Appeal – Decision dated 18 May 2023 – Matthew Jason Anderson

BACKGROUND

1. On 8 November 2022 the New Zealand Metropolitan Trotting Club held its Cup Day Meeting at Addington Raceway.

2. Two of the horses who had been entered to race on that day were “RAKERO REBEL” and “MILLWOOD INDIE”. These two horses were trained by Philip Benjamin Burrows.

3. As a result of information received and investigative actions by the Racing Integrity Board Investigators, the Appellant was charged with three (3) breaches of the New Zealand Harness Racing Rules. These charges were laid as a result of the Appellant assisting Mr Burrows to commit the offences which ultimately led to charges also being laid against Mr Burrows as the Trainer of the two (2) horses.

4. The Appellant pleaded guilty to all three (3) charges and the Adjudicative Committee by Written Decision dated 13 March 2023, disqualified the Appellant from racing for a period of five (5) years and three (3) months. He was also disqualified for a period of eighteen (18) months in respect of Information A16905 and for nine (9) months in respect of Information A16906. All terms of disqualification were to be served concurrently.

5. The Appellant has filed a Notice of Appeal against the penalty imposed by the Adjudicative Committee.

6. In accordance with the Appeals Tribunal’s Minute, the Appellant has filed written submissions which have been replied to by the Respondent. The Appellant has also filed further submissions in response.

7. The charges to which the Appellant pleaded guilty were:

a) Together with Philip Benjamin Burrows a Licenced Trainer, did administer to RAKERO REBEL, which was entered in Race 7 at the New Zealand Metropolitan Trotting Club’s meeting at Addington that day, a prohibited substance by way of hypodermic syringe, in breach of HRNZ Rule 1004I(1) and subject to the penalties pursuant to Rule 1001(2); and

b) Together with Philip Benjamin Burrows as a Licenced Trainer, did administer to RAKERO REBEL, which was entered in Race 7 at the New Zealand Metropolitan Trotting Club’s meeting at Addington that day, a substance by way of nasal gastric tube, in breach of HRNZ Rule 1004C(1)(a) and subject to the penalties pursuant to Rule 1004(D); and

c) Being a ‘prohibited person’, he acted in contravention of a Notice issued by HRNZ by assisting Trainer Philip Benjamin Burrows in the raceday preparation of registered horses “RAKERO REBEL” and “MILLWOOD INDIE” in breach of HRNZ Rule 1002(1)(b) and subject to the penalties pursuant to Rule 1003(1).

8. In determining penalty, the Adjudicative Committee adopted a starting point of four (4) years and six (6) months disqualification in respect of Information A16904 and having regard to six (6) aggravating factors, uplifted that starting point by eighteen months. Allowing for mitigation, the Adjudicative Committee allowed a discount to the penalty of nine (9) months resulting in the ultimate penalty of five (5) years and three (3) months disqualification.

Appellant Submissions

9. Mr Dale filed helpful written submissions in support of the Appeal. In his submission he made an assumption that the Appeals Tribunal had read the submissions which were made on the behalf of the Appellant before the Adjudicative Committee. The Appeals Tribunal has read those submissions carefully.

10. Mr Dale argued that:

i) As a matter of principle, the approach to sentencing should be applied consistent with the principles set out in a decision of the High Court in Shousha v A Professional Conduct Committee [2022] NZHC1457; and

ii) The Adjudicative Committee should have imposed “the least restrictive penalty that can be reasonably imposed in all of the circumstances” being a phrase referenced in that decision.

11. He submits these arguments “stem in part from the way the argument was presented” in the recent High Court decision of Wigg v RIB [2023] NZHC297.

12. In addition, Mr Dale submits:

i) It was wrong as a matter of principle to “tie” the Appellant’s level of culpability to that of Burrows; and

ii) The Adjudicative Committee placed undue emphasis on Mr Anderson’s response to the initial accusations.

13. Other mitigating matters referenced include:

i) There is no suggestion or basis to suggest the Appellant had any part in the original decision to breach the Administration Rule.

ii) He was the only other person at the stables and was called upon by Mr Burrows to assist. Refusing was likely to have been difficult given Mr Burrows could not commit the offence by himself.

iii) There was no element of profit in what occurred for the Appellant.

iv) Too much emphasis was placed on the Appellant denying liability when first confronted.

v) The offence was not premeditated.

14. In the submissions there is no indication as to what the Appellant considers would be an appropriate penalty, although before the Adjudicative Committee there was a submission the penalty should not exceed two (2) years disqualification.

Respondent Submissions

15. Not surprisingly, Mr Dow on behalf of the Respondent submits the Decision of the Adjudicative Committee was correct.

16. The submissions detail what is labelled as relevant history, setting out the Appellant’s disqualification for previous offences, including criminal charges, and also a formal letter by Harness Racing New Zealand advising he was permitted to purchase break and gait yearlings, but was not to prepare horses for any raceday or undertake any training.

17. Mr Dow sets out the sentencing principles from the Appeals Tribunal decision in RIU v L. These principles are well understood and have been referenced in a number of both Adjudicative and Appeal Decisions with approval.

18. Mr Dow is of the view the recent High Court Decision in Wigg v RIB does not assist the Appellant on the basis which has been submitted by Mr Dale.

19. The Informant justifies the sentencing, which was adopted by the Adjudicative Committee, although there is an admission that a moderate adjustment from the aggravating uplift imposed by the Adjudicative Committee might reasonably be available to the Appellant.

Discussion

20. The facts surrounding these three (3) charges, and the reasoning for coming to the conclusion it did is set out in full in the Adjudicative Committee Decision.

21. The Appeal has been conducted by way of a re-hearing. The Appeals Tribunal procedure is set out in in Rule 126 of the New Zealand Harness Racing Rules. The Fifth Schedule to the Rules sets out the actual procedure to follow. Paragraph 44 confirms the Appeal is to be by way of a re-hearing and we have adopted that procedure.

22. In considering this Appeal, we are required to form our own opinion as to matters of law and fact. However, we should give due weight to findings made by the Adjudicative Committee.

23. We have carefully read the Adjudicative Committee’s Decision, and also the submissions which have been filed.

24. We have also carefully considered the Appellant’s submissions on the extent to which we should consider the Decision given by the High Court in Wigg v RIB. As we noted in an earlier Appeal Decision relating to Burrows, we again hold the view the charges which the Appellant faced are more serious in nature than those which were referred to by Her Honour in her Decision.

25. In the Wigg case, the product which was administered was not performance enhancing, as is the situation here. Any administration of a performance enhancing substance goes to the integrity of the Industry and must be dealt with accordingly.

26. The Appeal is as to penalty only. We have considered the reasoning of the Adjudicative Committee in adopting a four (4) year six (6) month starting point.

27. The Adjudicative Committee fixed that starting point based on earlier Decisions where there had been a nine (9) year starting point applied to the principal offender. The Adjudicative Committee then applied a 50% discount to arrive at four (4) years and six (6) months starting point.

28. Mr Dale does not accept there should be any “tie” between the starting point which should apply to the Appellant, and that which had applied to Mr Burrows.

29. We do not necessarily agree with Mr Dale in this respect. References and comparisons to other penalties which are imposed within the racing jurisdiction are common in order to achieve consistency in sentences which may be imposed. Notwithstanding that, when looking independently at the overall circumstances, we agree a starting point of four (4) years and six (6) months disqualification is an appropriate starting point.

30. This starting point recognises the offences which were committed on the day were serious and undermine the integrity of the Industry. It is vital the Industry takes a stern view of such offending. If the wagering public loses confidence in the integrity of the Industry, then that obviously has a significant impact on all. We do recognise the Appellant played a secondary role by way of assisting only. However, we believe he was well aware of what he was doing, and what he was doing was a serious breach of the Rules.

31. We therefore turn to the matter of uplift. The Adjudicative Committee adopted an uplift of eighteen (18) months disqualification, having regard to six (6) matters of aggravation. These matters of aggravation were clearly set out in paragraph 33 of the Adjudicative Committee decision. There is no need for this Tribunal to repeat those factors.

32. We agree all of the factors are relevant.

33. However, we do note:

i) Considerable emphasis was placed on the initial denial and lack of cooperation. However, when confronted with the clear facts the Appellant adopted a different stance.

ii) Although the earlier disqualification arose from matters involving the Criminal Courts, we place a slightly lesser emphasis on those matters when considering an uplift.

34. Whilst we are of the view there must be an uplift from the adopted starting point, we set that uplift at nine (9) months disqualification.

35. As we have indicated, although the Appellant did not initially assist Investigators, he did change his mind when confronted with the obvious facts. This was done sufficiently early in the proceedings to allow for the matter to proceed to hearing by way of admitted offences and therefore dealing with penalty only.

36. Whist a guilty plea does not automatically create any entitlement to a discount on penalty, we have considered the Supreme Court Decision in Hessell v R [2010] 135 which was referred to in the Adjudicative Committee Decision. Having regard to those circumstances, we are of the view there should be some discount allowed for the guilty plea.

37. We are of the view the discount allowed by the Adjudicative Committee of nine (9) months discount in disqualification is correct.

38. By applying these matters, the Tribunal is of the view clear sentencing principles which have been widely adopted in RIU v L are satisfied.

Decision

39. For the reasons we have set out, we believe the starting point of four (4) years and six (6) months disqualification on Information A16904 is appropriate with an uplift of nine (9) months for aggravating matters followed by a discount also of nine (9) months for mitigating matters. On this Information, the penalty imposed by the Adjudicative Committee is quashed and is substituted with a disqualification for a period of four (4) years and six (6) months commencing on 20 March 2023.

40. The penalties which were imposed concurrently by the Adjudicative Committee on Information’s A16905 and A16906, being periods of disqualification of eighteen (18) months and nine (9) months respectively, are to remain. These disqualification periods are to be served concurrently with the disqualification imposed on Information A16904.

41. The Appeals Tribunal therefore allows the Appeal to this extent.

Costs

42. There will be no order as to costs as this Appeal has been conducted on the papers.