Auckland TC 26 May 2023 – R6 – David McGowan

Summary of Facts:

Following the running of Race 6, the Respondent Mr McGowan admitted a breach of Whip Rule 869(2).  The particulars of the charge are that Mr McGowan used his whip in a continuous manner in the run home, also that he used his whip free of the rein on one occasion near the 100m.

Rule 869 provides that:

(2) No Driver shall during any race use a whip in a manner in contravention of the Use of the Whip Regulations made by the Board.

Chief Stipendiary Steward Mr McIntyre used available video footage to demonstrate the breach.  He identified Mr McGowan driving CASTANA, which was following the lead horse as he entered the straight. He said that Mr McGowan used his whip continuously on 8 occasions and then used the whip free of the rein.

Mr McGowan offered no comment in regard to the incident.

Decision:

The charge is admitted and therefore proved.

Submission For Penalty:

Mr McIntyre produced the Respondent’s (Mr McGowan) record, which indicated one previous breach in the previous 6 months, which occurred at Waikato on the 12/1/23.

Mr McIntyre said that Stewards assessed the breach to be low-level and that the starting point for a 2nd whip breach in a Group 1 Race was 10 days.

The Respondent submitted that he intended to take any proposed suspension immediately. Mr McGowan was alarmed that a breach of this nature could incur a 10 day suspension.

Reasons For Penalty:

After consideration of the evidence from all parties concerned and viewing the race films of the concluding stages of the race, the Adjudicative Committee assessed the breach as low level. Mr McGowan used his whip in a continuous manner for 8 strikes without respite, and then used his whip free of the rein on one occasion. In assessing the whip breach, the Adjudicative Committee identified that there was no overt force applied.

A low-level breach is defined as when a driver inadvertently reverts to the old style (freehand, loose reining and or more than a flicking motion) but promptly takes corrective action to return to a compliant style.

With regards to whip breaches, the Adjudicative Committee has extremely limited discretion to deviate from the Penalty Guide starting points.  To deviate from the Guide, compelling mitigating factors and/or exceptional circumstances would need to exist.  In this case, the Adjudicative Committee believes that for a breach of this nature, namely one strike and the continuous nature, such circumstances do exist.  The Adjudicative Committee is of the opinion that a 10-day suspension is unduly harsh and disproportionate, and, on that basis, the Adjudicative Committee affords Mr McGowan a 2-day reduction from the starting point.

Having considered all factors, the Adjudicative Committee deemed a suspension of 8 days to be an appropriate penalty.

Conclusion:

Mr McGowan is suspended for 8 Northern driving days. The dates of suspension commence after racing on the 26th of May 2023 and conclude after racing on the 20th of July 2023.

Note: Mr McGowan sought and was granted, permission to be excused from being present at the delivery of the penalty, as he had to drive in the next race and attend to his horses.