RACING APPEALS TRIBUNAL NEW SOUTH WALES TRIBUNAL MR DB ARMATI EX TEMPORE DECISION FRIDAY 6 DECEMBER 2013 LICENSEE OSCAR GATT AUSTRALIAN HARNESS RACING RULE 187(3) DECISION: 1. Offence found proven 2. Penalty of 10 months disqualification substituted for 8 months disqualification imposed by stewards 3. Appellant ordered to pay costs of $350 4. Appeal deposit forfeited
MR ARMATI: Mr Oscar Gatt appeals against a decision of the stewards to impose a period of disqualification of eight months against him for a breach of Rule 187(3). The reasons the Tribunal will give in its findings are different to those it normally gives by reason of the way in which this hearing has been conducted. The transcript will show that Mr Gatt failed to comply with Clause 10(1) of the regulations in lodging grounds of appeal and also failed to indicate, in accordance with directions given to him, the evidence upon which he intended to rely. He did not indicate to the Tribunal the reasons why leave should be granted to him to plead not guilty before this Tribunal when he had pleaded guilty before the stewards. The Tribunal has determined to take his plea of not guilty without ruling on that matter. Accordingly, the evidence in these proceedings has been limited to the transcript and exhibits before the stewards and a brief cross-examination of Mr Sanders in respect of some matters on Mr Gatt's behalf. He has been refused permission to give any evidence himself or call any evidence for the reason of the breaches just referred to. There is in essence no evidence to challenge the findings made by the stewards in respect of this 187(3) matter. 187(3) is: "A person shall comply with an order or direction given by the stewards." The particulars set out by the stewards were that: On Thursday, 19 September 2013, when being approached by HRNSW Integrity Manager Mr Reid Sanders, Mr O. Gatt failed to comply with a firm and clear direction given by Mr Sanders to stop on two separate occasions, and furthermore, emptied the contents of a container after receiving this direction. Whilst Mr Gatt pleaded guilty before the stewards and formal reasons were not required to be given by them, the Tribunal is satisfied in accordance with the evidence set out in Exhibit 1 that each of the ingredients set out in the particulars is established. There being no other evidence, the Tribunal is satisfied that each of those facts occurred in accordance with the particulars. Those particulars do establish a breach of Rule 187(3) and the breach of that rule is found established. To put it in terms Mr Gatt will understand, I find you guilty. It is now a question of what penalty should be imposed upon you, Mr Gatt. Again, you failed to lodge any grounds of appeal in respect of penalty. You are not entitled and you will not be allowed to call any evidence in your support on the issue of penalty. I will now deal with the matter of submissions on penalty. (SUBMISSIONS MADE IN RELATION TO PENALTY) MR ARMATI: Mr Gatt, I have to decide what penalty to impose against you. It could be taking no action, it could be reprimanding you, or it could be severely Page 2
reprimanding you. There is no licence so there is nothing to suspend. It is open to the Tribunal to disqualify you. That can be for any period. It is open to the Tribunal to warn you off and that can be for any period. Essentially, a disqualification or warning-off would have the same impact. All of those matters about a disqualification were explained to you by the stewards. You have not pleaded guilty before this Tribunal and therefore the 25 percent you get before the stewards may well no longer apply. Do you understand that? MR GATT: Yes. MR ARMATI: Do you want to say anything about penalty? MR GATT: Mmm? MR ARMATI: Do you want to make any submissions? MR ARMATI: You don't want to say anything? MR ARMATI: Mr Gatt, you understand that this Tribunal may impose a heavier penalty than the stewards thought was appropriate, for the reasons I just explained? MR GATT: Mmm. Yes. MR ARMATI: Do you want to say anything about that? MR GATT: What? MR ARMATI: Is there anything you want to say as to why I should not impose upon you the 12-month disqualification that the stewards found to be appropriate? But not reduced by 25 percent because you pleaded not guilty, and not reduced by another month because they took into account what was said to be a good record. But having just looked at your record, it doesn't look that good to me, I have to say. Do you wish to say anything, Mr Gatt? MR ARMATI: Mr Gatt, by remaining silent you are giving me no reasons other than things that I might think I have to take into account out of compassion to do other than impose what I consider to be the appropriate penalty. You are not helping yourself. I am giving you every opportunity as far as I am concerned to say something if you wish to. Do you still wish to remain silent? MR GATT: Yes. Page 3
MR ARMATI: In reply, Mr Sanders, what are you asking the Tribunal to do? MR SANDERS: Maybe a Parker warning is the appropriate ----- MR ARMATI: I'm sorry? MR SANDERS: Maybe a Parker warning will have to be applied in the circumstances. MR ARMATI: Well thank you for that guidance. I do not propose to issue it at the moment. MR SANDERS: But I do like that advice occasionally. MR ARMATI: I understand that. MR SANDERS: But I don't have anything to reply. MR ARMATI: Are you suggesting that the Tribunal should consider a penalty other than the eight months the stewards found to be appropriate? MR SANDERS: Well, I do, because the guilty plea is no longer on the table and, as I submitted, I think that the circumstances of this case, dealing with a substance that could or could not have been administered to a horse, that took place, that 12 months at the minimum for a Class 3 level substance is the appropriate penalty in the circumstances. It is no different to a drink-driver refusing to give a test, those type of scenarios. That penalty could be applied. And as the stewards have said in their judgement, 12 months, 25 percent off for a guilty plea, that's no longer there. And as I've submitted and I don't disagree with the words of the Tribunal before Mr Gatt has prior. He has been disqualified twice prior in his career. And I don't think that he is entitled to (a) a good-record discount or the 25 percent. So I think it's only open to the Tribunal, although it is to consider the matter afresh, that eight months would be the minimum that the Tribunal could impose. MR ARMATI: Mr Gatt, in fairness I should deal with one legal point that Mr Sanders just made, and to which I gave him my response. If this was a criminal case and you appealed, if the court at any time decides that it might impose a heavier penalty than the one which is appealed against, the court should give what is called a Parker direction, it's the name of a criminal case. What a Parker direction is, is an indication to the person appealing that if they keep going with that appeal, they might get a heavier penalty than the court below gave them. Do you understand that explanation? Mr Sanders indicated that perhaps if this Tribunal was considering imposing upon you a period of 12 months, that it should give you a Parker direction. I indicated to Mr Sanders just a moment ago I didn't think that was appropriate, and I will explain why. Do you understand that? Page 4
MR GATT: Yes. MR ARMATI: The reason why I don't propose to give a Parker direction is that you have elected to change your plea of guilty before the stewards to a plea of not guilty before this Tribunal. It was made quite clear to you by the stewards in determining the appropriate penalty to be imposed upon you that they were reducing what they considered to be a 12-month period by 25 percent because you pleaded guilty. You know, therefore and it must be obvious to you that by now pleading not guilty that that explanation for a reduction in penalty may well be lost. In those circumstances, I do not propose to give you a Parker direction and further, having regard to your complete failure to comply with any of the directions of the Tribunal at any stage in the conduct of this hearing, I consider any opportunity to do so was long since lost. Is there anything else you want to say on penalty? MR ARMATI: Very well. The issue of penalty therefore is under Rule 187(3). No specific penalty having been provided, what, under the various rules provided is appropriate? The Tribunal in inviting submissions indicated to Mr Gatt the range of penalties available to it. The Tribunal notes the seriousness of this breach. It occurred in circumstances where a discreet surveillance operation was conducted where certain conduct was engaged in by Mr Gatt which involved, contrary to a direction of a steward, compliance with their orders to stop, in which case he continued walking and emptied out a container. That container was subsequently found to contain, on the evidence, bicarb and vitamin B, neither of which on their own is a prohibited substance. It is trite to say that bicarb of itself is an alkalising agent when applied to a horse and in the circumstances in which this occurred, with Mr Gatt having been previously disqualified himself as recently as 2006 in respect of prohibited substance matters, that what was being required of him and what he was possibly engaged in could well involve issues of the horse being presented not free of prohibited substances or, in other words, tubed. In those circumstances there is, in this Tribunal's opinion, a failure to comply of a serious nature. There has been no plea of guilty. The Tribunal acknowledges the plea of guilty before the stewards. That, however, has now been set at naught by reason of this appeal proceeding on the basis of a plea of not guilty. His record extends back, principally as a driver, to 1983. There are the usual range of driver-related offences and there are other matters as well to deal with licences which are not before the Tribunal as to the type and period of licence, and also there have been a number of failures of a serious type. As recently as November 2011 he was disqualified for a breach of Rule 231 in relation to his conduct towards a steward. He has been dealt with, as has been said, for a disqualification in 2006 for a prohibited substance matter. And the other driving and training-related matters can be disregarded. Page 5
It is quite apparent, however, from the number of reprimands, suspensions and fines, that the necessity for compliance with the rules was apparent to him when he was a licensed person. He is not a licensed person at present and therefore a range of penalties applicable to licensed persons falls away. There is nothing ongoing about the likelihood of breaches and therefore the Tribunal does not consider a warning-off to be appropriate. Having regard to the seriousness of the conduct engaged upon by an unlicensed person, previously licensed, with full knowledge of what he was doing, the Tribunal considers that a disqualification is appropriate. Having regard to the nature of a Class 3 substance, which would be a prohibited substance or conduct which if it was to arise for consideration would attract a 12-month disqualification, the Tribunal considers a starting point of 12 months to be appropriate. Against that there is no discount available for a plea of guilty before this Tribunal. There is, in this Tribunal's opinion, for reasons just expressed, not a further discount of one month which would patently be available to him. There must be some credit given to him for the fact he did plead guilty before the stewards. In those circumstances, there will be a minor reduction in respect of the penalty by reason of that conduct and admission before the stewards. Whatever advice he has been given, whatever considerations he has embarked upon which have caused him to enter a plea of not guilty before this Tribunal remain, as he has been not allowed to give evidence, unexplained. The Tribunal notes he appeared here unrepresented. The Tribunal notes in its remarks to him a refusal to give a Parker direction. In the circumstances, the period of 12 months will be marginally reduced by reason of the fact that he had previously pleaded guilty before the stewards and has appeared here unrepresented. A period of disqualification of 10 months will be imposed. The Tribunal notes that that commenced on the day of the disqualification imposed by the stewards, there having been no stay granted to him in respect of the matter, as that stay application remains outstanding as he failed to provide answers to the Tribunal in respect of why a stay should be granted to him. In the circumstances, that period of disqualification appears to have commenced on 9 October 2013 and accordingly should commence on that date. (SUBMISSIONS MADE IN RELATION TO COSTS) MR ARMATI: Application is made for costs. The Tribunal notes the discretion vested in the Tribunal; the Tribunal notes the provisions as set out in the case of Roots, recently revisited in the case of McCarthy. The Tribunal notes that the matter of McCarthy is subject to appeal in respect of limited matters as to whether the Tribunal should or should not have made the order that it did based upon the facts of the case, rather, as the Tribunal understands it upon the principles applied. However, the law as it is at the moment, is that which the Tribunal has laid down. The question is whether any matters set out within the principles in McCarthy, which adopted Roots, are to apply. Page 6
In the circumstances, the Tribunal has this morning referred on numerous occasions to the failure of Mr Gatt, which he seeks to attribute to his solicitor, for complying with any directions in the matter and putting this case on a proper footing whereby it could be heard today. His continued failures, in my view, have occasioned unnecessary costs to the respondent in this matter, Harness Racing, and in those circumstances there will be an order for costs. The Tribunal in coming to that conclusion notes two things: one, Mr Gatt blames his solicitor the Tribunal has referred to that; and, two, he says he cannot afford it. He says his solicitor was to be on what would appear to be a no-win, no-fee basis. There is nothing concrete to establish that. But in any event, he has chosen to use a solicitor and his arguments "I can't afford it" appear less than convincing. In the circumstances, there being no other facts to justify that remark, despite a request that he do so, I propose to order him to pay the costs incurred by the respondent as a result of the hearing time only taken on this matter today. In the circumstances, he is ordered to pay to the respondent costs in the sum of $350. The next issue is you paid a deposit of $250 to lodge this appeal. The Tribunal has to decide now whether that deposit should be forfeited, should be repaid to you or some other order about it made. Do you want to say anything about that, Mr Gatt? MR GATT: No, sir. MR ARMATI: In the circumstances, no submissions being made, the appeal having been entirely unsuccessful, I order the appeal deposit forfeited. ----------------------- Page 7