Non Raceday Inquiry – Penalty Decision dated 11 April 2022 – David Jensen

Penalty Decision made by Consent on the Papers

1. Mr Jensen is a Licensed Class B Trainer operating at Foxton Racecourse.

2. He has been charged with a breach of the Rules of Racing in that:

(a)  On 24 February 2022 he attended the race meeting at Whanganui Racecourse and failed to comply with a NZTR Directive (in line with the government “COVID 19 Public Health Response Act 2020”) and was therefore in breach of Rule 802(1)(a).

(b)  That the Directive was provided to all Licencees and required persons entering a racecourse that they must have a “My Vaccine Pass” scanned or sighted to prove double vaccination.

(c)  Mr Jensen did not have such a pass or any valid exemption issued by the Ministry of Health.

3.  Rule 802(1)(a) provides that:

“a person commits a breach who acts in contravention of or fails to comply with any provision of the Rule, … or any policy, notice, directions, instructions, … restrictions, requirement, or condition given, made or imposed under the Rules”.

4.  The RIB has been advised that Mr Jensen admitted the charge.  The Adjudicative Committee issued Minutes:

(a)  On 8 March 2022 noting that Mr Jensen had agreed that the matter be determined on the papers but that “if either party should require a face-to-face hearing, they are to advise forthwith.  (Neither party has sought a face to face hearing).”

(b)  Written submissions as to penalties were to be filed by the parties no later than 16 March 2022.

5.  The penalty submissions of the Informant were filed in time but none were received from Mr Jensen by 23 March 2022.  A further Minute of the Adjudicative Committee dated 23 March 2022 was issued to Mr Jensen stating:

(a)  The Adjudicative Committee was prepared to extend the date for his submissions until 29 March 2022; and

(b)  “It would be helpful to the Adjudicative Committee if Mr Jensen could provide submissions as to matters relevant to a penalty outcome including personal mitigating issues, information as to the extent of his training business, his financial circumstances and any contentious answers of the RIB submissions”.

6.  There has still been no communication from Mr Jensen, nor any excuse offered as to why he remains silent.  Accordingly the Adjudicative Committee is left to deal with the issues of penalty on the papers and submissions before it.

Essential Facts

7.  Mr Jensen holds a Class B Trainer’s Licence which is issued to Trainers who do not train more than six horses which shall include those in which he/she may have an ownership interest (Rule 304(c)).

8.  On 24 February 2022 he attended a race meeting at Whanganui Racecourse, he said in order to assist with a fractious horse.  When asked by Stewards for his required pass he said that he had left it in his car.  It turned out that this explanation was false and he did not in fact have such a pass.  He was asked by Stewards to retrieve his “pass” and return.  He then gave a different explanation that he thought his “pass” was in his wallet and had been left at home.  Mr Jensen then said that his cellphone was “flat” so he was unable to show his pass in that form.  He then left the course without returning, as requested, to the Stewards’ Room.

9.  Later, an RIB Investigator required Mr Jensen to email his pass by the end of the day.  At 8pm that day he advised the Investigator that he had no wi-fi access so was unable to send his pass.  So an arrangement was made for him to meet the person employed by the NZTR to check COVID passes, the next day.  He did not attend.  But at approximately noon on that day 25 February 2022 he sent a valid vaccine pass to the Investigator.  When further questioned as to proof that he had such a pass the previous day he responded in an agitated and aggressive fashion and terminated the telephone call.

10.  Later that day he admitted to the Investigator that he obtained the second vaccination only on 25 February 2022 and admitted that on the previous day of 24 February 2022 when he entered the racecourse he had only received one vaccination, and did not have the required pass or proof.

11.  Enquiries disclosed that he had also attended two other race meetings (on 22 January 2022 and 11 February 2022 at Awapuni) when he did not comply with the NZTR Directive of proof with a “My Vaccine Pass”.

Penalty Submissions

12.  After referring to the principles and considerations discussed by an Appeal Committee in RIU v Lawson – which are well known to the Adjudicator – the Informant summarised these as balancing proportionally,

• the public interest
• the interest of the offender
• the interests of the profession
• the seriousness of the offending
• aggravating and mitigating factors

13.  The Informant referred to the need to deter others from similar offending – ie disobedience of NZTR Directives and to maximum penalty provisions in Rule 803(1), namely, disqualification or suspension for up to 12 months, fine not exceeding $20,000.  It submitted that in this case:

“the penalty should be a fine with serious consideration to a period of suspension or disqualification”.

14.  The Informant has referred to what it says are comparable cases of RIB v Keegan (4 month suspension and $3,000 fine for a Licensed Class A Trainer), RIB v Hewitson (a fine of $2,400 but no suspension as licence had expired where a domestic regional boundary restriction was crossed), RIB v Harvey (fine of $2,700 for crossing a domestic boundary).

15.  The Adjudicative Committee is aware of a further recent case of RIB v Swann where a Licensed Class B Trainer without a “My Vaccine Pass” was suspended for 3 months and fined $1,000.

Penalty

16.  The cases of Hewitson and Harvey can be distinguished as they involved unauthorised crossing of temporary boundary restrictions.  Ms Keegan’s offending involved obtaining and presenting forged documents, which was especially aggravating.  Mr Swann’s case is comparable although he altered (or “forged”) the photographic record of his status.

17.  Mr Jensen presented a document/pass which, although not forged, did not exist at the time of his breach and was obtained in order to mislead the Investigator.

18.  The Adjudicative Committee does not have the benefit of any submissions as to mitigation from Mr Jensen.  That is at his choice.  The Informant advised that Mr Jensen has been involved in the Racing Industry all his life and has no history of breaching the Rules of Racing.  The extent of his training business is not before the Adjudicative Committee but given the provisions of Rule 304(2) he will not be training more than 6 horses, and if any are spelling, under Rule 304(2) they are “not being trained” by a Class B Trainer.

19.  The admission of the charge is a mitigating matter although balanced against that is the several endeavours adopted by Mr Jensen to mislead the RIB – and his obtaining of a valid double vaccination pass the day after his breach, and presenting it to authorities intending to mislead.

20.  The Adjudicative Committee regards the offence and circumstances of Mr Jensen’s case to be analogous to that of Mr Swann.  The aggravating features require a starting point of 4 months suspension and a fine of $1,500.  A discount is afforded to reflect Mr Jensen’s blameless record and eventual guilty plea.  A discount of 25% is afforded for the suspension term so a period of 3 months.  The fine is reduced from the starting point by 33 1/3% to $1,000.  This outcome parallels that in the case of Mr Swann.

21.  Accordingly, Mr Jensen’s Class B Trainer’s Licence is suspended for 3 months to commence at 5pm on 14 April 2022 and to cease at 5pm on 14 July 2022.

22.  In addition he is to pay a fine of $1,000.

23.  There is no Order as to costs.

Hon J W Gendall QC (Chair)