Non Raceday Inquiry – HRNZ v MP Jones – 23 December 2010 – Decision
ID: JCA11644
Decision:
[1] The defendant is charged with one breach of Rule 1004(1), (1A), (2) and (3) of the Rules of Harness Racing. The charge (Information No. 69473) filed by Racecourse Inspector Mr Kitto reads as follows –
“On the 30th day of October 2010, Mark Peter Jones, was the trainer of the registered standard bred horse “ALGEEPEE” which had been taken to the Addington racecourse for the purpose of engaging in a race, namely Race 6, The Staybrite Fabricators (2003) Limited mobile pace, when a blood sample taken from the said horse disclosed a blood Carbon Dioxide (TCO2) level of 38.2mmol/l in plasma being greater than the Carbon Dioxide (TCO2) level set by the Executive of 35.0mmol/l in plasma being in breach of Rules 1004(1), (1A), (2) and (3).”
[2] Rules 1004(1), (1A), (2) and (3) referred to above, which come under the “Prohibited Substance Rule”, read 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.
(3) Where a person is left in charge of a horse, and the 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 and the person left in charge both commit a breach of these Rules.”
[3] Mr Jones had previously indicated that he admitted this breach of the Rule, and he confirmed this at the hearing.
Summary of Facts:
[4] Mr Kitto presented a “Summary of Facts” to this hearing. The horse “Allgeepee” was entered for and finished 4th in Race 6, Staybrite Stainless Fabricators (2003) Ltd Mobile Pace, at the New Zealand Metropolitan Trotting Club’s race meeting held at Addington Raceway on 30 October 2010.
[5] All horses in this race were pre-race blood tested, and the samples sent to the New Zealand Racing Laboratory in Auckland for analysis. On 3 November 2010 the Racing Laboratory advised by certificate showing that the total carbon dioxide (TCO2 ) result for “Allgeepee” was 38.2mmol/l. A copy of the Certificate of Analysis was presented in evidence.
[6] On 5 November 2010 Mr Jones was visited at his stables where he was interviewed by Racecourse Inspector Mr B. A. Kitto. Mr Jones could give no explanation for this high TCO2 reading. It was established by two Veterinarians that “Algeepee” was not being treated immediately before or on the day of racing. An examination was made of Mr Jones’ morning tea room, harness room wash and feed rooms. Several 44 gallon rubbish drums were examined and a variety of items were taken possession of for analysis. One of the items of interest was a 750g container of “Turbo Coat” which was found in a drum by Mr Jones’ feed room.
[7] There were a total of eight items seized and these were sent to the Racing Analyst for examination. On examination seven of these items were cleared as being unable to explain this high TCO2 level. The other item (Exh 6) was the empty 750g container of “Turbo Coat”. The residue in this container showed that there was a presence of a carbonate substance, but that it would have taken the administration of 1.4 of these containers to produce a TCO2 level above the threshold.
[8] After the stable visit Stipendiary Steward Mr N. M. Ydgren examined Mr Jones’ horse float, but nothing was found as a result of that search.
[9] The history of blood tests carried out on Mr Jones’ horses showed that since he has been training he has had 55 of his horses tested. The highest previous reading was 35.0 mmol/l, and the lowest 26.6 mmol/l. The earliest recorded test was on 20 April 2007.
[10] “Algeepee” had been tested once previously, when trained by a different trainer, and on that occasion had returned a reading of 31.7 mmol/l. After the present positive test “Algeepee” was tested four times, twice on race nights, and twice at Mr Jones’ stables. These tests returned readings of between 30.7 and 32.6 mmol/l.
[11] HRNZ Veterinary consultant, Mr Andrew Grierson, reviewed the literature and documentation regarding this matter and said that “….he could find no reason that could explain the elevated TCO2
…. (other than) “Algeepee” was administered an alkalising agent prior to racing”.
[12] Mr Kitto also advised that Mr Jones’ training property is located in an isolated area with no security.
[13] Mr Jones said that he could not explain this positive test, and did not believe it had resulted from anything fed to the horse. Mr Jones raised several possibilities which have been commented on by Mr Grierson in his letter of 2 December 2010 (Exh. 12). Mr Grierson referred to and dismissed the possibilities that elevated TCO2 readings could be caused when a horse is suffering an infection; profuse sweating by a horse; temperature increases; or in horses that have been over-trained. As set out above, Mr Grierson was of the opinion that an alkalising agent was administered to “Algeepee” prior to racing.
[14] Mr Jones did not dispute that security at his stables was poor. He said that he would be moving into a new complex in the new year and that a security system for these premises have been provided for.
[15] Mr Jones did not dispute the basic facts of this matter as presented by Mr Kitto.
Submissions on Penalty:
[16] Mr Kitto presented written submissions on penalty. Since the introduction of the new testing regime on 1 April 2001 more than 23,769 standardbred horses have been pre-race blood tested, and the average reading for the horses tested is 30.9.
[17] Although the maximum allowable TCO2 reading is 35.0 mmol/L there is a ”buffer” margin and no prosecution is undertaken for any readings below 36.2 mmol/L. HRNZ has also recognised that persons in breach of this rule should be liable to differing penalties depending on the TCO2 level and have suggested the following penalties where there is a prompt admission of guilt and there are no aggravating factors.
i Between 36.2 and 37.2 mmol/L a fine of not less then $500-00.
ii Between 37.3 and 38.5 mmol/L a fine of $2000-00 and/or a suspension for a period in the vicinity of three months.
iii Above 38.5 mmol/L a fine in the vicinity of $5000-00 and/or disqualification up to six months.
[18] Mr Kitto submitted that the penalties being sought in the 2nd and 3rd categories were still appropriate and consistent with penalties which may be imposed today.
Mr Kitto listed the aggravating features as being –
i the level of TCO2 reported of 38.2.
ii the total lack of security at Mr Jones’ training establishment
and the mitigating factors as being –
i that Mr Jones was open, frank and co-operative throughout the investigation
ii that he admitted the breach at the first opportunity
iii that he had not previously offended
[19] Mr Kitto said it should also be taken in to account that Mr Jones has had a distinguished record in harness racing, firstly as a Junior Horseman, then as an Open Horseman, and more recently as a successful trainer.
[20] Mr Kitto submitted that in this case the matter could be dealt with by means of a fine, and that this fine should be $2000-00.
[21] Mr Jones had no relevant submissions to make regarding penalty.
Penalty:
Decision on Penalty:
[22] Rule 1004(7) and (8) provide as follows.
“(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:
(a) a fine not exceeding $10,000; and/or
(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.
(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.”
[23] Mr Kitto provided copies of several previous cases relating to elevated TCO2 prosecutions. Two cases related to the 2nd category (between 37.3 and 38.5) but were in amongst prosecutions for other more serious breaches of the Rules, and not of much help in this case.
[24] One of the above cases was HRNZ v. T which was the subject of an appeal. In T. v HRNZ the Appeal Tribunal stated at p.12, in relation to the graduated scale, as follows. “We consider the suggested scale is a useful guide to provide some consistency in this area of sentencing”.
[25] In the present case we find that the aggravating and mitigating factors in relation to this charge are as summarised by Mr Kitto. We find that Mr Jones’ excellent record and early admission of this breach offset the aggravating features of this matter. In addition we have taken into account that Mr Jones has recognised the lack of security at present, and his intention to remedy this matter when he moves into his new presmises
[26] Taking into account all the above matters we are satisfied that an appropriate penalty in this case is a fine of $2000-00 and Mr Jones is fined this amount.
Costs:
[27] Mr Kitto advised that no costs were being sought by HRNZ. There will, however, be an order that costs of $350-00 be paid to the Judicial Control Authority.
Disqualification of Horse:
[28] In accordance with Rule 1004(8) it is mandatory to disqualify “Algeepee” from the race. Accordingly “Algeepee” is disqualified from 4th place in the Staybrite Fabricators (2003) Ltd Mobile Pace at the New Zealand Metropolitan Trotting Club’s race meeting held at Addington Raceway on 30 October 2010, and the stake money is to be distributed according to HRNZ rules.
[29] The amended places are as follows.
1st – Indy Village (6)
2nd – Living Proof (2)
3rd – Breath Of Life (7)
4th – Romulus (11)
5th – Christian World (5)
6th – His Honour (9)
JM Phelan J Millar
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 31/12/2010
Publish Date: 31/12/2010
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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informantnumber: 69473
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decisiondate: 31/12/2010
hearing_title: Non Raceday Inquiry - HRNZ v MP Jones - 23 December 2010 - Decision
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
[1] The defendant is charged with one breach of Rule 1004(1), (1A), (2) and (3) of the Rules of Harness Racing. The charge (Information No. 69473) filed by Racecourse Inspector Mr Kitto reads as follows –
“On the 30th day of October 2010, Mark Peter Jones, was the trainer of the registered standard bred horse “ALGEEPEE” which had been taken to the Addington racecourse for the purpose of engaging in a race, namely Race 6, The Staybrite Fabricators (2003) Limited mobile pace, when a blood sample taken from the said horse disclosed a blood Carbon Dioxide (TCO2) level of 38.2mmol/l in plasma being greater than the Carbon Dioxide (TCO2) level set by the Executive of 35.0mmol/l in plasma being in breach of Rules 1004(1), (1A), (2) and (3).”
[2] Rules 1004(1), (1A), (2) and (3) referred to above, which come under the “Prohibited Substance Rule”, read 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.
(3) Where a person is left in charge of a horse, and the 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 and the person left in charge both commit a breach of these Rules.”
[3] Mr Jones had previously indicated that he admitted this breach of the Rule, and he confirmed this at the hearing.
Summary of Facts:
[4] Mr Kitto presented a “Summary of Facts” to this hearing. The horse “Allgeepee” was entered for and finished 4th in Race 6, Staybrite Stainless Fabricators (2003) Ltd Mobile Pace, at the New Zealand Metropolitan Trotting Club’s race meeting held at Addington Raceway on 30 October 2010.
[5] All horses in this race were pre-race blood tested, and the samples sent to the New Zealand Racing Laboratory in Auckland for analysis. On 3 November 2010 the Racing Laboratory advised by certificate showing that the total carbon dioxide (TCO2 ) result for “Allgeepee” was 38.2mmol/l. A copy of the Certificate of Analysis was presented in evidence.
[6] On 5 November 2010 Mr Jones was visited at his stables where he was interviewed by Racecourse Inspector Mr B. A. Kitto. Mr Jones could give no explanation for this high TCO2 reading. It was established by two Veterinarians that “Algeepee” was not being treated immediately before or on the day of racing. An examination was made of Mr Jones’ morning tea room, harness room wash and feed rooms. Several 44 gallon rubbish drums were examined and a variety of items were taken possession of for analysis. One of the items of interest was a 750g container of “Turbo Coat” which was found in a drum by Mr Jones’ feed room.
[7] There were a total of eight items seized and these were sent to the Racing Analyst for examination. On examination seven of these items were cleared as being unable to explain this high TCO2 level. The other item (Exh 6) was the empty 750g container of “Turbo Coat”. The residue in this container showed that there was a presence of a carbonate substance, but that it would have taken the administration of 1.4 of these containers to produce a TCO2 level above the threshold.
[8] After the stable visit Stipendiary Steward Mr N. M. Ydgren examined Mr Jones’ horse float, but nothing was found as a result of that search.
[9] The history of blood tests carried out on Mr Jones’ horses showed that since he has been training he has had 55 of his horses tested. The highest previous reading was 35.0 mmol/l, and the lowest 26.6 mmol/l. The earliest recorded test was on 20 April 2007.
[10] “Algeepee” had been tested once previously, when trained by a different trainer, and on that occasion had returned a reading of 31.7 mmol/l. After the present positive test “Algeepee” was tested four times, twice on race nights, and twice at Mr Jones’ stables. These tests returned readings of between 30.7 and 32.6 mmol/l.
[11] HRNZ Veterinary consultant, Mr Andrew Grierson, reviewed the literature and documentation regarding this matter and said that “….he could find no reason that could explain the elevated TCO2
…. (other than) “Algeepee” was administered an alkalising agent prior to racing”.
[12] Mr Kitto also advised that Mr Jones’ training property is located in an isolated area with no security.
[13] Mr Jones said that he could not explain this positive test, and did not believe it had resulted from anything fed to the horse. Mr Jones raised several possibilities which have been commented on by Mr Grierson in his letter of 2 December 2010 (Exh. 12). Mr Grierson referred to and dismissed the possibilities that elevated TCO2 readings could be caused when a horse is suffering an infection; profuse sweating by a horse; temperature increases; or in horses that have been over-trained. As set out above, Mr Grierson was of the opinion that an alkalising agent was administered to “Algeepee” prior to racing.
[14] Mr Jones did not dispute that security at his stables was poor. He said that he would be moving into a new complex in the new year and that a security system for these premises have been provided for.
[15] Mr Jones did not dispute the basic facts of this matter as presented by Mr Kitto.
Submissions on Penalty:
[16] Mr Kitto presented written submissions on penalty. Since the introduction of the new testing regime on 1 April 2001 more than 23,769 standardbred horses have been pre-race blood tested, and the average reading for the horses tested is 30.9.
[17] Although the maximum allowable TCO2 reading is 35.0 mmol/L there is a ”buffer” margin and no prosecution is undertaken for any readings below 36.2 mmol/L. HRNZ has also recognised that persons in breach of this rule should be liable to differing penalties depending on the TCO2 level and have suggested the following penalties where there is a prompt admission of guilt and there are no aggravating factors.
i Between 36.2 and 37.2 mmol/L a fine of not less then $500-00.
ii Between 37.3 and 38.5 mmol/L a fine of $2000-00 and/or a suspension for a period in the vicinity of three months.
iii Above 38.5 mmol/L a fine in the vicinity of $5000-00 and/or disqualification up to six months.
[18] Mr Kitto submitted that the penalties being sought in the 2nd and 3rd categories were still appropriate and consistent with penalties which may be imposed today.
Mr Kitto listed the aggravating features as being –
i the level of TCO2 reported of 38.2.
ii the total lack of security at Mr Jones’ training establishment
and the mitigating factors as being –
i that Mr Jones was open, frank and co-operative throughout the investigation
ii that he admitted the breach at the first opportunity
iii that he had not previously offended
[19] Mr Kitto said it should also be taken in to account that Mr Jones has had a distinguished record in harness racing, firstly as a Junior Horseman, then as an Open Horseman, and more recently as a successful trainer.
[20] Mr Kitto submitted that in this case the matter could be dealt with by means of a fine, and that this fine should be $2000-00.
[21] Mr Jones had no relevant submissions to make regarding penalty.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
Decision on Penalty:
[22] Rule 1004(7) and (8) provide as follows.
“(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:
(a) a fine not exceeding $10,000; and/or
(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.
(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.”
[23] Mr Kitto provided copies of several previous cases relating to elevated TCO2 prosecutions. Two cases related to the 2nd category (between 37.3 and 38.5) but were in amongst prosecutions for other more serious breaches of the Rules, and not of much help in this case.
[24] One of the above cases was HRNZ v. T which was the subject of an appeal. In T. v HRNZ the Appeal Tribunal stated at p.12, in relation to the graduated scale, as follows. “We consider the suggested scale is a useful guide to provide some consistency in this area of sentencing”.
[25] In the present case we find that the aggravating and mitigating factors in relation to this charge are as summarised by Mr Kitto. We find that Mr Jones’ excellent record and early admission of this breach offset the aggravating features of this matter. In addition we have taken into account that Mr Jones has recognised the lack of security at present, and his intention to remedy this matter when he moves into his new presmises
[26] Taking into account all the above matters we are satisfied that an appropriate penalty in this case is a fine of $2000-00 and Mr Jones is fined this amount.
Costs:
[27] Mr Kitto advised that no costs were being sought by HRNZ. There will, however, be an order that costs of $350-00 be paid to the Judicial Control Authority.
Disqualification of Horse:
[28] In accordance with Rule 1004(8) it is mandatory to disqualify “Algeepee” from the race. Accordingly “Algeepee” is disqualified from 4th place in the Staybrite Fabricators (2003) Ltd Mobile Pace at the New Zealand Metropolitan Trotting Club’s race meeting held at Addington Raceway on 30 October 2010, and the stake money is to be distributed according to HRNZ rules.
[29] The amended places are as follows.
1st – Indy Village (6)
2nd – Living Proof (2)
3rd – Breath Of Life (7)
4th – Romulus (11)
5th – Christian World (5)
6th – His Honour (9)
JM Phelan J Millar
Chairman Committee Member
hearing_type: Non-race day
Rules: 1004(1)1A)(2)(3)
Informant: BA Kitto - Stipendiary Steward
JockeysandTrainer:
Otherperson:
PersonPresent: Mr BA Kitto, Mr MP Jones, Mr NG McIntyre - Registrar, Mr JM Phelan, Judicial Committee Chairman, Mr J Millar, Judicial Committee Member
Respondent: Mr MP Jones - Public Trainer
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