Auckland RC 9 January 2022 – R5 – Opie Bosson

EVIDENCE:

Following the running of Race 5, the Respondent Class A Rider Mr Bosson admitted a charge alleging the use of whip in consecutive strides over the concluding stages of the race.

Rule 638(3)(g)(ii) provides that in a Flat Race a Rider must not:

(ii) strike a horse with a whip in consecutive strides at any stage of the race.

Using the available race films Stipendiary Steward Mrs L Selvakumaran demonstrated that Mr Bosson struck his mount (THE PERFECT PINK) twice in consecutive strides over the concluding stages of the race.

THE PEFECT PINK finished second, beaten a nose by the race winner LA CRIQUE.

Mrs L Selvakumaran added that Mr Bosson used his whip four times in the run up the straight, with two of those strikes having occurred very close to the finish.     

In response, Mr Bosson agreed with the strike count.

REASON FOR DECISION:

As Mr Bosson admitted the breach, it was deemed proved.

SUBMISSION FOR PENALTY:

Mr Williamson submitted that Mr Bosson has had 3 previous breaches of the Whip Rule 638(2)(g) over the past 6 months, namely:

2 November 2021, Te Rapa (under subclause (i)) – fined $250

13 November 2021, Riccarton, (under subclause (i)) in a Group 1 Race – fined $4500

16 November 2021, Rotorua, (under subclause (ii)) – suspended 5 days

Mr Williamson submitted that with regards to the Whip Rule relating to consecutive strikes / strides (sub-clause (ii)), the Penalty Guide is ambiguous.  Mr Williamson read out the provisions in the Guide regarding this clause and noted that it does not allude to an appropriate penalty for a fourth breach of the Whip Rule. He added that a prior offence in any category is included in consideration of penalties; and that within the 6-month reset period each consecutive penalty is to be raised by 1 or 2 days.

Mr Williamson submitted that Mr Bosson struck his mount four times down the shoulder with two being consecutive.  He said no force was applied to each strike.

Mr Williamson said the 5-day suspension imposed on Mr Bosson by the Adjudicative Committee at Rotorua was an error and should have been a fine.

In conclusion, Mr Williamson submitted that a fine greater than $500 be imposed.  He added that Mr Bosson’s share of the stake for finishing second was $830, with 50% being $415.

In response Mr Bosson submitted that, if possible, he would prefer a fine.  He said that over the next two weeks he is committed to riding the favourite in the Group 1 Race at Wellington (on 15 January 2022) and also the two favourites in the Karaka Million-Dollar Races (on 22 January 2022).

REASON FOR PENALTY:

This is Mr Bosson’s fourth Whip Rule breach fourth breach in 9 weeks.  The reset period is 6 months.

The NZTR Revised Penalty Guide for improper whip use (effective as of 1 September 2021) provides that:

1. Excessive or improper whip use during racing is unacceptable (particularly where repeated) and must be denounced and discouraged by way of a penalty.
2. A prior offence in any category of breach is included in consideration of penalties.
3. Additional National Days and/or an increased percentage of the jockey share of stake to be added where whip infringement is in a black type race, a prestige jumping race or other major race.
4. Where charges are upheld within the 6-month reset period, each consecutive penalty in the 6 months is to be raised by 1 or 2 days.

Mr Williamson submitted that a fine, for this fourth whip breach, would be an appropriate penalty and he suggested that Mr Bosson’s previous suspension for a breach (of the same Rule) at Rotorua on 16 November 2021 was an error and should have resulted in a fine.

The Adjudicative Committee disagrees with Mr Williamson’s interpretation of the Penalty Guide, and further the breach at Rotorua was not a mistake or error and it is consistent with other like penalties.

Since the revised NZTR Penalty Guidelines came into force on 1 September 2021 there have a been a number of precedent cases that support the notion that breaches in any category of the whip sub-clauses (i) and (ii) are grouped together for the purpose of fixing penalty.

Precedents cases

A sampling of precedent cases include:

28/10/21 B Grylls, Te Aroha, suspended 5 days

03/11/21 L Satherley, Cambridge, suspended 5 days + fine $150

16/11/21, O Bosson, Rotorua, suspended 5 days

27/11/21, V Colgan, Te Aroha, suspended 5 days

11/12/21 T Thornton, Te Rapa, suspended 7 days

11/12/21 L Satherley, Te Rapa, suspended 7 days (and 9 days on 18/12/21)

In B Grylls the Applicant Chief Stipendiary Steward Mr Oatham submitted that the Penalty Guidelines provide for a penalty of a 5-day suspension for a 3rd breach.  The Adjudicator, Mr McKenzie commented that “The NZTR Revised Penalty Guidelines provide for a starting point for penalty for a 3rd breach of a 5-day suspension. This breach is regarded as a 3rd offence, the Guidelines providing that a prior offence in any category is to be included in consideration of penalties. That starting point is an appropriate penalty for this breach”.

In L Satherley (03/11/21) the Adjudicator, Hon J W Gendall QC stated: (with regards to the Penalty Guide stated “It speaks of a starting point for a fourth offence of breach of “the Whip Rule” and although some might say this only refers to excessive number of strikes, this approach would not be what is intended under Rule 638.  Any breach of the Whip Rule 638(3)(g) – whether under sub clause (i) or (ii) – is to be taken into account when recommended starting points are considered”.

Quite simply the various precedent cases do not support Mr Williamson’s submission in terms of fine versus suspension for a fourth breach, particularly where previous breaches under subclauses (i) and (ii) are grouped. The way in which the NZTR Penalty Guide is framed and the manner in which it has been interpreted since promulgated and introduced on 1 September 2021 is that prior offences separately under subclause (i) [excessive strikes before the 100m mark] and subclause (ii) [use of the whip in consecutive strides] are grouped for the purpose of setting penalty.

It is accepted that Mr Bosson struck his mount no more than for times in the home straight, but two of the strikes were consecutive and therefore in breach of the Rule.  They were not forceful, but nevertheless they constitute strikes for the purpose of the Rule.

The Adjudicative Committee is mindful that any proposed suspension will result in Mr Bosson having to forgo his mount in the Group 1 Race at Wellington; and potentially his rides at the Karaka Millions meeting.  In consideration of this, the Adjudicative Committee has come to the conclusion that any proposed penalty should not include both meetings.  There are effectively six meetings scheduled between now and the Karaka Millions on 22 January 2022, therefore a suspension that falls within that six-meeting timeframe is fitting under the circumstances.

Finally, in consideration of Mr Bosson’s submission that he receives a fine, the Adjudicative Committee is of the view that a fine for a fourth whip breach would not be appropriate and would run counter to the intent of the NZTR Guidelines. It would also be inconsistent with the precedent cases, and there are no compelling grounds to make an exception for Mr Bosson.

After considering the above Guidelines, the film evidence; the submissions and having due regard for the number of consecutive strikes (2), as well as the Respondent’s share of the stake ($830), the Adjudicative Committee determined  a 6 days suspension to be appropriate. In addition, a fine of $400 is imposed which is about 50% of Mr Bosson’s share of the stake.

CONCLUSIONS:

Accordingly, Mr Bosson is suspended from riding after the conclusion of racing on 9 January 2022 until after racing on 20 January 2022.  In addition, he is fined $400.