Non Raceday Inquiry – Decision dated 30 June 2022 – Ricki L Herbert and David A Marshall

Preliminary Matter:  Non Raceday Inquiry Decision dated 3 June 2022 – Rule 1114

The Adjudicative Committee has received a Memorandum from Counsel for the RIB, (Informant) dated 20 June 2022, with regard to an error in the Informant’s submissions on penalty, in particular that the incident, the subject of the charges had been broadcast on Trackside to the nation.  The Informant was advised by the Trackside Manager on 10 June 2022, that this was an error and no part of the incident had been broadcast.

This error was taken into account as one of the aggravating factors with regard to penalty by the Informant and the Adjudicative Committee in its Decision dated 3 June 2022.  For these reasons, the Adjudicative Committee was satisfied a miscarriage of justice had occurred and set aside the Decision dated 3 June 2022 pursuant to Rule 1114 of the New Zealand Rules of Harness Racing.

This Decision dated 30 June 2022 therefore, replaces the earlier Non Raceday Inquiry Decision dated 3 June 2022 and corrects the error.

Introduction
[1] David Anthony Marshall and Ricki Lloyd Herbert (the Respondents) each face one charge that they breached Rule 303(2) of the New Zealand Harness Racing Rules, in particular:
(a) In respect of Mr Marshall, on 24 December 2021 at the Waikato BOP Harness race meeting at Cambridge Raceway, being a Licensed Stablehand and a Registered Harness Horse Owner, Mr Marshall misconducted himself by verbally abusing and acting in an intimidating manner towards Allen Christiansen (Mr Christiansen), in breach of Rule 303(2) of the Rules.
(b) In respect of Mr Herbert, on 24 December 2021 at the Waikato BOP Harness race meeting at Cambridge Raceway, being a Licensed Amateur Driver and a Registered Harness Horse Owner, Mr Herbert misconducted himself by verbally abusing and acting in an intimidating manner towards Allen Christiansen, in breach of Rule 303(2) of the Rules.

[2] Rule 303(2) provides:
No person or body who holds a Permit or Licence under these Rules and no Owner, Trainer, Breeder, Stable- hand, Unlicensed Apprentice or Racing Manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter.

[3] Rule 1003(1) provides that:
A person who commits a breach of any race shall be liable to the following penalties:
(a) A fine not exceeding $10,000; and/or
(b) Suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) Disqualification for a period not exceeding 12 months.
(d) or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stable.

[4] The Respondents confirmed in writing that they admitted the charge and the Informant and both Respondents agreed that the hearing as to Penalty is to be dealt with on the papers. The Respondents were requested to provide submissions in writing as to penalty following receipt of the Informant’s submissions in writing, which Mr Marshall and Mr Herbert have done.

[5] We have considered all relevant documents including Information Numbers A17951 and A17952, the Summary of  Facts and Penalty Submissions from the RIB and Mr Herbert and Mr Marshall.

Summary of Facts
[6] The RIB has provided a summary of salient points from the Summary of Facts in respect of both Respondents as both charges arise out of the same incident and the Summary of Facts overlap.

[7] The relevant facts are:
(a) The Respondents were both at a dual code Greyhound Racing and Harness Racing meeting at Cambridge Raceway on 24 December 2021. This event was operated as a BYO Alcohol event, allowing patrons to bring and consume their own alcohol.
(b) Approximately a dozen patrons were present at the meet as guests of Kyle Marshall Racing, operated by Mr Marshall’s son Kyle Marshall, which had a marquee set up. Both Respondents were consuming alcohol during the day.
(c) Mr Marshall admitted that he was drinking on and off throughout the day and probably had a few too many. Mr Herbert denied drinking a significant quantity of alcohol.
(d) Greyhound Race 10, in which a greyhound trained by Mr Christiansen was racing, concluded at approximately 6.00pm. After the race, Mr Christiansen returned to the dais area in front of the main grandstand with his dog where Trainers and Handlers wait for dogs to return.
(e) As Mr Christiansen was returning towards this area, Mr Marshall passed the fence and approached Mr Christiansen. Mr Marshall became highly abusive towards Mr Christiansen, yelling abuse at him and threatening him. Mr Marshall said things such as “you got beat, you f…..g piece of s…” and “have you smashed any women today you woman beating c…. come here I will smash your head in”. Mr Christiansen continued walking past with his dog. Mr Marshall followed Mr Christiansen and his dog, continuing to yell abuse at him.
(f) As Mr Christiansen got closer to the Kyle Marshall Racing tent, Mr Herbert crossed the roped fence and approached him. Mr Herbert started yelling abuse at Mr Christiansen and gesturing toward him in a threatening manner.
(g) A minor melee began as several other persons became involved. Further abuse was shouted at Mr Christiansen by several persons, and others stepped in to ensure that no physical altercation could occur. Mr Christiansen walked away without responding to any of the commotion.
(h) Following the incident, Mr Christiansen asked that his remaining dogs be scratched from their respective races as he did not feel comfortable remaining at the Raceway.

[8] The RIB referred to the background to this offending, which is relevant, in particular:
(a) The genesis of this event was an incident Mr Christiansen had been involved with in July 2021. On that date, Mr Christiansen had assaulted Kyle Marshall and two other persons. Following a defended hearing before an Adjudicative Committee, Mr Christiansen was found guilty of three charges of misconducting himself. This offending involved:
(i) Slapping Mr Marshall through the open window of a vehicle, then slamming the door of his vehicle hard enough that the window smashed.
(ii) Pushing the second victim against a concrete wall, causing a laceration to the back of his head.
(iii) Pushing the third complainant in her shoulder.
(b) Having found Mr Christiansen guilty of these charges, on 17 December 2021 the Adjudicative Committee disqualified Mr Christiansen for a period of three months, commencing 21 January 2022.

Aggravating factors
[9] We agree with the RIB submissions as to the aggravating factors of this offending, in particular:
(a) Mr Marshall and Mr Herbert’s actions were part of an evolving incident of abuse directed at Mr Christiansen, involving threatening and intimidating behaviour.
(b) Their conduct fell well short of the behaviour that is expected of persons licensed to participate in the Harness Racing Industry and fell well short of what is reasonably expected of persons conducting themselves in society in general.
(c) The behaviour was particularly aggravated by the context in which it occurred in a highly public area in front of a number of patrons who were present to watch the Harness and Greyhound racing events and had the ability to bring the Racing Industry into serious disrepute.
(d) This offending occurred in the context of a “BYO day” at Cambridge Raceway. The RIB advise that the Cambridge Raceway was hopeful that it would conduct such an event without incidents of violence

[11] Mr Herbert does not have any previous racing disciplinary incidents. He has four previous convictions for driving related matters.

Mitigating Factors
[12] Mr Marshall and Mr Herbert both admitted the charges at the earliest opportunity and have cooperated with these proceedings.

[13] Mr Marshall admitted his conduct when first interviewed by the RIB. He has written to this Adjudicative Committee expressing regret for his actions and indicating he would be happy to meet with Mr Christiansen to engage in mediation. He did emphasise the size disparity between himself and Mr Christiansen, but we do not regard that as relevant.

[14] The RIB submitted that it is relevant to any discount that Mr Herbert denied any involvement in the incident initially, claiming he had not consumed any alcohol and due to a recent hip replacement could not even go near Mr Christiansen which is inconsistent with the CCTV footage and the accounts of independent witnesses. However, Mr Herbert has not persisted with this claim in these proceedings and has offered to pay a fine of $1,500.

Penalty
[15] We emphasise that the behaviour of Mr Marshall and Mr Herbert towards Mr Christiansen on 24 December 2021 cannot be condoned in any form. The actions of Mr Christiansen in July 2021 in respect of Kyle Marshall and the other two victims have been dealt with by an Adjudicative Committee.

[16] The RIB submissions refer to the Appeal Tribunals decision in R v L which sets out the purposes and principles as to penalty:
Proceedings under the Rules of Harness Racing, as is the position in all cases involving professional disciplines, are designed not simply to punish the transgressor, but crucially are to protect the profession/public/industry/and those who are to deal with the profession…
… A common thread in cases involving serious misconduct is for the regulatory tribunal generally to focus on the interests and reputation of the profession as being more important than the fortunes of the individual offending member…The Tribunal must endeavour to reach a proportionate balance between:
• the public interest
• the interests of the offending member
• the interests of the professional body as a whole
• the seriousness of the offending
• any aggravating and mitigating factors.

[17] We agree with the RIB that cases, such as this, which involve misconduct are dealt with on their own facts due to the wide range of conduct which results in prosecution.

[18] The RIB has referred to RIB v Darryn Simpson (4 September 2021), in which the Adjudicative Committee set out a number of cases at [34] involving verbal misconduct, mostly abuse between industry participants, where the penalty ranged between $1,250 and $450.

[19] This particular case is more serious than these cases which also involved verbal abuse. The conduct of the Respondents as principal instigators of the incident had the potential to bring the Racing Industry into serious disrepute. It occurred at a race meeting in full view of the public who were present at the Raceway. The Respondents were clearly affiliated with the Racing Industry and their verbal abuse at Mr Christiansen involved threatening language, swearing, shouting and intimidating behaviour.

[20] In the case of Gommans, Jenkins and Poutama which involved actual assaults, starting points of $3,000 for two Respondents and $2,500 for the other Respondent were adopted.

[21] We agree with the RIB that a starting point of $1,500 is appropriate for each Respondent.

[22] In respect of both Mr Marshall and Mr Herbert, we take into account their admission of the charge and cooperation with these proceedings. Mr Marshall has apologised in writing and has offered to take part in mediation. Mr Herbert has offered to pay a fine of $1,500.

[23] In respect of both Respondents we allow a discount for their pleas of guilty and cooperation with these proceedings including Mr Marshall’s written apology and offer of mediation and Mr Herbert’s offer to pay a fine of $1,500.

[24] Costs are not sought by the RIB in this case.

[25] Taking all these matters into account, Mr Marshall and Mr Herbert are each fined $900.

JH Lovell-Smith (Chair)