sentence for one of those crimes multiplied by all occasions.  The totality principle requires that the end resulting sanction is appropriate, necessary, fair and just to meet all the sentencing requirements pertinent to the offences and the offender.  If cumulative sanctions are imposed which are seriously disproportionate to what occurred and lead to a manifestly excessive result, the sentencing outcome is invalid.

(d) In this unique case, the imposition of cumulative penalties, based upon the wording of the Penalty Guide, would in the Committee’s view be unjust, and offend the “totality” principle.  If the Guide was mandatory and if there were 3 offences then a cumulative process would have resulted in a 5 National Riding Days suspension plus mandatory penalties totalling $1880 (based on required fines and/or 50% share of stakes).

(e) There is an absolute need to uphold proper standards, deter other Riders, and signal to the community and Industry that misuse of the whip will be denounced.

(f) The Penalty Guide is a valuable aid but based on the rare circumstance such as this, its automatic arithmetical application to Mr Harris would be unfair.  It would be different if he had been earlier separately sanctioned and found guilty of the earlier breaches.

9. The Committee takes into account that:

(a) Each breach was at the very low end.

(b) Mr Harris has no previous breaches of the Whip Rule.

(c) As not being a previous offender, if he had been dealt with after Race 3 he would have been fined only.

(d) Any penalties on Races 4 and 8, whilst actually second and third offences, and certainly if occurring on later days, but such would only arise once the Jockey failed to heed the penalty he knew was earlier imposed.

(e) It makes clear that multiple offending can never be ignored, and there can be no discounting for multiple offences. Yet the totality principle requires that the final overall sanction or penalty must be reasonable, not manifestly excessive in all the circumstances of the offending and the offender.

10. The difficult task faced by the Committee involves trying to apply a balanced, reasoned judgment to what is fair and just in the interests of the Industry, community, the Jockey and the judicial regulating of the Code and Rules, to uphold the proper standards for whip use by Riders.  A Committee must where appropriate be guided by sentencing code but proper sentencing will not in all cases be an arithmetical exercise, and it may often require, as here, a reasonable, commonsense balanced judgment.  That is the dilemma in this case.

11. In the Committee’s judgment the proper total sanction for the 3 breaches has to be viewed as a global penalty.  This is fixed to reflect the breach in the Group 1 Race with the aggravating features of the earlier race.  A suspension of 5 National Riding Days, plus a fine of $750 is required.  The suspension is fixed for the Group 1 Race offence, and the fine of $750 is fixed to be “concurrent” for all 3 Information’s (A15611, A15612 and A15617) so that it maintains the integrity of the recording of earlier breaches. This enables the total overall outcome to be just and not manifestly excessive through cumulative sentencing, yet still is a condign penalty.

12. Accordingly, the total penalty or sanction is:

(a) On Information A15617 Mr Harris’ Licence is suspended for 5 National Riding Days commencing at the conclusion of racing at Rotorua today, 17 October 2021 and to finish at the conclusion of racing on 24 October 2021.

(b) On the Information’s A15611, A15612 and A15617 he is fined $750, the penalty to be concurrent in respect of each.

13. The Committee adds, that Mr Harris understands that he now has 3 offences for breach of the Whip Rule and any further whip offences will inevitably attract higher penalties.

Dated this 19th day of October 2021.

Hon JW Gendall QC

Adjudicative Committee