Non Raceday Inquiry RIU v LJ Stewart – decision dated 18 December 2015 – Chair, Mr S Ching

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decisiondate: 23/12/2015

hearing_title: Non Raceday Inquiry RIU v LJ Stewart - decision dated 18 December 2015 - Chair, Mr S Ching

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Decision:

BEFORE A JUDICIAL COMMITTEE

HELD AT ASHBURTON

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing 

IN THE MATTER of Information No. A6409

BETWEEN K R WILLIAMS, Racing Investigator for the Racing Integrity Unit

Applicant

AND LEONARD JAMES STEWART, Licensed Trainer

Respondent

Judicial Committee: S Ching (Chairman) - D Anderson (Committee Member)

Present: K R Williams, Racing Investigator (for the Racing Integrity Unit)

Mr L J Stewart, the Respondent

Date of Hearing: 18 December 2015

Venue: Ashburton Racecourse, Christchurch

Date of Decision: 18 December 2015

PENALTY DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A6409 alleges that, on the 11th November 2015, Leonard James STEWART, being the registered trainer of the thoroughbred UNICO administered, caused or permitted to be administered a Prohibited Substance, namely “Cool N Tite” which contains Arnica, at the Canterbury JC meeting. This is in breach of Rule 801(1)(n) of the New Zealand Thoroughbred Racing Rules and therefore liable to the penalty or penalties which may be imposed in accordance to the Penalty Rule 801(2).

The Plea

[2] The information was served on Mr Stewart on 6 December 2015 at 1349 hours. He signed the Statement by the Respondent on the information form indicating that he admitted the breach of the Rule.

[3] Mr Stewart was present at the hearing of the information and he indicated that he admitted the breach.

[4] The charge was found proved accordingly.

The Rule

[5] Rule 801(1) (n) provides as follows:

801 (1) A person commits a Serious Racing Offence within the meaning of these Rules who:

(n) (i) administers, causes or permits to be administered or who attempts to administer or to cause to be administered or who permits a person to administer or cause to be administered to a horse for the purpose of affecting the speed, stamina, courage or Page 99 of 168 conduct, a Prohibited Substance as defined in Part A of the Prohibited Substance Regulations;

(ii) acquires, administers, causes or permits to be administered or who attempts to acquire, administer or to cause to be administered or who permits a person to acquire, administer or cause to be administered to a horse a Prohibited Substance of the type as defined in Part B of the Prohibited Substance Regulations;

The Facts

[6] Mrs Williams presented the following agreed summary of facts:

1. The respondent Leonard James STEWART is a licenced trainer under the Rules of New Zealand Thoroughbred Racing and was first licensed in 1988.

2. On the 11th November 2015 “UNICO” was correctly entered to race by Mr STEWART in Race 6 at the Canterbury Jockey Club’s meeting at Riccarton Park.

3. At 1449hrs Stipendiary Steward Mr Liam Tidmarsh was walking through the stabling area and observed Mr STEWART rub a white cream into the legs of “UNICO”. After discussions with Mr STEWART and on course Veterinarian Miss Kendra McLeod it was established that the product “Cool N Tite – Sport Liniment” contained Arnica (Arnica Montana), Peppermint Oil, Wintergreen Oil and Tea Tree Oil.

4. Arnica is listed on the Period of detection List for NZEVA Veterinarians with a detection time of 2 day and possible withholding time of 3 days.

5. “UNICO” was scratched by the Stipendiary Stewards at 1513hrs under Rule 209(1)(c).

6. Co-Chief Stipendiary Steward Mr Nigel McIntyre interviewed Mr STEWART. Mr STEWART advised that he purchased “Cool N Tite” from the Saddlery Barn in Timaru and they advised him that it was ok to use on racehorses. Mr STEWART admitted in the interview that it was his fault for not knowing Arnica had a withholding time of 3 days.

7. A urine and blood sample were taken from “UNICO” and with a sample of “Cool N Tite” forwarded to the New Zealand Racing Laboratory for analysis.

8. The New Zealand Racing Laboratory advised on the 24th of November 2015 that the urine and blood sample taken from “UNICO” were “Cleared”.

9. Mr Andrew Grierson, Veterinary advisory for New Zealand Racing, confirmed by letter that Arnica is a prohibited substance under the Rules of Racing.

10. Mr STEWART has been involved in the racing industry for over 20 years and has a clear record for a breach of this nature.

Informant’s Penalty Submissions

[7] Mrs Williams presented the following submissions in relation to penalty:

1. Mr STEWART has pleaded guilty to a breach of Rule 801(1)(n) after applying “Cool N Tite” to UNICO’s legs at the races which contains a prohibited substance under the New Zealand Thoroughbred Rules of Racing, at the Canterbury JC meeting on 11th November 2015.

2. The penalty provisions that apply in this case are outlined in Rule 801(2).

Rule 801(2)

A person who commits a Serious Racing Offence shall be liable to:

(a) be disqualified for any specific period or for life; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $50,000.

3. Sentencing Principles -

The four principals of sentencing can be summarised briefly

• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

• In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offences.

• A penalty should also reflect the disapproval of the J.C.A for the type of behaviour in question.

• The need to rehabilitate the offender should be taken into account.

The first three principles are particularly important here.

4. Relevant Precedents –

In addition to the sentencing principles the Judicial Committee should have regard to relevant precedence. Similar offences have been brought against trainers under Rule 804(5) for administration on raceday where the substance has been given by way of injection.

In this instance Mr STEWART has applied the product topically. Topical application of a prohibited substance is not covered under Rule 804(5) resulting in Mr STEWART being charged for a breach of a Serious Racing Offence, Rule 801(1)(n). There are two cases of charges under Rule 801(1)(n) but they are not relevant to this case. The following breaches under Rule 804(5) of the NZ Thoroughbred Rules and Rule 1004(6) of the Harness Racing NZ Rules are relevant.

R.I.U. v P W Lock – 20 March 2013

Subject: Rule 804(5) Mr Lock administered substance by injection on raceday – glycerine. Fined $750. Extract from decision: “In dealing with integrity issues it is important for all those involved in the Racing Industry to be aware of how important “perception” is. In this case we are told by Mr Molloy that the substance was only glycerine and we are told by Mr Oatham that analysis of the sample was reported as negative. The important point to us, however, is that if a member of the public or for that matter other trainers saw Mr Lock squirting something into his horse’s mouth on raceday then the perception would be that he was doing something sinister.”

R.I.U. v N A Robinson – 20 April 2010

Subject: Rule 804(5) Miss Robinson administered substance on raceday. Fined $750. Extract from decision: “The Committee has sympathy with Miss Robinson with regard to the labelling on the bottle, Rule 804(5) is very clear pertaining to trainers’ obligations. This clearly state that with the exception of a veterinarian, no person shall administer on the day of racing any substance whatsoever.

R.I.U. v E W Arnold – 30 September 2011

Subject: Rule 1004(6) HRNZ; Mr Arnold administered Boost on raceday. Fined $400 “Mr Arnold administered the “Boost” to the two horses at his property prior to taking them to the race meeting. This is less serious than administering at the race track where the conduct would be likely to have been noticed by members of the public, bringing harness racing into disrepute.”

HRNZ v J J Clementson – 10 September 2009

Subject: Rule 1004(6) HRNZ; Mr Clementson administered substance on raceday, on appeal fined $2,500 and disqualified for 4 months.

HRNZ v E J Dawson – 13 June 2008

Subject: Rule 1004(6) HRNZ; Mr Dawson administered substance on raceday, fined $2,250.

HRNZ v J F Parsons – 27 April 2008

Subject: Rule 1004(6) HRNZ; Mr Parsons administered substance on raceday, glycerol, fined $3,000.

5. Aggravating Features –

Mr STEWART has been licenced for over 20 years and should be aware of the rules.

The RIU in conjunction with the codes produced the “Race Day Treatment of Racehorses Notice” that was gazetted with HRNZ, NZTR and the RIU from November 2014. “To assist in maintaining this principle, it is not permitted to administer any treatment to a horse on race day prior to it running in a race. The following advice is provided to assist trainers and veterinary surgeons in interpreting some of the potential ‘grey areas’ associated with the definition of a race day treatment…. As a general principle, it may be assumed that any substance administered with the intent or hope of achieving a pharmacological effect/therapeutic effect will be defined as treatment/medication under the Rules….Any substance administered by injection, by stomach tube, by paste, by dose syringe, but topical application or by inhalation will be considered a treatment…There are numerous products, often herbal or homeopathic preparations, that claim to provide significant pharmacological effects such as a diuretic action, analgesia, anti-inflammatory actions or bronchodilator actions and also claim to be undetectable by laboratory testing. These types of products are specifically prohibited…. If the product claims a therapeutic effect, it will be assumed that the product was administered to the horse with the intent of achieving that effect and it is a treatment, regardless of whether it is claimed to be safe, non-detectable and ‘all natural’.

On the bottle of “Cool N Tite” it is described as: “USES: Cool N Tite is a potent liniment used as a companion or substitute for poulticing after competition. This natural cream helps to cool the legs, hocks and heat in tendons. When applied to large areas of muscle reduces aches, swelling or bruising after strenuous exercise. Cool N Tite has natural ingredients with cooling action to assist circulation thus aiding restoration and repair mechanisms for faster recovery.” This product is advertised for use after competition. Mr STEWART put in on the horse prior to the horse intending to race.

Mr STEWART has acted on the advice of the people working at the Saddlery Barn, he has not sought Veterinary advice.

6. Mitigating Factors –

There was no malicious intent to improve the horse’s performance. Mr STEWART used the product with the horse’s wellbeing in mind.

Mr STEWART admitted the breach at the first opportunity and has co-operated fully throughout the investigation.

7. Conclusion –

The Racing Integrity Unit seeks a monetary penalty of a fine of $500 - $750.

Credit has to be given for the manner in which Mr STEWART has conducted himself during this enquiry and admitting the breach at the first opportunity.

The R.I.U. are not seeking to recover any costs in this matter.

Submissions of the Respondent

[8] Mr Stewart said that he was unaware there was a 3 day withholding period for the product “Cool N Tite” and at the time also unaware that administration of any product on race day was a breach of the rules. He also said that in hindsight he should have taken advice in regard to the product from his veterinary surgeon. He stated that he should have known better.

Penalty submissions of the Respondent

[9] Mr Stewart made no submissions in regard to penalty and stated he would leave it up to the Committee’s discretion as to the level of penalty to be imposed.

Reasons for Penalty

[10] Mrs Williams was not able to refer the Committee to any previous breach of Rule 801(1)(n) with similar facts to the present case. All other relevant precedent cases were under Rule 804(5) where administration was by injection with the most relevant to the Committee being the RIU v PW Lock and RIU v NA Robinson where both parties were fined the sum of $750. Mr Stewart has applied the product topically and therefore is not covered under Rule 805(4) resulting in Mr Stewart being charged with a breach of a Serious Racing Offence, Rule 801(1)(n). It is fair to say that the circumstances of the present case place this case at the lower end of the scale of seriousness.

[11] Mr Stewart has admitted the breach at the first opportunity and he has impressed the Committee as having genuine remorse for this breach of the rules. Mrs Williams stated that Mr Stewart had fully co-operated throughout the investigation and that credit should be given for this. These are significant mitigating factors. We also agree with Mrs Williams’ submission that there was no malicious intent to improve the horse’s performance and only used the product with the horses well-being in mind.

[12] The aggravating factors that the Committee discerned are that Mr Stewart has been a license holder for over 20 years and should have been aware of the rules. The RIU in conjunction with the Codes produced “Race Day Treatment of Horses” that was advertised with all codes and the RIU from 29 November 2014 where it states “it is not permitted to administer any treatment to a horse on race day prior to it running in a race” and follows with” topical application will be considered treatment”.

Mr Stewart topically applied “Cool N Tite” without consultation of a veterinary surgeon and instead acted on the advice of the people working at the Saddlery Barn which was naïve on his part.

[13] The Committee, in setting penalty, have adopted a starting point of $750 which aligns with the two relative penalties mentioned as well as the upper end of penalty submissions from the RIU. In taking the starting point of $750, the aggravating factors demand an uplift in penalty which we set at $100. Against this we are able to give Mr Stewart a discount for his genuine remorse, his ready admission of the breach and his cooperation throughout the investigation. This we set at $200.

[14] The Committee determined that a fine of $650 is an appropriate penalty in this case.

Penalty

[15] Accordingly Mr Stewart is fined the sum of $650.00.

S Ching            D Anderson

Chairman         Committee Member

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