1. The decision of the Victorian Racing Tribunal is affirmed.

1. On 1 August 2019 the Stewards of Harness Racing Victoria ("HRV") commenced an Inquiry into the driving tactics of Mr Craven when driving Bou Chard in race 7 at Horsham that day.
2. At the conclusion of the investigative stage of the Inquiry, the Stewards charged Mr Craven with a breach of Australian Harness Racing Rule ("AHRR") 149(2) which states:

A person shall not drive in a manner which in the opinion of the Stewards is unacceptable.

As the driver of Bou Chard in race 7 today at Horsham the Weekly Advertiser Pace, that after driving forward from barrier 5 from the start and after initially being obliged to race three wide to the outside of Goodtime Junior driven by Jackie Barker and Huli Nien driven by Mr Greg Sugars into the first turn you then continued to persevere in obtaining the lead until near the 1200 metres which has resulted in an exceptionally fast first quarter of 26.3 seconds being recorded in 55.6 seconds and in the opinion of the stewards the tactics employed during the early and middle stages of the event are unacceptable and have been the main contributing factor in Bou Chard being placed under pressure from near the 400m and giving ground to be beaten into last position approximately 47 metres from the eventual winner.

1. The Stewards found Mr Craven guilty of the charge in its entirety and suspended Mr Craven's driver license for three weeks.
2. Mr Craven appealed the Stewards' decision to the Victorian Racing Tribunal ("the VRT") on 19 August 2019. He pleaded not guilty to the charge.
3. The VRT gave ex tempore reasons in which it outlined its factual findings. I do not propose to duplicate those findings in full because they are largely not contentious. In conclusion however, the VRT said:

In the event the Tribunal accepts the submissions made by Mr Sheales from the inception of the race until a point where Bou Chard found the lead that Mr Craven was entitled to try and find the lead as it might have been said he was a victim of circumstance and what had happened there with Sugars pushing up and in any event he was entitled to pursue the lead and once Mr Sugars had kicked up. The Tribunal's concern however with the drive is after finding the front we say that there's been no overt act on behalf of Mr Craven to give Bou Chard in effect a breather after running a very fast time it could well have been ... a spectator may well have regarded a lack of effort to restrain Bou Chard in the second half of the race would be regarded ... and when he continued to let stride was unacceptable, in our view it was. In that sense a charge is sustained.

1. The VRT then heard submissions on penalty. The VRT imposed a fine of $2,500 in substitution for the three-week suspension of Mr Craven's driver license.
2. In arriving at this penalty, the VRT said:

We would say as a Tribunal that having regard to the penalties that have been submitted to it, breach of the rule, the subject rule, ordinarily would attract a suspension. Having regard to what you have said on behalf of Mr Craven, however, we feel as though we can depart from that on this occasion, given that really it is the second half of the race where culpability lies in terms of the drive. On this occasion it would be appropriate to impose a fine. The fine imposed will be $2500 in substitution for the three-week suspension.

1. On 23 August 2019, the VRT then published its decision as follows:

Having viewed the video of the race and having heard the evidence of Mr. Craven and submissions on behalf of the parties, the tribunal found Mr. Craven guilty of the charge. In particular, it found the driving tactics of Mr. Craven in failing to give the horse a "breather" after a long and hard battle to get to the front were unacceptable. Bearing in mind Mr. Craven's very good record and the impact of a suspension upon him had been imposed and ordered that he be fined $2,500.

1. The Stewards now seek review of the VRT's decision to this Tribunal. The Stewards contend that the penalty imposed by the VRT was inadequate.
2. The hearing proceeded before me on 17 December 2019.

1. Subsection 83OH(2) of the Racing Act 1958 provides:
   • 83OH Review by VCAT of decisions of Racing Appeals and Disciplinary Boards

(2) A Steward may apply to VCAT for review of a decision made by the [VRT] in relation to a penalty imposed by the [VRT].

1. Clause 66N of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states:
   • 66N Tribunal bound by finding of fact made by Victorian Racing Tribunal

Despite section 51,[1] in determining a proceeding for review of a decision of the [VRT] under section 83OH of the Racing Act 1958 in relation to a penalty imposed by the [VRT], the Tribunal is bound by the findings of fact that were made by the [VRT].

1. The parties largely agree with the principles surrounding my review jurisdiction.
2. It is my role to determine the correct or preferable decision on penalty.
3. The general principle in relation to this Tribunal's function upon review was neatly and succinctly summarised by his Honour Judge Nixon in William Galea v Harness Racing Victoria (Victorian Civil and Administrative Tribunal, 3 September 2013, [12]) as follows:

The Tribunal's functions in reviewing a decision of the Board are not appellate. On review the Tribunal stands in the shoes of the original decision-maker and must determine the correct result on the material before it. The review is conducted without any presumption as to the correctness or otherwise of the decision subject to review. The Tribunal is not confined to the material upon which the original decision was made and may receive evidence or material which was not before the original decision-maker.

1. The parties agree that the purpose of imposing penalties under the AHRR is primarily protective. The purpose is to preserve the integrity of harness racing by imposing penalties sufficient to deter a guilty party from repeating their conduct (specific deterrence) and sufficient to send a message to the industry concerning the fate of those who offend against the rules (general deterrence) and to uphold the reputation of the industry with the betting public and the general public. There was no dispute that the racing industry is an important industry to Victoria. There was also no dispute that the public needs to have confidence in the racing industry.
2. The parties further largely agree that AHRR 149(2) can be broadly described as it was in Lauren Panella, Racing Appeals Tribunal, New South Wales, 15 March 2012 at [5] as a rule designed to ensure that all participants are doing their best on behalf of everyone associated with the industry and that every horse will run to its best endeavours and be given every opportunity to run its best possible position in the particular field in which it is engaged.
3. The parties also agree that the VRT in its ex tempore reasons correctly articulated what it was that was required in order to find that there has been a breach of AHRR 149(2) as follows:

the rule does not permit the mere substitution of the stewards view as to how a particular horse should have been ridden from the view of the rider, the rule does not seek to punish a mere error of judgement during the race on the part of the driver and the driver's conduct must be culpable in the sense if objectively judged is found to be blameworthy. Again he spoke to his own interpretation by adding into the mix that the sort of culpable action that is required to amount to a breach of the rule might be such that in normal circumstances a reasonable and knowledgeable harness racing spectator might be expected to exclaim in words to the effect "what on earth is he doing" or "my goodness look at that" or some other similar explanation and I think we would be happy for our purpose today to adopt that.

1. The parties also agree that it is appropriate for me to have due regard to the HRV Stewards Minimum Penalty Guidelines ("Guidelines") in determining the appropriate penalty. The Guidelines were introduced on 1 January 2017 and stipulate a Penalty Starting Point of six weeks suspension of licence to drive in races and a Minimum Penalty Imposed of three weeks for a breach of AHRR 149(2).
2. They agree however, that due regard does not mean that I am bound by the Guidelines. The parties adopted the descriptive language used in Joshua Carrol, Racing Appeals Tribunal, New South Wales, 27 November 2015 at [13]-[15] that the Guidelines are not "tramlines". They provide guidance.
3. Nevertheless, Racing Victoria emphasised that the Guidelines are of great importance. I was referred to the decision in Ashlee Siejka, Racing Appeals Tribunal, New South Wales, 4 September 2013 at [20] where the New South Wales Racing Appeals Tribunal noted that the Guidelines:

provide to industry and its regulators, and therefore a reasonable guide to the Tribunal, of what the industry thinks about appropriate penalties, those which may on the facts and circumstances of any case be considered appropriate.

1. HRV submitted that it was appropriate in the interests of parity and comity that I have regard to penalties for like cases involving the relevant rule. HRV pointed out that, between 1 January 2014 and 1 November 2019, there have been 66 suspensions for breach of AHRR 149(2) ranging from between two to seven weeks suspension. Other than this case there have been no fines imposed for breach of the rule.
2. I was referred to a range of those cases. As is not unusual in these types of matters, it is impossible to directly compare most of them, either to each other or to this case. Some had very little factual detail provided in the associated reasons. Others were readily distinguishable. Each case must depend on its own facts.
3. Mr Sheales on behalf of Mr Craven emphasised that the Stewards imposed a three-week penalty on the basis of a finding of greater culpability than the VRT ultimately found. He contended that the VRT was therefore called upon to penalise Mr Craven for culpability which it found to be lower than that determined by the Stewards. Accordingly, for the reasons given by the VRT, Mr Sheales contended the lesser penalty imposed was the appropriate penalty.
4. I agreed with the submissions made by Mr Sheales. When all is said and done, I considered the strongest point levelled by HRV was that there have been no other cases involving a breach of the relevant rule in which (only) a fine had been imposed.
5. The rules however, allow for that very outcome. Whilst of course guided by precedent, and the Guidelines, the rules are unfettered.
6. The findings against Mr Craven amounted to a finding that he did not give the horse a "breather". Whilst I accept the submissions made on behalf of HRV by Mr Anderson that had he not gone out fast, he would not have been in the position of having to give the horse a "breather", that is not to the point.
7. In light of the VRT's findings, it is also not to the point that this is said to have been the fastest start in the last five years.
8. The VRT did not criticise that conduct or aspect of Mr Craven's driving.
9. In determining the appropriate penalty, I agree with the submissions made by Mr Sheales that it is appropriate and relevant to give some weight to the determination of the VRT. The VRT had the advantage of hearing the evidence viva voce and made a nuanced determination as to culpability. It found a portion of the conduct alleged not proven. It then imposed a lesser penalty than the Stewards as the final trier of fact.
10. Although at the time of Galea's case the Tribunal was empowered to make both factual and penalty findings, the Tribunal is now in the unusual position of being bound by the factual findings of the original decision maker. Clearly, minds have differed in relation to the level of Mr Craven's culpability in the way in which the race was conducted from the outset. But I am bound by the finding of the VRT in this respect. The failure to give a "breather" is where Mr Craven's culpability lies.
11. I am satisfied that the correct and preferable decision on penalty based on the findings of the VRT was the one reached by the VRT.
12. Mr Craven has no relevant prior convictions despite having driven in over 5,000 races.
13. He has now had this matter hanging over his head for a considerable period of time and has invested time and resources into it. These are matters relevant to both general and specific deterrence.
14. The parties were at odds as to what the impact on penalty should be of Mr Craven's "not guilty" plea. I agree with Mr Sheales that in circumstances where the findings of the VRT were ultimately of a lesser culpability than the findings of the Stewards, his "not guilty" pleas cannot count against him. Whether he should have "shown his hand" as contended by the VRT, rather than approach the matter in the way in which he did, is neither here nor there. He was entitled to test the evidence and was vindicated in doing so.
15. There was no finding that Mr Craven drove with ill intent. His riding was found to be unacceptable. That was the charge. Whilst at times in its submissions HRV emphasised that horse racing is "peculiarly prone to criminality, cheating and chicanery and strong measures of control and close vigilance unnecessary preconditions are fair and honest competition", I take this opportunity to emphasis that it was not and could not be suggested that Mr Craven's conduct was any of these things. I dismissed a contention put by HRV that in this case I should give (significant) weight to the fact that it is very hard to detect unscrupulous operators standing to gain substantial amounts of money if they can influence a driver. Whilst in some cases AHRR 149(2) may presumably form part of the armoury of the Stewards to shield the industry from such potential corruption, I note that there are other rules that also serve that purpose. I reiterate that no such finding was made against Mr Craven.
16. I disagree emphatically with HRV's submission that the imposition of a fine leaves the door open for unscrupulous operators to attempt to buy drivers off. There is absolutely no suggestion in this case that Mr Craven would ever be so bought. He should not be used as an example for abominable conduct for which he is not charged.
17. I further accept that the VRT took into consideration in reaching its determination all of the matters put by Mr Sheales on behalf of Mr Craven. The VRT in its brief reasons said as much. I therefore accept, as I am bound to, that Bou Chard was erratic and difficult to drive and as a result has, since the race, been retired.
18. Mr Craven has now had the opportunity to reflect back on his conduct.
19. He has not repeated the conduct in the intervening time.
20. I consider that a fine of $2,500 is an adequate and appropriate penalty for the offence as it ultimately unfolded.
21. A finding of guilt in and of itself sends a message to drivers with the experience of Mr Craven that they must always be on high alert to ensure that their driving is at its best.
22. I am satisfied that a fine of $2,500 sends that appropriate message taking into account the findings of the VRT.

[1] Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 describes the functions and powers of the Tribunal when hearing a review application.