Non Raceday Inquiry RIU v PN Jones and LM Jones – Penalty Decision and Reasons of Judicial Committee dated 10 October 2014
ID: JCA11567
Decision:
BEFORE A JUDICIAL COMMITTEE
AT CHRISTCHURCH
IN THE MATTER of the New Zealand Rules of Harness Racing
IN THE MATTER of Information No. A6405
BETWEEN KYLIE ROCHELLE WILLIAMS, Racecourse Investigator for the Racing Integrity Unit
Informant
AND PETER NEIL JONES and LEONNE MARY JONES of Yaldhurst, Licensed Public Trainers (Partnership)
Respondents
Judicial Committee: Mr R G McKenzie, Chairman - Mr S C Ching, Panelist
Present: Mr S P Renault (Registrar)
Date of Hearing: 3 October 2014
Date of Decision: 10 October 2014
PENALTY DECISION AND REASONS OF JUDICIAL COMMITTEE
The Charge
[1] Information No.A6405 alleges that:
On the 22nd day of August 2014, Peter Neil Jones and Leonne Mary Jones were the trainers (partnership) and people in charge of the horse J C SKIPPER which had been taken to the New Zealand Metropolitan Trotting Club for the purpose of engaging in a race namely the HUBBERS FURNISHING HANDICAP PACE, Race 8, and that they failed to present the said horse free of prohibited substances namely Bicarbonate or other alkali substance as evidenced by a blood TCO2 level of 37.3mmol/L. This is in breach of the Prohibited Substance Rule, Ruler 1004 (1) (1A) (2).
The Rules
[2] Rule 1004 of the Rules of Harness Racing provides as follows:
(1) A horse shall be presented for a race free of prohibited substances.
(1A) A horse shall be presented for a race with a total carbon dioxide level at or below the level of 35.0 millimoles per litre in plasma.
(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race, otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.
The Plea
[3] Mr & Mrs Jones were present at the hearing of the information. The charge and Rules were read to them, after which they indicated that they admitted the breach.
[4] The charge was found proved.
Summary of Facts
[5] Mrs Williams presented the following Summary of Facts:
1. J C SKIPPER is a 6 year old black gelding and is trained by Public Trainers, Mr Peter Neil Jones and Mrs Leonne Mary Jones. J C SKIPPER is owned by the Poronui Family Trust and P L Thomas. J C SKIPPER has raced 63 times for 5 wins and 11 placings and stakes of $32,821 as at 15 September 2014.
2. Mr and Mrs Jones have trained J C SKIPPER since 29 May 2014 and it has had 9 starts for 1 win and 3 seconds and 1 third in this time.
3. J C SKIPPER was correctly entered for and presented to race by trainers, Mr and Mrs Jones, at the New Zealand Metropolitan Trotting Club meeting on 22 August 2014. J C SKIPPER was driven in the race by Mr M P Jones to finish 2nd in Race 8, the HUBBERS FURNISHING HANDICAP PACE and won a stake of $980. This stake has not been paid out.
4. Club Veterinarian, Ms Alisa Corser, took two TCO2 blood samples from J C SKIPPER at 8.42pm in the presence of Racecourse Investigator Mrs Kylie Williams and co-trainer Mrs Jones. The blood samples were recorded with the Sample ID number 38046. Mrs Jones does not contest the taking of the samples.
5. On 27 August 2014 the New Zealand Racing Laboratory reported that Sample ID Number 38046 had returned a result of 37.3 mmol/l, exceeding the accepted level set by Harness Racing New Zealand.
6. On 28 August 2014 Racecourse Investigators Mr Simon Irving and Mrs Kylie Williams went to the training premises of Mr and Mrs Jones, Lavros Lodge, 150 School Road, Christchurch, and advised them of the elevated TCO2 result returned by J C SKIPPER.
7. Mr and Mrs Jones were given a copy of the Certificate of Analysis, TCO2 Authorisation Form and a copy of the Prohibited Substance Rule of the New Zealand Rules of Harness Racing.
8. Mr and Mrs Jones confirmed they were both present at the race meeting with the horse being transported to the races at about 4.45pm by public transport.
9. Mr and Mrs Jones denied administration of any alkali by any means to J C SKIPPER.
10. Various samples were taken from Mr and Mrs Jones’ training premises and forwarded to the Racing Laboratory for testing including a TCO2 blood sample from J C SKIPPER, ID Number 38084.
11. Mr Jones advised they had not salined a horse for several months and that tubing equipment was not kept on the property.
12. Mr and Mrs Jones advised that J C SKIPPER was seen twice by Veterinarians from the Rangiora Vet Centre. On 15 July 2014, the horse was treated for a nasal discharge and coughing. There was a mild amount of blood coming from the right nostril. The horse was given a course of Oxytetracycline. J C SKIPPER was again seen on 1 August 2014 and again treated for a nasal discharge.
13. The New Zealand Racing Laboratory reported on the exhibits forwarded to them on 1 September 2014: The “McMillans Sport Horse Mix, showed the presence of carbonate substances consistent with the list of ingredients for this product including calcium carbonate. There are insufficient carbonate substances in this product to raise the TCO2 level above the threshold.” The Laboratory advised the TCO2 level from J C SKIPPER, taken on 28 August 2014, ID Number 38084 returned a result of 34.2mmol/L.
14. J C SKIPPER was tested again on 4 September 2014, at the training premises at 2.04pm with Sample ID Number 38110. The Laboratory advised on 10 September 2014 the result for Sample ID Number 38110 as 30.3mmol/L.
15. J C SKIPPER was tested at the New Zealand Metropolitan TC meeting on 5 September 2014, Sample ID Number 38114, with the Laboratory advising a level of 34.0mmol/L.
16. Mr and Mrs Jones cannot provide any reason for J C SKIPPER’s level to be elevated at the New Zealand Metropolitan Trotting Club meeting on 22 August 2014 and stated that they have never knowingly administered to the horse any alkalizing agent by tubing or any other method for the purpose of illegally enhancing the horse’s performance.
17. Mr Jones and Mrs Jones have not previously been charged with presenting a horse with an elevated TCO2 level.
Penalty Submissions of the Informant
[6] The occurrence of positive swabs is a serious matter. The integrity and image of racing is severely dented when a racehorse is found to have competed with a prohibited substance in its system. The support of the betting public is vital to the survival of this industry. Anything that impacts on this is in the serious category. The level of TCO2 detected in J C SKIPPER was above the level prescribed in the Rules. While J C SKIPPER finished 2nd, the elevated levels of TCO2 has the effect of inhibiting fatigue in a racehorse by delaying the onset of lactic acid and this is potentially performance enhancing, accordingly the penalty imposed should serve as a stark reminder to all that the presentation of horses to race with prohibited substances in their system is totally unacceptable.
Mr and Mrs Jones have not had a previous breach of this rule. Mr and Mrs Jones train in partnership as Public Trainers and have trained in partnership since 2010/11. They have had 544 starts for 51 wins, 66 seconds and 41 thirds for stakes of over $438,000. Before going into partnership Mr Jones was a trainer for many years, since the 1970’s, and had approximately 4,000 starters. In that time Mr Jones did not have a breach of this Rule. Due to Mr and Mrs Jones’ clear records and the manner in which they have conducted themselves the Racing Integrity Unit recommend a fine between $4,000 and $5,000 (Mrs Williams submitted a copy of the penalties imposed on Harness Racing Licence holders for presenting a horse to race with an elevated TCO2 level since 2001).
In relation to the horse racing with an elevated TCO2 level the horse is subject to the following Rule:
1004D Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.
J C SKIPPER was placed 2nd and the horse should be disqualified and placings amended.
Submissions by the Respondent
[7] Mr & Mrs Jones confirmed that they accepted the Summary of Facts presented by Mrs Williams.
[8] Mr & Mrs Jones produced a written submission which is summarised below.
[9] They acknowledged that they had presented J C SKIPPER to race in breach of the Prohibited Substance Rule and that the Rule was one of absolute liability. They did not contest the manner in which the blood sample was taken for analysis or the result from the Laboratory. Immediately they were made aware of the Laboratory result, they admitted the breach of the Rule.
[10] They take the charge very seriously and are concerned that it has happened from the point of view of both the industry and their personal integrity. They feel vulnerable that the system denies them any possible way to acquit themselves of the implication that the TCO2 level can only be caused by administration of bicarbonate or other alkilising agent.
[11] They accepted that the charge was one of presentation only but were aware that the implication is one of “race-day administration”, which they refuted absolutely.
[12] They submitted that there were, in their experience, situations in which TCO2 levels could be elevated but these could not be supported scientifically because studies have not been done.
[13] They asserted “with absolute certainty” that J C SKIPPER was not administered any bicarbonate or other alkilising agent by any means whatsoever by themselves or any other person. They acknowledged that the claim was easy to make but “extraordinarily hard” to prove. They submitted that it would be “extremely difficult if not impossible” to stomach-tube a horse on raceday without all of the other trainers at Lavros Lodge (where they train) being aware of it.
[14] They submitted that the Committee should take into account that J C SKIPPER has a history of bleeding. Since they have trained him, they have treated the horse with the antibiotic “Engemycin” on a regular basis to ensure that any respiratory infection due to his bleeding is kept under control, particularly if there is any indication that he may have bled after work. They also had the horse endoscoped again to confirm that they were on the “right track” with the treatment.
[15] In the weeks prior to returning the elevated TCO2 level, J C SKIPPER was pre-race blood tested twice, returning results of 35.4 mmol/l on 4 July 2014 and 34.3 mmol/l on 11 July 2014. In both weeks prior to those races, they had treated the horse with a course of “Engemycin” because he had indicated to them at home that he had bled after exercise. Prior to those tests, the horse had not been pre-race blood tested since he had been confirmed to suffer from EIPH (Exercise-induced Pulmonary Haemorrhage). They believed that they had kept any respiratory infection under control and, as a consequence, also prevented his TCO2 elevating to unacceptable levels.
[16] In the lead-up to the race on 22 August, J C SKIPPER had given no indication that he may have been bleeding so they believed that a course of “Engemycin” was not warranted.
[17] The blood testing was not carried out until quite close to the time the horse was due to go out on the track. The horse starts to get “a little bit anxious” once he is in the cart. They submitted that the stress factor, coupled with the fact that the horse is generally reading a lot higher than a normal horse that does not suffer from EIPH, would have contributed to increasing his TCO2 level above the acceptable limit. They believed, in hindsight, that the horse may not have exceeded the permitted level had he been treated with “Engemycin” in the days preceding the race.
[18] They referred to the fact that J C SKIPPER had been tested at home subsequent to 22 August and had returned 34.2 mmol/l and 30.3 mmol/l.
[19] J C SKIPPER’s two subsequent raceday appearances up to 21 September have seen him test at 34.0 mmol/l and 30.6 mmol/l. They put the difference down to the fact that they now pre-race jog the horse before he races. This is proven to reduce the TCO2 level by up to two points.
[20] The Respondent, Mr Peter Jones, has been a respected Licensed Public Trainer for more that 35 years. This is the first time a horse trained by him has returned a positive test to any prohibited substance. His training record is “exemplary” as has been his record as a horseman over many years until ill-health prematurely ended his driving career. Their horses have been pre-race blood tested many times over the years.
[21] They have previously raced horses which have had a history of returning high TCO2 levels. They have managed these horses (after consultation with and aided by the support of the Racing Integrity Unit) by pre-race jogging them which has succeeded in keeping their TCO2 levels within the acceptable range. They have also become aware that at least two of those horses suffered from EIPH which, they submitted, further supported their theory that horses with this condition, in their experience, tend to have a higher TCO2 than a normal horse. This level can be aggravated further when coupled with race-day stress.
[22] There was no incentive to artificially elevate J C SKIPPER’s TCO2 level for financial gain. Mr Jones does not bet at all and Mrs Jones “very infrequently and only in small amounts”. Mrs Jones’ TAB account details have been made available to the RIU.
[23] They emphasised that they were guilty only of presenting a horse to race with an excess TCO2 level. They refuted that J C SKIPPER’s TCO2 level has been “manipulated” in order to enhance the horse’s performance.
[24] They understand that proving that the administration of an alkalising substance occurred is almost impossible. They submitted that for a Respondent to prove that administration did not occur is completely impossible.
Discussion
[25] The Committee asked Mr & Mrs Jones to explain the training establishment at Lavros Lodge. Mrs Jones explained that it consists of two barns and there are six trainers working out of the two barns. People come and go at all times. There is one tie-up area and one washing area. The security is “excellent” – there are people living in the three houses on the property.
[26] Mr Jones said that there had been no research or study done on the relationship between horses that are bleeders and high TCO2 levels. In his experience, noted bleeders tend to return high TCO2 levels, he said. Pre-race jogging did help but it was still risky to race them. They were adamant that the reason for J C SKIPPER consistently testing high was because he was a bleeder. Research needs to be done to discover why some horses return high TCO2 readings, they submitted.
[27] This was the only explanation that they could advance for J C SKIPPER’s high TCO2 reading on 22 August.
The Penalty Rule
[28] The penalty Rule is Rule 1004 (7) which provides:
Every person who commits a breach of sub-rule (2) or (3) shall be liable to:
(a) a fine not exceeding $20,000.00; and/or
(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.
Reasons for Penalty
[29] As is almost always the case with charges of presenting a horse to race with an excess TCO2 level, there was no evidence as to the reason for the horse, J C SKIPPER, returning a level of 37.2 mmol/l for Race 8 at the race meeting at Addington on 22 August 2014. There was no evidence of administration.
[30] Mrs Williams relied on the authority of the decision of Whata J in the High Court in the case of HRNZ v J in which it was held that a breach of Rule 1004 (2) is one of absolute liability. Mr & Mrs Jones had admitted the breach on that basis.
[31] Mr & Mrs Jones were very vigorous in their denial that any administration had taken place. Whilst they were not able to pinpoint the cause of the elevated level returned by J C SKIPPER, they were convinced, in their own minds, that it was down to the fact that the horse was a bleeder. This belief was based, they asserted, on their knowledge of and experience with horses that had suffered from bleeding. However, as they readily acknowledged, there was no scientific support for this assertion. It appeared to the Committee that their belief was genuinely-held.
[32] The Committee must make a decision on an appropriate penalty in the absence of any evidence as to how the horse came to have an elevated TCO2 level. Whilst it is an appropriate consideration in assessing culpability for the purposes of arriving at penalty to consider the circumstances in which the high level came to be present in the horse, in this case there was no evidence before this Committee to enable us to make such an assessment.
[33] The Committee has gained some guidance from the decision of the Appeals Tribunal in the 2012 case of RIU v S in which it was stated:
Where the culpability falls on the spectrum of seriousness is best determined by reference to the extent to which the elevated level is in excess of the statutory limit.
[34] It is appropriate to consider what the mitigating factors are in this case. Firstly, Mrs Williams submitted that Mr & Mrs Jones have been “extremely open and forthright in their dealings in this inquiry and credit has to be given for their early guilty plea”. Secondly, Mr & Mrs Jones have a previously unblemished record. The Committee was informed that Mr & Mrs Jones have been training in partnership since 2010/2011, in which time they have had 544 starters. Prior to that time, Mr Jones had trained in his own name since the early 1970’s having had approximately 4,000 starters. The Committee is also aware that Mr Jones is from a leading family in Harness Racing circles and was a well-respected and leading horseman for many years, during which he won many of this country’s major races. These two mitigating factors are quite compelling.
[35] Mr & Mrs Jones produced a reference from a professional person who stated he had known Mr Jones for 30 years and –
Mr Jones impresses me as a person who sets high standards, one who is very proud of the heritage of his family in the world of harness racing and one who would never risk the tarnishing of that image by conducting himself or his business in a manner which fell below those standards . . . I have never had reason to doubt their honesty nor their integrity.
We have taken those comments into account.
[36] Mrs Williams produced to the Committee a schedule of previous penalties for breaches of the Rule going back to 2001. Of these previous penalties, the Committee has considered those from 2010. These are (in chronological order):
38.2 $2,000 plus costs $250
37.3 $850
37.2 $2,000 plus $1,000 costs
38.3 $2,500 plus costs $350
37.0 $2,500 plus costs $700
36.3 $1,800 plus costs $450
[37] The previous case that provides the most assistance to the Committee is the case of S (2012) in which the trainer, who admitted the charge, was fined the sum of $2,000 and ordered to pay costs of $1,000. The horse had returned a TCO2 level of 37.2. The penalty was subsequently upheld on appeal but the Appeals Tribunal stated that a fine of $2,000 was “at the bottom of the range that was legitimately open to the Committee”.
[38] Mrs Williams produced information to the Committee to the effect that the Board of Harness Racing New Zealand is proposing an increase in the prohibited level for TCO2 from 35 to 36 mmol/l with a “firm expectation” that it expects a “stiffer regime of penalties” for breaches. It is the Board’s opinion that current penalties are insufficient.
[39] It may be that it is in the light of that information that the Informant is seeking, in this case, a fine of between $4,000 and $5,000. That submission is appropriate in the light of that HRNZ Board’s statement but, in terms of the previous penalties referred to above, the submitted fine is excessive. Penalties may increase in the future but Mr & Mrs Jones cannot be penalised based on an anticipated increase of penalties in the future.
[40] We have taken, as a starting point for penalty, a fine of $3,000 having regard to the fine of $2,000 imposed in the case of S referred to in paragraph 32 above but bearing in mind the comments of the Appeals Tribunal in that case. The TCO2 level in that case was 37.2, and in the present case 37.3. The trainer in the S case also admitted the breach and had a clear record, so the two cases are very similar.
[41] The Committee will give Mr & Mrs Jones a discount from that starting point for their good record while training in partnership, and the outstanding record of Mr Jones and his contribution to the Harness Racing industry as a trainer and horseman over more than 40 years. That discount will be $500.
[42] The Committee is satisfied that a fine of $2,500 will suffice to satisfy the general purposes of sentencing which are well-established – to hold the offenders accountable for their actions, to promote in the offenders a sense of responsibility, to denounce the conduct of the offenders and to deter the offenders or other persons from committing the same or a similar offence. The Committee has also had regard, as always, to the need to maintain integrity and public confidence in Harness Racing.
Penalty
[43] Taking all of the factors set out in our reasons above, the Committee considers that the appropriate penalty is a fine of $2,500 and the Respondent is fined the sum of $2,500 accordingly.
Disqualification of Horse
[44] The horse, J C SKIPPER, is disqualified from Race 8 at the meeting of New Zealand Metropolitan Trotting Club’s meeting on 22 August 2014, Hubbers Furnishing Handicap Pace, pursuant to Rule 1004 (8). As a consequence of that disqualification, the amended result for the Race is:
1st Ideal Arden
2nd K C Monet
3rd Franco Tyrone
4th Canndew
5th True Legend
It is ordered that stakes be paid accordingly.
Costs
[45] There will be no order for costs. The Informant did not seek costs and, since the hearing took place on a race day, there will be no order for costs in favour of the JCA.
R G McKENZIE S C CHING
Chairman Panelist
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 03/10/2014
Publish Date: 03/10/2014
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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hearing_title: Non Raceday Inquiry RIU v PN Jones and LM Jones - Penalty Decision and Reasons of Judicial Committee dated 10 October 2014
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Decision:
BEFORE A JUDICIAL COMMITTEE
AT CHRISTCHURCH
IN THE MATTER of the New Zealand Rules of Harness Racing
IN THE MATTER of Information No. A6405
BETWEEN KYLIE ROCHELLE WILLIAMS, Racecourse Investigator for the Racing Integrity Unit
Informant
AND PETER NEIL JONES and LEONNE MARY JONES of Yaldhurst, Licensed Public Trainers (Partnership)
Respondents
Judicial Committee: Mr R G McKenzie, Chairman - Mr S C Ching, Panelist
Present: Mr S P Renault (Registrar)
Date of Hearing: 3 October 2014
Date of Decision: 10 October 2014
PENALTY DECISION AND REASONS OF JUDICIAL COMMITTEE
The Charge
[1] Information No.A6405 alleges that:
On the 22nd day of August 2014, Peter Neil Jones and Leonne Mary Jones were the trainers (partnership) and people in charge of the horse J C SKIPPER which had been taken to the New Zealand Metropolitan Trotting Club for the purpose of engaging in a race namely the HUBBERS FURNISHING HANDICAP PACE, Race 8, and that they failed to present the said horse free of prohibited substances namely Bicarbonate or other alkali substance as evidenced by a blood TCO2 level of 37.3mmol/L. This is in breach of the Prohibited Substance Rule, Ruler 1004 (1) (1A) (2).
The Rules
[2] Rule 1004 of the Rules of Harness Racing provides as follows:
(1) A horse shall be presented for a race free of prohibited substances.
(1A) A horse shall be presented for a race with a total carbon dioxide level at or below the level of 35.0 millimoles per litre in plasma.
(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race, otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.
The Plea
[3] Mr & Mrs Jones were present at the hearing of the information. The charge and Rules were read to them, after which they indicated that they admitted the breach.
[4] The charge was found proved.
Summary of Facts
[5] Mrs Williams presented the following Summary of Facts:
1. J C SKIPPER is a 6 year old black gelding and is trained by Public Trainers, Mr Peter Neil Jones and Mrs Leonne Mary Jones. J C SKIPPER is owned by the Poronui Family Trust and P L Thomas. J C SKIPPER has raced 63 times for 5 wins and 11 placings and stakes of $32,821 as at 15 September 2014.
2. Mr and Mrs Jones have trained J C SKIPPER since 29 May 2014 and it has had 9 starts for 1 win and 3 seconds and 1 third in this time.
3. J C SKIPPER was correctly entered for and presented to race by trainers, Mr and Mrs Jones, at the New Zealand Metropolitan Trotting Club meeting on 22 August 2014. J C SKIPPER was driven in the race by Mr M P Jones to finish 2nd in Race 8, the HUBBERS FURNISHING HANDICAP PACE and won a stake of $980. This stake has not been paid out.
4. Club Veterinarian, Ms Alisa Corser, took two TCO2 blood samples from J C SKIPPER at 8.42pm in the presence of Racecourse Investigator Mrs Kylie Williams and co-trainer Mrs Jones. The blood samples were recorded with the Sample ID number 38046. Mrs Jones does not contest the taking of the samples.
5. On 27 August 2014 the New Zealand Racing Laboratory reported that Sample ID Number 38046 had returned a result of 37.3 mmol/l, exceeding the accepted level set by Harness Racing New Zealand.
6. On 28 August 2014 Racecourse Investigators Mr Simon Irving and Mrs Kylie Williams went to the training premises of Mr and Mrs Jones, Lavros Lodge, 150 School Road, Christchurch, and advised them of the elevated TCO2 result returned by J C SKIPPER.
7. Mr and Mrs Jones were given a copy of the Certificate of Analysis, TCO2 Authorisation Form and a copy of the Prohibited Substance Rule of the New Zealand Rules of Harness Racing.
8. Mr and Mrs Jones confirmed they were both present at the race meeting with the horse being transported to the races at about 4.45pm by public transport.
9. Mr and Mrs Jones denied administration of any alkali by any means to J C SKIPPER.
10. Various samples were taken from Mr and Mrs Jones’ training premises and forwarded to the Racing Laboratory for testing including a TCO2 blood sample from J C SKIPPER, ID Number 38084.
11. Mr Jones advised they had not salined a horse for several months and that tubing equipment was not kept on the property.
12. Mr and Mrs Jones advised that J C SKIPPER was seen twice by Veterinarians from the Rangiora Vet Centre. On 15 July 2014, the horse was treated for a nasal discharge and coughing. There was a mild amount of blood coming from the right nostril. The horse was given a course of Oxytetracycline. J C SKIPPER was again seen on 1 August 2014 and again treated for a nasal discharge.
13. The New Zealand Racing Laboratory reported on the exhibits forwarded to them on 1 September 2014: The “McMillans Sport Horse Mix, showed the presence of carbonate substances consistent with the list of ingredients for this product including calcium carbonate. There are insufficient carbonate substances in this product to raise the TCO2 level above the threshold.” The Laboratory advised the TCO2 level from J C SKIPPER, taken on 28 August 2014, ID Number 38084 returned a result of 34.2mmol/L.
14. J C SKIPPER was tested again on 4 September 2014, at the training premises at 2.04pm with Sample ID Number 38110. The Laboratory advised on 10 September 2014 the result for Sample ID Number 38110 as 30.3mmol/L.
15. J C SKIPPER was tested at the New Zealand Metropolitan TC meeting on 5 September 2014, Sample ID Number 38114, with the Laboratory advising a level of 34.0mmol/L.
16. Mr and Mrs Jones cannot provide any reason for J C SKIPPER’s level to be elevated at the New Zealand Metropolitan Trotting Club meeting on 22 August 2014 and stated that they have never knowingly administered to the horse any alkalizing agent by tubing or any other method for the purpose of illegally enhancing the horse’s performance.
17. Mr Jones and Mrs Jones have not previously been charged with presenting a horse with an elevated TCO2 level.
Penalty Submissions of the Informant
[6] The occurrence of positive swabs is a serious matter. The integrity and image of racing is severely dented when a racehorse is found to have competed with a prohibited substance in its system. The support of the betting public is vital to the survival of this industry. Anything that impacts on this is in the serious category. The level of TCO2 detected in J C SKIPPER was above the level prescribed in the Rules. While J C SKIPPER finished 2nd, the elevated levels of TCO2 has the effect of inhibiting fatigue in a racehorse by delaying the onset of lactic acid and this is potentially performance enhancing, accordingly the penalty imposed should serve as a stark reminder to all that the presentation of horses to race with prohibited substances in their system is totally unacceptable.
Mr and Mrs Jones have not had a previous breach of this rule. Mr and Mrs Jones train in partnership as Public Trainers and have trained in partnership since 2010/11. They have had 544 starts for 51 wins, 66 seconds and 41 thirds for stakes of over $438,000. Before going into partnership Mr Jones was a trainer for many years, since the 1970’s, and had approximately 4,000 starters. In that time Mr Jones did not have a breach of this Rule. Due to Mr and Mrs Jones’ clear records and the manner in which they have conducted themselves the Racing Integrity Unit recommend a fine between $4,000 and $5,000 (Mrs Williams submitted a copy of the penalties imposed on Harness Racing Licence holders for presenting a horse to race with an elevated TCO2 level since 2001).
In relation to the horse racing with an elevated TCO2 level the horse is subject to the following Rule:
1004D Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.
J C SKIPPER was placed 2nd and the horse should be disqualified and placings amended.
Submissions by the Respondent
[7] Mr & Mrs Jones confirmed that they accepted the Summary of Facts presented by Mrs Williams.
[8] Mr & Mrs Jones produced a written submission which is summarised below.
[9] They acknowledged that they had presented J C SKIPPER to race in breach of the Prohibited Substance Rule and that the Rule was one of absolute liability. They did not contest the manner in which the blood sample was taken for analysis or the result from the Laboratory. Immediately they were made aware of the Laboratory result, they admitted the breach of the Rule.
[10] They take the charge very seriously and are concerned that it has happened from the point of view of both the industry and their personal integrity. They feel vulnerable that the system denies them any possible way to acquit themselves of the implication that the TCO2 level can only be caused by administration of bicarbonate or other alkilising agent.
[11] They accepted that the charge was one of presentation only but were aware that the implication is one of “race-day administration”, which they refuted absolutely.
[12] They submitted that there were, in their experience, situations in which TCO2 levels could be elevated but these could not be supported scientifically because studies have not been done.
[13] They asserted “with absolute certainty” that J C SKIPPER was not administered any bicarbonate or other alkilising agent by any means whatsoever by themselves or any other person. They acknowledged that the claim was easy to make but “extraordinarily hard” to prove. They submitted that it would be “extremely difficult if not impossible” to stomach-tube a horse on raceday without all of the other trainers at Lavros Lodge (where they train) being aware of it.
[14] They submitted that the Committee should take into account that J C SKIPPER has a history of bleeding. Since they have trained him, they have treated the horse with the antibiotic “Engemycin” on a regular basis to ensure that any respiratory infection due to his bleeding is kept under control, particularly if there is any indication that he may have bled after work. They also had the horse endoscoped again to confirm that they were on the “right track” with the treatment.
[15] In the weeks prior to returning the elevated TCO2 level, J C SKIPPER was pre-race blood tested twice, returning results of 35.4 mmol/l on 4 July 2014 and 34.3 mmol/l on 11 July 2014. In both weeks prior to those races, they had treated the horse with a course of “Engemycin” because he had indicated to them at home that he had bled after exercise. Prior to those tests, the horse had not been pre-race blood tested since he had been confirmed to suffer from EIPH (Exercise-induced Pulmonary Haemorrhage). They believed that they had kept any respiratory infection under control and, as a consequence, also prevented his TCO2 elevating to unacceptable levels.
[16] In the lead-up to the race on 22 August, J C SKIPPER had given no indication that he may have been bleeding so they believed that a course of “Engemycin” was not warranted.
[17] The blood testing was not carried out until quite close to the time the horse was due to go out on the track. The horse starts to get “a little bit anxious” once he is in the cart. They submitted that the stress factor, coupled with the fact that the horse is generally reading a lot higher than a normal horse that does not suffer from EIPH, would have contributed to increasing his TCO2 level above the acceptable limit. They believed, in hindsight, that the horse may not have exceeded the permitted level had he been treated with “Engemycin” in the days preceding the race.
[18] They referred to the fact that J C SKIPPER had been tested at home subsequent to 22 August and had returned 34.2 mmol/l and 30.3 mmol/l.
[19] J C SKIPPER’s two subsequent raceday appearances up to 21 September have seen him test at 34.0 mmol/l and 30.6 mmol/l. They put the difference down to the fact that they now pre-race jog the horse before he races. This is proven to reduce the TCO2 level by up to two points.
[20] The Respondent, Mr Peter Jones, has been a respected Licensed Public Trainer for more that 35 years. This is the first time a horse trained by him has returned a positive test to any prohibited substance. His training record is “exemplary” as has been his record as a horseman over many years until ill-health prematurely ended his driving career. Their horses have been pre-race blood tested many times over the years.
[21] They have previously raced horses which have had a history of returning high TCO2 levels. They have managed these horses (after consultation with and aided by the support of the Racing Integrity Unit) by pre-race jogging them which has succeeded in keeping their TCO2 levels within the acceptable range. They have also become aware that at least two of those horses suffered from EIPH which, they submitted, further supported their theory that horses with this condition, in their experience, tend to have a higher TCO2 than a normal horse. This level can be aggravated further when coupled with race-day stress.
[22] There was no incentive to artificially elevate J C SKIPPER’s TCO2 level for financial gain. Mr Jones does not bet at all and Mrs Jones “very infrequently and only in small amounts”. Mrs Jones’ TAB account details have been made available to the RIU.
[23] They emphasised that they were guilty only of presenting a horse to race with an excess TCO2 level. They refuted that J C SKIPPER’s TCO2 level has been “manipulated” in order to enhance the horse’s performance.
[24] They understand that proving that the administration of an alkalising substance occurred is almost impossible. They submitted that for a Respondent to prove that administration did not occur is completely impossible.
Discussion
[25] The Committee asked Mr & Mrs Jones to explain the training establishment at Lavros Lodge. Mrs Jones explained that it consists of two barns and there are six trainers working out of the two barns. People come and go at all times. There is one tie-up area and one washing area. The security is “excellent” – there are people living in the three houses on the property.
[26] Mr Jones said that there had been no research or study done on the relationship between horses that are bleeders and high TCO2 levels. In his experience, noted bleeders tend to return high TCO2 levels, he said. Pre-race jogging did help but it was still risky to race them. They were adamant that the reason for J C SKIPPER consistently testing high was because he was a bleeder. Research needs to be done to discover why some horses return high TCO2 readings, they submitted.
[27] This was the only explanation that they could advance for J C SKIPPER’s high TCO2 reading on 22 August.
The Penalty Rule
[28] The penalty Rule is Rule 1004 (7) which provides:
Every person who commits a breach of sub-rule (2) or (3) shall be liable to:
(a) a fine not exceeding $20,000.00; and/or
(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.
Reasons for Penalty
[29] As is almost always the case with charges of presenting a horse to race with an excess TCO2 level, there was no evidence as to the reason for the horse, J C SKIPPER, returning a level of 37.2 mmol/l for Race 8 at the race meeting at Addington on 22 August 2014. There was no evidence of administration.
[30] Mrs Williams relied on the authority of the decision of Whata J in the High Court in the case of HRNZ v J in which it was held that a breach of Rule 1004 (2) is one of absolute liability. Mr & Mrs Jones had admitted the breach on that basis.
[31] Mr & Mrs Jones were very vigorous in their denial that any administration had taken place. Whilst they were not able to pinpoint the cause of the elevated level returned by J C SKIPPER, they were convinced, in their own minds, that it was down to the fact that the horse was a bleeder. This belief was based, they asserted, on their knowledge of and experience with horses that had suffered from bleeding. However, as they readily acknowledged, there was no scientific support for this assertion. It appeared to the Committee that their belief was genuinely-held.
[32] The Committee must make a decision on an appropriate penalty in the absence of any evidence as to how the horse came to have an elevated TCO2 level. Whilst it is an appropriate consideration in assessing culpability for the purposes of arriving at penalty to consider the circumstances in which the high level came to be present in the horse, in this case there was no evidence before this Committee to enable us to make such an assessment.
[33] The Committee has gained some guidance from the decision of the Appeals Tribunal in the 2012 case of RIU v S in which it was stated:
Where the culpability falls on the spectrum of seriousness is best determined by reference to the extent to which the elevated level is in excess of the statutory limit.
[34] It is appropriate to consider what the mitigating factors are in this case. Firstly, Mrs Williams submitted that Mr & Mrs Jones have been “extremely open and forthright in their dealings in this inquiry and credit has to be given for their early guilty plea”. Secondly, Mr & Mrs Jones have a previously unblemished record. The Committee was informed that Mr & Mrs Jones have been training in partnership since 2010/2011, in which time they have had 544 starters. Prior to that time, Mr Jones had trained in his own name since the early 1970’s having had approximately 4,000 starters. The Committee is also aware that Mr Jones is from a leading family in Harness Racing circles and was a well-respected and leading horseman for many years, during which he won many of this country’s major races. These two mitigating factors are quite compelling.
[35] Mr & Mrs Jones produced a reference from a professional person who stated he had known Mr Jones for 30 years and –
Mr Jones impresses me as a person who sets high standards, one who is very proud of the heritage of his family in the world of harness racing and one who would never risk the tarnishing of that image by conducting himself or his business in a manner which fell below those standards . . . I have never had reason to doubt their honesty nor their integrity.
We have taken those comments into account.
[36] Mrs Williams produced to the Committee a schedule of previous penalties for breaches of the Rule going back to 2001. Of these previous penalties, the Committee has considered those from 2010. These are (in chronological order):
38.2 $2,000 plus costs $250
37.3 $850
37.2 $2,000 plus $1,000 costs
38.3 $2,500 plus costs $350
37.0 $2,500 plus costs $700
36.3 $1,800 plus costs $450
[37] The previous case that provides the most assistance to the Committee is the case of S (2012) in which the trainer, who admitted the charge, was fined the sum of $2,000 and ordered to pay costs of $1,000. The horse had returned a TCO2 level of 37.2. The penalty was subsequently upheld on appeal but the Appeals Tribunal stated that a fine of $2,000 was “at the bottom of the range that was legitimately open to the Committee”.
[38] Mrs Williams produced information to the Committee to the effect that the Board of Harness Racing New Zealand is proposing an increase in the prohibited level for TCO2 from 35 to 36 mmol/l with a “firm expectation” that it expects a “stiffer regime of penalties” for breaches. It is the Board’s opinion that current penalties are insufficient.
[39] It may be that it is in the light of that information that the Informant is seeking, in this case, a fine of between $4,000 and $5,000. That submission is appropriate in the light of that HRNZ Board’s statement but, in terms of the previous penalties referred to above, the submitted fine is excessive. Penalties may increase in the future but Mr & Mrs Jones cannot be penalised based on an anticipated increase of penalties in the future.
[40] We have taken, as a starting point for penalty, a fine of $3,000 having regard to the fine of $2,000 imposed in the case of S referred to in paragraph 32 above but bearing in mind the comments of the Appeals Tribunal in that case. The TCO2 level in that case was 37.2, and in the present case 37.3. The trainer in the S case also admitted the breach and had a clear record, so the two cases are very similar.
[41] The Committee will give Mr & Mrs Jones a discount from that starting point for their good record while training in partnership, and the outstanding record of Mr Jones and his contribution to the Harness Racing industry as a trainer and horseman over more than 40 years. That discount will be $500.
[42] The Committee is satisfied that a fine of $2,500 will suffice to satisfy the general purposes of sentencing which are well-established – to hold the offenders accountable for their actions, to promote in the offenders a sense of responsibility, to denounce the conduct of the offenders and to deter the offenders or other persons from committing the same or a similar offence. The Committee has also had regard, as always, to the need to maintain integrity and public confidence in Harness Racing.
Penalty
[43] Taking all of the factors set out in our reasons above, the Committee considers that the appropriate penalty is a fine of $2,500 and the Respondent is fined the sum of $2,500 accordingly.
Disqualification of Horse
[44] The horse, J C SKIPPER, is disqualified from Race 8 at the meeting of New Zealand Metropolitan Trotting Club’s meeting on 22 August 2014, Hubbers Furnishing Handicap Pace, pursuant to Rule 1004 (8). As a consequence of that disqualification, the amended result for the Race is:
1st Ideal Arden
2nd K C Monet
3rd Franco Tyrone
4th Canndew
5th True Legend
It is ordered that stakes be paid accordingly.
Costs
[45] There will be no order for costs. The Informant did not seek costs and, since the hearing took place on a race day, there will be no order for costs in favour of the JCA.
R G McKENZIE S C CHING
Chairman Panelist
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