Is there consistency in the RIB penalties for Vaccine Pass violations?

[Chief Stipe]

Non Raceday Inquiry – Written Decision dated 29 March 2022 – Graeme Swann

ID: RIB8234

Respondent(s):
Graeme Swann - Trainer

Applicant:
Mrs G Murrow - Investigator - RIB

Adjudicators:
Hon J W Gendall QC

Persons Present:
Nil - on the papers

Information Number:
A15757

Decision Type:
Adjudicative Decision

Charge:
Failed to comply with a NZTR Covid 19 Directive

Rule(s):
802(1)(a)

Plea:
Admitted

Stewards Report

Results

Code:
Thoroughbred

Race Date:
24/02/2022

Race Club:
Wanganui Jockey Club

Race Location:
Wanganui Racecourse - 19 Purnell Street, Whanganui, 4500

Hearing Location:
On the papers

Outcome: Proved

Penalty: Trainer Graeme Swann's Class B Trainer's Licence is suspended for 3 months and he is fined $1,000

DECISION MADE, BY CONSENT OF THE PARTIES, ON THE PAPERS

Reasons

1. Mr Swann is a Licensed Class B Trainer operating at Whanganui and had 3 horses under his care at the relevant time.

2. He was charged with a breach of Rule 802(1)(a) of the Rules of Racing in that:

(a) On 24 February 2022 he attended the race meeting at Whanganui Racecourse and failed to comply with a NZTR Directive (in line with the government “COVID 19 Public Health Response Act 2020”) and was therefore in breach of Rule 802(1)(a).

(b) That Directive was provided to all Licencees and required persons entering a racecourse that they must have a “My Vaccine Pass” scanned or sighted to prove double vaccination.

(c) Mr Swann did not have such a pass nor any valid exemption issued by the Ministry of Health.

3. Rule 802(1)(a) provides that:

“a person commits a breach who acts in contravention of or fails to comply with any provision of the Rule … or any policy, notice, direction, instruction, … restrictions, requirement, or condition given, made or imposed under the Rules.

4.  Following upon Mr Swann’s advice that he admitted the charge, the Adjudicative Committee has received submissions in writing from the RIB and Mr Swann (the latter via email).

Essential Facts

5.  Mr Swann holds a Class B Trainer’s Licence which is issued to Trainers who do not train more than 6 horses, which shall include those in which he/she may have an ownership interest.

6.  On 24 February 2022 he attended the race meeting at Whanganui Racecourse it appears, for the purpose of assisting another in managing a horse.  Under the NZTR Directive all persons attending a meeting at the racecourse had to present their “My Vaccine Pass” or evidence of it, and the Directive issued by the NZTR Board on 26 November 2021 provided:

“This Directive outlines the following:

2.1(f)  All persons admitted to a racecourse for a Meeting must:

(1)  Allow their “My Vaccine Pass” to be scanned or sighted as proof that they are double vaccinated.  Any attempt to falsify proof of a person’s vaccination status (“My Vaccine Pass” or in another form) will be reported to the NZ Police and will be treated as a serious Racing Offence.

A false statement regarding vaccination status to the NZTR, this RIB or a racing club will also be regarded as a Serious Racing Offence”.

7.  Mr Swann, when asked by Stewards for his vaccine pass, produced a photograph on his phone of a Ministry of Health Exemption card.  If valid, it would have permitted entry.  Parts of the photograph had been pixelated out so it could not be read.  When later interviewed by RIB staff on 28 February 2022, Mr Swann presented a printed version of his “Exemption” and said it was genuinely obtained from the Ministry of Health.  But the printed version expired on the recorded date of 14 February 2022 – 10 days before he attended the races.  Mr Swann then admitted that he had pixelated out the date on the photo on his phone, in order to attend the races, as he knew that the exemption had expired.

8.  Although it is not claimed by Mr Swann, some might argue that the NZTR Directive only refers to “My Vaccine Pass” so that an Exemption card is not covered by the Directive.  But that would miss the point. If an Exemption card does not exist or has previously existed but expired, in that case,  a “My Vaccine Pass” does not exist, when, it was necessary in order to secure entry.  And, in Mr Swann’s case, in any event, he committed a separate Serious Racing Offence under Rule 801(1)(h) by “wilfully supplying false or misleading information” to the NZTR, Stewards and Investigator.

Informant’s Submissions as to Penalty

9.  After referring to the principles and considerations discussed in RIU v Lawson, which are well known to the Adjudicators, the Informant summarised those relevant to this case as:

(a)  the need to punish an offender’s wrongdoing.

(b)  the importance of deterring others from committing similar offences in racing matters.

(c)  to reflect the Adjudicative Committee’s disapproval of this type of offending (ie disobeying NZTR Directives to all licence holders).

(d)  the need to rehabilitate.

(e)  attempts to subvert the expectation of the Directive involved a breach of trust of others attending race meetings.

10.  Reference was made to the cases of:

(a)  RIU v Keegan – (4 months’ suspension, $3000 fine, $750 costs).

(b)  RIU v Harvey – (fine of $2,700).

(c)  RIU v Hewitson (fine of $2,400).

Neither of the last 2 cases involved altering documents to mislead the Investigators, whereas Keegan’s case involved presenting a forged document to avoid detection.

11.  The Informant submitted that Mr Swann’s offending was akin to that of Ms Keegan’s because he dishonestly altered a document that he presented to officials.  The RIB contends that “serious consideration needs to be given to a period of suspension, considering the serious breach of public trust and the trust of the Racing Industry.  General deterrence is another key consideration as to whether a suspension is warranted”.

Submissions Presented by Respondent

12.  Mr Swann, in several email communications has outlined at length his personal and medical background and history to illustrate why he had obtained an exemption.  He says that “overrode  the vaccine pass”.  But, of course he did not have such an exemption at the time of this offence, but instead altered (or “forged”) the photographic record of his status.  He said that a lawyer has told him that the Ministry of Health requirement was “a mandate, and not law”.  That, also misses the point as the offence is a refusal to comply with a Directive of the NZTR, whatever was the background for it.  He outlined his long involvement in racing, track riding, training matters, and pleads that this has been, and is, his life.  He said that he would be lost without it.  He advises that he is single, lives alone and is not financially comfortable.

Outcome

13.  The current training position of Mr Swann has not been made absolutely clear by him to the Adjudicative Committee.  But it appears that he may have been training, at most, 3 horses – and possibly now only has 2 of those in his care.  As mentioned a Class B Trainer’s Licence allows a person to train not more than 6 horses which “shall include race horses in which he [she] has an Ownership interest, is competent to train, owns or occupies appropriate Trainer’s Premises; and is financially sound and of good character.

14.  As was observed in RIU v Keegan disqualification is manifestly excessive.  Although Mr Swann argued that only a small fine was required, the Adjudicative Committee has to conclude that a Serious Racing Offence, involving presentation of false and misleading information to a Steward requires a sanction that deters other licence holders who might wish to defy the Directives and Rules of the Code.  Those who have the privilege of working as  Licencees in the profession have to understand that the Rules which govern the Code must be obeyed.  If they do not agree with the Rules, they may elect to not participate in the profession.

15.   The two cases of Hewitson and Harvey, which resulted in fines only, are to be distinguished as they involved only unauthorised crossing of temporary boundary restrictions in place.  In this case, as was the position in Keegan there was involved deception and presentation (“uttering”) of a false document so as to be an offence of “Serious Misconduct”.

16.  Mr Swann’s action is in the same category as was Ms Keegan’s and it is necessary to signal to all Licencees that when ignoring NZTR Directives by adopting fraudulent measures, stern sanctions will follow.  It does not however have an additional aggravating factor of prior use of the forged document.  A suspension Order must follow.  But the Adjudicative Committee notes that under Rule 304(2) “a horse which is spelling is not being “trained” by a Class B Trainer.  So, if Mr Swann spells those 2 (or perhaps 3) horses under his care during the period of suspension he is not “training them” so as to breach a suspension Order.  But a financial sanction must follow so that, whilst he will remain in the profession and cannot “train” during the suspension, there has to be a further penalty.

17.  From a starting point of 4 months suspension, and a fine of $1,500, the Adjudicative Committee allows a substantial discount to reflect Mr Swann’s good record over many years in the Industry; his acceptance of guilt, and his personal circumstances.  For these mitigating features the terms of suspension is reduced by 25% to 3 months, and the fine by 33 1/3% to $1,000.  Mr Swann can, and should, remain in the profession, and only will not be able to “train” as a Class B Trainer for a modest period.

18.  Accordingly, Mr Swann’s Class B Trainer’s Licence is suspended for 3 months to commence at 5pm on 29 March 2022, and to cease at 5pm on 29 June 2022.

19.  In addition he is fined $1,000.

20.  There is no Order as to costs.

[Huey]

What did other industry particpants get?

[aquaman]

Gestapo bastards my only comment.