Solicitors:
Plaintiff: Unsworth Legal
First Defendant: Racing New South Wales
Second Defendant: Crown Solicitor's Office
File Number(s): 2017/153680
[2]
Judgment
In these proceedings the plaintiff, Mr James McDonald ("Mr McDonald"), a jockey, seeks to quash a determination of the Racing Appeals Tribunal ("the Tribunal") on 10 April 2017, made pursuant to s 17 of the Racing Appeals Tribunals Act 1983 (NSW) that he be disqualified from racing for a period of 18 months for betting on a horse that he was riding at Royal Randwick Racecourse on 5 December 2015. Mr McDonald claims that the Tribunal's decision was arrived at by reason of error of law on the face of the record i.e. the formal orders of the Tribunal and its reasons for decision. Mr B. Walker SC (with Mr T. Boyle) appears for Mr McDonald. Mr J. Gleeson SC (with Mr J. McLeod) appears for Racing New South Wales ("Racing NSW"). The Second Defendant, the Racing Appeals Tribunal, as is normal in matters of this type, has filed a submitting appearance.
An order for expedition was previously made in the matter.
I have received very helpful oral and written submissions from counsel (the written submissions being the plaintiff's written submissions, "PWS", the defendant's written submissions, "DWS", and the plaintiff's written reply, "PWR").
There is no dispute as to the facts, which I take from paragraphs 17 - 20 of the PWS and paragraphs 5 - 11 of the DWS:
1. On 5 December 2015, Mr McDonald, a leading jockey at the time, rode the horse 'Astern' in Race 1, the Surf Meets Turf Plate, at Royal Randwick. Following the race, he received $4,000 from Anthony Gardiner (Mr Gardiner), a substantial punter known to the Stewards, which was the proceeds of a $1,000 bet placed on 'Astern' by Mr Gardiner on Mr McDonald's behalf.
2. On 15 November 2016, Mr McDonald was charged by the Stewards with a breach of AR83(d) of the Australian Racing Rules ("ARR") in connection with the interest he was said to have had in the bet placed by Mr Gardiner on 'Astern'.
3. On 22 December 2016, Mr McDonald pleaded guilty to the charge under AR83(d) of the ARR. The Stewards, having regard to AR196(5) of the ARR and LR108(2) of the Local Racing Rules ("LRR"), imposed a penalty on Mr McDonald of disqualification for a period of 18 months.
4. The following day, Mr McDonald lodged an appeal against the severity of the penalty imposed by the Stewards, which appeal was ultimately dismissed by a majority of the Appeal Panel on 16 March 2017.
5. On 10 April 2017, Mr McDonald's appeal to the Tribunal from the Appeal Panel's decision was dismissed for the reasons set out in the Penalty Decision of 10 April 2017 of Mr D.B. Armati- "the Reasons". The Reasons are found at tab 3.1 of Exhibit A, which Exhibit contains all of the documents on which the parties rely, other than the written submissions and authorities.
6. AR83(d) provides:
"Every jockey or apprentice may be penalised--…
(d) if he bet, or has any interest on a bet on any race or contingency related to thoroughbred racing involving a race in which he is riding. For the purposes of this rule, bet includes a lay bet (as defined in AR 175B(7))."
1. The particulars of the relevant charge were:
'…that you, licensed jockey James McDonald, had an interest in a bet placed by Anthony Gardiner on the horse Astern to win race 1 the Surf Meets Turf Plate at Randwick on Saturday, 5 December 2015, being the horse that you rode in that race'.
1. The 18 month disqualification period imposed by the Stewards and upheld by the Appeal Panel and the Tribunal is expressed to run from 15 November 2016, being the date that the appellant was in effect stood down from benefiting from the privileges that come with holding a jockey's licence.
The relevant rules are AR83(d), set out above, and AR196(1), AR196(5) and LR108(2)(a), respectively. I set out these additional rules, including LR108(2)(b) since its terms have some bearing on the arguments advanced.
AR196(1) Subject to subrule (2) of this Rule any person or body authorised by the Rules to penalise any person may, unless the contrary is provided, do so by disqualification, suspension, reprimand, or fine not exceeding $100,000. Provided that a disqualification or suspension may be supplemented by a fine.'
AR196(5) Where a person is found guilty of a breach of any of the Rules listed below, a penalty of disqualification for a period of not less than the period specified for that Rule must be imposed unless there is a finding that a special circumstance exists whereupon the penalty may be reduced:
…
AR83(d) - 2 years
For the purpose of this sub-rule, a special circumstance is as stipulated by each Principal Racing Authority under its respective Local Rules.
LR108(2) For the purposes of AR196(5), special circumstances means where:
(a) the person has pleaded guilty at an early stage and assisted the Stewards or the Board in the investigation or prosecution of a breach of the Rule(s) relating to the subject conduct.
(b) the person proves on the balance of probabilities that, at the time of the commission of the offence, he:
(i) had impaired mental functioning; or
(ii) was under duress,
that is causally linked to the breach of the Rule(s) and substantially reduces his culpability.
(Emphasis added)
LR108(2) was introduced by the Australian Racing Board, as it then was, in March 2013, together with AR196(1), (5) and AR83(d). There is agreement between the parties that the suite of amendments made in March 2013, of which these particular rules were but a part, were part of a policy shift by the relevant rule makers of Australian Racing and the State bodies to produce less lenient penalties than had been imposed prior to that: see T9.49 - T10.37 and [92] of the Reasons embraced by Mr Gleeson at T28.5 - T28.12 and paragraph 35 of the DWS.
The following, taken from the plaintiff's submissions is the legislative framework in which the relevant rules sit:
5. The ARRs underpin the proceeding. Those rules have a status pursuant to s 3(1) of the Thoroughbred Racing Act 1996 (NSW) (Thoroughbred Racing Act) which defines the term "Rules of Racing" for the purposes of that Act to mean "the rules for the time being governing and relating to horse racing under the control of Racing NSW (being an amalgamation of the Australian Rules of Racing and the local rules of racing of Racing NSW, together with the regulations made under those rules)".
6. Under s 13(1)(e) of the Thoroughbred Racing Act, Racing NSW has "such functions as may be conferred or imposed on Racing NSW by or under the Australian Rules of Racing or any other Act".
7. Racing NSW has the "to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions" (s14(1) of the Thoroughbred Racing Act), including the power to "impose a penalty on a person licensed by it … for a contravention of the Rules of Racing" (s 14(2)(l) of the Thoroughbred Racing Act).
8. Turning to the ARRs, these confer a number of functions on "Principal Racing Authorit[ies]", which are defined in AR1 for the purposes of the ARR as "a body, statutory or otherwise, that has the control and general supervision of racing within a State … and means in the State of New South Wales, the NSW Thoroughbred Racing Board". Notwithstanding this reference to the NSW Thoroughbred Racing Board, it is apparent from cl 31 of Sch 1 to the Thoroughbred Racing Act and s 53(1) of the Interpretation Act 1987 (NSW) that this should effectively be read as "Racing NSW".
9. AR2 of the ARRs provides that "[a]ny person who takes part in any matter coming within these Rules thereby agrees with the Australian Racing Board and each and every Principal Racing Authority to be bound by them." As such, persons like Mr McDonald (being a licensed jockey under AR81) are bound to comply with the ARRs.
10. By AR7 of the ARRs, Racing NSW has the power to "[p]enalise … any person contravening the Rules" (per AR7(iii)(d)). Furthermore, by AR7(i) a "Principal Racing Authority shall … not have reserved to it the right to make new Rules (other than Local Rules)". The term "Local Rules" is defined in AR1 as "those rules made from time to time by a Principal Racing Authority and in force within its territory". It follows that the Local Rules in this state are ones made by Racing NSW. The force of the Local Rules is similarly derived from contract (LR3 of the Local Rules), though as observed in NSW Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55 at [35] (per Hodgson JA) the Rules of Racing "are also given statutory consequences".
There are some further matters that are agreed or not contested by the parties:
1. That the Tribunal was correct to assess the discount for Mr McDonald's plea of guilty at 25%. I shall refer to this as the "plea discount".
2. That the Tribunal's determination that 2 years disqualification was the appropriate penalty apart from considerations of subjective circumstances and the plea discount: see [130] and [140] of the Reasons.
3. That the Tribunal indicated at [154] of the Reasons that it regarded the appropriate period of disqualification having regard to objective and subjective matters and the plea discount as 57 weeks (arrived at by applying a total of 45%, made up of 25% for the plea discount and 20% for other subjective factors outlined at [37], [147], and [148] - [150]).
4. The assessment of a penalty under the Rules of Racing has discernible or apparent legal effect upon rights and is, therefore, amenable to an order of certiorari: see Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159 per Brennan CJ, Gaudron and Gummow JJ for the circumstances where certiorari is available.
5. That if error of law is established and it is material to the result that the Tribunal reached then Mr McDonald would be entitled to a writ of certiorari: see Wingfoot v Kocak (2013) 252 CLR 480 at [25] - [26].
6. That the 'record' is confined to documentation initiating the application, pleadings, the orders made, and the reasons of the inferior Court or Tribunal (see s 69(4) of the Supreme Court Act 1970 (NSW) and Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at [89]), but does not include the evidentiary material placed before the Tribunal: see Craig v State of South Australia (1995) 184 CLR 163 pp 180 - 181 ("Craig").
7. That the ARR and LR are rules akin to a professional regulation regime and are not criminal in nature: see Day v Harness Racing New South Wales (2014) 88 NSWLR 594 (Day), [70] per Leeming JA, with whom McColl JA and Macfarlan JA concurred, dealing with similar rule making.
At [87] - [89] of the Reasons the Tribunal said:
[87] The Tribunal finds that its approach to determining penalty should be as follows:
(i) determine an appropriate penalty under 196(1) having regard to the objective seriousness of the breach and the subjective circumstances of the appellant,
(ii) determine if rule 196(5) is enlivened because the breach may involve one of the rules specified in that sub rule, here being 83(d),
(iii) If the penalty determined under (i) is not a disqualification then a disqualification must be imposed,
(iv) if the penalty determined under (i) is less than the mandatory minimum disqualification of two years then disqualification of two years is imposed,
(v) if the penalty determined under (i) is a disqualification of more than two years then that longer disqualification is imposed,
(vi) determine if special circumstances in LR 108(2) are established,
(vii) determine the reduction in penalty, if any, that flow from the particular special circumstances established.
[88] The parties appear to have approached the determination of penalty issue on the basis that the Tribunal should first go to 196(5) and determine penalty under that provision rather than go to 196(1) and then apply 196(5).
[89] It is not necessary to resolve this issue in this appeal because the end result will be the same and the application of the appropriate considerations on determining penalty will be the same. The resolution of that issue was not the subject of submissions and if necessary can be dealt with on another occasion.
It will be observed that, notwithstanding the assessment at [154] of the Reasons, to which I have referred in [7(3)], the Tribunal did not impose a penalty of 57 weeks disqualification, but rather imposed a period of disqualification of 18 months (approximately 78 weeks). It did so because it regarded itself as constrained by AR196(5) so to do. Mr McDonald has indicated, through his counsel, that he will not seek to challenge the 57 week disqualification should his argument prevail and Racing NSW has indicated, through its counsel, that it will not seek to contend for a higher period of disqualification if the matter is remitted to the Tribunal.
This is not an appeal from the Tribunal's decision and the Court is not called upon to consider what might be described as the merits of the matter, or the severity (or otherwise) of the penalty, nor does the case require consideration of issues relating to 'instinctive synthesis' (see: Muldrock v The Queen (2011) 244 CLR 120) or whether a two stage approach to arriving at a sentence or penalty is permitted. Rather, it is solely a question of whether Mr McDonald has established an error of law in the Tribunal's approach to AR196(5). The dispute between the parties is narrow in scope and also, in one sense, narrow in effect since the Tribunal's determination has resulted in disqualification for 18 months (approximately 78 weeks) and the disqualification which Mr McDonald accepts should apply is 57 weeks. However, the difference is of considerable significance to Mr McDonald because he is precluded from working in his profession, or even the thoroughbred racing industry, during the period of disqualification: see AR182(1)(d).
Mr McDonald contends that:
1. Because he pleaded guilty there was a special circumstance established.
2. Because a special circumstance was established AR196(5), the mandatory minimum period of disqualification, became irrelevant and, therefore, should not have been treated as a constraint upon penalty.
3. The Tribunal was not constrained to impose as a penalty disqualification at all, but was free to impose any penalty it regarded as appropriate such as a suspension, reprimand, or fine; a fortiori it should have regarded itself as free to impose a disqualification period of 57 weeks, the period identified in [154] of its Reasons.
Mr McDonald contends that the Tribunal has fallen into error in its approach because:
1. The Tribunal effectively considered and applied AR196(5) as the starting point for the determination of the penalty for beach of AR83(d) even though a special circumstance was found to exist under the Local Racing Rules.
2. The Tribunal did not, by the penalty imposed, take into account the subjective circumstances to reduce the penalty, even though it found that there were such subjective circumstances, and found them to be deserving of a 20% reduction in penalty. It reduced the penalty solely on the basis of the plea discount.
The Reasons, as I have noted, are extensive, but I do not think it is necessary to examine them in detail, or to focus upon what was said to be inconsistencies between various paragraphs of the Reasons, because there is agreement that the conclusion reached by the Tribunal was built upon an identifiable approach to the construction of AR196(5) which Mr McDonald contends was an impermissible or incorrect approach and Racing NSW contends was the correct approach. Within the Reasons it is 87 and (vi) which give rise to the essential matters of contention between the parties.
I have referred to the construction advanced on behalf of Mr McDonald. Racing NSW contends that, having determined that 57 weeks disqualification was, apart from AR196(5), the appropriate penalty, the Tribunal was:
1. Required to have regard to AR196(5);
2. Required by AR196(5) to impose a minimum period of disqualification of 2 years, unless a special circumstance was established;
3. If a special circumstance was established the Tribunal was able to reduce the disqualification period of 2 years to a shorter period of disqualification but only by reason of the special circumstance- here the plea discount- and was not permitted to substitute some other penalty in lieu.
Racing NSW contends that this approach is required as a matter of construction and having regard to the obvious purpose of AR196(5). It places emphasis on the words:
"Whereupon the penalty may be reduced."
In the context of this rule, it submits that the construction for which Mr McDonald contends seeks to avoid or ignore the effect of those words.
Mr Gleeson calls in aid the purposive approach to construing the rules and points out that the ARR and LR are designed to protect the public interest and welfare of the industry and that the effect of the Applicant's approach is to:
1. Allow persons who plead guilty to have not only the special circumstance taken into account, but also other matters which are not special circumstances;
2. to change a penalty of disqualification into a penalty of a different kind.
and thus to 'neuter' or greatly reduce the importance of the mandatory minimum that the rule makers had in contemplation as the antidote to betting on horses by jockeys and overly lenient treatment (in the eyes of the policy makers) of such (and related) conduct.
To summarise then, Racing NSW submits that, where an offence under AR83(d) has been established, the Tribunal must impose at least the mandatory minimum of 2 years when a special circumstance is not established. If a special circumstance is established, then the Tribunal can reduce the specified mandatory minimum, taking into account the special circumstance established. Here that would be the plea of guilty leading to a discount of 25% i.e. reducing the disqualification period to 18 months. Racing NSW also submits that the only scope for reduction is of the period- there is no scope in the rule to reduce the penalty from a period of disqualification to a suspension, reprimand, or fine.
I understand Racing NSW to accept, appropriately in my view, that if the Tribunal's interpretation of AR196(5) was erroneous than it was an error that materially contributed to the imposition of the disqualification period of 18 months.
Mr Walker very properly conceded that differing interpretations of the rule are open, but he contended that the construction that he places upon the rule should be preferred. He also submitted that, where a penalty is imposed, the Court should, in accordance with the 'lenity rule', incline to a construction favourable to the person the potential subject of the penalty: see, for example, Beckwith v The Queen (1976) 135 CLR 569 at 576 per Gibbs J (as his Honour then was), at pp 576 - 577 and Murphy J at p 585.
Mr Walker accepts that the mandatory minimum must be imposed absent special circumstances with the consequence that had Mr McDonald not pleaded guilty there would have had to have been imposed a disqualification of two years, but he submits that, since there was a plea of guilty and that a special circumstance was thereby established, the Tribunal was free to determine penalty without the constraint or starting point of the mandatory minimum, and the fact that it regarded itself as constrained amounts to an error of law. He contended that, once the special circumstance is found, AR196(5) "simply never operates": see T8.15. He contends that mandatory minimums work a harshness or unfairness because less serious breaches lead to the minimum period of disqualification fettering the decision makers and he submits that, once a special circumstance is determined, the unfairness and harshness of a mandatory minimum can be avoided. He submitted that it could not have been thought that the rule makers would have wanted the unfairness of mandatory minimums to expand beyond cases where there were no special circumstances.
Mr Gleeson accepts that the Tribunal's decision gave Mr McDonald no discount for subjective matters, but says that the Local Rules by LR108 did not treat such subjective matters as a ground for reduction of the minimum. He submits that if the Tribunal had concluded that 57 weeks was the appropriate period of disqualification that would reflect the taking into account of subjective matters. AR196(5), however, makes any period of disqualification less than 2 years ineffective, except to the extent the special circumstance is established and accepted as a reason to reduce the period.
Mr Walker drew attention to the fact that two of the special circumstances listed in LR108, impaired mental functioning and duress, are of a nature that might very well, if established, be thought to appropriately result in no disqualification at all and that the approach advanced by Racing NSW precludes the possibility of there being only a reprimand or fine. He points out that even if the Tribunal, as a result of such circumstances, reduced the period to a nominal period of one week's disqualification that would still require a fresh application by a jockey for a license.
Mr Walker drew attention to the fact that AR196(1) uses the words "unless the contrary is provided" and that AR196(5) uses the phrase "unless there is a finding that a special circumstance exists." This, he submitted, produces the result that if a special circumstance is found the 'must' in AR196(5) no longer applies and the Tribunal is thrown back to AR196(1), which by using "may" permits any kind of penalty of any duration or amount. He also pointed out that the ARR themselves do not specify what constitutes a special circumstance, rather leaving that to each State authority to determine what circumstances will constitute a special circumstance. Mr Walker contends that, by this mechanism, the ARR left it to the Local Rules to disapply the mandatory minimum approach- the "unless" having content only by reason of the Local Rule.
Mr Gleeson postulated a scenario for consideration - a comparison between two offenders, A and B, who each had committed a breach of equivalent objective seriousness deserving of a 6 month period of disqualification and who had, he postulated, identically cogent subjective matters in support of a more lenient penalty deserving of a reduction of 45%, but A pleaded guilty and B did not. In the first case A would obtain an effective disqualification, on the approach advanced by Mr McDonald, of 13 weeks (i.e. 55% of 6 months) and B would receive a 104 week period of disqualification. On the approach advanced by Racing NSW, A would obtain a disqualification period of 78 weeks and B a disqualification period of 104 weeks- the difference between A and B being accounted for only by the plea discount of 25%. Mr Walker's response to the disparate outcomes was that pleading guilty early provides a clear benefit, namely that the person charged will take himself out of the mandatory minimum zone.
The purpose of the suite of rule changes, of which AR83(d) is one example, was to elevate the significance of infringements of these various rules. The rule makers clearly felt that the penalties imposed had been insufficiently severe. Mr Walker accepted that the 2013 "regime" or "juncture" is a new one and that the Tribunal could not ignore the seriousness with which an AR83(d) offence is to be treated. Mandatory minimum sentences, although as I understand it uncommon in the criminal sphere, are not without their difficulties: see R v Pot, Wetangky and Lande (18/01/2011 NTSC Unreported SCC21037929, Riley CJ), Bahar v R (2011) 45 WAR 100, Karim v R [2013] NSWCCA 23; (2013) 83 NSWLR 268, Magaming v R (2013) 252 CLR 381 and Dui Kol v R [2015] NSWCCA 150, which were all concerned with offences relating to transporting to Australia persons without legal immigration status, for which there is a mandatory minimum penalty (see: s 232A of the Migration Act 1958 (Cth)).
In Bahar, McLure P took the view that minimum penalties, like maximum penalties (see: Markarian v R (2005) 228 CLR 35 at [31]), provide a yardstick: see [48] - [49] and [58], but neither Bahar nor any of the other cases mentioned in [25] involved a finding of a special circumstance.
There can be discerned, in Mr Walker's argument, a strong emphasis on the practical "unfairness" and "harshness" of mandatory minimums. Indeed he submits that to treat the mandatory minimum as having work to do once a special circumstance is found would lead to "outstandingly unjust outcomes": see T13.6. What is said to be unfair or harsh about mandatory minimum sentences is that a very low level (objectively speaking) offence (in the criminal context) or breach (in the present type of case) with a high component of ameliorating subjective aspects will, nevertheless, lead to a minimum sentence or penalty. That is the effect of mandatory minimum sentences- they reduce the scope of leniency in sentencing by the decision maker, and, it can be inferred, that is precisely what the legislators or rule makers want to achieve.
It was accepted by the High Court in Magaming that the fact that a mandatory minimum is harsh or unfair compared to the more general sentencing approach does not render the legislation invalid. At [52], having noted at [7] the comments of the trial judge that the "appellant's part in the offence fell "right at the bottom of the scale", and that, in the ordinary course of events, "normal sentencing principles would not require a sentence to be imposed as heavy" as the mandatory minimum sentence" the plurality (French CJ, Hayne, Crennan, Kiefel and Bell JJ) said:
If, as the appellant submitted, the sentence which the Act required the sentencing judge to impose on him was too "harsh" when measured against some standard found outside the relevantly applicable statutory provisions, that conclusion does not entail invalidity of any of the impugned provisions.
and at [106] Keane J who agreed with the result said:
In laying down the norms of conduct which give effect to those assessments, the legislature may decide that an offence is so serious that consideration of the particular circumstances of the offence and the personal circumstances of the offender should not mitigate the minimum punishment thought to be appropriate to achieve the legislature's objectives, whatever they may be.
In a similar vein, if there is some harshness in the penalty imposed by AR196(5), it is a result of the rule making and it has been imposed for policy reasons to deal with the perceived need for integrity in racing and increased penalties. Mr Gleeson submitted that at [92] of the Reasons, the Tribunal was paraphrasing almost exactly what Keane J had said in the passage cited in [27].
I agree, in relation to the question of special circumstance (b) and (c) that the requirement of disqualification of some period, even if those circumstances are met, may be anomalous. I take that into account, but I think the approach for which Mr Walker contends also produces an anomalous result and I prefer the construction advanced by Mr Gleeson for reasons which I set out below.
The argument about "unless" and the Local Rule referred to at [23] ignores the fact that the only matter left to the Local Rules was to specify what should be regarded as a special circumstance. Once the special circumstance is identified, the question of construction remains- is it that special circumstance to which regard should be had in reducing the sentence or can the Tribunal have regard to matters beyond the special circumstance, and to what does "the penalty" refer.
In my view, the argument advanced on behalf of the Applicant does seek to eliminate, or render insignificant, the effect of the words "whereupon the penalty may be reduced". I do not think the words can be ignored because:
1. A Court is required to give meaning to every word of the provision and the rule is required to be construed purposively: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [78] and see Day at [77].
2. AR196(5) is not rendered irrelevant or inoperative once a special circumstance is found. AR196(5) does not require the tribunal to reduce a penalty because a finding of special circumstance has been made - it is still open to the Tribunal as a matter of discretion not to do so, although I accept that the circumstances in which it would not do so are likely to be rare.
3. Mr Walker contended that "the penalty" referred to in the phrase "whereupon the penalty may be reduced" must mean the penalty for this breach for this offender (see: T19.35), but in my view, however, "the penalty" in that phrase must be read as referring to the penalty of disqualification described at the beginning of the sentence, i.e. the mandatory minimum, not the penalty that the Tribunal would otherwise, but for AR196(5), have imposed. If the finding of special circumstance diverted one back to AR196(1) there would be nothing to reduce since the penalty determined is already less than the 2 year period. If it were equal to or more than 2 years, no regard would need to be paid to AR196(5) because AR196(5) only comes into play when the penalty which the Tribunal is proposing to impose is not a period of disqualification for at least 2 years.
4. "Whereupon" connotes a process and the process specified is the reduction of "the penalty", i.e. as I have held in (3) above, the reduction of the mandatory minimum period of 2 years.
5. The process of reduction logically is the reduction having regard to the established special circumstance, not other circumstances not mentioned or specified. The focus in the second part of AR196(5) is on the special circumstance.
I, therefore, do not accept that a finding of a special circumstance leads to AR196(5) having nothing further to say about the penalty to be imposed, and the mandatory minimum being 'got rid of', as Mr Walker put it: see T20.50 - T21.9.
In my view AR196(5) is to be read as:
1. Imposing a penalty of at least 2 years disqualification for a breach of AR83 (d), unless a finding of special circumstance is made;
2. If a finding of special circumstance is made, the penalty may be reduced to below 2 years by reason of the special circumstance, but not for any other reason;
3. Although not strictly relevant in this case, for reasons I have mentioned, I do not think AR196(5) permits the Tribunal, where a special circumstance is established, to change the penalty from a period of disqualification to a suspension, reprimand or fine- that is not a reduction of the penalty referred to in 196(5) but the imposition of a different penalty.
In relation to the lenity point mentioned at [19], accepting for present purposes that it does apply to what is effectively professional disciplinary matters rather than solely criminal offences, and noting that Gibbs J described the rule as "perhaps one of last resort", I think that on close analysis, and with consideration of the purpose of the rule, AR196(5) is sufficiently clear in its words and necessary intendment.
I do not think there is anything particularly surprising about this result in a context where the rule maker obviously regarded breaches of this kind as serious. On the contrary, it seems to me surprising that the rule maker would think that a plea of guilty could take the matter out of the realm of a mandatory minimum, except to the extent of adjustment for the plea itself. If the approach, which I think AR196(5) requires, can be characterised as requiring a disqualification period of 2 years as the starting point or prima facie result for a breach of AR83(d), then that is the effect of a mandatory minimum.
To the extent that it may be thought that the approach which I have adopted renders subjective matters irrelevant, I do not think that is so, they remain relevant in determining what (absent considerations required by AR196(5)) the penalty should be, and that will have practical effect wherever the objective seriousness of the breach would lead to imposition of a penalty of more than 2 years. Thus if the Tribunal concluded that the breach was a serious one deserving of a 4 year disqualification, but concluded that subjective circumstances and an early plea should reduce the penalty by 45%, leading to a penalty of 2 years and 2 months disqualification, subjective circumstances will have been accorded due weight. Where they are not accorded due weight (at the lower end of the scale) is a consequence of the introduction of a mandatory minimum.
It follows that there has been no error of law demonstrated and the Summons should be dismissed. Having regard to the result, Mr McDonald should be ordered to pay Racing NSW's costs of the proceedings.
[3]
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Decision last updated: 07 November 2017