Non Raceday Inquiry – Written Decision dated 17 March 2022 – Vinnie Colgan
Auckland Thoroughbred Racing
Ellerslie Racecourse - 100 Ascot Ave, Ellerslie, Auckland, 1050
Penalty: Class A Rider Vinnie Colgan suspended 7 days and fined $300
 This charge arises from the meeting conducted by the Auckland Racing Club on 26 December 2021. Following the running of Race 9, the Cambridge Stud Zabeel Classic, Group 1, ($240,000), Stewards opened an investigation into Class A Rider, Vinnie Colgan’s use of the whip in consecutive strides over the concluding stages of the race.
 The investigation into the Respondent’s whip use could not be concluded on the day of the breach because he had left the course.
 Information Number A14364 alleges that V Colgan (TWO ILLICIT) used his whip in three consecutive strides over the concluding stages.
 By way of memorandum dated 15 March 2022 Mr M Clement RIB: CE provided the authority to charge the Respondent.
 The Information was signed on 16 March 2022 by the Respondent and endorsed I do admit the breach.
 The charge was heard prior to the commencement of racing at the South Waikato RC meeting at Matamata on 16 March 2022.
 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, Senior Stipendiary Steward Mr Williamson demonstrated that the Respondent struck his mount, TWO ILLICIT, in three consecutive strides over the concluding stages of the race near the winning post. He added that for most of the home straight TWO ILLICIT had a “luckless run” due to having being denied racing room and the only time, or opportunity that the Respondent had to use his whip was the three consecutive strikes which are now the subject of the charge.
 TWO ILLICIT finished in third place.
 In response the Respondent, Mr Colgan, stated that he did receive a “luckless run” in the home straight and the strikes were “out of frustration”. He added that he realised immediately after pulling up that he had used his whip consecutively.
 As the Respondent admitted the breach the Adjudicative Committee finds the breach proved.
Submissions For Penalty
 Mr Williamson produced the Respondent’s record which indicated 4 previous breaches of the Whip Rules within the 6-month reset period i.e., the 6 months prior to 26 December 2021. These include:
27/11/21 at Te Aroha – 2 Consecutive Strides – 5 days suspension
01/10/21 at Te Rapa – Excessive use of Whip – 5 days suspension and $150 fine
04/09/21 at Te Rapa – 2 Consecutive Strides – 5 days suspension and $750 fine
02/09/21 at Cambridge – Excessive use of Whip – $250 fine
 Mr Williamson said that this breach was the Respondent’s second breach of a Rule in the race. On the day he admitted a charge of careless riding which resulted in an 11-day suspension and a $500 fine. He said the fine equated to approximately half his share of the stake for finishing third.
 Mr Williamson also said that the previous week (16 December 2021 at Te Rapa) the Respondent received a 6-day suspension for careless riding which was deferred to enable him to ride at the 26 December 2021 meeting. Mr Williamson said that the cumulative impact of the two back-to-back suspensions was that Mr Colgan was suspended from close of racing on 26 December 2021 until after racing on 20 January 2022 (17 national days).
 Mr Williamson added that this breach occurred in a Group 1 race in which the Respondent’s mount finished in third place and his share of the stake was $1080. He pointed out that although the Penalty Guide provides for a fine, (set at 50% of a rider’s fee), Mr Colgan had already been fined close to 50% of his fee resulting from the careless riding charge (referred to in paragraph 11). He submitted that on this occasion it may be appropriate for the Adjudicative Committee to waive an additional fine.
 The Respondent submitted that he agreed with Steward’s submission. He advised that he is currently injured and not entirely sure when he will be cleared to resume riding. He advised that he is able to commence any proposed suspension immediately.
Reasons For Penalty
 This is the Respondent’s fifth whip breach within the 6-month reset period prior to 26 December 2021. Two of the previous breaches are for excessive use and this is his third breach for consecutive strides.
 At the time of the breach the NZTR Penalty Guide for improper whip use (effective as of 1 September 2021) applied. This Penalty Guide has now been revoked and replaced with a new Guide and framework for determining penalties. This came into force on 1 March 2022.
 However, for the purpose of setting penalty for this charge, the Adjudicative Committee is bound to take direction from the Penalty Guide that existed at the time of the breach, and on that basis the Guide provides that:
- A prior offence in any category of breach is included in consideration of penalties.
- 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.
- 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.
- The penalty guide for 3 consecutive strikes is the greater of a $500 fine plus $50% of jockey share of the stake. However, the starting point for a 4th (or more) breach in any category is 5+ national day suspension plus 50% of jockey share of the stake.
 After considering the above Guidelines and the film evidence, the submissions and having due regard for the number of consecutive strikes, the status of the race and stakes payable, as well as the Respondent’s share of the stake (50% of $1080), the Adjudicative Committee determined a 6-day suspension to be an appropriate starting point.
Was there an undue delay?
 Typically, a raceday charge, such as this, is heard either on the day of the breach or on a date proximate to when the offence occurred. In dealing with a proceeding justly and fairly the Common Rules of Practice for Adjudicative Committees recommends avoiding delay as far as compatible with the proper consideration of the issues.
 This charge is now being heard more than 11 weeks since the breach occurred. It is not a complicated or complex case. It is understood that the delay is through no fault of the Respondent. Therefore, in the absence of any reasonable explanation it is proper that the Adjudicative Committee is satisfied that the Respondent has not been disadvantaged as a result of the delay in either finalising the investigation or filing the charge. Mr Williamson did not know why the delay had occurred, but reiterated Mr Colgan was not at fault and the Respondent did not raise any concerns.
 Following the race meeting on 26 December 2021 the Respondent commenced a 16-day suspension. If the charge had been heard on the day of the breach or on a day shortly thereafter the Adjudicative Committee may well have given weight to the totality principle in consideration of the aggregation of what would have been three back-to-back suspensions. The right for a charge to be heard without undue delay can be infringed without the Respondent necessarily having to prove prejudice.
 Having considered the actual or potential impact that any delay may have had, the Adjudicative Committee is satisfied the Respondent has not been prejudiced or disadvantaged. Therefore, despite the length of time between the breach and this hearing, undue delay is not a factor in the determination of the final result. This is because:
- Mr Colgan, when asked, told the Adjudicative Committee that the delay has not disadvantaged him and he has not specifically claimed that the delay has impacted on his ability to defend or mitigate the charge.
- The race films were available to refresh his memory of the incident.
- it is inevitable given his poor record that Mr Colgan was going to face a suspension for this breach and because the filing of the charge has been delayed it has enabled him to ride at a number of lucrative Premier meetings in the intervening period. It could therefore be construed that rather than being prejudiced, he has to some extent benefited from the delay.
 From the 6-day starting point the following further factors were taken into account.
- The Respondent has a poor record, this being his fifth breach; and his second breach of a racing rule in the same race (even though he has already received a penalty for that breach).
- The breach occurred in a Group 1 race for which a further 2-day uplift is applied (normally a breach in a Group 1 race could attract a 3-day uplift but this is discretionary).
- A fine equivalent to a 50% share of the stake equates to $540, but it is noted that the Respondent already incurred a $500 fine in the same race (on top of the 11-day suspension). Therefore, in consideration of the combined impact, a reduction of $240 is applied to his $540 share of the stake, resulting in a further $300 fine.
- There is a need for consistency and in that regard a recent case, where the circumstances were not too dissimilar, – RIB v L Satherley (18 December 2021) – resulted in a 9-day suspension.
- Finally, another factor that weighed heavily on the Adjudicative Committee, from a fairness perspective, is that since 1 March 2022 NZTR have issued revised Penalty Guidelines. This has resulted in the decoupling of penalties for excessive and consecutive whip use. Therefore, if a breach involving the exact same circumstances occurred today the penalty would be significantly less due to the decoupling effect. Although the Adjudicative Committee is bound by the penalty provisions that existed on 26 December 2021, in the exercise of its discretion, due to the overall circumstances of this case, the Adjudicative Committee affords the Respondent a further 1-day reduction.
 When the 2-day uplift and 1 day reduction is applied to the 6-day starting point, it results in a 7-day suspension. Plus, a $300 fine.
 The Respondent’s licence to ride in races is suspended for 7 days to commence after racing on 16 March 2022, until after close of racing on 26 March 2022.
 In addition, a fine of $300 is imposed.
 The matter has been dealt with on a raceday, on that basis there is no order for costs.
Decision Date: 16/03/2022
Publish Date: 18/03/2022