RACING APPEALS TRIBUNAL NEW SOUTH WALES TRIBUNAL MR DB ARMATI PENALTY DECISION 21 MARCH 2017 LICENSEE GREG BENNETT AUSTRALIAN HARNESS RACING RULE 187(2) X 2 DECISION: 1. First charge- disqualified for 7 years commencing 25 November 2011 2.Second charge- disqualified for 2 years commencing 29 April 2015
1. The issue for determination is the imposition of penalty upon licensed person Greg Bennett for two breaches of the Australian Harness Racing Rules. The requirement for penalty arises as a result of a reserved oral decision delivered by the Tribunal on 6 July 2016 in which in respect of the first charge the Tribunal noted that charge proven, with the appeal as to finding withdrawn, and in respect of the second charge, proven; appeal as to finding dismissed. On 6 July 2016 the Tribunal stood over the issue of penalty for both alleged breaches and invited written submissions from the parties. 2. That decision arose as a result of two allegations of breaches of Rule 187(2), and the nature of that provision and the particulars were set out in the decision. To summarise them for penalty assessment purposes, the allegations are that the appellant refused to produce items required, being a mobile phone, in circumstances where he produced a different mobile phone. The second matter related to refusing to answer questions at a stewards' inquiry. It might be noted in passing that the particulars in respect of the first allegation said "give false and misleading evidence to HRNSW during the course of its investigation into possible corrupt activity by licensed persons and former HRNSW stewards". 3. At the commencement of the appeal, the appellant withdrew his appeal against the adverse finding in respect of the first allegation and that proceeded then on a penalty assessment basis only. In respect of the second allegation, the denial of the breach was maintained and the adverse finding delivered on 6 July 2016. 4. In accordance with the invitation, the parties made submissions. On 23 September 2016, the respondent lodged a 9-page, 35-paragraph submission with attachments. On 6 November 2016 the appellant lodged an 18-page, 53-paragraph submission with attached character references. On 15 November 2016, the respondent lodged a 6-page, 17- paragraph reply. 5. As a result of the submissions, the Tribunal wrote to the parties inviting further submissions on the issue of the resumption of the stewards' inquiry, which had not been finalised on 29 April 2015. That request arose because the appellant's submission indicated that he was willing to attend a resumed inquiry but that offer had been refused. The respondent had replied to the effect that such an offer had no utilitarian value. After numerous requests, the Tribunal received the respondent's final position on that issue by email of 7 February 2017, which critically contained the following statements: "1. The stewards' inquiry is not formally considered finalised; Page 2
2. However, the inquiry has not been given any priority, in light of the sanctions imposed on the appellant and the fact that he has been excluded from the industry indefinitely; 3. The inquiry has no pending date for resumption. It would probably not be resumed if the Tribunal does not interfere with the current penalties in light of the age of the matters, the loss of evidence and unavailability of witnesses, and the fact that it is unlikely that any protective interest would be served, given that Mr Bennett is no longer participating in the industry." 6. The powers of the Tribunal are to dismiss the appeal, confirm the decision or vary it, or make such other order as the Tribunal thinks fit. 7. The penalties available are contained in Rule 256 and in summary form they can comprise any or a combination of the following: a fine, suspension, disqualification, warning off, exclusion from the racecourse, a bar from training or driving, suspension of registration, suspension of a licence or its cancellation, a severe reprimand or a reprimand or caution. There is power to suspend a disqualification or warning off on conditions. 8. Importantly, Rule 257 provides unless it is ordered to the contrary, a penalty by way of suspension or disqualification shall be served cumulatively to any other penalty of suspension or disqualification being served or ordered to be served. It might be noted there is no reference to a warning off in 257. RESPONDENT'S SUBMISSIONS 9. The respondent noted the admission of the breach for the first matter but says that it was late and a limited discount should only be considered. It was said that the utilitarian benefit was the lowest possible because there had been a denial at all times up until the commencement of the hearing and there had therefore been, before the stewards and in preparation before the Tribunal, substantial costs and witness requirements. In addition, because the admission was late, witnesses were required to attend and, of course, they had been prepared for that purpose and therefore there was limited cost savings in a case listed for a two-day hearing. In respect of the second matter, it was submitted that there can be no discount because the breach was not admitted. 10. The respondent fairly conceded that the appellant had not previously come under adverse notice and is entitled to have his prior good Page 3
character and long service as a professional and leading driver taken into account. 11. It was submitted that any backdating of penalty by reason of suspension on 24 November 2011 and disqualification on 29 April 2015 should take into account the difference between a disqualification and a suspension. Accordingly, there should not be a wholly backdating to 24 November 2011. 12. In respect of the second allegation, it was conceded by the respondent that the first breach was some years earlier and yet he had not been penalised for it, but that the circumstances in which the second breach occurred arose when the stewards were inquiring into the very conduct which was embraced by the first allegation and that the appellant was on notice to that effect. 13. On the objective seriousness of the breaches, it was submitted that exclusion from the industry is the only possible outcome. It was emphasised that there was a total lack of remorse or apology and a failure to redress the issues by the appellant. In fairness, the respondent acknowledged the offer to attend a stewards' inquiry after the Tribunal's decision of 6 July 2016. It was indicated the stewards had not accepted that offer. 14. The paramountcy of the integrity of the industry was relied upon and the case of Sarina, to which the Tribunal will return, was quoted. It was said that the breaches were associated with an investigation into corruption of the utmost significance to the integrity of the industry. Similar cases of Sarina, Vallender and Byrnes were quoted to give a temporal and factual context to the seriousness of the conduct. It was acknowledged that the breaches did not involve actual corruption but reliance was placed on Clements v Queensland Racing Ltd [2010] QCAT 637, where it was said at 58: " the charge does not relate to corruption but rather the refusal to cooperate in the possible finding of corruption or at worse a perversion of the course of justice by failure to produce records.". 15. It was submitted by the respondent there is a high degree of connection between the information sought by the notice referred to in allegation 1 and the corruption allegation. Detailed submissions were made revisiting the factual matters that occurred. But briefly they can be summarised as to numerous text messages and phone calls between identified numbers involving the appellant and others. Page 4
16. The respondent conceded that at trial in the District Court the appellant was discharged and he is entitled to have that taken into account. However, it is said that his conduct posed a significant impediment into the proper forensic examination of allegations for which there was a direct nexus between the evidence sought and the conduct involved. Reference was made to the imprisonment of former steward O'Toole and therefore the appellant's conduct was of critical importance in assessing the gravity of the matter and concluding inquiries. 17. It was said that a strong message needs to be sent to the industry because of the 2011 green light scandal and the crisis of confidence created in the industry and therefore for integrity purposes there must be an increase in the range of necessary penalties. Reliance was placed upon what this Tribunal said in Thomas in 2011 and Byrnes in 2012 about the necessity for a new penalty regime as a result of those 2011 integrity matters and the necessity for compliance by industry participants. 18. It was submitted that the appellant's conduct must be considered in the light of aggravating features by his continuing failure to comply. In this regard, that was put in context that the industry itself is on notice by a number of decisions of likely penalties to follow, such as Byrnes, Sarina and Vallender. The principles extracted from those matters are to the effect that late compliance can ameliorate damage and that ongoing failure to comply with a valid direction is the equivalent of thumbing one's nose at the regulator. Reliance is placed upon Sarina where it was said: "His conduct is continuing the ongoing harm is patent." 19. It was also submitted that the various decisions just referred to were given before the appellant appeared before the stewards in 2015 and therefore he was clearly on notice of the likely consequences of his conduct. It was submitted that the continuing failure to produce the appropriate mobile telephone is ongoing conduct and must be the result of a considered and planned strategy by the appellant and that the effect of that is that the impetus for removing corruption has substantially diminished. 20. It was then submitted that, should the appellant raise hardship, the respondent accepts that he has suffered financial loss and other hardship as a result of his exclusion from the industry, but that the decision of Thomas of 2011 is relied upon to the effect that: "In that sense he is no different to anyone else in the community in essence, however, his personal circumstances do not make him Page 5
any different to anyone for whom a disqualification is found to be appropriate in their individual circumstances and in the circumstances of the breach If that was to be the way in which these non-compliances were to be dealt with, in fact nobody would lose their right to train by reason of a disqualification." 21. It was submitted that the particular breaches strike at the very heart of the integrity of the industry by reason that the stewards have been frustrated, misdirected and delayed in an investigation into the most serious corruption allegations in the history of the industry. 22. In conclusion, it was submitted that the appeals on penalty should be dismissed. It was submitted that the offer to attend a stewards' inquiry does not redress the harm that has been done to the industry and that it is of a very serious kind which has been exacerbated by the second breach. Reliance is placed upon the fact that others have been warned off in respect of the 2011 corruption issues. 23. Accordingly, an indefinite warning off is submitted to be a valid and available penalty, consistent with what was said by Goran J in the Fine Cotton case, repeated by this Tribunal in Knight v Racing NSW, where it was said: " the Tribunal must look at the issue of the future, based upon what has happened in the past, and determine whether there is anything presently before it which would indicate in any given period of time in the future that the facts which justify the adverse finding, the facts which justify, therefore, a warning off, are likely to be removed such that a warning off would inevitably be lifted." 24. Accordingly, the respondent submits there is nothing to enable this Tribunal to find that the integrity of the industry would be safe if the warning off were to be lifted and that it should be an indefinite warning off. But failing an indefinite warning off, it is submitted a finite period of disqualification is required and that it should be cumulative. It should not be a concurrent penalty for each matter because of the continuing nature of each breach, the length of time between them and the different nature of the conduct. APPELLANT'S SUBMISSIONS ON PENALTY 25. In a 27-paragraph overview, the appellant has helpfully set out the history of the matter and some important facts. These matters have been adequately addressed in the Tribunal's decision of 6 July 2016. Page 6
26. It was submitted in the overview that the decision of the District Court to discharge the appellant is an important fact and that this Tribunal should accept that matters decided by that Court as findings of fact are to be regarded. Accordingly, it is said this Tribunal should come to the same conclusions of fact as were delivered in the District Court so far as offence allegation 2 is concerned. 27. In respect of objective seriousness, the appellant strongly submits that there is no association with corruption as there is an absence of nexus between the offences and the corruption. Detailed submissions were made on the allegations that the appellant raised as between conduct involving stewards of HRNSW and the NSW police in respect of the circumstances in which the notice to produce, the subject of allegation 1, was concerned. As the District Court did not allow evidence as a result of those matters and a discharge followed, it is said that the conduct in producing an incorrect mobile phone did not frustrate any arrangements between the regulator and the police, it did not prevent the police from engaging in other conduct or obtaining evidence. 28. Accordingly, it was submitted that by reason of that conduct between the stewards and the police, as found by the District Court, that there was a strategy involved between their respective officers, that there can therefore be no adverse finding that there was disobedience of the authority of the stewards and therefore any impact upon the integrity of the industry. In any event, it is submitted that his conduct involved an isolated act of dishonesty and defiance but that he otherwise attended the stewards' inquiry and made concessions of fact. 29. In respect of the second allegation, reliance is placed upon the complexity of the arguments advanced to this Tribunal and the detailed decision of the Tribunal in circumstances where it is submitted that the appellant at the time he engaged in that conduct considered the privilege to be available to him. It is said, therefore, that this Tribunal's decision should not lead to the consequence that there is greater objective seriousness but that it is to be considered on the basis that his purpose in engaging in the conduct was under a belief that the privilege was available to him and he did not exercise his silence for the purpose of damaging the integrity of the industry. 30. To further distance the appellant from any suggestion that his conduct is associated with corruption, it is submitted that such an allegation was not made by the stewards, the stewards have served no evidence associated with corruption, there have been no proceedings against the appellant for corruption, the appellant does not admit Page 7
corruption and therefore there is no basis in fact to associate the appellant with O'Toole's receipt of payments from him. 31. It was emphasised that the appellant has otherwise complied with all other requests made of him and has done so at times relevant to each of the allegations. 32. On the utilitarian value of his admission of the breach, it is said that the Tribunal's decision did make legal and factual findings in his favour on issues of the status of the rules of racing and limits on the abrogation of the common law right against self-incrimination. On the utilitarian points, the appellant otherwise acknowledges that he is not entitled to a full utilitarian discount but emphasises that the factual matters were not in dispute before the Tribunal, merely questions of law. 33. On the issue of backdating a penalty, the appellant relies upon the history of his arrest and then discharge by the District Court and his legitimate right to silence throughout that period. Accordingly, it is submitted that his breach penalty for matter one should commence on 27 November 2011. 34. On the issue of remorse and contrition, it is submitted that if the offer to now attend a stewards' inquiry would not address the harm, as submitted by the respondent, then there can be ongoing failure. Emphasis is placed upon the fact that he seeks to cooperate with the stewards by attending a resumed inquiry and that the respondent's choice not to permit him to do so must be assessed as at the present time and there can be no suggestion of ongoing continued failure to redress harm and therefore no ongoing issues for integrity of the industry. It was submitted that it is irresistible to find that there is no longer anything to investigate and therefore there is nothing of an ongoing nature and therefore there is no point in maintaining a warning off, which would be applicable should there be an ongoing concern for integrity. 35. It was further submitted that there can be no thumbing of his nose at the stewards by reason of his offer. The appellant also notes the finding of the Tribunal that there was no blanket refusal to assist the stewards with their inquiry at any stage and, in particular, that the stewards did not ask the appellant any questions about any other matter when he participated in his record of interview after the notice to produce issues. 36. On the issue of financial and personal hardship, the obvious was again relied upon, but in addition, special needs of a family member who Page 8
has a disability, with associated costs, and another family member who requires long-term care are advanced. 37. Particular reliance was placed upon the fact he has been a licensed person since 1983 and whilst he has driving offences, they can be disregarded, as would any suspensions for driving-related matters. Reliance is placed upon the fact he has no antecedents for dishonesty or conduct. Reliance is placed upon the fact that it can therefore be concluded that his conduct was aberrant and out of character. 38. A detailed list of his achievements and participation in the industry was given, running over 14 subparagraphs. To summarise them, they involve representations as a junior driver, status as a leading driver, the winning of premierships, substantial record-breaking numbers of wins, numerous major event wins, driving on a national and international basis and, importantly, voluntarily mentoring new drivers. Reliance was also placed upon his high profile in televised interviews. 39. The appellant has provided numerous character references. 40. Doug Robertson, in an undated two-page document, expresses knowledge of him for over 35 years; he has seen him develop to a premier harness racing driver who was on the crest of a wave when these issues broke but that he has been unable to resume this career because of a protracted investigation. Because of his involvement in the harness racing industry, he has not developed external skills and has lost his livelihood because it has been "taken away from him". This has led to life-changing difficulties for him and his family involving financial issues and mental and financial strains otherwise. It is said that he relies on casual work as a butcher. Reference is made to the illness of another family member. Reference is made to the fact that the appellant is a man of high family values, a role model, has no criminal record, is of good character, honest, trustworthy and reliable. 41. In a reference of 20 September 2015, John Baker expresses that he has known him for around 28 years and he has never doubted the appellant's integrity. He has been an owner and an administrator and has seen the appellant develop to a highly respected member of the industry. He expresses shock and disbelief that the appellant was the subject of these allegations and relies upon the fact that the jury took only five minutes to dismiss the charges against him in the District Court, but then says "for unknown reasons, Harness Racing New South Wales refused to accept the court verdict and continued to pursue Greg, while at the same time making no attempt to bring the corrupt steward to justice Page 9
." Reliance is placed upon the fact that the appellant has a young family and deserves an opportunity to resume his career. 42. Max and Ron Treuer, in a reference of 19 August 2015, state that they have been associated with the industry for over 50 years and associated with the appellant's family and that he is held in the highest regard. 43. William A Green, in a reference of 19 December 2011, has participated in the industry for over 60 years as an administrator, owner and breeder and has closely observed the appellant. He says that the appellant worked long hours, travelled long distances and achieved success. He says the appellant has a friendly nature, good manners and horsemanship, and he regards him for his honesty and sportsmanship. 44. The next undated reference appears to be by M Samuel, owner/manager of Lakeline Butchers, who has employed the appellant for three and a half years as a delivery driver and sausage manufacturer and that he is a punctual, reliable and hard-working employee and nothing is too much trouble for him. He says his character and manners are impeccable and he would highly recommend him to any employer. 45. Jack Primmer, in a reference of 19 August 2015, acknowledges his friendship with the appellant since 1985 when the appellant was driving his horses and that the appellant is hard-working, conscientious and dedicated and willing to offer advice and assistance. He assesses him as honest, a loving husband and father, and he has no hesitation acting as a referee. 46. On 17 August 2016, the appellant set out a three-page submission to the Tribunal. He describes how horses have been in his family for over 50 years and his only dream has been to be a harness racing driver. He refers to his history and his exceptional career, which was summarised earlier, and relies upon his exemplary record and high profile. He says he has no criminal record. He refers to family disabilities and special needs. He relies upon the loss of income and inability to pursue his profession and states this has had a huge impact on his life and that of his family. He says he has no other qualifications suitable for employment but that his only source of income over the last four years to August 2016 was casual work with a butcher. RESPONDENT'S SUBMISSION IN REPLY 47. On the issue of whether there is a nexus with corruption, the respondent refers to the profound frustration of the investigation into the Page 10
appellant at an early and key stage of its consideration of the corruption issues and that there has been a failure to produce a crucial piece of evidence and to answer questions of essential importance. It is said that this is a continuing and significant forensic disadvantage to the respondent. It is said that the appellant's conduct has frustrated the use of a most important forensic tool. 48. On the offer to attend a resumed inquiry, the respondent relies upon Clements again where it was said: "It would seem that, but for the failure of the Applicant to cooperate with the stewards, charges may have indeed been preferred against the owner trainer and jockey, but that such charges are now not available to the stewards due to the vacuum of information and their inability to inspect the records of the Applicant, to discover what they may disclose. Accepting that they may disclose nothing at all, the matter would be finalised without any unfair presumptions against any party, but without which, proceedings may be simply suspended indefinitely with a cloud over the good character of all involved. This argument with respect to lack of jurisdiction must be dismissed." 49. Detailed submissions are made as to why the District Court findings should be disregarded. In particular, the respondent was not a party to the proceedings, not represented and could not be heard. Accordingly, there can be no estoppel. It is submitted that there is no basis for submitting that there was a purpose of assisting the police in the conduct of the stewards but that a classical forensic tool was being used by the stewards in a proper fashion. It is emphasised that the focus of the District Court trial was on the conduct of the police and not the stewards. That is, it is submitted that the stewards had legitimate forensic purposes and intentions in engaging in the conduct in which they did. 50. On the issue of objective seriousness, reliance is placed upon the fact that the conduct must be viewed through the prism of corruption, as was set out in Clements, rather than on the basis of it being said to be corrupt conduct. 51. Lengthy submissions were made in respect of the offer to attend a resumed inquiry. In that regard, it is said that the appellant has overlooked that the conduct of the appellant has led to the trail being cold and that the stewards have been denied, with the refusal to produce the proper phone, a most important piece of potential forensic evidence. Accordingly, it is submitted that the offer is late and cannot lead to a curing of the issues. In addition, it is said that it was his own conduct in Page 11
frustrating and delaying the investigation that has led to this forensic disadvantage for the respondent. Reliance is further placed on Clements at paragraph 45 as follows: "The Applicant contends that the Applicant cooperated with the stewards enquiry by participating in interviews but with respect this was of no ultimate assistance to the stewards and is in that regard a red herring. The Applicant also contends that it freely offered information to the stewards but as this was an offer of limited cooperation it was of little value to any proper investigation." 52. Accordingly, it is said that the offer to provide selective cooperation at the appellant's discretion does not comprise proper compliance with his obligations. 53. The respondent takes issue with a number of the referees in that they do not support any finding of remorse by the respondent and appear to make no reference to any apology to anybody by the appellant for his conduct. Criticism is made of those who in their references chose to criticise the respondent. Accordingly, it is said that there can be no demonstration of any insight by the appellant as to the wrongfulness of his conduct and accordingly there can be no conclusion that he will change his conduct in the future. 54. It is said that, accepting the appellant's high achievements and substantial benefits and rewards, that there is a downside and that so much greater is his obligation to uphold the integrity of the industry. 55. Reliance is again placed upon Knight v Racing New South Wales as to the need to look to the future. CONCLUSIONS 56. Justice Kavanagh, in Vallender v Harness Racing NSW, RAT, 7 October 2011, quoted at length from the Fine Cotton case, which is otherwise known as Clarke, Gough, Hines, McCoy, R W Waterhouse and W S Waterhouse of 1 February 1985, where Judge Goran said: And later: "The ability to warn off is a necessary part of the control of racing. It is a protective power rather than a punitive power. It is meant to protect racing from undesirable persons, such as cheats and frauds." Page 12
"Thus any move by this Tribunal to substitute a penalty other than warning off, such as disqualification or suspension, would be most inept. It would really be an attempt by the Tribunal to impose a penalty available under the rules of racing as a punishment upon an appellant who had been found guilty in an entirely different proceeding where he was being kept away from racing as a protection for racing itself." 57. In Vallender, Her Honour said: "57. The 'warning off' penalty is, therefore, available in the use of the discretion of HRNSW in a particular and serious circumstance." Interestingly, Her Honour noted at 59: "59. However, the circumstances have now changed. Mr Vallender has now complied with the directive by way of full production of his telephone records on 12 September 2011." 58. In Sarina v Australian Harness Racing, on a Rule 187(2) decision 15 August 2013 in the RAT, dealing with conduct of a licensed person associated with the green light scandal, the Tribunal quoted at length the reasoning of the Special Stewards Panel, which was convened to deal with green light scandal matters, and some key words drawn from page 5 of the Sarina decision comprise: unprecedented allegation, struck at the very heart of the industry, the central role of the protective nature of the disciplinary rules, integrity of harness racing is the primary objective of the rules. 59. In Sarina, at page 12, the Tribunal said: "The findings on the key facts bearing in mind there was no contest the Tribunal has referred to in some detail. As to the investigation into corruption itself, it was one of the most serious kind and touched upon the key and fundamental points of integrity of the industry. That corruption and the actions of the people involved in it could not be worse. It might be said in a criminal law sense a worse-case scenario cannot be imagined. In a civil disciplinary sense, a worse-case scenario cannot be imagined. As to what he, Mr Sarina, did, he lied to the investigators. As was said in Clements, the case just quoted, he was not charged with corruption, but what he did related to inquiries dealing with corruption. His conduct therefore, as in Clements, had the capacity to thwart the investigation." Page 13
And later: "The Tribunal specifically rejects the submission that there is no harm by that conduct. The Tribunal specifically rejects the submission that there is no ongoing issue that cooperation could address. The ongoing harm is patent. A person who has taken the privilege of a licence chooses to lie to its regulators. He chooses to lie to a very body hearing a charge about his conduct. To allow that not to be subject to a substantial civil disciplinary penalty would bring into total chaos the integrity of this industry. It would enable anybody, as the submissions for Harness Racing indicated, to thumb their nose at the stewards and the regulatory bodies. It would enable anyone to do what they liked and to say what they liked and get away with it." And later, at page 15: "For the reasons of this ongoing conduct and no attempt to ameliorate it, or acknowledge it or admit it, except that admission that is referred to, acknowledging there has been some cooperation by giving bank and phone records, acknowledging however some aspects of hardship and personal circumstances, but balancing those against what imprimatur should this Tribunal give this appellant in this civil disciplinary proceeding and to what extent should this Tribunal allow a person in this appellant's present position to be associated with the industry. The Tribunal is of the opinion that the integrity of the harness racing industry is paramount. That integrity does not require punishment but protection. That is, protection from those who engage in misconduct. That is, lying to investigators in the circumstances in which it occurred and continues. The Tribunal determines that a finite order is not appropriate on the facts and circumstances. The Tribunal determines that a finite disqualification does not arise and any such order would not reflect the objective gravity of the circumstances of this matter and the necessary message to be sent for the protection of the industry. The Tribunal has determined that a warning off is appropriate. The Tribunal, for like reasons, there being no indication of anything in the short term upon which some consideration might be given to an order for a period, cannot find any fact or circumstance which would justify it in limiting that warning off to a fixed period." 60. In general terms, the Tribunal has noted that warning off has been used with considerable frequency in recent years. Without quoting those cases in detail and just making reference to them, and noting that the first Page 14
of these is thoroughbred racing: Magnus, 8 December 2008; Hardy, 8 September 2009; Olson, 10 February 2009; Barnes, 21 September 2011; Nightingale, 28 October 2011. Each of those involved the imposition of a warning off, one of which was for a finite period. It is to be noted in both Vallender and Sarina that warnings off were imposed in the harness racing industry. 61. It is important to emphasise that in certain cases the facts and circumstances of the objective seriousness of a matter warrant a penalty which is not reduced by, or only marginally reduced by, any favourable subjective circumstances. That is particularly so in a civil disciplinary proceeding where the Tribunal is finding appropriate penalties on the facts and circumstances with a view to the protection of the integrity of the harness racing industry and not with an aim of punishment. 62. In finding the appropriate protection to the industry, the Tribunal must look to what message is to be given to this appellant in respect of the conduct in which he engaged, the message to other industry participants, the message by way of guidance to the stewards and other regulators, and the message that will be received by the betting and non-betting public generally as to the consequences that will flow to those who seek to engage in similar conduct. It is emphasised that the integrity of the industry is the key focus. 63. Despite the arguments for the appellant, the nexus between the green light corruption issues and licensed persons and stewards, which formed the key basis of the concerns of corruption in that green light scandal, cannot be disregarded. It is strongly acknowledged that this appellant has not been charged with any corrupt activities. However, that may be because, and there is no evidence of this, that because of the frustration and delay occasioned to the stewards by the conduct of the appellant that the question of any corruption allegations was not able to be addressed and could not be addressed. It is patently obvious that the stewards were concerned about corruption and that they called upon the appellant in the first instance, by notice to produce, to give them mobile phone records and a phone which would enable them to give consideration to the linking of this appellant to other people of interest. It is quite apparent that their desire at the resumed inquiry to ask him questions was driven by the same motives. Those motives were linked to corruption. 64. Accordingly, any message to be given to this appellant by the appropriate penalty, not by way of punishment, but by way of protection of integrity, must be made in the light of the nexus to corruption. Page 15
65. His conduct was ongoing, certainly up until the time of his offer to attend a resumed stewards' inquiry after 6 July 2016. His conduct frustrated the investigation and had a potential impact on integrity of an ongoing nature. 66. There has been no exhibition of remorse by the appellant in respect of his statement to the Tribunal on 17 August 2016. He has not given evidence to this Tribunal of his expressions of remorse. He has not sought to express remorse through his legal advisers. That fact must be taken into account in assessing him for the future as to the true insight that he is able to display as to his conduct and therefore the ability to assess him as not engaging in similar conduct in the future. There is a counterbalancing of the lack of remorse by his offer to attend a resumed stewards' inquiry. 67. The Tribunal accepts that his refusal to cooperate was not a blanket refusal. He did produce documents and things in 2011 and he did attend a stewards' inquiry for that purpose. In April 2015 he did attend the stewards' inquiry and he did indicate a willingness to answer questions, except those which were the subject of the breach and its particulars. 68. On objective seriousness, he has offered to attend a resumed stewards' inquiry. 69. Objectively viewed, therefore, his conduct is of the most serious kind. The corruption for which there is a nexus was the most serious to have affected this industry. The impact upon this industry has been devastating. His conduct was associated with a worse-case scenario. A person with the privilege of a licence who has enjoyed the most senior standing as a driver in the industry and been a person of good standing in the industry who falls from grace, such as the appellant has here, reaffirms the objective seriousness of the conduct. 70. Accordingly, on objective seriousness, the appellant's privilege to be in the industry must be removed from him. 71. On the subjective factors, the Tribunal accepts that in respect of the first allegation there was an admission of the breach at the commencement of the hearing on day one of the appeal. There is no full 25 percent utilitarian discount for that admission because it was not made before the stewards and was not made before the commencement of the hearing and accordingly the respondent was put to the cost and the expense occasioned before the stewards and in the preparation of its own case and in particular in respect of witnesses in respect of the appeal. It is not necessary to express a precise percentage figure. In Page 16
those circumstances, the utilitarian value could not be more than 10 percent. Of course, in respect of the second breach there was no admission and no discount for that purpose. 72. It must be acknowledged, however, that in respect of the second allegation there are substantial legal issues involved. The Tribunal accepts that the appellant was driven by a subjective belief that he was entitled to decline to answer the questions at the April 2015 inquiry. In particular, it appears that it can be accepted, although there was no evidence to this effect, that his refusal to answer questions, effected through his legal adviser, was made with a subjective belief that he was entitled to do so in mind. 73. The Tribunal cannot lose sight of the fact that the complexity of the legal arguments associated with his conduct in April 2015 at that stewards' inquiry was substantial. In particular, without repeating the reasons for the decision of 6 July 2016, but noting that the following legal issues had to be assessed and canvassed in detail by the Tribunal and legal rules made are such as to confirm that complexity. Those issues involve: does the privilege against self-incrimination apply, does the privilege against exposure to a penalty apply, has either privilege been engaged, has either privilege been abrogated, has either privilege been waived. In respect of each of those, substantial case law and analysis was required. In those circumstances, no criticism can be directed to the appellant that he relied upon legal advice and acted accordingly. In respect, therefore, of the second matter, there is, in viewing the objective seriousness of his conduct, an amelioration of it. It is not necessary to express a precise percentage figure. 74. The subjective facts indicated a long and successful association with the industry and no prior record for improper conduct. He is entitled to rely upon his good standing and character in the industry and in the community. He is entitled to call in aid his contribution to the industry by mentoring of junior drivers at a time when he himself stands to be assessed as to his adverse conduct. His fall from grace has been substantial and he has lost the privilege of a licence. 75. However, it must be said that in respect of the referees that he has chosen to bring to this Tribunal that there must be some discount from the benefit that he can gain from those documents. They have on one hand very supportive matters as to his character but on the other hand they are aged and do not recognise remorse from the appellant and seem to have some emphasis on placing blame for the appellant's conduct on the regulator rather than an acceptance that the appellant may have misbehaved and has an understanding of it. The references Page 17
make no concession to the seriousness of the allegations made against him. 76. The Tribunal otherwise accepts that his conduct in respect of matter 1 was an isolated act and appears to be out of character. 77. In respect of the second matter, there must be a substantial amelioration of the consideration of the appropriate penalty by reason of his offer to attend a resumed stewards' inquiry. The regulator cannot have it both ways by saying that there is an ongoing objective seriousness for his conduct in failing to cooperate with stewards when he has made a clear and unambiguous offer to attend a resumed inquiry. The email of the respondent of 7 February 2017, set out above, does not assist the respondent in obtaining orders that have a substantial ongoing nature to them on the basis of the need for the ongoing protection of the industry. 78. That arises because it is quite clear that the regulator considers that the issues are aged, there is a loss of evidence and witnesses and that any protective purpose has likely diminished. The regulator acknowledges that the future protective purpose would not be served if it is accepted that he is no longer participating in the industry. 79. It will be apparent from the quotations above and the approach adopted by the Tribunal that a warning off is considered to be the most serious penalty and one which is used more often than not in respect of addressing ongoing conduct which has not been ameliorated. A classic example is Vallender where it was acknowledged that he had cured the conduct, a warning off was found but left essentially in the hand of the regulator by the Tribunal in where it was clear that if the regulator was satisfied everything was done, it could lift the warning off. 80. The Tribunal does not see that the caution advanced in the email of 7 February 2017 that the inquiry may be resumed if the penalties are reduced provide a reason for the Tribunal to read down the fact that the appellant has been prepared to attend the resumed inquiry and answer the questions within the meaning of the Tribunal's own decision of 6 July 2016. 81. The aspects of hardship which are advanced by the appellant fall within the Thomas principles and essentially the Tribunal is of the opinion that the penalty it considers is appropriate is one which the objective seriousness of these matters warrants, and on hardship alone those penalties should not be reduced. That is not to lessen the Tribunal's understanding of the substantial personal difficulties that confront the Page 18
appellant and his family in respect of the illnesses of his child and his father. The Tribunal also accepts, as does the respondent, that the criminal proceedings occasioned to him substantial cost and stress. 82. In the first matter, the stewards determined that a period of disqualification of seven years was appropriate. 83. The Tribunal has independently, on an assessment of the facts and circumstances of this case, and assessing those facts and circumstances as of today, looking to the future, looking to the protection of the industry and the message, as defined above, to be given, has determined that a period of disqualification is appropriate. Absent any specific parity cases advanced, other than those to do with warning off, the Tribunal itself is of the opinion that a lengthy disqualification is necessary. No facts and circumstances have been advanced which would cause the Tribunal to come to a different conclusion to a carefully considered and expressed conclusion by the stewards that an appropriate period of disqualification is seven years. 84. In respect, therefore, of breach allegation 1, the appellant is disqualified for a period of seven years. 85. The submissions have touched on a date upon which that disqualification should commence. The Tribunal is satisfied that he lost his licence to drive by reason of his suspension on 25 November 2011, the date on which he was stood down. The Tribunal is satisfied that he is entitled, despite the fact that that was a suspension and not a disqualification and he could enjoy some other privileges of a licensed person, that he has lost his principal source of income from that point. 86. Accordingly, in respect of allegation 1, the period of disqualification of seven years will commence on 25 November 2011. 87. In respect of the second allegation, the Tribunal acknowledging that a warning off can be an appropriate disciplinary response by way of protection of the industry, does not come to that conclusion on these facts and circumstances. If the appellant had not offered to attend a resumed inquiry, then that was not likely to be a conclusion. The fact that the respondent has taken so long to advise the Tribunal of its intentions in respect of resuming the inquiry and the reasons then given do not satisfy the Tribunal that the protection of the industry requires the imposition of a warning off. As was said in Vallender, the conduct the subject of the matter has been cured. As was said in Sarina, the conduct had not been cured but was otherwise so serious that a warning off was needed. The latter does not now arise here. Page 19
88. For the same reasons, a finite warning off is no longer appropriate. The Tribunal is strongly of the opinion that the facts and circumstances of this case are such, therefore, that a continuation of the warning off is not required. However, in considering the appropriate penalty within the tests outlined earlier, there must be a message clearly sent of the type outlined earlier. The message to be sent, however, must be given in acknowledgement of the reasons why the appellant declined to answer the questions at the time and has now offered to answer those questions. Accordingly, the gravity or objective seriousness of the conduct at the time at which it occurred can be viewed less seriously than might otherwise have been the case as of April 2015 and much less seriously now by reason of the offer to attend the resumed inquiry. 89. The issue, therefore, becomes what is an appropriate civil disciplinary message for the conduct before the stewards. The Tribunal has determined that an appropriate order is one of disqualification by reason of the gravity of the objective seriousness of the conduct associated with a nexus with corruption. 90. In all the circumstances, the Tribunal has determined that a period of disqualification of two years is appropriate for that conduct. 91. In respect of the commencement of that disqualification, the conduct occurred on 29 April 2015 and accordingly the appellant having served a warning off from 29 April 2015 is entitled to have that backdated. 92. Accordingly, in respect of allegation 2, the appellant is disqualified for a period of two years, to commence on 29 April 2015. 93. In determining that commencement date, the Tribunal has not applied Rule 257, either because of the provisions of that rule or otherwise as an appropriate civil disciplinary response, so as to cumulate that penalty on top of the seven-year disqualification to expire on 24 November 2018. 94. The reasons for that are to be found in the fact that the appellant has served a warning off since 29 April 2015, his conduct in refusing to answer the questions was associated with his previous conduct in 2011, his conduct was isolated, his conduct was based upon legal advice in a highly complex legal field. The Tribunal is reinforced in the conclusion not to cumulate by the fact that he offered to cure the failure prior to the imposition of penalty upon him. 95. DECISION: Page 20
1. In respect of breach of AHR 187(2) on 7 September 2011, the appellant is disqualified for a period of seven years, to commence on 25 November 2011 and to expire on 24 November 2018. 2. In respect of the second allegation for breach of AHR 187(2) on 29 April 2015, the appellant is disqualified for a period of two years, to commence on 29 April 2015 and to expire on 28 April 2017. APPEAL DEPOSIT 96. The Tribunal has not called upon the parties to make submissions on the appeal deposit. 97. The appellant is allowed 14 days from the date of receipt of this decision by his legal advisers to make application under Clause 8 of the Racing Appeals Tribunal Regulation 2015 for the repayment to him of the appeal deposit or any part of it. In the event of no such application being received by the Tribunal, then without further order the appeal deposit will be forfeited. ----------------------- Page 21