Appeal – Written Decision as to Penalty and Costs dated 15 July 2024 – Robbie Close

Background

1.  This Tribunal dismissed an Appeal against the Decision of an Adjudicative Committee finding the Appellant guilty of a breach of Rule 868(3) of the Harness Racing New Zealand Rules (“the Rules”).

2.  The race took place at Addington Raceway on 23 May 2024.

3.  After finding the Appellant guilty of the charge, the Adjudicative Committee imposed a suspension of his Open Driver’s Licence for a period of four (4) racing days.

4.  Having dismissed the Appeal as to finding of guilt, the Tribunal now considers the Appeal as to the penalty which was imposed.

Appellant Submissions

5.  The Appellant has filed written submissions, submitting an appropriate penalty would be somewhere between a $400 fine or a one – two (1-2) days of suspension.

6.  He makes this submission relying on this Tribunal finding GEORGE ELIOT changed her gait at the 100-metre mark for a period of approximately 50 metres. He also notes this Tribunal found the Appellant did not have a hold of the horse as it went to the line as determined by the Adjudicative Committee.

7.  It is therefore the Appellant’s submission that as this Tribunal made some different findings to the Adjudicative Committee, the penalty should be less than what was imposed by the Adjudicative Committee.

8.  The Appellant also made reference to previous penalties which have been imposed, for a breach of this particular Rule.

9.  He further noted, this is his first charge under this Rule in 14 years of holding a Driver’s Licence under the Rules.

Respondent Submissions

10.  Mr Renault, on behalf of the Respondent, submits the Adjudicative Committee correctly assessed the offence as being mid-range and therefore the Penalty Guide, noting a four (4) day suspension for a mid-range breach of this Rule, was appropriate.

11.  He goes on to further note the previous penalties referenced by the Appellant, which had been decided prior to the current Harness Racing New Zealand Penalty Guide becoming operative. On this basis, the Respondent submits the suspension imposed by the Adjudicative Committee was correct and therefore the Appeal as to penalty should be dismissed.

Discussion

12.  It is clear the Penalty Guide reference to a four (4) day suspension for a breach of this Rule where there is a reasonable chance of finishing third, applies to a mid-range breach. The Appeals Tribunal then went on to consider where it sees this breach applying.

13.  Unlike the Adjudicative Committee, the Appeals Tribunal found the Appellant was entitled to take hold of GEORGE ELIOT at the 100-metre mark when she changed her gait and was further entitled to do so, until she returned to a more standard gait at approximately the 50-metre mark.

14.  Whilst in the Appeals Tribunal’s view, the Appellant, from the 50-metre mark, did not show sufficient encouragement to ensure compliance with this Rule and therefore it dismissed the Appeal on that basis, the Appeals Tribunal does consider there were some mitigating factors applicable, given this change of gait.

15.  On this basis, the Appeals Tribunal has therefore determined the breach to be low-range and therefore adopted a starting point of a three (3) day suspension.

16.  At the hearing before the Adjudicative Committee, it was noted and submitted by the Respondent, that the Guide was very specific in these circumstances, given there is a sliding scale of penalties depending on the potential finishing place. It was submitted by Mr Renault at the Adjudicative Committee hearing, that there was no “leeway” from the Penalty Guide. It was accepted by the Adjudicative Committee, it was a mid-range breach and the suspension of four (4) days was imposed.

17.  The Appeals Tribunal does not agree with that. The Penalty Guide is just that – it is a Guide. If there was to be a specific penalty imposed for any breach of this Rule, then the Guide would say that. It does not do so and therefore it is incumbent on those who are determining penalties, to go through the normal steps of determining whether the breach was low, mid or high range and then go on to consider any further matters of mitigation or aggravation.

18.  If that is not the view of Harness Racing New Zealand, then it should state that clearly in the Penalty Guide.

19.  From a starting point of three (3) days suspension, the Appeals Tribunal goes on to note the exemplary record of the Appellant over many years of driving in this regard. Although this is not a Rule which is considered often, the Appeals Tribunal is of the view the Appellant does deserve credit for his exemplary record in this regard, over a relatively long period of time.

20.  On this basis, the Appeals Tribunal is prepared to allow a discount of one (1) day from its starting point, arriving at a suspension of two (2) days.

21.  The Appeals Tribunal does agree with the Respondent, that the reference by the Appellant to previous penalties which were imposed was not helpful, as they did not apply to the current Penalty Guide becoming operative.

Costs

22.  The Respondent does not seek costs.

23.  The Appellant was unsuccessful in his Appeal against the finding of guilt by the Adjudicative Committee, but has enjoyed some degree of success in his Appeal against the penalty which was imposed.

24.  For this reason, the Appeals Tribunal is of the view it is not appropriate for there to be any award of costs.

Decision

25.  The original penalty imposed by the Adjudicative Committee of four (4) days suspension is quashed and is substituted with a penalty of two (2) driving days suspension.

26.  The Appellant has asked for a deferment of the penalty to take effect following racing at Addington Raceway on Friday 12 July 2024. That application is granted.

27.  Accordingly, the suspension of two (2) driving days will apply:

• 14 July 2024 at Addington Raceway; and
• 19 July 2024 at Addington Raceway.

28.  There will be no award of costs.