Hess v Queensland Racing Integrity Commission

[2018] QCAT 16

CITATION:

Hess v Queensland Racing Integrity Commission [2018] QCAT 16

PARTIES:

Anthony Charles Hess
(Applicant)

v

Queensland Racing Integrity Commission

(Respondent)

APPLICATION NUMBER:

OCR061-17

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

11 January 2018

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

DELIVERED ON:

16 January 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The internal review decision dated 23 February 2017 is confirmed.

2.   The Tribunal makes no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS – where greyhound trainer lived on property of warned off person – where parties agreed on proposed penalty – whether proposed penalty is suitable

Greyhounds Australasian Rules, Rule 86
Racing Integrity Act 2016 (Qld), s 3

Edmondson v Queensland All Codes Racing Industry Board [2016] QCAT 70
Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Hess was a licensed greyhound trainer.

2. During a stewards’ inquiry conducted on 9 November 2016 and 19 December 2016, Mr Hess made admissions that he did, on 21 May 2015, live at the property of Mr Tom Noble at Wotan Road, Churchable.

3. Mr Noble was warned off on 4 March 2015 for his involvement in, and knowledge of, live baiting which took place at his property. 

4. Mr Hess admitted he knew that Mr Noble was a warned off person, and that he was in regular contact with Mr Noble throughout this period of time.

5. The stewards found that Mr Hess was guilty of an offence under Rule 86 of the Greyhounds Australasian Rules (the Rules) for associating with a disqualified person for the purposes of greyhound racing.  The stewards imposed a two-year disqualification on Mr Hess, effective from 19 December 2016.

6. Mr Hess sought an internal review of the stewards’ decision.  The internal reviewer reduced the penalty from a two-year disqualification to a one-year disqualification.

Proposed orders

1. The parties have come to an agreement for the finalisation of the review and ask the Tribunal to make orders in accordance with their agreement.  Those orders are that:

   1. The Applicant’s Application for Review filed 22 March 2017 is dismissed.

   2. Internal Review Decision 008-17 dated 23 February 2017 is confirmed.

   3. The Applicant’s period of disqualification expired on 1 August 2017.

   4. There be no order as to costs.

2. I note that the internal review decision imposed a one-year disqualification from 19 December 2016, and that Mr Hess’ period of disqualification therefore ended on 18 December 2017.  The reference to the period of disqualification expiring on 1 August 2017 is unexplained and appears to be in error.

Consideration of penalty

1. It has been held that the Tribunal ought not depart from a proposed sanction agreed between parties, unless it falls outside the permissible range of possible sanctions for the conduct.[1]

   [1]Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146, 4 [12].

2. Guidance on setting penalties in a racing industry context was provided by the reasoning of Thomas J in Queensland Racing Integrity Commission v Gilroy[2] (‘Gilroy’). His Honour noted that “[a] key consideration is to maintain the integrity of the industry as a whole and to demonstrate to participants in the industry and the public, that behaviour which breaches the rules will not be tolerated.”[3]

   [2][2016] QCATA 146.

   [3]Ibid, 6 [24].

3. The Tribunal has previously expressed the view that “the purpose of a penalty is to ensure that the standards of the racing industry are upheld: this necessarily involves a penalty that has a deterrent effect and demonstrates to the public that this behaviour will not be tolerated”.[4]  However, the exercise of “imposing a penalty involves a balance between the severity of the offence, the need for deterrence and any mitigating factors”.[5]

   [4]Edmondson v Queensland All Codes Racing Industry Board [2016] QCAT 70, 5 [11].

   [5]Ibid, 7 [27].

4. These statements are consistent with the main objects of the Racing Integrity Act 2016 (Qld) set out in s 3(1):

   The main purposes of this Act are—

   (a) to maintain public confidence in the racing of animals in Queensland for which betting is lawful; and

   (b) to ensure the integrity of all persons involved with racing or betting under this Act or the Racing Act; and

   (c) to safeguard the welfare of all animals involved in racing under this Act or the Racing Act.

5. Thomas J also noted in Gilroy that it is appropriate to take into account sanctions that have been imposed in respect of similar offences.[6]  The parties jointly submit that the appropriate range for an offence such as that in the present case is a period of disqualification of one to two years.

   [6]Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146, 7 [27].

6. I accept that it would have been difficult for Mr Hess to avoid contact with Mr Noble, living as he did at a property owned by Mr Noble.  In the circumstances, I am satisfied that the proposed penalty is within the range of permissible sanctions for Mr Hess’ conduct, and achieves a balance between the severity of the offence, the need for deterrence, and the mitigating factors relating to Mr Hess’ residence at the property.

7. I will make orders confirming the internal review decision and that there be no order as to costs.