Appeal – Reserved Decision dated 18 July 2022 – Wiremu Pinn

[1] The Appellant, Mr Pinn, a Class B Apprentice Jockey, has appealed the decision of the Adjudicative Committee of 1 June last where he was found to be in breach of r 638(3)(e) of the NZTR Rules of Racing in that he used his whip in an improper manner and was suspended for five months.

[2] Rule 638(3)(e) states that a rider must not use his or her whip in an excessive, unnecessary, or improper manner.

[3] The appeal against penalty only was heard at Te Rapa Racecourse on Friday 8 July 2022.

[4] The parties agreed at an earlier teleconference there was no need for a transcript of the original hearing to be before the Appeals Tribunal and that the various video angles of the incident would be played for the Tribunal and that Mr Oatham and Mr Pinn would comment.

The ride

[5] With the agreement of Mr Pinn, Mr Oatham commented on the videos first.

[6] The race in question was Race 6 at the Otaki-Māori Racing Club’s meeting on 6 May 2022.

[7] Mr Oatham pointed out that the Appellant’s mount POSH POROTENE was fractious in the barrier and was slow away. The horse settled some 6 to 8 lengths behind the field. He commented that the Appellant was letting the horse settle. While the field stayed away from the rail looking for better ground, POSH POROTENE kept to the inside, saving ground.

[8] The horse made up considerable ground on the field and took the final bend relatively well. Mr Oatham commented that POSH POROTENE was hanging to some degree and had her head turned in. In the straight, the horse shifted out a little under pressure. The horse then lost ground. Some 75 metres before the post, it is evident that the horse was beaten, and the Appellant sits up in the saddle.

[9] Just before the post the Appellant struck the horse twice with the whip. The horse reacted to these, whereas Mr Oatham alleged there was not a similar response when the whip was used earlier in the straight. He also alleged that these strikes were with considerable force and were improper in the circumstances. He said it was possible one or both of these strikes were forward of the shoulder, perhaps to the lower neck, but this was not part of the RIB case. The Stewards believed the two strikes were improper. The horse was clearly beaten. Again, he emphasised the degree of force that was used, especially on the second occasion. He believed this second strike was with maximum force. He queried whether the strikes were made in anger. He pointed to the degree to which the Appellant’s arm was raised and that it appeared Mr Pinn had struck the horse as hard as he could, and the reaction of the horse supported this contention. He added that POSH POROTENE had run relatively straight, and, in the Stewards’ view, there was no justification for the Appellant’s actions.

[10] Ms Beech commented there was no dispute that there were two strikes but alleged it was difficult, despite the use of the zoom function, to ascertain where these were to the body of the horse. The Respondent reiterated that this was not the focus of their case.

[11] Mr McKinnon stated that Mr Pinn had ridden the horse five times and, on this occasion, POSH POROTENE was in season and had proven difficult to load. The horse had shifted out to 5-wide in the straight before going back to the rail.

[12] Mr Pinn confirmed he had ridden the horse previously and that she was lovely to ride. He had won on her three times. However, on this occasion she had been a very difficult ride. She had hung for 2100 metres of the 2200 metre race. His left arm had become very tired due to the build-up of lactic acid, and he had lost steering in his left hand.

[13] Mr Pinn said the strikes had nothing to do with anger but rather he was concerned whether he would get round the final bend. He believed POSH POROTENE could be a danger to the other runners, hence he had stayed on the rail. He agreed it looked bad, but he believed he had done the right thing. Safety was paramount and he was looking after the other riders.

[14] Mr Pinn said he had hit POSH POROTENE twice on the shoulder and not on the neck. He had tried his best the whole race to give the horse every chance. The horse had drifted out quite a bit. He did not want to be there. He had held her for some 2100 metres. He had no power or control anymore and that was why he had drifted out. He said other jockeys were yelling at him at about the 300 metres to steer the horse. He thought it was Mr Douglas. POSH POROTENE was not responding. He had given the horse a few strikes to the shoulder on the turn. POSH POROTENE had not responded so he thought he would be tougher with the two strikes in question. He believed this had worked as POSH POROTENE had responded.

[15] Mr Pinn concluded by stating POSH POROTENE was a difficult ride, and he did what he did for safety because the horse would not have taken the bend otherwise.

[16] Ms Beech questioned how the degree of force of the strikes was determined. She emphasised that when the horse was examined by the veterinarian after the race, there were no signs of welts or injuries. The Stewards’ Report recorded the following: “Fractious prior to the start then began awkwardly unbalancing the rider and settled some distance back at the rear of the field. Hung outwards rounding the home turn and home straight and was not persevered with over the concluding stages. Underwent a post-race veterinary inspection which did not reveal any obvious abnormality.”

[17] The Appellant disputed the Adjudicative Committee’s finding as to force. In this regard Mr Forlong commented he believed the strikes at the top of the straight were just as hard as the two in question.

Appellant’s penalty submissions

[18] The Appellant filed written penalty submissions and Ms Beech spoke to these at the hearing. Mr Pinn submitted that the Adjudicative Committee erred in its assessment of the forcefulness of the strikes at issue and imposed a manifestly excessive sentence.

[19] The Appellant noted that NZTR has developed Guidelines to clarify and provide easy reference to the level of appropriate penalty for a breach of the Rules. (NZTR Penalty Guidelines effective 1 August 2018). A key purpose of these Guidelines is also to ensure consistency in penalties. While Adjudicative Committees retain ultimate discretion, they are expected to operate within the Guidelines unless they have good reason to believe the particular characteristics of the case justifies a greater or lesser penalty than that suggested by the Guidelines. Committees are expected to explain any departure from the Guideline (at 2).

[20] There is no specific penalty guideline for improper use of the whip. However, the Guidelines categorise it as a more serious breach than excessive use of the whip and suggest this should be reflected in the appropriate penalty unless there are substantial mitigating factors. The NZTR Revised Penalty Guidelines for Whip Rule and Careless Riding Rule Breaches, effective 1 March 2022, also state that, in setting the appropriate penalty, the Committee will have regard to a rider’s whip record over the preceding 6 months; whether there was excessive force used or if the breach was calculated; and whether the whip was used significantly more than 4 additional strikes or on more than 4 consecutive strides.

[21] In the present case, the Appellant submitted the Adjudicative Committee erred in placing as much weight as it did on his prior breaches beyond the 6-month period preceding the race. Within the 6-month period prior to the race, Mr Pinn had only the following matters:

Striking on 2 February 2022 — 5-day suspension;
Striking more than 5 times on 25 April 2022 — $250 fine; and
Careless riding (shifting in when insufficiently clear) on 14 May 2022 — 4-day suspension.

[22] Ultimately, the Appellant submitted the end suspension reached was manifestly excessive in all the circumstances and with comparison to the Guidelines.

[23] Although the Appellant accepted there was no directly applicable Guideline, with each case being determined on its specific facts, he submitted the Guidelines still serve as a comparison and could apply by analogy. The suspension periods noted in relation to breaches of r 683(g) were manifestly less than the period imposed in this case. While a breach under r 638(3)(e) was stated to be deserving of a sterner penalty than a breach of r 683(g), it was submitted a suspension of 5 months was out of step with the Guidelines. This proposition was also consistent with the statement in the 2018 Guidelines that suspension would usually be given as “national riding days or occasionally weeks for more serious matters”.

[24] Further support was also gained by a comparison of the suggested 6-week suspension penalties for both reckless and improper riding (rr 638(1)(b) and (c), respectively). (We add that we note these are in fact starting points.)

[25] In the current case, the Adjudicative Committee had not explained the rationale for the 5-month suspension either by reference to the Guidelines or other comparable decisions. The Adjudicative Committee was referred to Mr Pinn’s prior suspension for improper use of the whip in a race on 30 October 2021. While outside the 6-month period suggested by the revised Guidelines, it was submitted that that decision further highlighted the excessive suspension applied in this case. That breach involved the forceful striking of Mr Pinn’s mount behind the saddle with the hard handle end of the whip. The Adjudicative Committee in that instance took a starting point of 8 weeks’ suspension (2 months) – less than half that imposed in the current case.

[26] While the Adjudicative Committee concluded the use of the whip was more forceful than necessary in the present case, there was no suggestion the breach was calculated or that the whip was used an excessive number of times.

[27] The video footage shows POSH POROTENE moving from the rail towards the centre of the track toward the finish. Mr Pinn was concerned the horse may run out further or off the track. The Adjudicative Committee accepted that the ride was difficult and yet had chosen to impose a penalty that was almost half the maximum available suspension.

[28] While it was accepted that the purposes of denunciation and deterrence would be key factors in setting penalties for improper use of the whip, the Appellant submitted that the Adjudicative Committee must also consider any consequential effects upon any person or horse as a result of the breach.

[29] In this regard, the Appellant noted the veterinary examination did not reveal any injury and that the Adjudicative Committee did not record the horse being in any obvious pain. It was submitted that the level of force used could not be readily determined from the video footage alone.

[30] Finally, the level of the current suspension was causing financial stress for Mr Pinn, who was a young jockey, and his family. While this might be an inevitable outcome of any suspension, it reiterated the need to guard against disproportionate suspensions.

[31] Ms Beech in her oral submissions referred to the fact that the Adjudicative Committee had not identified any starting point or stated what the uplift was for Mr Pinn’s previous breaches to get to the sentence end point. She said this was standard sentencing practice, but the Adjudicative Committee had failed to do this. She pointed out that the Guidelines referred to penalties of days or weeks, yet this penalty was five months. The Adjudicative Committee had not referred to any comparable cases, so it was difficult to ascertain why the particular penalty had been imposed.

[32] Ms Beech said the Appellant accepted that improper use was more serious than excessive use, but the penalty imposed was a gross departure from the Guidelines. There was an obligation on the Adjudicative Committee to provide more reasons than it had to justify the departure.

[33] Ms Beech referred to two cases from which she believed the Tribunal might obtain assistance: Stam (2008) and Fletcher (2006). The latter was the closest on the facts. The penalty in that case was three weeks’ suspension.

[34] Ms Beech concluded her oral submission by emphasising the difficulty of the Appellant’s ride, his financial situation, and the mental and physical health consequences the penalty had had for him.

[35] Mr McKinnon spoke to the Appellant’s financial and personal situation.

Respondent’s penalty submissions

[36] The Respondent filed written penalty submissions and spoke to these at the hearing.

[37] The Respondent submitted that the Appeal should be dismissed. That, whilst the penalty might be considered stern, it was not manifestly excessive for offending of this type and by this licensee. The Adjudicative Committee’s assessment of the forcefulness of the strikes was correct and that its recognition of the Appellant’s appalling record, especially his recent record of animal welfare breaches, was both appropriate and consistent with the relevant Rules and Guidelines.

[38] There was said to be a further element to this sentencing exercise and that was that the Appellant did not appear to heed multiple warnings given to him over the past 12 months. Wider denunciation and deterrence were called for, but there was a further need to deter this particular licensee.

[39] There was no specific reference to offending under r 638(3)(e) listed in the JCA Penalty Guide 2018. However, alongside the 1 September 2021 and subsequent amendments, NZTR issued revised Penalty Guidelines for the Whip Rule and Careless Riding. It was submitted these Guidelines replaced, or ought to be read as replacing, the 2018 Guide but only in respect of the amended rr 638(3)(g)(i) and (ii). While they did not expressly address breaches of r 638(3)(e), the introductory comments to the revised Penalty Guidelines for the Whip Rule and Careless Riding Rule breaches were nonetheless instructive:
“NZTR’s position continues to be that the excessive, unnecessary, or improper use of the whip during racing is unacceptable (particular where repeated) and must be denounced and discouraged by way of a penalty. The proposed penalties set out below are a starting point. More severe penalties may be imposed should the circumstances warrant ….”

[40] It was said in the Pinn appeal 21 December 2021 at [40] that improper use is a much more serious offence than excessive use, hence a considerably higher starting point is called for than the upper level starting point contained in the Guidelines.

[41] Further, in the Adjudicative Committee’s decision in that case it was said where a whip is used deliberately and not in a conventional manner contemplated by the Rules “a stern penalty is required” (Pinn 25 November 2021 [20]).

[42] This approach is called for in the guidance given by the Penalty Guide under the heading “Use of whip” at page 3”.

Unnecessary and improper use of the whip are more serious breaches than excessive use of the whip and this should be reflected in the penalty imposed for charges brought under these two elements of the Whip Rule. There is an expectation that a penalty imposed will be higher than the starting points unless there are substantial mitigating factors.

[43] In light of the Appellant’s previous breaches, and with reference to the Penalty Guide, a suspension, the Respondent submitted, was inevitable. As a result, the starting point of a five-month suspension — whilst stern — was clearly justified, and in accordance with the higher penalty expressly expected under the Penalty Guidelines.

[44] As explained by the Adjudicative Committee at [4.4], this was the Appellant’s third animal welfare breach over a relatively short period of time “where his conduct towards horses is of real concern”.

[45] The Appellant submitted the improper use of the whip was corrective. The Respondent disagreed. The Adjudicative Committee viewed the footage and described the incident in these terms at [5]: “The films demonstrate very graphically that the two blows that were struck by Mr Pinn were hard and were aimed to hit the horse on the neck particularly the first hit which was close to the horse’s head. The second hit was somewhat lower nearer the shoulder.”

[46] The Adjudicative Committee clearly rejected the Appellant’s defence. It was a deliberate assault on his mount, in circumstances where the horse was well beaten and cantering towards the winning post. The Adjudicative Committee observed at [3.2] that the strikes “have the appearance of the jockey somehow intending to punish the horse.”

[47] The Guidelines contemplate that any starting point may be increased where the “respondent has a lengthy record of breaches of the particular Rule” (page 2). Further, while the normal convention for non-serious raceday charges is to only look back at the rider’s record in the previous twelve months, “for exceptional or rare rule breaches a Committee may consider the rider’s record over a longer period” (page 2).

[48] The Respondent submitted that even if the starting point was outside the available discretionary range, the end sentence of five months was appropriate in light of the aggravating personal features which apply to the Respondents’ offending. The focus should be on the correctness of the end result, not the process by which the sentence was reached. It is only appropriate for an appellate court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.

[49] The Respondent emphasised that the Appellant had an appalling history of compliance with the Rules. Further, he did not heed the warnings given to him. The incident of improper riding on 5 May 2021 was said to be relevant. Within six months of that breach, for which he was suspended for three weeks, the Appellant committed a further serious breach of the Rules and was suspended for two months. Within a further six months he had yet again breached the Rule in a serious way. In such circumstances, it was submitted it was “entirely apposite for the penalty to exceed the presumptive starting point by a wide margin.” The Respondent referred to the Guidelines at page 2: “The starting point is just that and movement both above and below this point may (and will usually) occur. In other words, the Judicial Committee may impose a final penalty beyond this point where the breach is beyond the norm or where the respondent has a lengthy record of breaches of the particular rule…”

[50] The Adjudicative Committee’s analysis and calculation of a starting point was not flawed. If the Tribunal disagreed and accepted that the Adjudicative Committee did err as to the forcefulness of the strikes or overemphasised the Appellant’s history when considering the length of suspension, the Respondent submitted, nevertheless, that this error had not affected the appropriateness of the end sentence.

[51] The focus had at all times to be on the correctness of the end result, not the process by which it was reached. This was especially so where animal welfare breaches were considered.

[52] The Respondent concluded their written submission by stating that even if the starting point itself was outside the available range, which the Stewards denied, the sentence itself was appropriate in light of the need to impose an uplift for personal aggravating features. The five-month suspension was not manifestly excessive, and the Appeal should be dismissed.

[53] In his oral submission Mr Jackson stated that the Adjudicative Committee had accurately assessed the forcefulness of the two strikes to the horse. It was as if these were delivered as some form of punishment to POSH POROTENE. There was a degree of cruelty. The strikes were not corrective action in any sense. The horse was tiring and there was considerable force in the strikes, which the Respondent believed was plain from the video. That POSH POROTENE was a difficult ride was not a reason for the Appellant to punish the horse.

[54] It was an animal welfare issue, and this was accentuated by the strikes being in front of the public in the grandstand. The absence of injury reflected the change in whip design. Any visible bruising from strikes today was unusual and so the lack of an injury was not significant.

[55] With respect to the Guidelines, improper use was clearly more serious than excessive use and the revised Guidelines only referred to the latter. There was no clean slate provision with respect to improper use.

[56] The Respondent acknowledged that no starting point had been fixed by the Adjudicative Committee, but the Respondent believed they had got to the right outcome, nevertheless.

[57] With respect to the two earlier cases cited by the Appellant, one related to excessive use and the other was historical. Animal welfare had not received as much emphasis at that time as it did now.

[58] The Respondent accepted the penalty was stern. When questioned by the Tribunal, the Respondent said a penalty of four, five or six months’ suspension, would be within range. The Appellant had an extraordinary number of breaches of the Rules for a 23-year-old.

[59] The Respondent acknowledged the Appellant’s contention there should have been an explanation for any departure from the Guidelines. This was necessary for transparency.

Discussion

[60] The Appellant has submitted that the penalty is manifestly excessive. Mr Pinn is entitled to appeal the Adjudicative Committee’s decision as of right under r 1001(3) of NZTR’s Rules. Rule 1005(3) provides that the appeal is by way of rehearing. It follows that this Tribunal is required to carry out a full evaluative review of the Adjudicative Committee’s decision. Mr Pinn is entitled to judgment in accordance with the opinion of this Tribunal even if it involves an assessment of fact and degree and entails a value judgment. While we must form our own opinion as to the merits of the issue under appeal, the Appellant still bears the onus of persuading this Tribunal to reach a different conclusion.

[61] In discharging that onus, Mr Pinn must identify aspects of the Adjudicative Committee’s decision said to be in error. The Appellant in this regard identifies two matters: the Adjudicative Committee erred in its assessment of the forcefulness of the two strikes in question, in particular the Adjudicative Committee in imposing penalty gave too much weight to the force of the strikes and insufficient regard to the Appellant’s explanation; and, in placing as much weight as it did on the Appellant’s prior breaches beyond the six-month period preceding this race, the Adjudicative Committee placed too great an emphasis on the Appellant’s record.

[62] As there was no transcript of the original hearing, and in light of the Appellant’s contention, we viewed the videos of the race in full. In these circumstances, we permitted Mr Pinn and Mr Oatham to give evidence before us by commenting on the videos.

[63] The race in question was run over 2200 metres. POSH POROTENE ultimately finished nineth (out of 11 starters). Just prior to the winning post, the Appellant twice hit the horse with force which the Adjudicative Committee has found amounted to improper use of the whip under r 638(3)(e).

[64] The Adjudicative Committee accepted POSH POROTENE was a difficult ride on the day. However, it determined the two blows were more forceful than could be justified. We record the Adjudicative Committee’s finding as to the breach of the rule at paras [3.2] to [3.4]:

“It is the Adjudicative Committee’s view that notwithstanding the difficulty in riding POSH POROTENE the two blows struck were much more forceful than could be justified. They have the appearance of the Jockey somehow intending to punish the horse. The whip could have been used with much less force than was demonstrated in the films.

The Adjudicative Committee is persuaded on the evidence that it has seen and on the explanations given by Mr Oatham and Mr Pinn that what occurred was inexcusable and did amount to an improper use of the whip.

It follows from what has just been said that the Adjudicative Committee finds that the allegation made against Mr Pinn has been established and the charge is proven.”

[65] The Adjudicative Committee referred to Mr Pinn’s previous charges of improper riding in May 2021 and improper use of the whip in a race on 30 October 2021 and imposed a suspension of 5 months concluding on 9 November 2022.

[66] We turn first to the issue of the forcefulness of the two strikes. We note the Adjudicative Committee also referred to these as being to the neck of POSH POROTENE. The Respondent told us that this did not form part of the Stewards’ case. Mr Pinn disputed these were forward of the shoulder. The videos are inconclusive, although highly suggestive of the first strike, at least, being forward of the shoulder. However, the Adjudicative Committee restricts its finding of the breach being proved with reference to the strength of the strikes, (although we note a reference at para [4.3] when imposing penalty to “where they hit the horse”). We approach the matter by having regard only to the forcefulness of the strikes.

[67] Mr Oatham commented that POSH POROTENE was hanging to some degree for the whole race. In the straight, the horse shifted out a little under pressure and then lost ground. Some 75 metres before the post the horse was beaten, and Mr Pinn sat up in the saddle. Just before the post the Appellant struck the horse twice with the whip. The horse reacted to these, whereas Mr Oatham alleged there was not a similar response when the whip was used earlier in the straight. He also alleged that these strikes were with considerable force and were improper in the circumstances.

[68] Mr Pinn gave evidence that after turning into the straight, POSH POROTENE began moving out from the running rail towards the centre of the track. At least one jockey yelled out to him to steer the horse. The horse was hanging the whole race and was giving him a difficult ride. He believed the horse might not go around the bend after the winning post. His left arm was very tired from trying to keep the horse straight throughout the race, and his use of the whip was an attempt to ensure the horse did not run out further or run off the track.

[69] The Adjudicative Committee understandably rejected this explanation. The videos do not evidence that POSH POROTENE was giving the Appellant such a difficult ride that safety was at issue on the bend after the post. We observe that the two strikes were at a time when POSH POROTENE was well beaten and cantering towards the finish.

[70] In our view there is no doubt the two strikes at issue are forceful. The degree to which the Appellant’s arm is raised and the speed with which it is lowered supports this. These strikes can clearly be differentiated from the earlier strikes to POSH POROTENE after entering the straight. The force is, as the Adjudicative Committee found, not justified by the difficulty of the ride that Mr Pinn had had up until this point. Mr Pinn had ridden the horse on five previous occasions. On three of those occasions the horse had won the race. He had not previously had issues. We are told she was in season, and this may be an explanation for her hanging on the day. Mr Pinn said he wanted POSH POROTENE to take notice of the whip and this was the reason for the nature of the strikes.

[71] We see the two strikes as being out of frustration as a result of POSH POROTENE, which had in previous starts been quite tractable, giving Mr Pinn a difficult ride for much of the race. They were forceful and, as the Adjudicative Committee found, improper. We do not believe that the Adjudicative Committee placed too great an emphasis on the nature of the strikes.

[72] With reference to comparator cases, the Respondent did not identify any, and the two identified by the Appellant we did not find helpful. Stam (2008) is a different Rule (excessive use), and Fletcher (2006) is a raceday decision imposing a penalty of three weeks’ suspension for two strikes in the vicinity of the head. The Respondent is quite correct in stating that animal welfare considerations receive much greater emphasis today.

[73] We turn to the second issue – the weight given to Mr Pinn’s record. This charge was the Appellant’s third animal welfare breach having earlier been sanctioned for two relevant breaches (amongst other breaches, in May 2021 (three weeks’ suspension) and December 2021 (two months’ suspension). The Adjudicative Committee said at [4.4], with reference to this: “His conduct towards horses is of real concern”. We can only echo these comments.

[74] Related to this issue is an understanding of sentencing methodology, generally, and starting points, in particular, which we turn to first. As the Appellant has highlighted in both oral and written submissions, we are not assisted in determining whether the penalty is manifestly excessive by having the benefit of a transparent methodology being adopted by the Adjudicative Committee. For example, there is no identification of a starting point and thus no indication as the weight (often described as the degree of uplift) that was attached to Mr Pinn’s previous breaches of the Whip Rules. Nor is it obvious the discount, if any, that has been given for personal circumstances.

[75] The Respondent has not attempted to defend the methodology that was adopted by the Adjudicative Committee and has simply responded that the end penalty was within range when regard is had to the nature of the strikes and the Appellant’s record. While an uplift is common for previous breaches of the Rules, especially for a previous breach of the specific Rule in question, this is usually quantified. In this case it was not. If the Adjudicative Committee took, say, a three-month starting point, then the uplift is two months or 66 per cent. This is too high and is not proportionate to either the starting point or to the penalty (two months) that was imposed on Appeal for that earlier breach, and risks the current penalty being seen as further, double, punishment for a breach, the penalty for which has already been served by the Appellant.

[76] With reference to the starting point, 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 NZTR Guidelines. Improper use is a much more serious offence than excessive use. The starting point should be considerably higher than the upper level of the starting point for excessive use of the whip contained in the Guidelines.

[77] The starting point in Pinn (December 2021) for one strike with the whip handle was six weeks. In so finding, the Appeals Tribunal commented at [41]: “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.”

[78] We believe a starting point of not more than 10 weeks is appropriate for the two strikes in question in this case. We do not find they were at the lower end of the scale. They were not only unnecessary and forceful (and thus improper), but they create the impression, as the Respondent submitted and the Adjudicative Committee held, that POSH POROTENE was being punished for giving the Appellant a difficult ride. Both the integrity of the Racing Industry and the interests of animal welfare are live issues for this very reason. The departure from the 6-week starting point adopted in Pinn (December 2021) reflects that on this occasion there were two strikes, they were forceful, and they were far less subtle given they occurred near the winning post in front of the grandstand. While animal welfare concerns are relevant no matter where they occur, the public nature of this offence is an aggravating factor given its detriment to the tolerance of the social licence granted to racing generally.

[79] With reference to the Appellant’s record, we observe that the Adjudicative Committee described it as “most unattractive”. This is certainly not an understatement and his record is of concern to this Tribunal. An uplift must be a considered response to specific aspects of an individual’s previous breaches of the Rules. An uplift is often appropriate for deterrence and denunciation principles. Previous breaches can be viewed as an indicator of the person’s character and enhanced risk of re-offending or a predilection to offend in a specific way, thereby justifying an uplift.

[80] We agree with the Adjudicative Committee (Pinn, November 2021) that there is a “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.” This observation carries even greater weight when these actions are both repeated and frequent.

[81] Relevant to our assessment of the quantum of the uplift are the number, seriousness and nature of previous breaches, previous penalties imposed, and the time elapsed since the last breach.

[82] In applying these principles to the case before us, given the relevance in nature and time of the prior breaches, it is necessary to uplift substantially the starting point for Mr Pinn’s prior breaches, especially as he appears to be somewhat unresponsive to prior sanctions. We accept the Respondent’s submission that the Appellant does not appear to have heeded multiple warnings given to him over the past 12 months and that not only “wider denunciation and deterrence is called for but there is further the need to deter this particular licensee.”

[83] We do not accept the Appellant’s submission that with respect to breaches of r 638(3)(e) that only breaches in the previous six months are relevant. However, caution must be taken to ensure that a penalty is not simply uplifted merely by dint of previous breaches as this would result in the person essentially being punished again for breaches they had already expiated. Furthermore, as we have previously noted, any uplift must be proportionate to the starting point.

[84] A 40 per cent increase in the 10-week starting point is appropriate for the Appellant’s record, particularly his failure to respond to the previous relatively recent two-month penalty for the breach of this very rule. (This equates to 50 per cent of that two-month penalty.) We note that this percentage is perhaps at the outer limits of uplifts but believe that both the repeated nature of the breach (we are not looking at merely a generally poor record) and the related animal welfare concerns warrant such a response. We also note that the New Zealand Court of Appeal said in Blackmore v R [2014] NZCA 109 at [13] “The appropriate level of uplift is not determined by percentages but rather by a careful assessment of the need for deterrence and other sentencing principles in arriving at the appropriate sentence for the offending in the relevant case.” This comment is equally apt in the sports disciplinary context.

[85] Put simply, the Appellant must learn to obey the Rules, or he will spend longer and longer as a spectator rather than participant. The objective interests of the sport clearly outweigh his subjective need to be involved, should he continue to breach the Rules.

[86] While we have regard to the Appellant’s personal and financial circumstances, such as his being an Apprentice with a young family, they are not such, on the evidence before us, that any discount is warranted from this adjusted starting point. We note he is a very busy and successful rider. He has had 967 rides for 120 winners.

Penalty 

[87] The penalty is 14 weeks’ suspension. The Appellant’s licence is suspended from 9 June up to and including 15 September 2022.

Costs

[88] We did not receive submissions as to costs. Unless we receive written submissions to the contrary by 4 pm Tuesday 26 July, costs will lie where they fall.