Non Raceday Inquiry RIU v S Munro – Decision dated 16 April 2016 – Chair, Mr R Seabrook

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hearing_title: Non Raceday Inquiry RIU v S Munro - Decision dated 16 April 2016 - Chair, Mr R Seabrook

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NON RACEDAY INQUIRY BEFORE THE JUDICIAL CONTROL AUTHORITY

RIU v Mr S MUNRO

JUDICIAL COMMITTEE: Mr Richard Seabrook – Chairman, Mr Adrian Dooley – Committee Member

VENUE: Gate Pa Race Course, Tauranga

DATE: 16 April 2016

INFORMATION NUMBER: A7133

INFORMANT: Racing Integrity Unit – Mr A Cruickshank, RIU Investigator

RESPONDENT: Mr S MUNRO, licensed trainer

RULE: Rule 804 (2)

This Rule reads as follows: When a horse which has been brought to a Racecourse or similar racing facility for the Purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, as defined in Part A of Prohibited Substance Regulations, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules.

PLEA: Admitted

CHARGE: On the 9TH day of February 2016, at Matamata, being the registered trainers for the time being in charge of the 4 year old Gelding PINKO MOON, which was brought to the Matamata Racing Club Trials for the purpose of engaging in, and did engage in Heat 12, conducted by the Matamata Racing Club, when the said horse was found to have in its metabolism a Prohibited Substance, namely Phenylbutazone and Oxyphenbutazone which is in breach of New Zealand Thoroughbred Racing Rule 804(2) and is therefore subject to the penalty or penalties which may be imposed pursuant to Rules 804(6) and 804(7) of the said Rules.

SUMMARY OF FACTS by Mr A Cruickshank, RIU Investigator

Mr Stuart MUNRO is the holder of a Class C Owner/Trainer Licence issued by New Zealand Thoroughbred Racing (NZTR).

On the 9th of February 2016 the 4 year old Gelding PINKO MOON was correctly entered and started in Heat 12 of the Matamata Racing Club Trials at the Matamata Racecourse.

At the time the horse was owned by Mr MUNRO, Mr B P MUNRO and Miss L Gerty.

PINKO MOON finished first (1st) of the four horse trial.

PINKO MOON was randomly selected for a post-race swab. The horse was accompanied by Mr MUNRO. A blood sample was obtained at 1.36pm approximately 50 minutes after the trial commenced at 12.42pm.

Both Mr MUNRO and the RIU Veterinarian Dr Len Smith reported that there were no difficulties or irregularities with the collection of the blood from PINKO MOON.

At the conclusion of the Trials the samples were checked by a Racecourse Investigator and then place in a tamper proof security bag with other samples taken that day and forwarded to the New Zealand Racing Laboratory in Auckland.

On the 25th February 2016, a Certificate of Analysis signed by Mr Rob Howitt, the Official Racing Analyst at the New Zealand Racing Laboratory advised that the sample taken from PINKO MOON had been analysed and contained the Prohibited Substance Phenylbutazone and Oxyphenbutazone.

Phenylbutazone is a nonsteroidal anti-inflammatory drug commonly used to treat short term pain and fever in horses. Oxyphenbutazone is a metabolite of Phenylbutazone.

In horses, and in particular race horses, Phenylbutazone is used for the following purposes: pain relief from infections and musculoskeletal disorders including sprains, overuse injuries, tendinitis, arthritis, laminitis. It acts directly on musculoskeletal tissue to control inflammation, therefore reducing secondary inflammatory damage, alleviating pain and restoring range of motion.

Phenylbutazone is therefore a Prohibited Substance within the Rules of Racing. The presence of Phenylbutazone at a race day or trial is therefore prima facie, a breach of the Rules.

Mr MUNRO was interviewed at his property on the 15th March 2016. In explanation he stated that PINKO MOON had lost a shoe on 2 February 2016 and he had administered 10ml of Phenylbutazone at that time. Mr MUNRO further stated that he believed that Phenylbutazone had a withholding period of 6 days.

Mr MUNRO has held various training permits in both New Zealand and Australia over the last 40 years. He is now 64 years of age.

He has no offence history in New Zealand but was disqualified for drug administration in New South Wales, Australia several years ago.

SUBMISSIONS BY MR S MUNRO:

Mr MUNRO commenced his submissions by saying he treated PINKO MOON for a sore foot by applying Phenylbutazone. He said he thought he was doing the right thing as he believed the withholding period for Phenylbutazone was 6 days. He told the committee he had spoken to 4 different Vets and they were all confused as to what the appropriate withholding period was. Mr MUNRO said he only decided to start PINKO MOON in a trial a day or two before hand and had no intention of doing the wrong thing. He added there was no monetary gain in starting the horse as there were only 4 runners in the trial and PINKO MOON was a 4 year old maiden.

In answer to a question from the committee Mr MUNRO confirmed PINKO MOON had won the trial and was subsequently sold for $1500 to a NZ buyer.

Mr MUNRO admitted he was disqualified for 18 months in 1999 in New South Wales but that was in the last century. He said he was not in a strong position financially, was not in good health and had no intention to train again in a big way.

In answer to a further question from the committee he confirmed he got his NZ licence back in 2015 after training in Australia and Oman in 2010. He added that he did not have any horses in work at the present time.

In answer to a question from the committee addressed to Mr Cruickshank, he advised the committee the withholding period for Phenylbutazone was amended in 2015. Accordingly the committee finds it difficult to understand that such an important notice would not have been published and made available to all licence holders.

DECISION:

As the breach was admitted we find the charge proved.

PENALTY SUBMISSIONS by Mr A Cruickshank:

1. The respondent Mr MUNRO is a licensed Class C Trainer. He has been involved in the racing industry for most of his adult life. Mr MUNRO is 64 years of age with a date of birth of 24 January 1952.

2. Mr MUNRO has admitted a breach of the rules in relation to a charge of entering, presenting and racing a horse in a trial at the Matamata Racecourse when that horse had within its body a Prohibited Substance namely Phenylbutazone and Oxyphenbutazone.

3. The facts are set out in the Summary of Facts and these are not disputed.

4. The penalties which may be imposed are also fully detailed in the Charge Rule Penalty provisions document.

5. I believe that this breach can be dealt with by way of monetary penalty. To that end the R.I.U seek a fine of $3000.00.

6. In support of this penalty I will refer to a previous decision by the J.C.A which set the precedent starting point and may be of some assistance.

Relevant NZ Case

7. R.I.U v M. FRASER-CAMPIN and C. CAMPIN (1.04.16) this matter related to a positive test to Phenylbutazone and Oxyphenbutazone at the Matamata Trials on 9 February 2016. The Committee determined that the appropriate starting point for this offence was a $4000.00 fine. Penalty imposed $3000.00 fine and the horse disqualified.

8. There are several mitigating factors in this case. In particular:

a. Mr MUNRO had no intention to breach NZTR Rules.

b. He has pleaded guilty at the earliest opportunity.

c. He has no previous rule breaches in New Zealand over 40 years in the industry.

9. It should be noted that in 1999 Mr MUNRO appeared before the New South Wales Thoroughbred Racing Appeals Panel for administering a prohibited substance, namely Trenbolone, for which he was disqualified for a total of 18 months.

10. It is however submitted that as this matter occurred 17 years ago it is of little relevance and has only been raised as a point of note. The R.I.U do not see this as an aggravating factor and it should not be a determining factor regarding penalty.

11. This is not a situation where the drug in this case Phenylbutazone was administered to enhance performance. This is a case where Mr MUNRO has made an error in terms of his understanding of the withholding period for Phenylbutazone.

12. Mr MUNRO believed the withholding period was 6 days when it is 13.8 days.

13. It is acknowledged that Mr MUNRO has been fully co-operative throughout the investigative process.

14. Mr MUNRO had an unblemished record until the incident in Australia and has no prior history in New Zealand during a lengthy involvement in the industry.

15. None of the ‘B’ samples have been tested and the R.I.U are not seeking costs.

16. An order for the disqualification of PINKO MOON from the trial, pursuant to Rule 804(8) is sought.

PENALTY SUBMISSIONS BY MR S MUNRO

1. As you are well aware my name is Stu MUNRO, and I have entered a guilty plea to the charge that I entered a horse to trial with the drug known as ‘bute’ in its system.

2. I do not dispute the RIU Summary of Facts.

3. I enthusiastically encourage the JCA to deal with this matter by way of a monetary penalty, and the reasons will follow.

4. I understand and concur with the RIU using the Fraser- Campin case as a benchmark and precedent, and I accept that the fine in that instance, a figure of $3,000, is a reasonable and fair penalty for what I accept is a serious transgression and breach of the relevant rules.

5. With regard to aggravating factors described might I say that the previous transgression was nearly twenty years ago, and you'll have noted that was in fact in the last century.

6. To put that in context I've been a professional horse trainer for some forty years, and I've had only two relatively minor transgressions, both of which can be explained away, and this particular event will be in my mitigating circumstances.

7. Now a little history if I may. I've been a committed and passionate horse trainer for forty years. I am the only NZ based trainer to have had two runners in two editions of the Golden Slipper. I've trained a group one winner in NZ. I've trained many black type winners across three racing jurisdictions, NZ, Australia and Oman.

In recent years my health has suffered, significantly, including a serious bout of cancer, and whilst it'd be fair to say that I've fallen on hard times, I'm still a proud and committed horse trainer. Let there be no doubt though that whilst I'm what's often described as a “battler” from the wrong side of the tracks I always do my absolute best for my horses and their welfare and wellbeing, and my commitment to the best available animal welfare options drove me to do what I did in this instance. You'll recognize my best known horses, Tasman Dancer, Ma Chiquita and Young Shaun.

8. When I administered ‘bute’ to my horse it was given as an analgesic for pain relief because the horse has a bruised sole.

9. My circumstances preclude me engaging a vet if at all possible as the associated costs are beyond me. On that basis I asked Tim and Margaret if I could borrow a single dose of ‘bute’ to alleviate the pain my horse was experiencing. They kindly obliged without knowing if and when my horse was to trial.

My historical understanding of ‘bute’ was that the withholding time for single dose administration was either six or seven days. I had no idea the NZ Equine Vet Assn had changed withholding and detection times and increased them by 100% in 2015, and if I had known that I'd never have given my horse the dose I did.

10. I think it's appropriate to mention that ‘bute’ is from a group of drugs known as NSAID’s, it’s not a performance enhancing drug like cobalt, and it's actually from the exact same family and class of drugs as aspirin, something we as “old fellas” use every day.

11. That aside I accept I've transgressed and I apologise to all involved parties including the RIU, the JCA, and the Carters.

12. I would like it to be known that I entered an early guilty plea to expedite this process and to keep the matter “under the radar “and thus to not bring the industry into disrepute as some others have done to the detriment of the greater industry.

13. I have also sought a little unpaid advice but I'm representing myself to minimize costs and any inconvenience to all parties.

14. I'm not able to accept a suspension or disqualification because racing is my life and my income, and if the JCA was inclined to consider either you should know that the penalty is for life, because I do not have a plan B outside of my current involvement with the Carters.

15. Gentlemen I'll conclude by saying that without people like me NZ racing wouldn't be what it is, I'm a battler, a blue collar hard working battler, and I made a mistake because I couldn't afford a vet and I had no idea the relevant testing regime for ‘bute’ had changed so dramatically.

Please understand my situation, show me some compassion, give me a modest fine in line with or less than Mark Fraser- Campin and let me get on with my life as a battling but valuable member of the racing community.

REASONS FOR PENALTY:

The committee has carefully considered all the evidence and submissions as presented. The mitigating factors are Mr MUNRO’s admission of the breach and his full cooperation with the investigators from the outset.

In regard to the aggravating factors it is interesting to the committee that in the RIU submissions they have submitted that Mr MUNRO incurred an 18 month disqualification for administering a prohibitive substance, namely Trenbolone 17 years ago. However they stated that because this offence occurred so long ago it was of little relevance in this particular case and should not be a determining factor regarding penalty.

Mr MUNRO’s 1999 breach is not in dispute. He acknowledges the breach and the general circumstances but this committee does not have official documentary evidence of that breach. In any event this committee does not intend to disregard the Australian penalty but because of the significant time lapse this has been factored into our penalty. The committee has also referred to Mr MUNRO’s penalty submissions. We note that he submitted his Australian breach in 1999 was a minor transgression. This committee is clearly of the view that an 18 month disqualification is a significant penalty and cannot be disregarded. Mr MUNRO also submitted that the withholding times for Phenylbutazone had changed dramatically. The committee while accepting this fact, points out it is the obligation of all licensed trainers to check and be aware of current withholding times of prohibited substances. Hopefully this case will send a clear message to all license holders regarding the use of prohibited substances.

In addressing penalty the committee has referred to the JCA penalty guide effective 1 May 2015. This states the starting point for a first offence where a horse is presented with a prohibited substance is $8000. However the committee also referred to the RIU v S J Thompson-Brown and the RIU v Campin cases, the latter one being adjudicated by this committee, where it was established that that $4000 was an appropriate starting point in assessing quantum of penalty. The rationale behind this is that in the Campin case, as it is in this breach, the offence was committed at a trial meeting and not at a race meeting. Obviously the main difference being that there is no betting and stake money involved at trials. However the integrity of racing is paramount and even in the case of trials there can be significant financial rewards for owners and trainers. While not suggesting that was the case in this particular breach it is of concern to the committee that PINKO MOON won a trial with Phenylbutazone in its system and was subsequently sold, albeit for only $1500.

Finally, in assessing the appropriate penalty which should be imposed in Mr MUNRO’s case, the committee has noted his present financial position, which he described as poor and this has been taken into account. Mr Cruickshank was able to confirm Mr MUNRO’s position. In regard to the recent Campin case where they were fined a sum of $3000, they had an unblemished record over a long period of time.

Now referring to the MUNRO charge, and allowing for the time lapse since 1999, the committee considers an 18 month disqualification in Australia as a serious racing offence and an aggravating factor. Therefore we believe this must be reflected in the quantum of the monetary penalty imposed and rule that an increase is warranted over and above the fine imposed in the Campin case.

PENALTY:

Accordingly, after taking all the above factors into account, we fine Mr MUNRO a sum of $4,000.

Further we order the disqualification of PINKO MOON from heat 12 at the trials held on 9 February 2016 at the Matamata race course.

This disqualification comes under the provisions of rule 804 (8) of the NZTR rules of racing.

As this inquiry was held on a race day there will be no order to costs.

R Seabrook           A Dooley

Chairman             Committee Member

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