Appeal – Decision dated 16 December 2021 – Wiremu Pinn
Fielding Jockey CLub
Awapuni Racing Centre - 67 Racecourse Road, Awapuni, Palmerston North, 4412
Te Rapa Racecourse
Outcome: Appeal Upheld
Penalty: Apprentice Jockey Wiremu Pinn is suspended for 2 months (was 3 months)
1. On 30 October 2021 the Feilding Jockey Club held a race meeting at the Awapuni Racecourse in Palmerston North.
2. Race 1 on the programme was the Feilding Hotel 1300. The horse Prioress was ridden by the Appellant and was placed second in the event.
3. Subsequent to race day and as a result of complaints from members of the public, the Appellant was charged with a breach of Rule 638(3)(e).
The Rule reads:
“In a flat race or jumping race, a trial (including jump outs and/or tests for certification purposes) a rider must not use his or her whip in an excessive unnecessary or improper manner.”
4. The details of the charge on the original Information alleged:
“…you used your whip in an improper manner when striking your mount Prioress with the handle end of the whip on one occasion near the 50 metres”.
5. The Appellant pleaded guilty at a hearing on 24 November 2021. The Adjudicative Committee imposed a suspension of the Appellant’s Class B Apprentice Rider’s Licence for a period of three (3) months. Given the Appellant was already suspended up to the conclusion of 25 November 2021, this imposed suspension concludes after racing on 25 February 2022. The Appellant appeals against the period of suspension which was imposed by the Adjudicative Committee.
Procedure on Appeal
6. The Appeal procedure is detailed in Part X of the Rules.
7. Rule 1005(1) gives this Tribunal the authority to conduct the hearing of the Appeal on such matters as we think fit. Further, subclause 3 reads:
“All appeals shall except when and to the extent that the appeals tribunal otherwise directs be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.”
8. Rule 1007(2) provides:
“In the case of the appeal against penalty the appeals tribunal may:
(a) Confirm the penalty and dismiss the appeal;
(b) If the penalty (either in whole or in part) is one which the tribunal imposing it had no jurisdiction to impose or is one which is inadequate or inappropriate or manifestly excessive either:
(i) Quash the penalty and impose such other penalty permitted by these Rules (whether more or less severe) in substitution, therefore as the Appeals Tribunal considers ought to have been imposed or deal with the appellant in any other way, that such tribunal could have dealt with him or it on finding the information or charge proved.”
9. The Adjudicative Committee adopted a starting point of two (2) months suspension and after having found further aggravating matters uplifted from that starting point to a period of three (3) months suspension.
10. The Appellant appeals that penalty decision.
11. Counsel for the Appellant filed most useful written submissions. The grounds of Appeal are that the Adjudicative Committee:
(a) Erred in law in applying the starting point for penalty under a different Rule to which the Appellant was charged: and
(b) Imposed a penalty which was manifestly excessive.
Ground 1 – Error of Law
12. The Appellant was charged under Rule 638(3)(e). This is a section of the Rules which are referenced as the Whip Rules. That being the case any penalty should have regard to those penalties which specifically apply to a breach of the Whip Rules.
13. However the Adjudicative Committee focused on the word “improper” and as a consequence referenced the Improper Riding Rules for guidance as a starting point. This in the Appellant’s submission was a wrong approach and incorrect at law.
14. Under the Penalty Guidelines published 1 August 2018 there is a scale of penalties including for improper whip use. The Guidelines suggest for a third or subsequent breach there should be a six (6) – eight (8) day national riding day suspension. It was acknowledged by the Appellant there had been previous breaches.
15. There were further amendments made to the Penalty Guidelines issued on 1 September 2021 and in those Guidelines for a fourth offence the starting point should be five (5) plus national riding days suspension together with a fine equivalent to 50% of the jockey’s share of the stake.
16. It is the Appellant’s submission the Adjudicative Committee should have had regard to those Guidelines in adopting a starting point rather the Improper Riding Rule Guidelines.
Ground 2 – Manifestly Excessive Penalty
17. The Appellant submissions referenced previous cases where there had been an improper use of the whip, but which had been dealt with as misconduct. On those occasions the penalties had been a fine.
18. There was a further submission that the Adjudicative Committee placed considerable emphasis in determining an uplift from a starting point to an incident which occurred on 5 May 2021. This involved the Appellant jagging a horse’s mouth after the race with considerable force. The resultant penalty was a thirteen (13) day suspension.
19. The Appellant was of the view the incident at Feilding was at the lower end of the scale given it was not viewed widely by the public and in terms of animal welfare there was nothing to suggest the animal was in any way hurt by the Appellant’s actions.
20. The submission was the starting point of eight (8) weeks suspension was excessive and instead a starting point of eight (8) national riding days should have been adopted and even allowing for any uplift a maximum suspension of fifteen (15) national riding days was deemed appropriate.
21. Not surprisingly the Respondent was of the view the Adjudicative Committee decision was a careful and very appropriate analysis which imposed a penalty to reflect the seriousness of the incident. There were a number of aggravating factors and nothing in mitigation.
22. The Respondent concurred with the Adjudicative Committee that since 1 September 2021 there is no starting point Guidelines contained within the Rules and indeed there was a clear statement under the 2018 Guidelines that improper use of the whip was more serious matter than excessive use. That should lead to a higher starting point then referenced in the Guidelines.
23. There was an acknowledgement this type of fact situation had not been experienced previously and therefore there was no precedent to assist with determining the starting point.
24. In the Respondent’s submission the Adjudicative Committee looked for assistance in determining a starting point given the lack of precedent or definitive Guideline. There was reference to Rule 638(1)(c) which is the offence of improper riding and the Adjudicative Committee was well within his right to utilise those provisions to assist with establishing a starting point.
25. The decision was a careful and fair analysis which captured all of the appropriate principles of sentencing.
26. There was valid reason for applying an uplift on the basis the Appellant has a poor judicial record over the previous twelve (12) months, including one animal welfare case.
27. The sentence was stern but not outside an appropriate range.
28. The Tribunal took some time to view all of the relevant film coverage of the incident, including the Trackside side 2 camera angle. This was the footage which was shown on Trackside and resulted in a complaint from a member of the public. It was not a camera angle which was viewed by Stewards on the actual race day.
29. There are a number of sentencing principles which we have carefully considered. These were set out in some detail by the Adjudicative Committee.
30. These include guidance set out in the now well known case RIU v Lawson. For completeness we repeat what was set out in the decision:
(i) The need to deter other riders.
(ii) The need to punish and deter the wrongdoer.
(iii) The need to uphold the proper standards of the profession or racing code.
(iv) The need to protect and inspire community confidence in and expectation of the racing profession.
(v) The need to signal to the community and any person involved in the racing profession that horse welfare matters are vital and actions which impinge adversely on this will not be tolerated.
31. It is an evitable consequence of wrongdoing that an individual may be removed either temporarily or longer, from his or her profession, in order to achieve these objectives.
32. It has also been emphasised in a number of recent decisions that animal welfare is of utmost importance to the Industry as a whole. There is now little doubt that the social licence which is enjoyed by the Industry will only continue if society as a whole is satisfied that matters of animal welfare are being taken seriously. For this reason penalties in the area of animal welfare have been set at levels to satisfy the sentencing objectives in the area of animal welfare. These points have been emphasised in recent cases of RIU v McGrath, RIU v Alford and RIU v Turnwald. The principles apply to all three codes. They also apply very much to perception as much as reality.
33. An Appeals Tribunal will make its own finding as to what it considers appropriate having regard to the evidence which was adduced at the original hearing. It will have the benefit of subsequent submissions, but will not lightly interfere with the decision being appealed against. An Appeals Tribunal should not simply “tinker” with an earlier decision. On an appeal against penalty it should only interfere if it considers the early decisions were manifestly either inadequate or excessive.
34. In this instance we agree with the Adjudicative Committee there are no longer specific Penalty Guidelines to rely on. Any starting point must be very much fact specific.
35. The only guidance under the 1 September 2021 revision states:
“NZTR position continues to be that the excessive or improper use of the whip during racing is unacceptable (particularly where repeated) and must be denounced and discouraged by way of a penalty. The proposed adjustments are the starting point for penalties. More severe penalties may be imposed should the circumstances warrant.”
The Guidelines then proceed with sliding scales depending on the frequency of offending.
36. The Appellant was riding Prioress in a vigorous but acceptable manner until the 50 metre mark. At that point he slid his hand down the whip and grasped it at the “flap” end. He then proceeded to strike Prioress on one occasion holding that end and therefore it was the handle end of the whip which made contact with the horse.
37. It is difficult to understand any motive. At the original hearing it was alleged by the Appellant the incident was accidental or inadvertent. That was firmly rejected by the Adjudicative Committee and we agree with that. It appears to have been a very deliberate action for whatever reason.
38. We have considerable sympathy for the Adjudicative Committee in determining a starting point. There is no Penalty Guideline and no precedent to go by. At least we have had the benefit of the decision and further time to reflect.
39. We do not see too much benefit from referencing the Improper Riding Rule. The Appellant had not been charged with improper riding, but improper use of the whip. The definition of improper is clear and the Appellant pleaded guilty to the improper use of the whip charge.
40. We have therefore determined an appropriate staring point is six (6) weeks suspension. We do not agree with the Appellant’s submissions that we should simply start at the upper end of the sliding scale referenced in the 2021 Guidelines. Improper use is a much more serious offence than excessive use. Therefore the starting point should be considerably higher than the upper level of starting point contained in the Guidelines.
41. We do not agree a further uplift of two (2) weeks from the starting point of six (6) weeks suspension is warranted. Whilst we are acutely aware of the significance of animal welfare issues, this offending could possibly be described as being at the lower end of the scale given there was one strike only in the improper manner. This leads us to the conclusion the six (6) weeks starting point is appropriate.
42. The Adjudicative Committee then applied a further uplift of one (1) month due to the judicial record of the Appellant over recent times. These previous offences were detailed.
43. Although there have been a variety of previous offences, a number of them have not involved issues of animal welfare. Indeed the previous breaches of the Whip Rules have not been at the upper end of the scale of offending. They have been for excessive strikes outside the 100 metres. Two were for six strikes and one was for seven strikes.
44. However what is of concern is the incident which took place on 5 May 2021. This was a serious animal welfare issue. It is an aggravating feature. There was a suspension of thirteen (13) days imposed on that occasion and it is disappointing to all that the Appellant has again fallen foul of officialdom on an animal welfare matter within a relatively short period of time.
45. That recent offending warrants an uplift from our starting point. We have therefore determined there should be an uplift of penalty to arrive at a period or suspension of two (2) months.
46. The Appellant submitted mitigating factors should have been taken into account. These could include a guilty plea and also the fact the Appellant is a relatively young and inexperienced Rider.
47. The guilty plea only arose on the day of the hearing and as a consequence of the Appellant’s lay advocate at the time viewing the film footage. We are also of the view the Industry must take animal welfare to a degree of seriousness that the inexperience or otherwise of the offender cannot be a mitigating factor.
48. It has been well established from race day judicial decisions there will rarely be any mitigating factors on any matters dealing with the Whip Rules and animal welfare matters. In response to a further submission we also comment the lost opportunity of income at this time of year is an inevitable consequence of offending and therefore should not be a mitigating factor.
49. We have determined a suspension of two (2) months to be appropriate. Therefore the term of suspension which was imposed by the Adjudicative Committee is quashed and in turn a period of suspension of two (2) months commencing at the conclusion of racing on 25 November 2021 and concluding at the end of racing on 24 January 2022 is imposed.
50. The Appellant sought costs in his Appeal. Counsel for the parties are invited to make submissions to the Tribunal in respect of costs. We would ask the Appellant to file submissions by 5pm 20 December 2021 and the Respondent to file submissions by 5pm 22 December 2021.
A B Harper
Decision Date: 16/12/2021
Publish Date: 16/12/2021