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VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
Review and regulation LIST
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vcat reference No. Z810/2016
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CATCHWORDS
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Finding of reckless riding in breach of AR 137(a); Application for review as to penalty imposed by Stewards and affirmed by Racing Appeals and Disciplinary Board; Application dismissed; Penalty confirmed.
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APPLICANT
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Damien Oliver
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RESPONDENT
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Racing Victoria Limited
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WHERE HELD
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Melbourne
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BEFORE
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Judge Jenkins, Acting President
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HEARING TYPE
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Hearing
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DATE OF HEARING
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24 October 2016
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DATE OF ORDER
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25 October 2016
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citation
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Oliver v Racing Victoria Limited (No 2) (Review and Regulation) [2016] VCAT 1796
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NOTE
On 24 October 2016, the Tribunal made the following Orders, with accompanying Reasons:
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Damien Oliver is found guilty of reckless riding in breach of the Australian Rules of Racing 137(a).
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The decision of Racing Appeals and Disciplinary Board made on 14 October 2016 in respect of the Charge against Damien Oliver is affirmed.
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The application for review as to liability is dismissed.
On 24 October 2016, the Tribunal heard submissions as to penalty and now makes the following further Orders.
FURTHER ORDERS -
The application for review of the decision of the Racing Appeals and Disciplinary Board made on 14 October 2016, as to penalty, is dismissed.
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The sentence imposed by the Stewards of Racing Victoria Limited and confirmed by Racing Appeals and Disciplinary Board is affirmed, namely a suspension, commencing at midnight on Saturday, 15 October 2016 and expiring at midnight on Monday, 31 October 2016, encompassing 20 available race meetings.
Judge Jenkins
Acting President
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APPEARANCES:
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For Applicant
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Mr D Sheales of Counsel
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For Respondent
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Mr P Holdenson QC, with Mr J O’Connor of Counsel, instructed by Racing Victoria Limited
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TABLE OF CONTENTS
NOTE 1
FURTHER ORDERS 1
TABLE OF CONTENTS 3
3
REASONS 4
BACKGROUND 4
DETERMINATIONS AVAILABLE TO THE TRIBUNAL 4
SUBMISSIONS ON BEHALF OF APPLICANT’S COUNSEL 5
SUBMISSIONS ON BEHALF OF RESPONDENT’S COUNSEL 7
THE TRIBUNAL’S DETERMINATION ON PENALTY 9
Parity in Sentencing 9
Relevant Sentencing Factors 9
CONCLUSION 11
REASONS BACKGROUND -
On 12 October 2016, the Applicant pleaded not guilty before the Stewards Inquiry of Racing Victoria Limited to a charge of reckless riding in breach of Rule 137(a) of the Australian Rules of Racing (AR 137(a)). The Applicant was sentenced to a suspension of 20 race meetings, covering the period commencing at midnight on Saturday, 15 October 2016 and expiring at midnight on Monday, 31 October 2016.
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The Applicant appealed to the Racing Appeals and Disciplinary Board (the RAD Board) against both the finding of guilt and the severity of the penalty. On 14 October 2016, the RAD Board dismissed the appeal and confirmed the penalty.
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The Applicant applied to the Victorian Civil and Administrative Tribunal (the Tribunal) under s 83OH of the Racing Act 1958 (the Racing Act) for a review of the RAD Board’s decision, as to both liability and penalty.
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By Orders of the Tribunal made on 24 October 2016, the Tribunal dismissed the Applicant’s application for review and affirmed the decision of the RAD Board as to liability.
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The Tribunal has now heard submissions as to the appropriate penalty pursuant to Rule 196(1) of the Australian Rules of Racing (AR 196(1)).
DETERMINATIONS AVAILABLE TO THE TRIBUNAL -
The functions and powers of the Tribunal, for the purpose of the application for review of the penalty imposed, are conferred by s 51 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) as follows:
Functions of the Tribunal on Review
(1) In exercising its review jurisdiction in respect of a decision, the Tribunal—
(a) has all the functions of the decision-maker; and
(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.
(2) In determining a proceeding for review of a decision the Tribunal may, by order—
(a) affirm the decision under review; or
(b) vary the decision under review; or
(c) set aside the decision under review and make another decision in substitution for it; or
(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.
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In the case of a breach of AR 137(a), the Australian Rules of Racing provide for the following powers as to the penalty under AR 196(1):
Subject to sub-rule (2) of this Rule any person or body authorised by the Rules to penalise any person may, unless the contrary is provided, do so by disqualification, suspension, reprimand, or fine not exceeding $100,000. Provided that a disqualification or suspension may be supplemented by a fine.
SUBMISSIONS ON BEHALF OF APPLICANT’S COUNSEL -
Counsel’s submissions were primarily directed at a reduction of the period of suspension which would enable the Applicant to participate in the Derby Day race meeting at Flemington on Saturday 29 October 2016. Counsel submitted that the penalty imposed upon the Applicant was excessive having regard to the sentencing previously imposed on other riders for comparable or worse misconduct. To that end, Counsel played to the Tribunal three videos of races involving other riders.
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The first video concerned the jockey Luke Nolen, who pleaded not guilty to a charge of reckless riding.1 In Nolen’s case, the particulars of the charge alleged that the jockey rode his mount out making initial contact with mount 1 and continuing to make contact thus forcing a run to the outside of mount 2, where there was insufficient room. Mount 1 was forced out onto mount 3 which was taken out across the running of mount 4 which clipped the heels of mount 3 which almost fell. Mount 5 was also severely checked. Mounts 1 and 3 were hampered. The RAD Board found the charge proven and the jockey was sentenced to a suspension of 1 month, encompassing 31 race meetings. In its reasons for sentencing, the RAD Board noted that it was an aggravating feature of Nolen’s actions that the incident occurred when the horses were making a turn. It is also apparent that four horses were adversely affected in some way.
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I accept that there are some aspects of Nolen’s conduct which are worse, in terms of the consequences, than the current case. However, it is also plain that Nolen did not drive his horse into another horse in the manner that the Applicant did; and there was no suggestion in the Nolen case that he ignored another safe alternative course of conduct, which in the Applicant’s case was available.
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The second video concerned a race at Moonee Valley on 3 September 2016, where the jockey was charged with and pleaded guilty to careless riding and was suspended for 13 race meetings
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The third video concerned a race at Caulfield on 8 October 2016, where the jockey was charged with and pleaded guilty to careless riding and was suspended for nine race meetings.
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As indicated at the Hearing, I do not find the remaining two cases, involving different kinds of charges, namely careless riding, either comparable or helpful for the purpose of taking proper account of parity in sentencing. I also agree with Respondent’s Counsel that the riding depicted in each of these videos is of a significantly different nature to the conduct of the Applicant. In particular, in neither case is the jockey seen to be riding his mount into another horse; the impact between horses is much less; and in the case at Caulfield, there were no horses following.
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The sentencing outcomes of each of the three cases upon which Applicant’s Counsel relied are also taken out of the context of the sentencing process undertaken in each case, where the riding history of the respective riders and mitigating factors may have been significant factors.
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Finally, Applicant’s Counsel placed reliance upon the decision of the RAD Board in the matter of Danny Nikolic on 6 October 2005. Nikolic had been charged with a breach of AR 135(b) which provides as follows:
The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field.
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The Stewards suspended Nikolic for 2 months and in doing so said that if it were not for the season of the Spring Racing Carnival, the penalty would have been 3 months. The RAD Board reduced this period of suspension to 25 days, expiring 31 October, combined with a substantial fine of $30,000. The RAD Board concluded that such a reduced penalty took better account of the time of year when substantial prize money is on offer. In doing so the RAD Board noted that the original penalty:
…effectively wipes out the appellant’s opportunity to ride over the whole of the Spring Carnival.2
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Applicant’s Counsel submitted that there is no difference in the seriousness of an offence under AR 135(b) and AR 137(a). Furthermore, in Nikolic’s case, the Stewards had submitted that the range of penalty for a breach of AR 135(b) was 1-3 months suspension, whereas the two cases of reckless riding, previously referred to, both involved suspensions of 1 month.3
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In my view, the reasoning of Applicant’s Counsel is entirely erroneous. The two provisions are not comparable and provide no basis for comparison of penalties. To the extent that Applicant’s Counsel sought to rely upon the penalty discount, having regard to the time of the year when the penalty was imposed, there is also no comparison. The revised penalty, as acknowledged by the RAD Board, sought to give Nikolic some opportunity to take races within the Spring Racing Carnival, which he would have otherwise been denied. In the current case, as indicated below, the Applicant has already raced at significant race meetings and will continue to do so after 31 October.
SUBMISSIONS ON BEHALF OF RESPONDENT’S COUNSEL -
Counsel submitted to the effect that the current penalty is both appropriate and reasonable after taking into account the following relevant matters.
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First, the factual circumstances of the reckless riding, as found by and detailed in the Tribunal’s Reasons dated 24 October 2016,4 namely:
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The impugned conduct of Applicant was calculated, deliberate and intentional;
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By adopting the course he did, the Applicant knowingly breached the prohibition upon taking another jockey’s line or pathway;
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The Applicant could have adopted an alternative course of action, namely to allow his mount to stride forward in the same line, without interfering with any other horse or another jockey’s right to maintain their pathway; and
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There were no factors accepted by the Tribunal which contributed to the breaching conduct. In particular, the Tribunal rejected any contribution from the behaviour of the Applicant’s mount in being somewhat ‘fresh’ or ‘keen’ on the day, or the conduct of Mr Yendall, in attempting to maintain his pathway.
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Secondly, the consequences of the reckless riding in that:
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The Applicant drove his mount directly into the mount of Mr Yendall, causing a significant impact sufficient to abruptly displace and push Mr Yendall’s mount from his chosen path, wide over to the right;
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Mr Yendall is momentarily unbalanced in the saddle;
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The mount of Mr Yendall momentarily loses its stride and appears to cross its front legs; and
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Mr Yendall is severely hampered in the conduct and progress of his race and is caused to fall back and lose ground as a result.
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Thirdly, the Applicant created a risk of serious consequences, more particularly detailed in the Tribunal’s Reasons,5 including the potential for Mr Yendall to fall, which was exacerbated by the fact that nine horses in the field were following, creating a further risk to other riders and horses of a fall with consequential injury or death.
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Fourthly, the aggravating feature that the Applicant is a highly skilled and experienced professional jockey who is well familiar with his obligations to conduct his riding in a manner which will, as far as practicable, ensure the safety of riders and horses. The Applicant is also well familiar with the attendant risks and potential grave consequences for serious injury or death to riders and horses.
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Taking all of the above matters into account, Respondent’s Counsel submitted that the conduct of the Applicant represents a serious and grave example of reckless riding. I agree.
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The Tribunal was referred to the record of the Applicant’s breaches of the Rules of Racing of Racing Victoria Limited (the Rules) since 26 February 2015. Ignoring whipping offences, which were penalised by a fine or reprimand, the Applicant has been suspended on nine occasions over an approximate 18 month period, including seven careless riding charges. Although on its face, this does not appear to be a commendable record, the Stewards proceeded on the basis that the Applicant does have a good riding record, taking into account that he has approximately 600-700 rides per annum. I accept the Stewards’ assessment.
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Counsel provided the Tribunal with a copy of the racing calendar for October 2016. The Spring Racing Carnival racing season encompasses the period from Saturday 8 October to Saturday 5 November, inclusive. Prior to the commencement of the period of suspension, the Applicant raced at Caulfield, as part of the Caulfield Cup Carnival, on Saturday 8 October; Wednesday 10 October (being the date of the breaching incident); and Saturday 15 October; all of which are acknowledged to be significant races within the Spring Racing Carnival. At the expiration of the current suspension, the Applicant will be at liberty to race at Flemington, as part of the Flemington Melbourne Cup Carnival, on Tuesday 1 November (Melbourne Cup Day); Thursday 3 November (Oaks Day); and Saturday 5 November (Stakes Day); all of which are acknowledged to be significant races within the Spring Racing Carnival.
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Since the commencement of the suspension, the Applicant has been precluded from racing at certain country meetings, including the Geelong Cup; as well as races at Moonee Valley on Friday 21 October and Saturday 22 October. Between now and the expiration of the suspension, he will also be precluded from additional country races, including the Bendigo Cup and races at Moonee Valley on Friday 28 October and Flemington on Saturday 29 October (Derby Day).
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Before the Tribunal, the Applicant maintained his not guilty plea, contesting the penalty only on the basis that it is excessive; and he will thereby be denied the opportunity to race on Derby day, which his Counsel descried as the most prestigious day in the racing calendar. Although significant prize money attaches to races on this day, there is no suggestion that the current sentence causes undue financial hardship for the Applicant.
THE TRIBUNAL’S DETERMINATION ON PENALTY Parity in Sentencing -
Clearly, the principle of parity in sentencing is important, both to ensure consistency in the penalties imposed for the same or comparable offences; and, as far as practicable, to avoid a perceived sense of grievance or injustice on the part of the person charged, who might otherwise perceive that they have been dealt with unduly harshly. However, equally, a penalty is imposed in the particular circumstances of a case, after taking into account relevant mitigating factors, if any. Accordingly, particular care must be taken not to slavishly use earlier cases as providing a benchmark penalty, particularly where little if any facts or circumstances of the other cases are known.
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In my view, neither the Nikolic case nor the careless riding cases referred to by Applicant’s Counsel provide any proper comparison or basis for sentencing in this case. They not only deal with different offences, but there are significantly different features in the nature of the misconduct.
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The Tribunal was referred to two prior decisions relating to reckless riding, the Nolen case referred to above; and the case of G McKeon, heard by the RAD Board on 12 November 2006 (McKeon’s case). In that case the jockey pleaded guilty to the charge and was sentenced to a suspension of 1 month encompassing 35 race meetings. In McKeon’s case the jockey is recorded as having permitted his mount to shift in near the 1100m mark, when there was insufficient clearance, causing three horses in succession to be checked, two severely.6 There is no reference to any actual contact between the horses.
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In my view, from the limited available information in respect of both prior reckless riding matters, the current suspension period imposed on the Applicant bears favourably in terms of parity.
Relevant Sentencing Factors -
The imposition of a penalty necessarily involves a punitive component and the specific deterrence that follows. However, the power to impose a penalty for a breach of the Rules is primarily protective, to preserve the integrity of horse racing as well as public confidence in the industry.7 In the case of a charge of reckless riding, considerations of safety for riders and horses are paramount.
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Respondent’s Counsel further emphasized that general deterrence should be given substantial weight in the context of a finding of reckless riding. I agree. Although no injury or death in fact resulted, the actions of the Applicant created a potential risk of real and grave consequences. It is imperative that jockeys expect to be dealt with severely in terms of such potential risks and not be prepared to take such risks, as the Applicant so clearly was prepared to do, in the hope of avoiding serious consequences.
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In determining an appropriate penalty it is necessary to balance just punishment; specific and general deterrence; denunciation of the misconduct; the recognition and enforcement of appropriate standards of safety; as well as the Applicant’s prospects for rehabilitation.8
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In my view, the appropriate penalty in the context of the subject offence is the period of suspension imposed by the Stewards and endorsed by the RAD Board.
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I have determined to dismiss this application and thereby affirm the current penalty having particular regard to the following:
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General Deterrence must be given substantial weight where the safety of rider and horse is paramount to the enforcement of the Rules;
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Specific deterrence also bears some importance by reason of the nature of the Applicant’s conduct, as described, and his persistence in pleading not guilty before the Stewards Inquiry, the RAD Board and the Tribunal, which sought to minimise his conduct and indeed caste a degree of responsibility upon his mount and Mr Yendall;
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The reckless riding as found and described in the Reasons for Decision dated 24 October 20169 represents a serious example of reckless conduct which created the potential for grave consequences, including injury or worse to rider/s and horse/s. In the event, Mr Yendall’s control of his mount was disrupted and the ride and course of his mount was severely hampered, with serious immediate consequences for his position in the subject Race;
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Unlike the original sentence in the Nikolic case, the Applicant has not been shut out of the Spring Racing Carnival and has had and will have the opportunity to participate in significant races during this period;
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There is no suggestion that the Applicant is subject to undue or disproportionate financial hardship as a consequence of the current suspension period; and
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The suspension period amounting to 16 days comprising 20 available race meetings, in my view is a just and reasonable discount, having regard to the time of year in the racing calendar and the accepted prior good riding record of the Applicant. Indeed, in all the circumstances, I would regard such penalty as the minimum appropriate to give effect to the above sentencing objectives.
CONCLUSION -
For the reasons given, the application for review of the decision of the RAD Board made on 14 October 2016, as to penalty, is dismissed.
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The sentence imposed by the Stewards of Racing Victoria Limited and confirmed by RAD Board is affirmed, namely a suspension commencing at midnight on Saturday, 15 October 2016 and expiring at midnight on Monday, 31 October 2016, encompassing 20 available race meetings.
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Judge Jenkins
Acting President
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