Non Raceday Inquiry – Written Decision dated 24 August 2022 – Clayton Frith

EVIDENCE

1. The Racing Integrity Board charged Mr Frith with a breach of Rule 340 of the Rules of Racing, namely misconduct in a matter relating to the conduct of Races or Racing.

2. It alleged that Mr Frith, when a Starting Gate Attendant employed by RACE Inc, at a meeting at Hawera Racecourse, misconducted himself by assaulting a fellow barrier attendant through an attack which involved punching the victim several times in the face and head.

3. Rule 340 provides that: “A Licensed Person, Owner, Lessee, Racing Manager, Official or other person bound by these Rules must not misconduct himself in any matter relating to the conduct of Races or racing.”

4. Mr Frith admitted the breach of the Rule.

FACTS
5. On 9 June 2022 at a race meeting held at Hawera, Mr Frith was working as a Starter’s Attendant employed by RACE Inc. He is not a Licensed person or Owner under the Rules of Racing, but is bound by the Rules as, under Rule 101, they apply to “all matters connected with Racing and shall be binding on …
(d) any person working …
(i) in or about a … racecourse …
(iii) and otherwise in connection with horse races or racing
(e) and every person who so acts as to bring himself within the purview of these Rules.”

6. Following Race 1, the assistance of Starting Gate Attendants was sought to help with moving the running rail. One Attendant declined to do so, thinking that running rail movement was not part of his job description. Mr Frith became angered by this refusal and, upon returning to the starting gates, berated and loudly abused the fellow employee. He then punched the victim repeatedly in the face. In order to stop the attack the victim pushed Mr Frith to the ground, and the victim also fell. Once on the ground the victim was pinned by Mr Frith and the attack continued by Mr Frith punching the victim repeatedly in the head with frequent blows. Other Attendants endeavoured to intervene by pulling Mr Frith away from the victim who was on the ground. As this was happening, Mr Frith attempted to kick the victim in the head and yelled that he was “going to kill you”.

7. The victim sustained facial injuries from the attack upon him.

8. The matter was reported to the Police and Mr Frith has been charged with the crimes of assault with intent to injure and threatening to kill. Those proceedings have not yet been determined.

9. Mr Frith has been employed in this capacity by RACE Inc for eight years. He has had no previous charges for breaches of the Rules of Racing.

PENALTY
10. The general penalty Rule 803(1) applies, namely that a person who commits a breach of the Rules, for which a penalty is not elsewhere provided, is liable to:
a. Disqualification for a period not exceeding 12 months, and/or
b. Suspension from holding a license for a period not exceeding 12 months (not relevant in this case as Mr Frith is not a license holder), and/or
c. A fine not exceeding $20,000.

11. Ms Murrow on behalf of the RIB referred to several other cases (where Licensees had been involved in violent conduct where substantial fines were imposed, but submitted that a period of disqualification was necessary because of the degree of seriousness and prolonged nature of the attack and that criminal charges were laid by the Police. She contended that a period of three months disqualification was necessary given the actions were not only detrimental to the Racing profession, but resulted in actual physical harm to the victim, and any misconduct in the form of physical violence must be denounced. She said that Mr Frith had earlier held a Stablehand Licence, which was not renewed, but he was aware of the high standard required by all involved in racing. She suggested that a three month period of disqualification “may be reduced upon the successful completion of an anger management course” and for the reasons we later give in paragraph (18) we do not consider such a condition to be appropriate.

12. Mr Frith advised the Committee that he had had some emotional issues recently which impacted on his ability to self-control. He gave various explanation as to why he acted as he did, some in the form of attributing blame to victim and another, and in directing some criticism towards RACE and NZTR for not heeding his “request for help”. At one point in his responses to the Adjudicative Committee he claimed he acted in “self-defence”. This stance indicated that he had limited insight into his behaviour on the day. He lives with a son and has limited income other than assisting a Trainer (he does not yet have a Stablehand’s Licence) and as an employee of RACE Inc. He said he wishes to recommence working.

DECISION
13. The charge having been admitted, the only issue before the Committee is the question of penalty.

14. Clearly this misconduct was out of character for Mr Frith. He had been a valuable employee of RACE Inc as a Starting Gate Attendant. But this was egregious misbehaviour, on the racetrack, viewed by other Assistants and resulted in injuries to the face of the victim. We do not accept as credible any claim by Mr Frith that he acted in self-defence. Indeed he told the Committee that he knew “he had a problem” (emotional) some time before and was “annoyed” with the victim for various reasons, took exception to him, was “not thinking straight” when he acted as he did. Mr Frith lost his temper because of a combination of various reasons, so as to punish, or seek retribution from the victim. The nature of the attack illustrated that he “had lost his mind”.

15. He said to us he was “remorseful” but that does not appear to equate with other things he said about the blame that ought to fall on others – and his “remorse” has not yet merged into acceptance of the criminal charge, amended or not. As is well known, remorse often is no more than sorrow for the predicament one is in.

16. Because Mr Frith does not hold a Licence, a term of suspension cannot be made. But he is bound by the NZ Rules of Thoroughbred Racing under Rule 340. Whilst any period of disqualification will impact upon him being employed by RACE Inc on racedays, so as to have some financial impact upon him, such is an inevitable consequence of such appalling behaviour. His serious wrongdoing, the harm which resulted to the victim, the interests of Racing and its reputation, and the need to deter others and emphatically denounce this misconduct equates to a disqualification. Otherwise there is no penalty as he is in no position to pay a fine.

17. We adopt a starting point of disqualification for six months. There will be significant discounts of 331/3% for Mr Frith’s good record, his admission of the charge (even though any defence would have been futile), and the fact that he has voluntarily engaged in anger management counselling, which he says will continue. That may assist him when being dealt with by the Court if he should be convicted and sentenced in that forum.

18. The Informant suggested that a portion of any disqualification be “suspended” if Mr Frith successfully completes his “anger management” counselling. We do not accept that as being feasible or practical in these circumstances. In some cases, where Licensees have lengthy disqualification, a stay of the balance of the term has been ordered, but the period which has to be served, before any stay can occur, and the precise definable conditions, have to be laid out. This usually occurs to assist in rehabilitation of those Licensees addicted to drugs to enable, if they can, establish total rehabilitation and live drug free so as to return to the profession. For example, in RIU v Lockett (19 April 2022), the Committee made an order under Rule 812(b) that upon the Trainer, although disqualified for three years for Methamphetamine use, being able, after serving 18 months of that term, to provide evidence that she is “controlled drug free” and had successfully completed a drug and alcohol programme, then the fin al 18 months might be suspended.

19. But that is a far cry from the case of Mr Frith. He freely acknowledges that he needs help for his emotional issues. The problem with “anger management” counselling, is it cannot be independently verified as “successful” other than by the later future behaviour of the person counselled. There is no way to judge “success or not” other than by monitoring later behaviour.

20. But, naturally, the willingness to address what he acknowledges are his problems, is encouraging, and mitigating when a term of disqualification is fixed. And, during that relatively short term such intervention (and there may well be other steps to take) can occur. That is why we impose a modest period of disqualification. Of course it will have an impact on his income, but that is the inevitable consequence of his actions. The period of disqualification will enable him to pursue at some length if he wishes, the help for his emotional issues.

21. As we have said, from a starting point of six months disqualification, we allow a generous discount of 331/3% to recognise mitigating features such as Mr Frith’s good record, his service to RACE Inc, his personal factors, his admission of the charge (even though minimising his actions). There are no aggravating factors requiring any uplift. Of course, the voluntary undertaking counselling is a mitigating factor.

22. From starting points of six months disqualification, the 331/3% discount for all mitigating factors of his record, his emotional issues, and the fact he is undertaking counselling. Disqualification for four months commencing today, 19 August 2022.

OUTCOME
23. Mr Frith is disqualified for four months commencing 5.00 pm today, 19 August 2022. Given his financial position, no fine or costs are imposed. If he had been a Licensee of NZTR, these would have been imposed, but we are cognisant that RACE Inc cannot continue to employ a person in this capacity where that person is excluded from entering a racecourse. Whether or not NZTR grant any exemption under the Third Schedule of the NZTR Rules of Thoroughbred Racing is entirely a matter for it.

Hon JW Gendall QC (Chair)