Green v Racing Queensland Ltd
[2012] QCATA 269
•21 December 2012
| CITATION: | Green v Racing Queensland [2012] QCAT 269 |
| PARTIES: | Hayden Green (Appellant) |
| v | |
| Racing Queensland (Respondent) |
| APPLICATION NUMBER: | APL305-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | K S Dodds, Member |
| DELIVERED ON: | 21 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is dismissed. |
| CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Appellant held a licence to drive harness racing horses – where an enquiry was held into the Appellant’s driving tactics – where the appellant was charged under the Australian Harness Racing Rules – where the Appellant pleaded guilty to the charge – where the Appellant was penalised – where Tribunal affirmed the penalty imposed – whether the penalty was appropriate – whether the penalty was manifestly excessive – whether the penalty took into account mitigating circumstances Australian Harness Racing Rules, r 149 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
This is an appeal from a decision of the Queensland Civil and Administrative Tribunal (‘QCAT’), which reviewed the imposition by stewards of a six month suspension of the appellant’s licence to drive harness racing horses. The Tribunal confirmed the stewards’ decision.
The grounds of the appeal are:
i) the penalty was manifestly excessive in that: it did not properly take account of the mitigating circumstances;
ii) the penalty did not give any benefit for the appellant’s plea of guilty or co-operation in the administration of justice; and
iii) the penalty was not consistent with case law.
Background
Immediately after race two at a harness meeting held at Redcliffe on 18 July 2012, stewards opened an enquiry into the appellant’s driving tactics, specifically the manner in which a horse “Streetsafe” was driven in that race.
In issue was what had occurred in the home straight to the finish line. On turning into the home straight Streetsafe was running behind another horse “African Sign”, which was driven by the daughter of the trainer of Streetsafe. African Sign, despite challenges, had held the lead run on the fence throughout the race. In the straight African Sign deviated toward the outside of the track, which left clear running in front of Streetsafe to the finish line. Streetsafe moved through quickly ahead of African Sign. At that time the appellant stopped driving Streetsafe on. African Sign was driven hard to the finish, then headed Streetscape to win the race.
Before the stewards’ enquiry were the appellant and the trainer of Streetsafe. At the commencement the chairman briefly described the running of the race. Relevantly he said:
…on the final turn Streetsafe was able to avail to the sprint lane and I was watching Mr Green in response to that horse getting to the line. I felt it hadn’t used any energy in the run and would be a chance of running down the leader African Sign. I noticed Mr Green give the horse a couple of taps or flicks if you like, as the horses straightened for the run to the finish but then it appeared to me that as the horses got down the straight that Mr Green didn’t do anything on the gelding. There was no vigour whatsoever and in fact I felt at one point that there was some restraint from Mr Green which I find very alarming and concerning. Firstly to you Mr Green, can you explain reasons why and how you drove Streetsafe in the manner in which you did...can you explain to the stewards your lack of vigour in the concluding stages of the straight?
The appellant replied:
I honestly thought the horse hit the lead and was winning the race. Visibility was extremely hard out there. I was certain that he was – gone to in front. I did feel I was giving him every possible chance of hitting him. I could have hit him a lot more but I did think that he was in front a fair bit than what he was.
The chairman then said “what about in relation to what I said in regards to some restraint on the rein?” to which the appellant replied “oh, definitely not sir.”
The race had been filmed. The enquiry was then adjourned so the appellant could drive in another race. It was resumed. The film of the race was played. It was further adjourned until 25 July so the stewards could undertake further enquiries. Enquiries were made into betting on the race.
When the enquiry resumed on 25 July there was further discussion about the appellant’s driving and about betting on the race. Eventually the trainer was discharged from the enquiry and the appellant was charged pursuant to rule 149(1) of the Australian Harness Racing Rules, namely:
…that you failed to take all reasonable and permissible measures by failing to drive the horse out in the run to the finish and we believe that also has failed to give it full opportunity to win and thus in its best possible placing in the field.
The appellant pleaded guilty to the charge. There was further discussion about what had occurred during the race and the enquiry was adjourned for the stewards to consider penalty and for the appellant to undertake drives he had at the race meeting then occurring. The enquiry was then resumed and the penalty imposed.
It is plain that the stewards regarded what had occurred as potentially affecting public confidence in the integrity of harness racing. In imposing the penalty the stewards indicated they had taken into account the appellant’s plea of guilty and the appellant’s evidence in which he offered an explanation for what had occurred. They indicated that they regarded the matter not as a minor matter, but rather as a serious breach of the rules. The sort of driving that had occurred affected the integrity of harness racing. Restoring public confidence was a matter of concern.
A steward’s report about the matter under the hand of D Farquharson, Chief Steward (Harness) indicated that in assessing the penalty the stewards had considered the seriousness of the charge, the negative impact to the integrity of harness racing, the appellant’s licence history and his guilty plea.
The Review
The appellant sought a review by the Tribunal of the penalty on the basis that six months’ suspension was manifestly excessive and that insufficient weight had been given to mitigating factors. Additional evidence was placed before the Tribunal.
I have read the Tribunal’s written reasons for its decision. The reasons correctly record that its function under the QCAT Act upon such a review was to produce the correct and preferable decision by way of a fresh hearing on the merits. The reasons succinctly reviewed the evidence; the appellant’s co-operation in the enquiry; his acceptance of his responsibility for what he had done, or rather not done; the character references provided; and, the information about other penalties imposed for a breach of rule 149(1) of the Australian Harness Racing Rules. The Tribunal concluded that:
…an important consideration from the harness racing industry’s perspective is the appearance of two horses coming down the straight to the finish line with one driver simply, as it were, coasting along and losing albeit by a small margin. This type of conduct does have consequence of bringing the sport into disrepute and must be curtailed.
I have come to the view that Mr Green’s conduct is at the higher end of the scale for a breach of 149(1) and although the penalty imposed of six months suspension is also at the higher end of the range of penalties that might be imposed I see no reason to interfere with the stewards’ decision.
Submissions
Counsel for the appellant on this appeal in his written argument submitted the following:
· the chairman of the stewards’ enquiry after announcing the penalty said “we appreciate your evidence and your honesty and that you have recognised what you have done” and commented that the incident would be reported as “an error of judgement and nothing more”;
· the appellant was a young man with good history and no similar prior offences;
· a period of suspension at this stage would potentially detrimentally affect the appellant’s career as the upcoming season was the last season in which the appellant can drive as a concession driver;
· the appellant earned the majority of his income from driving and the suspension would cause financial hardship;
· the references provided to the Tribunal were from the appellant’s peers in the harness racing fraternity, both the senior and young generation;
· it was submitted that it was a long accepted practice in sentencing that a penalty would be discounted where a plea of guilty was entered at an early time and where a defendant co-operated in the administration of justice. Reference was made to the legislative recognition of that practice in federal and state sentencing legislation.
Discussion
I have watched the film; I have read the transcript of the stewards’ enquiry; I have read the transcript of the review by QCAT and the Tribunal’s reasons for confirming the decision of the stewards; I have read counsel’s written submissions on this appeal together with the material accompanying those submissions, ie, character references, reports of cases and a schedule of other penalties.
It is true that an acceptance of wrong doing signifying remorse is a factor that may favourably weigh in the fixing of a penalty in criminal and quasi-criminal sentencing depending on the circumstances. So too may an acceptance of wrong doing emanating from a desire to facilitate the administration of justice.
The present case is, of course, not a sentencing procedure for a criminal or quasi-criminal offence. The sentencing statutes referred to in the submission have no application. Nonetheless, ready acceptance of responsibility of wrongdoing may carry weight in the present context. The extent to which it will depends on all the circumstances. A plea of guilty in the face of incontrovertible evidence of the wrongdoing under consideration may reflect remorse for the wrongdoing or may be an acceptance of the inevitability of the outcome or both.
The stewards plainly saw the appellant’s driving on the material occasion as a very serious matter. So too did the Tribunal. I would not disagree. The continued successful existence of harness racing must depend on the confidence and support of the harness racing public. A spectator of the race in question without more, may, unsurprisingly, think that the appellant had deliberately let African Sign win the race. Streetsafe had had an excellent run in a position conserving energy, had apparently easily quickly moved to the lead in the straight when opportunity presented, seemed full of running, yet was not driven on to the finish line. Such an incident is replete with the potential to erode public support for the sport.
Although the Tribunal referred to dealing with the appellant on the basis of an error of judgement, what occurred was not an error of judgement by a driver faced with a need to make a quick decision about choices during a race. Streetsafe, a short distance from the finish line, was presented with an opportunity to lead and win the race. Having taken a narrow lead the appellant stopped driving the horse on to the finish line without apparent regard to where other horses, particularly the winning horse, were in relation to his horse. He told the stewards he made a mistake in easing driving his horse on thinking he was well in the lead. But in truth he had no reasonable basis for such a view, certainly no reasonable basis for ceasing to drive his horse on.
It may be accepted from the material presented that the penalty imposed is at the high end of penalties that have been imposed for a breach of rule 149(1) of the Australian Harness Racing Rules. The penalty imposed reflects the view of both the stewards and the Tribunal that this was a serious breach. It is plain that the stewards and the Tribunal were cognisant of the appellant’s co-operation in the enquiry.
The stewards found no evidence of any intent in the appellant’s failure to drive the horse on after gaining the lead. They indicated that if there had been such evidence the appellant would have faced a much more serious charge. They said they were dealing with him on the basis he had made an error of judgement, that they appreciated his evidence and honesty in the enquiry and that he understood what he had done.
There is nothing in the transcript of the proceedings before the stewards or the Tribunal, nor in the Tribunal’s reasons revealing any relevant fact was overlooked, ignored or misconstrued. The stewards dealt with the appellant as a person who had erred in judgement albeit in a serious way, who had accepted responsibility for what had occurred and had been honest during the enquiry. The Tribunal was also seized of these matters, although it thought that the appellant’s driving was not adequately described as an error of judgement.
The gravamen of the appellant’s grounds of appeal and submissions is that the period of suspension is of such length that, in itself, when all the evidence is considered, it indicates error on the part of the stewards and the Tribunal. Different minds may legitimately reach different conclusions about an appropriate penalty after considering all the circumstances in this case. I think it relevant to bear in mind that the stewards, under the rules, are an essential part of any race meeting with wide powers to control race meetings and behaviour at race meetings. They embody a considerable deal of knowledge and experience about racing and their opinion about penalty is I think, deserving of considerable weight unless that decision is plainly affected by error.
I have come to the conclusion that it has not been shown that the penalty imposed has been affected by legal error. For that to be the case it must be shown that the penalty is so beyond the range of penalties that may properly be imposed that it compels a conclusion some error has occurred. I do not think that is the case.
Order
The appeal is dismissed.
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