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11 Jul 2020
Auckland-Rc - R5

Auckland RC 11 July 2020 – R 5 – Chair, Mr G Jones

Created on 13 July 2020

Committee:
GJones (chair)
BScott
Name(s):
Mr S Weatherley - Rider of THE BUFFER
A Coles - Stipendiary Steward
Informant
Mr M Williamson - Senior Stipendiary Steward
Information Number
A13414
Plea:
Admitted
Charge:
Excessive use of whip
Evidence:

This charge arises from the running of Race 5 the Eagle Technology 1200. An Information was filed pursuant to Rule 638 (3)(b)(ii) by the Informant, Mr Williamson, alleging that Mr Weatherley used his whip excessively prior to the 100 metres.

Mr Weatherley said that he understood the Rule and confirmed that he admitted the breach.

Rule 638(3)(b)(ii) provides:

A Rider shall not strike a horse with a whip in a manner or to an extent which is:

(i) unnecessary, or

(ii) excessive, or

(iii) improper

Without affecting the generality of Rule 638(3)(b), a rider may be penalised if their whip use is outside of the following guidelines:

Flat Races

Prior to the 100-metre mark in a race, official trial or jump out:

(i) The whip should not be used on more than 5 occasions.

(ii) The whip should not be used in consecutive strides.

(iii) The rider may at their discretion use the whip with a slapping motion down the shoulder, with the whip hand remaining on the reins.

In the final 100 metres, the whip may be used at the Rider’s discretion.

Notwithstanding the above, it will also be deemed to be unacceptable where a rider uses the drawn whip:

(i) when a horse is out of contention.

(ii) when a horse is showing no response.

(iii) when a horse has no reasonable prospect of improving or losing its position.

(iv) when a horse is clearly winning.

(v) after passing the winning post.

(vi) using the whip with the arm above shoulder height.

(vii) causing injury to the horse.

Using available race film footage Stipendiary Steward Mr Coles demonstrated the incident. He identified THE BUFFER (S Weatherley) racing wide into the home straight. He said that Mr Weatherley struck his mount 8 times prior to the 100 metres.

In response Mr Weatherley said he accepted that he struck his mount 8 times, albeit 2 of the strikes were backhanders. He said that the track conditions were very testing and his mount was “under pressure a long way from home”. He added that he was not trying to hurt his mount and he simply misjudged the number of strikes.

Decision:

As Mr Weatherley admitted the breach the Committee found the charge proved.

Submission For Penalty:

Mr Williamson submitted that Mr Weatherley has 2 previous breaches of the whip rule since the revised whip directive came into force on 7 October 2019. The first breach on 4 January 2020 resulted in a $400 fine and the second breach on 18 January 2020 occurred in a Group race and resulted in a $1000 fine and 7 day suspension. Mr Williamson said that although Mr Weatherley raised some valid points, it has to be said that he has a poor record in relation to whip use. He added that Mr Weatherley's mount won the race.

Mr Williamson submitted that although the JCA Penalty Guide recommends a 6 day suspension for a 3rd breach, such a suspension would unfairly punish Mr Weatherley due to current limited race day riding opportunities. He submitted that Stewards, on this occasion sought a 3 day suspension.

Mr Weatherley submitted that he would be disappointed if he incurred a suspension for this breach. He sought a fine and added his previous 2 breaches occurred in January 2020. 

Reasons For Penalty:

The JCA Penalty Guide establishes a starting point of a 6 day suspension for the 3rd breach of this rule. This starting point is inclusive of an admission of the breach and riding record.

The Committee was asked by Stewards to consider a 3-day suspension and by Mr Weatherley to consider a fine. Imposing either a 3-day suspension or a fine would be a significant departure from the JCA Guide. Although the JCA Penalty Guide sets out the recommended 'penalty' starting points, the guide affords some discretion after consideration of the particular facts and the particular circumstances of the Defendant. However, it must be said that the discretion to deviate from the penalty guide in cases that have animal welfare impacts, (such as use of whip) are very limited.

In order to deviate from the penalty guide compelling mitigating factors and/or exceptional circumstances would need to exist (and be considered). We are mindful that in the recent Appeals Tribunal decision in RIU v Ferguson (June 2020) a 1-day reduction was given when the current COVID 19 circumstances were taken into account. The Appeals Tribunal in their decision made a number of salient points in relation to the application of the Penalty Guide when considering whip charges. We highlight two of these points out below:

[29] Mr Ferguson’s submissions do have some merit but, whilst we have some sympathy, the current climate of animal welfare is such that breaches of the whip Rule must be met with appropriate penalties to uphold the integrity of harness racing. It is the task of the integrity bodies to ensure that the Rule and Regulations regarding use of the whip are enforced and that appropriate penalties are imposed for breaches.

And

[32] We referred earlier to a starting point of a 4-day suspension for this breach. We avoid the use of “mitigating factors”, but accepting that the COVID-19 lockdown has had a significant impact on Mr Ferguson’s training and driving activities, the Tribunal is prepared to grant a discount from its starting point of a 4-day suspension. That discount, we fix at 1 day. The final penalty of a 3-day suspension is still within the 3-5-day period prescribed by the regulations.

Accordingly, in this case we are prepared to afford Mr Weatherley a 1-day reduction from the 6-day starting point.

The Committee considered all the evidence and submissions and took particular note of the number and frequency of strikes as well as the force used. In that regard we confirmed the number of strikes as 8 and noted that, for the most part, they were not forceful nor were they continuous. Mr Weatherley won the race, therefore an aggravating factor.  

Taking all matters into account we determined a 5 day suspension to be appropriate in the circumstances.

Mr Weatherley sought a deferment pursuant to Rule 1106(2) and this was granted.  However, post hearing after conferring with his Manager a request was made for the suspension to commence after racing on 15 July 2020.  This request was granted.  

Penalty:

Accordingly, Mr Weatherley's licence is suspended from after racing on 15 July 2020 until after racing on 24 July 2020. Mr Weatherley is able to resume race riding at the Pukekohe meeting on 25 July 2020.

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