Non Raceday Inquiry – Decision as to Penalty dated 28 February 2023 – Robert Francis Lewis

DECISION AS TO PENALTY DELIVERED ON THE PAPERS

1.  After a defended hearing at Whanganui Racecourse on 27 January 2023, Mr Lewis was found guilty of charges of (a) failing to comply with the NZTR Welfare Standards (Welfare Code) by failing to take all reasonable steps to ensure that the physical health needs of a pregnant mare were met and (b) misconduct by abusive swearing at an RIB Investigator.  The circumstances of the offending and findings of the Adjudicative Committee are contained in the Written Decision (dated 2 February 2023) already issued.

2.  Penalty Submissions were required to be made in writing:

• By the Informant within 7 days – that is by 3 February 2023.  These have been received.
• By the Respondent through Counsel, by a further 7 days – that is by 10 February 2023.

3.  Submissions on behalf of Mr Lewis were finally received late on 24 February 2023.

Submissions of Informant

4.  Mr Symon, Counsel for the RIB, referred to the factors relevant for consideration in professional discipline sanctions being not only to punish an offender but crucially to protect the profession, community, and Industry interest and to advance essential Animal Welfare needs.  He said the Adjudicative Committee has to endeavour to reach a proportionate balance between:

• the public interest
• the interests of an offender
• the interests of the professional body
• the seriousness of the offending
• any aggravating and mitigating factors
• vital Animal Welfare interests

The Adjudicative Committee agrees and has adopted that balancing exercise.

5.  Mr Symon has emphasised the importance of Animal Welfare being at the centre stage, as was referred to in the remarks of RIU v Alford (10 May 2021), namely:

‘If animal welfare standards are not upheld in the Industry and when necessary, with condign sanctions by the Judicial Control Authority, the Industry cannot maintain a social licence in order to continue to operate.”

6.  It is contended by the RIB that this was “one of the worst cases of neglect to come before the disciplinary process of Racing”.  Counsel referred to some cases which resulted in District Court prosecutions for offences against the Animal Welfare Act 1999, such as R v Collins [2008] NZCA 235, SPCA v Peart [2018] NZDC 14948.  Both cases resulted in Court sentences of community work and suspension as well as disqualification from owning or exercising authority in respect of horses.

7.  Both of those cases were not made in a professional disciplinary setting where the behaviour, as proven, is a “serious racing offence” and is no less serious because Court prosecutions did not occur (but well could have).

8.  Counsel referred to an especially aggravating factor, that Mr Lewis had a previous SPCA warning in 2017 for similar offending, which involved offences against the Animal Welfare Act 1999.  He said that the abuse of the Investigator ought to be viewed as an aggravating factor of the primary offending. Counsel said that as owner of “ACANTABELLE”, Mr Lewis had ultimate responsibility to ensure her physical needs were met, which he seriously failed to meet.  Counsel said that the mare was “subject to prolonged neglect and suffering” and that Mr Lewis “repeatedly lied about his own conduct”.  Counsel contended that there were no mitigating factors.

9.  The RIB submitted that the only proper penalty under the Rules of Racing is one of disqualification for life.  It said that such an outcome was necessary to reflect the crucial factors of Animal Welfare, the reputation of the Racing Industry as a whole, the serious conduct, or neglect, of Mr Lewis since at least 2017, and the need to deter others.  Counsel referred to the indication advanced by Mr Lewis at the hearing – after he had been advised of the outcome – that he did not “intend” to continue in the Industry.  Counsel submitted that removal of this choice indefinitely is the only way the conduct can be denounced and others deterred.

10.  The RIB does not seek a separate fine for the lead charge relating to Animal Welfare.  It does seek a substantial costs order, itemised in its submissions:

• $13,462.72 being a percentage of the significant costs of Counsel, Expert Witnesses, involved in the defended proceedings.
• $5,568.25 being paid to NZTR to reimburse it for the actual fees it had to pay to obtain the required veterinary treatment for “ACANTABELLE”.

Submissions of Respondent

11.  In summary, Counsel for Mr Lewis has submitted that:

(a)  Mr Lewis has had health issues arising in mid October 2022 which have placed a strain on his physical and financial wellbeing.  There are other personal issues which have “affected his ability to maintain his usual standards of work”.

(b)  Exceptionally wet weather occurred in the period before the Investigators’ intervention.

(c)  Mr Lewis contends he has a “long history of taking care of animals and he believed he was treating ‘ACANTABELLE’ correctly”.  Counsel submits that this was not a case of “gross mistreatment or abuse at the top end of the scale.”

(d)  Mr Lewis has halted all his activity with breeding of horses because of financial issues.  If any disqualification were to follow it should only be for 2-3 years, with costs of no more than 40% of those incurred because of what Counsel contends are mitigating circumstances.

Penalty

12.  The lead charge is a Serious Racing Offence, by an owner of a thoroughbred mare, from which he was breeding.  It comprised egregious neglect in breach of his duty and the condition of the mare arose over some lengthy time – and any health issues of Mr Lewis which arose in October 2022, had no bearing on his inactions.  The Adjudicative Committee has considered his Counsel’s submissions and given them such weight as it is appropriate.  But there remains – as was apparent at the hearing – no acceptance by Mr Lewis of his shortcomings, with no expressions of remorse, contrition, or insight into his offending.

13.  Animal Welfare responsibilities of an Accountable person, if ignored, as Mr Lewis has:

(a)  Jeopardise the health, welfare and humane requirements of a horse.

(b)  Place the social licence and reputation and standards of the Industry/profession in peril.

14.  The many years of wide experience of the members of the Adjudicative Committee Members has enabled it to agree with Counsel for the RIB that this case, sadly, falls into the appalling category.  Disqualification from participation in the privileges of the Industry must follow.  Mr Lewis has forfeited the privilege (not “right”) he has enjoyed.  There will be other consequences of disqualification which naturally follow from Rule 1104 of which Mr Lewis should be familiar.

15.  Accountable persons must clearly understand that failures such as this will lead to stern penalties.  The only real issue in this case is the period of disqualification in the lead charge.

16.  Before considering any aggravating or mitigating factors, the Adjudicative Committee would have taken, as a starting point, a term of 15 years disqualification.  But the assessment of the aggravating factors requires an uplift.

17.  It is especially aggravating that Mr Lewis was issued by the SPCA a formal warning, in writing, for similar misconduct and neglect of a thoroughbred mare in May 2017.  The SPCA told him that there was sufficient evidence to charge him in the District Court with an offence under the Animal Welfare Act 1999, but on that occasion elected to only warn him.

18.  The Adjudicative Committee does not consider as valid any claim to personal or financial issues as justifying, or explaining, the neglect so as to warrant any discount.  Mr Lewis did not, nor has not, displayed any insight, remorse, or contrition.

19.  The Adjudicative Committee is satisfied by a wide margin that disqualification for life is the only proper sanction.  Members of many professions who very seriously default in their professional duties, face the ultimate penalty of removal from that profession.  That is the situation with Mr Lewis, who has forfeited the privilege of participation in the Industry.

20.  The second offence of Misconduct through abuse of the Investigator is a discreet and separate breach of the Rules of Racing and illustrates a high handed, arrogant and belligerent disregard for the Rules.  It might be seen as a further aggravating aspect to the lead offence.  It is necessary that it carries with it a separate sanction, by way of a fine which we fix at $500.

Costs

21.  The RIB, as well as the Adjudicative Committee, have incurred very considerable expenses, obviously increased by the defended hearing and process leading up to it.  Of course, Mr Lewis was entitled to defend the charges if he wished, but having failed, he cannot expect to avoid a proper costs order being made against him.  It will not be at a level of the total costs involved (at least $25,000).  The profession as a whole cannot be expected to fund the expenses incurred as a result of Mr Lewis’ serious failures.

22.  Leaving aside, for the moment, the reimbursement of NZTR of the $5,568.25 it was required to pay for the veterinary services that it had to obtain for the mare, the Adjudicative Committee fixes a total costs award against Mr Lewis of $12,500 (being $8,500 to the RIB and $4,000 to the Adjudicative Committee) as a modest percentage of the actual costs incurred.

Summary

23.  Mr Lewis is:

(a)  Disqualified for Life on Charge 1 on Information A18451, to commence on Friday 3 March 2023.

(b)  Fined $500 on Charge 2 on Information A18451 for Misconduct.

(c)  Ordered to pay:

• Costs to the RIB Informant of $8,500.
• Costs to the Adjudicative Committee of $4,000.
• To NZTR the sum of $5,568.25 to reimburse it for the fees it had to pay for the urgent veterinary services required for treatment and care of “ACANTABELLE” necessary from 3 September 2022.