Non Raceday Inquiry – Decision dated 21 December 2021 – Sharon Donnelly

BACKGROUND:

The Respondent, Sharon Maree Donnelly, is charged that “between 27 November 2020 and 9 November 2021, at Harness Racing New Zealand meetings in the Canterbury region, whilst acting as a Starter’s Assistant, she did have a bet in races in which she was officiating”, being a breach of Rule 310(1)(b) of the New Zealand Rules of Harness Racing.

There were fourteen bets placed totalling $370 at eight different race meetings during that period.

An Authority to Charge pursuant to Rule 1108(2) and signed by Mr Mike Clement, Chief Executive of the Racing Integrity Board, was produced.

THE RULE:

Rule 310 provides as follows:

(1)   No person acting as a Starter or Starter’s Assistant or Judge or Judge’s Assistant or duly appointed substitute therefore either as a Paid Official or in an honorary capacity shall:

 (b)   bet or be interested in any wager or bet on any race at any race meeting where he is officiating.   

SUMMARY OF FACTS:

Mr Irving produced the following agreed Summary of Facts:

1.   Regular monitoring of accounts used by those actively engaged in the racing industry is carried out by a Betting Analyst employed by the RIB.

2.   On Tuesday 9 November 2021, RIB Investigators were made aware of two bets that had been placed on a TAB account in the name of Ricky Donnelly for races at the NZ Metropolitan Trotting Club’s meeting at Addington Raceway that day. Mr Donnelly was the official race starter for that meeting.

3.   Subsequent enquiries revealed that the two bets had been put on the day before, by Donnelly’s wife, being the respondent Sharon Maree Donnelly, who was employed as a starter’s assistant at the race meeting. Her duties are to ensure that all horses are ready to race with their gear properly affixed and adjusted just before the start, to ensure general safety at the start and to follow with the race in a vehicle with the crash crew and assist at any accidents as required.

4.  As part of routine enquiries, the RIB analyst then went back through the preceding 12 months of the Donnelly TAB account and identified betting at all NZ harness race meetings.

5.  When spoken to on Wednesday 10 November 2021, the respondent Sharon Donnelly acknowledged she had placed the bets concerned for the Cup Day meeting. She said that she had no knowledge that she wasn’t allowed to be betting at races at which she worked and freely admitted to having done so.

6.  Donnelly said that she always used her husband’s named account for her betting as she had some hassle when trying to install a new TAB account app on her own phone, so had just stuck with using his account.

7.  Mr Ricky Donnelly, who was the official starter at the Cup Day race meeting had no knowledge of his wife’s betting at any of the race meetings at which he was the official starter.

8.  Donnelly admitted to having placed bets on at a total of eight meetings since November 27 2020, at which she had been officiating as a starter’s assistant.

9.  For the eight meetings at which Donnelly both worked and bet in, she invested a total of $370 on fourteen separate bets, including four multis, and received winnings of $614.50, being a profit of $244.50.

10. In further explanation, Donnelly said that she has received no formal training for the role, does not have any employment contract and is paid by the various clubs for whom she works, who pay her wages into a bank account after meetings. Her learning of the job is on a day-to-day basis at races and she said that she had never been told by anyone that she wasn’t allowed to be betting when working there.

11. Donnelly further stated that she was not a licensed participant through HRNZ and so she wouldn’t get the Rules or be aware of them unless told. She said “I probably should have been aware of them, and with my job on the line there would have been no way that I’d be flouting the rules knowingly”

12. The Respondent Sharon Maree Donnelly is 49 years old, resides at Leeston, Christchurch, and has no prior history of offending. Donnelly has had a lifetime of involvement with horses and has spent the last approximately 3 years in the role as a starter’s assistant.

REASON FOR DECISION:

The Respondent, Sharon Donnelly, has admitted the charge which is found proved accordingly.

SUBMISSIONS FOR PENALTY:

Mr Irving presented written Penalty Submissions which are set out hereunder:

1.   The respondent, Sharon Maree Donnelly, is a Starter’s Assistant employed by individual Harness Racing New Zealand (HRNZ) Clubs in the Canterbury region. She is not an HRNZ licenceholder.

2.   Mrs Donnelly has admitted to one “representative” charge in breach of Rule 310 (1) (b) in relation to placing eleven bets on the NZ TAB while working at eight race meetings at which she was officiating.

3.   These bets were placed through her husband’s account, who is employed as a Starter by HRNZ Clubs.

4.   When interviewed, Mrs Donnelly stated that she was unaware that she could not bet on meetings that she was working at.

5.   There are no previous cases where an Assistant Starter has been charged for betting.

6.   There appear to be only three other cases of Officials betting in New Zealand:

RIU v LAING (14.09.2021) – GRNZ Licensed starter at Cambridge GRC. Representative charge covering a large number of bets placed on races in which he was starting. Penalty: 15 month disqualification.

RIU v QUIRKE (05.0.2016) – NZTR Chief Handicapper. Representative charge for betting on NZ races that he had fixed the weights on. Penalty: 10 months disqualification and a $4000 fine.

RIU v PILCHER (13.07.2011) – GRNZ Licensed Lure Driver at Palmerston North GRC. Placed two bets on a race meeting he was driving the lure. Previously advised of the Rule preventing him from betting. Penalty: On Appeal, 6-week disqualification, $750 fine.

 Mitigating Factors –

7.   Mrs Donnelly has admitted the breach at the first opportunity and has been fully cooperative throughout the process.

8.   It is submitted that, compared to the previous cases, Mrs Donnelly’s offending is at the lower end of the scale in that she is unlicensed and, as one of several Assistant Starters, could have no influence on the start or the performance of horses in the races.

9.   There is no evidence or inference that Mrs Donnelly could have, or did have, any influence on the races she bet on.

10.  Mrs Donnelly has no previous charges.

Aggravating Factors –

11.  By using her husband’s TAB account, Mrs Donnelly has exposed both herself and him to potential risk where situations like this occur, wherein the public’s trust in racing officials could be diminished and the Industry consequently suffers as a result of the negative perception.

Costs –

12.  The RIB is seeking no costs.

SUBMISSIONS OF RESPONDENT:

Mr Donnelly read to the hearing the following prepared statement:

”My name is Sharon Donnelly. I am 49 years old and currently employed as a starter’s assistant at harness racing meetings throughout Canterbury, North Otago, Marlborough, Nelson and the West Coast.

I am here today to plead guilty to the breach of rule 310 in the Rules of Harness Racing New Zealand. In my defence I would like to outlay [sic] the mitigating factors behind this breach.

I have been involved in harness racing for over 30 years through being a stable hand, junior driver, licensed trainer and now a starter’s assistant. Never in this time have I been aware, or been made aware of rule 310 until 10 November 2021.

When I first started working as a starter’s assistant, nearly two and a half years ago, I worked with L who was the starter. Although I answer directly to the starter, I am employed by the club whose meeting I am officiating at. During my time under L, it was frequently discussed with him that betting was being undertaken on the day we were working at the races. Had I been made aware that this was against the rules I never would have continued betting with the TAB on days I was assisting at the start.

I currently do not hold a licence with HRNZ and do not have any written contract with them. A lot of the clubs I am paid wages by do not provide the starter’s assistants with any contract or code of conduct. As I said previously if at any time someone had approached me and made me aware of rule 310 and my breach of it, I would have ceased betting on raceday immediately.

As you can see from the bets I have made, I am not a prolific punter and I have never made money from this. I manage an agistment farm and the majority of bets I make (on both codes) are on horses I have cared for on the farm.

I have been honest and forthcoming throughout this inquiry, providing the dates I was working. I have an exceptional record with HRNZ with no previous misdemeanours. I love my job and enjoy being involved raceday with trainers, drivers and other industry participants. I am good at what I do and being a female is an advantage assisting female drivers in situations I know my male colleagues would feel uncomfortable with.

I am devastated that I have broken a rule in an industry I have known all my life and that it could impact on a job I love doing, even though I didn’t know I was doing anything wrong.”

DISCUSSION:

The Adjudicative Committee questioned Mrs Donnelly on matters arising out of her statement.

“During my time under L it was frequently discussed with him that betting was being undertaken on the day we were working at the races”. Mrs Donnelly explained that L would often ask his Assistants if they had a bet on the race, and what had they backed. There is nothing in any of the employment contracts that Starter’s Assistants have with Clubs specifying that it is a breach of the Rules to bet while working, or that they have to comply with the Rules of HRNZ. She believed that it was common for Starter’s Assistants to bet. It was not known, prior to this charge against her, that they could not bet, being prohibited by Rule 310(1)(b). Her betting had been discovered on her husband’s TAB account. It was known that her husband, the Starter, could not bet.

When her husband was appointed to the position of Starter, she attempted to open a betting account with the TAB, Mrs Donnelly said. Because she shared an email address with her husband, there was a complex procedure for her to open her own account. She did not complete opening the account and continued to use her husband’s account, she said. She admitted that her betting on the account went back further than 12 months. Her betting tended to be on horses that she had cared for on the farm. Other Starter’s Assistants are members of syndicates that race horses and they place bets on those horses on raceday, she said.  Those persons, she believes, have now stopped betting following this charge against her. Like her, they were previously unaware of the Rule, she said.

Asked by the Adjudicative Committee whether there was any induction or orientation process prior to taking up a position as a Starter’s Assistant, Mrs Donnelly replied there was not. This applies from working at trials to working at race meetings, she said. She was also asked how she knew that her husband was prohibited from betting while working, Mrs Donnelly, replied that her husband, as a Starter, holds a Licence from HRNZ. Mr Irving interposed that it was a condition of a Licence issued by HRNZ that the Licenceholder was deemed to have knowledge of the Rules.

Mr Parr said that the problem has arisen as a result of the Rules, and in particular rule 310 (1) (b), not being notified to Starter’s Assistants. It was surprising that there was no reference to the Rule in the employment contract. It would be an easy matter to remedy, he suggested.

Mrs Donnelly said that she was still working at race meetings as a Starter’s Assistant.

Mr Irving, asked by the Adjudicative Committee, said that it would not surprise him if other Starter’s Assistants have been betting. The RIB’s betting analyst is limited to investigating employees of the RIB and licenceholders, he said. He confirmed that Mrs Donnelly’s offending had come to light as a result of such an investigation. These proceedings have highlighted a real need, he said.

Mrs Donnelly said that Mr Donnelly’s TAB account has now been closed. She had placed the bets for the meeting on 9th November on the previous day. She had placed the bets on the TAB app from her own phone.

Mrs Donnelly said that she has an interest in a horse currently racing. She is permitted to work when that horse is racing, provides she first obtains the consent of the Stipendiary Stewards, she said.

Finally, Mr Irving said that it appears that all of the Starter’s Assistants were unaware of the existence of the Rule, and there is a problem with how that Rule should have been conveyed, and that matter is currently being addressed with HRNZ.

This breach is at the lower end of a scale of seriousness, Mr Irving said, particularly alongside the three previous case referred to in his penalty submissions, but he declined to make a specific penalty recommendation.

Mr Parr submitted that Mrs Donnelly has been very open and has told the truth as an honest woman. She has been in the Industry for many years and the offence has occurred simply because she was unaware of the Rule. It would be harsh for her to incur any penalty for “not knowing”, he submitted. No harm has been caused to any person, but he accepted that there was a perception involved, he added. Mrs Donnelly has suffered a “penalty” by virtue of the mental stress .

REASONS FOR PENALTY:

1.   It is fair to say that the circumstances leading to this charge against the Respondent are rare, if not without precedent, in any of the three racing codes in this country. The only three similar previous cases, to which Mr Irving was able to refer us, are not exactly on point and, indeed, the circumstances of those cases involve offending on a far more serious level than in this case. Neither are there any penalty guidelines to assist the Adjudicative Committee.

2.  Mrs Donnelly has admitted the charge from the outset, although that was inevitable, given the compelling evidence of the betting records. The charge is representative of multiple offences of the same type, committed over a period of 12 months. The charge included particulars of the offences and the dates. The offences involved some fourteen bets placed between 27 November 2020 and 8 November 2021, totalling $370.00. Those bets did not show a profit. The largest individual bet was a $100 place bet,  and the other bets involved outlays of between $10 and $60. The majority were less than $50. Mrs Donnelly is not a “big punter”.

3.  If something positive has come out of these proceedings, it is that Starter’s Assistants in Harness Racing are now aware of the existence of Rule 310(1)(b), making it an offence under the Rules to “bet or be interested in any wager or bet on any race at any race meeting where he is officiating”. Mrs Donnelly has told us, and we have no reason not to accept, that betting by Starter’s Assistants has been common and, indeed, even condoned by a previous Starter under whom she had worked. Her own betting had been detected following a check on the TAB account of her husband, a Licensed Starter with Harness Racing New Zealand.

4.  The main thrust of Mrs Donnelly’s plea in mitigation was her ignorance of the existence of Rule 310(1)(b). She, and her advocate, Mr Parr, were strongly critical of HRNZ and the various Clubs for not making it known that betting by a Starter’s Assistant was in breach of the Rules. Mr Parr submitted that it would have been a simple matter to incorporate a provision in the employment contract with the Club. We note that Mrs Donnelly had such a contract with only two of the Clubs by which she was employed.

5.  The Adjudicative Committee considers it to be a less than satisfactory situation that a Starter’s Assistant, prior to commencing employment, receives no form of induction or orientation or, at the very least, a warning that betting is not permitted while working in the role.

6.  Of course, the maxim ignorantia juris neminem excusat (ignorance of the law excuses no one) applies. This means that the belief by the Respondent that what she was doing was not an offence will not excuse her, if what she did had amounted to a breach of the Rules. The Respondent has, quite properly, not advanced her lack of awareness of the Rule as a defence, but rather as a strong mitigating factor.

7.  Having seen Mrs Donnelly and heard her read her submissions to the hearing, the Adjudicative Committee was impressed by her sincerity and genuine remorse. We believe that she was unaware of the Rule prohibiting betting by a Starter’s Assistant.

8.  However, the Adjudicative Committee finds that it was rather naïve on her part to not consider that her husband’s TAB account might be the subject of official scrutiny. We have no reason to believe that the bets placed were not on her own behalf, and we can only infer that her husband was not aware of her betting activity. It is curious, however, that the Respondent should be aware that her husband, as a Licensed Starter, was prohibited from betting while, at the same time, placing bets on a TAB account in his name. In placing those bets, she was potentially placing her husband’s Starter’s Licence in jeopardy.

9.  Mr Irving was not prepared to give any indication as to what he considered was an appropriate penalty for this offending, other than to submit that it was less serious than in the Laing, Quirke and Pilcher cases. We agree that it is less serious, and those three cases are of little assistance.

10. The Adjudicative Committee has given consideration as to whether disqualification is called for. We have concluded that it is not, having regard to what the consequential effects of a disqualification on the Respondent would be. In particular, she would not be permitted to enter upon any racecourse or training facility. Such a penalty would be harsh. She is still employed in the role of Starter’s Assistant.

11.  In determining the appropriate amount of fine, the Adjudicative Committee has taken a starting point of $1,500. This takes into account that this is a “victimless offence”. There was no evidence that the Respondent had, or had the ability to, affect the outcome of any of the races where she was officiating and no other person has been affected. Relevant mitigating factors are Mrs Donnelly’s previous good record over a lengthy period in the Racing Industry, her early admission of the breach and her obvious remorse. Finally, it is a significant factor that she does not hold a Licence issued by Harness Racing New Zealand.

12.  Furthermore, the Adjudicative Committee believes that, accepting as a fact that she was unaware of Rule 310(1)(b) and the prohibition imposed by it, this is a circumstance that diminishes her culpability so can be considered to mitigate the penalty. For this and the other mitigating factors referred to, the Adjudicative Committee allows a discount of one-third, or $500. This is a significant discount but, we believe, warranted in the circumstances.

13.  We are of the view that a fine of $1,000 will suffice to satisfy the principles of sentencing – to deter others from offending in a like manner, to punish and deter her, to uphold the proper standards of Harness Racing and to protect and inspire public confidence in Harness Racing.

CONCLUSIONS:

The Respondent, Sharon Donnelly, is fined the sum of $1,000.

COSTS:

There is no order as to costs.