Non Raceday Inquiry – RIU v PJ Scaife – Decision dated 22 June 2012
ID: JCA13870
Decision:
BEFORE A JUDICIAL COMMITTEE
IN THE MATTER of the New Zealand Rules of Harness Racing
IN THE MATTER of Information No.
67339
BETWEEN THOMAS RODNEY CARMICHAEL, Chief Racing Investigator for the Racing Integrity Unit
Informant
AND PETER JOHN SCAIFE of Foxton, Licensed Public Trainer
Respondent
Judicial Committee: Mr R G McKenzie (Chairman) - Mrs N Moffatt
Counsel for Parties: Mr C J Lange for Informant, Ms M-J Thomas for Respondent
Date of Decision: 22 June 2012
DECISION OF JUDICIAL COMMITTEE
The Charge
[1] Information No.67339 alleges that:
On the 9th day of February 2012, Peter John Scaife was the trainer and person for the time being in charge of the horse Innes Lad which was presented to race in race 6, The Whistle Blowers Mobile Pace, at a race meeting conducted by the Manawatu Harness Racing Club at Manawatu Raceway, when a pre-race blood sample taken from Innes Lad was found upon analysis to have a TCO² level of 37.2 mmol/L, in breach of the provisions of Rule 1004 (1A), 1004 (1) and 1004 (3) of the Rules of Harness Racing.
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.
(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.
(8) A 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.
The Plea
[3] In a teleconference on 16 April 2012, Ms Thomas, as Counsel for Mr Scaife, indicated that the charge was admitted.
[4] It was agreed by Counsel for the Informant and the Respondent, and accepted by the Committee, that it was not necessary to have a hearing but that the charge could be dealt with “on the papers”.
[5] A written Summary of Facts and Penalty Submissions have been filed by the Counsel for the Informant. Written submissions have also been received on behalf of the Respondent.
Summary of Facts
[6] Mr Scaife is a Public Trainer and Open Horseman. He has held a trainer’s licence for about 20 years.
[7] On 9 February 2012 the horse, INNES LAD, was officially trained by Mr Scaife at Foxton.
[8] On 9 February 2012, INNES LAD was correctly entered for and started in Race 6, The Whistler Blowers Mobile Pace, for horses with 2 wins for lifetime and horses with a claiming price up to and including $3,500 at a race meeting conducted by Manawatu Harness Racing Club at Manawatu Raceway. INNES LAD finished 10th of 12 starters in the race, was 11/11 in the betting and earned no stake money.
[9] INNES LAD was one of twelve horses pre-race blood tested in Race 6. All twelve horses had previously been tested for TCO² levels.
[10] The identification of the horse and the witnessing of the sample collection were carried out in accordance with the Regulations by the Veterinarian, Lucy Cahill, in the presence of the Racing Investigator and Mr Scaife. Mr Scaife signed the “Notice to Owner, Trainer, or Authorised Representative”.
[11] On 16 February 2012, the Racing Laboratory reported that the sample from INNES LAD had recorded a TCO² level of 37.2 mmol/L.
[12] Results from the 19 samples collected at the meeting ranged from 27.3 to 37.2 mmol/L. The second highest level recorded was 35.5.
[13] INNES LAD had been tested on two previous occasions (32.6 on 24/4/2009 and 35.5 on 24/4/2011) and on one occasion subsequent to 9 February 2012 (32.3 on 23/2/2012).
[14] Mr Scaife was interviewed at his stables on 20 February 2012. He has denied the administration of any alkali, by any means, to INNES LAD on 9 February 2012. He was unable to explain the elevated TCO² level that was recorded. He said that it was “a while ago” when he last used the product calcium propionate and he had none on his property.
[15] On 22 February 2012, Stipendiary Stewards from the Racing Integrity Unit went to Mr Scaife’s stable in Foxton as part of a routine stable inspection in the area. Samples of two products found at the property were subsequently analysed by NZ Racing Laboratory Services. One, which did not contain any significant amount of calcium, was found to be creatine and not calcium propionate. The other was a product known as “Jet Breath” which was found to not contain calcium propionate but an amount of carbonate species, probably sodium bicarbonate.
Penalty Submissions by the Informant
[16] A horse may be given a slurry of sodium bicarbonate (known colloquially as a “milkshake”) or other alkalising agents before a race in an attempt to enhance the performance of the animal.
[17] In a recently published paper by Messrs Hibbert, Armstrong & Vine – “Total CO² Measurements in a Horse: Where to Draw the Line” – a copy of which was produced to the Committee, the authors investigated the likelihood of a “non-doped horse” returning a positive test. The authors concluded:
For TCO² in horses, the present action threshold of 37.0 mmol/L is quite generous and would give a chance of conviction of an innocent trainer of less than 2,000,000 to 1.
[18] It was submitted for the Informant that the appropriate basis for this Committee to proceed is on is that the elevated level in this case is more probable than not to have resulted from an administration of an alkaline substance to the horse.
[19] The Informant conceded that it has not been possible to establish who was responsible for the administration to the horse. Accordingly, Mr Scaife has been charged on the basis that he has breached the Prohibited Substance Rule (Rule 1004) as opposed to the administration Rule - Rule 1001 (1) (q) and, it was submitted, penalty must be considered on the basis that Mr Scaife has failed to comply with his duty to ensure the horse was presented to race free of prohibited substances.
[20] The Informant referred to a number of leading cases in support of his submission that the duty on a trainer is high, that proper care and vigilance is required at all times at the stable and at the track, and that breaches as a result of negligence must be seriously viewed by Judicial Committees.
[21] The Informant referred to a statement by the Appeals Tribunal in the recent case of J (2012):
Once a breach is established, general deterrence and denunciation is appropriate in imposing penalty. There is a need to bring home to trainers/owners the heavy responsibility of presenting horses free of prohibited substances. Previous penalties have failed to do this…
[22] Since the decision in J, the Racing Integrity Unit has issued a notice to the racing industry that it would be seeking harsher penalties for breaches of the Prohibited Substance Rule. In addition, Harness Racing New Zealand has increased the maximum penalty for a breach of the Rule.
[23] The Informant invited the Committee to proceed on the basis that:
• The elevated TCO² level in the present case arose from an administration of an alkali substance;
• The administration could only have occurred where the Respondent failed to put in place expected standards of control and security;
• The failure to do so was grossly negligent and a major aggravating feature;
• The penalty needs to be one that provides general deterrence to other trainers that might be like minded to act; and
• The historical approach of imposing financial penalties has not acted as a general deterrent.
[24] The Informant submitted that, where the positive swab arises from an administration and the trainer has failed to put in place appropriate standards of control and security, an appropriate starting point is 6 months disqualification. A credit of between 1 and 2 months is appropriate where there is an admission of the breach.
Submissions by the Defendant
[25] Under the current interpretation of the Rule, the offending is one of absolute liability and, accordingly, the Respondent has admitted the breach.
[26] The Informant has relied on an article (see Paragraph [15]) to assert that this is a case where “it is more probable than not” that the elevated TCO² level has resulted from the administration of an alkaline substance to the horse. Notwithstanding that, the Informant has not charged the Respondent with administration, which carries a higher maximum penalty and is a serious racing offence.
[27] Ms Thomas referred to the 2010 case of J where the Respondent had presented a horse with a TCO² level of 38.2. In that case, the Informant submitted that a graduated categorisation of penalties should be imposed in the case of elevated TCO² levels. The Committee is aware that these guidelines, originally proposed by Harness Racing New Zealand, have been adopted by Judicial Committees since testing for TCO² levels was introduced over 10 years ago.
[28] Those guidelines provided for, in the case of a level between 36.2 and 37.2, a fine of $500. For a level between 37.3 and 38.5, a fine of $2,000 and/or suspension for 3 months was suggested and above 38.5 a fine in the vicinity of $5,000 and/or disqualification for up to 6 months was suggested as appropriate.
[29] In the J case, a fine of $2,000 was imposed, the Committee adopting the graduated scale and considering that a suspension or disqualification was not called for. Ms Thomas stressed that, in the J case, the Informant had submitted that the scale of penalties referred to was appropriate.
[30] By seeking a period of disqualification, the Informant is seeking to significantly increase the level of penalties imposed for “presentation” offences. Ms Thomas questioned whether increased penalties acted as a general deterrent and submitted that the Informant had not provided any evidential basis for the submission that the current level of sentences is insufficient.
[31] Ms Thomas referred to the cases referred to by the Informant in support of its submission that an increase in the penalty for a breach of the Prohibited Substance Rule is appropriate. In each of those cases, she pointed out, a fine was imposed as being a sufficient penalty to meet the need for general deterrence.
[32] Ms Thomas made reference to the Informant’s reference to the case of J (see Paragraph [19] above). She submitted that the statement must be read in the light of the entire decision and the fact that a fine was imposed. The Appeals Tribunal in that case held that a fine was sufficient to meet the need for general deterrence.
[33] It was submitted that certain factors support the contention that the Informant’s submission, that the “tariff” penalty for a first offence of TCO² be increased from a $500 fine to a starting point of 6 months’ disqualification, is unreasonable and unjustified. Ms Thomas cited the decision of the Appeals Tribunal in J which involved a similar Rule and a fine of $3,500 was imposed. She also submitted that it was wrong in principle to increase the penalties for TCO² breaches in reliance on one Australian study (refer paragraph [15] above). Finally, she submitted, that there was no evidence before the Committee that higher penalties are needed.
[34] Ms Thomas submitted that, if the Committee should decide to significantly increase sentencing tariffs as sought by the Informant, the Committee should not impose the new tariff on the Respondent. To do so would be contrary to the rule of legal certainty, which is a central requirement of the Rule of law.
[35] Finally, Ms Thomas submitted, the Committee should not impose a penalty on the Respondent that is clearly out of line with previous penalties imposed and submitted that the Committee should impose a fine of $500 in accordance with the Informant’s current penalty “model”.
The Penalty Rule
[36] 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.
[37] The maximum fine was increased in 2011 from $10,000. The reason for the increase given in the Harness Racing Weekly at the time was as follows:
The higher limits should act as a strong deterrent against breaching the Rules. This also does not mean that the level of fines will increase. It just allows Judicial Committees the flexibility to impose greater financial penalties in cases where they believe it is warranted.
Reasons for Penalty
[38] The Informant has submitted that the appropriate penalty in this case is a disqualification of the Respondent with a starting point of 6 months but with a discount of 1-2 months for his admission of the breach.
[39] The Informant submitted that the Committee should, in considering penalty, proceed on the basis that the elevated TCO² level is more probable than not to have resulted from an administration of an alkaline substance to the horse. In this regard he relies on the paper referred to in paragraph [15] above.
[40] The Informant has not been able to present any evidence whatsoever of administration and the Committee is not prepared to make a finding of administration in the absence of any such evidence, notwithstanding Hibbert, Armstrong & Vine’s article. The Informant acknowledged that it was not possible to establish who had been responsible for any administration to the horse.
[41] The Informant submitted that the Respondent had been “grossly negligent” in failing to put in place “expected standards of control and security”. This, it was submitted, was a “major aggravating feature”.
[42] The other principal thrust of the Informant’s submissions was that penalties for breaches of the Prohibited Substance Rule should be increased as a general deterrent and, in particular, that financial penalties have not proved to be a sufficient deterrent.
[43] Ms Thomas argued against a penalty significantly higher than previous penalties for elevated TCO² levels. She referred to the scale of penalties, graduated according to the level in each particular case, which has been previously followed and, in particular, she referred to the case of J (2010) in which a trainer was fined the sum of $2,000 for presenting a horse with a TCO² level of 38.2 mmol/L, a somewhat higher level than in the present case.
[44] The Committee was also persuaded by Ms Thomas’ submission that fines are the norm for breaches of the Prohibited Substance Rule and its predecessor, the so-called Drug Negligence Rule.
[45] Ms Thomas made particular reference to the penalty in the recent case of J (2012), a high profile case arising out of the Interdominion Pacers Grand Final in 2011. The trainer, Mr J, was fined the sum of $3,500 for a breach of the Prohibited Substance Rule where there was no evidence of the administration of the particular prohibited substance in that case, dimethyl sulphoxide (DMSO).
[46] We are persuaded, in particular by the two cases of J, that a monetary penalty will suffice in the present case. In arriving at that position, we have had regard also to the Respondent’s previous good record and his admission of the breach. Ms Thomas had also produced two commendatory character references on behalf of her client.
[47] In determining the quantum of fine, the Committee has used, as a starting point, the graduated scale of fines originally produced by Harness Racing New Zealand for charges arising out of elevated TCO² levels (see Paragraph 28). At the same time, the Committee recognises that the maximum fine for a breach of the Rule was increased by Harness Racing New Zealand in 2011 from $10,000 to $20,000. We consider that the fine in this case must reflect that.
Penalty:
[48] Taking all of the factors set out in our reasons above, the Committee considers that the appropriate penalty is a fine of $2,000 and the Respondent is fined the sum of $2,000 accordingly.
Disqualification of Horse
[49] The horse, INNES LAD, is disqualified from the race pursuant to Rule 1004(8).
Costs
[50] Both parties are invited to file written submissions in relation to costs. The Informant shall file any such submissions within 7 days of the date of this decision and the Respondent within 7 days of receiving the Informant’s submissions.
R G McKENZIE N MOFFATT
Chairman Panelist
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 15/06/2012
Publish Date: 15/06/2012
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.
hearingid: 7ab842de8fc85caf2df30f9b5849ca25
informantnumber: 67339
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 15/06/2012
hearing_title: Non Raceday Inquiry - RIU v PJ Scaife - Decision dated 22 June 2012
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE
IN THE MATTER of the New Zealand Rules of Harness Racing
IN THE MATTER of Information No.
67339
BETWEEN THOMAS RODNEY CARMICHAEL, Chief Racing Investigator for the Racing Integrity Unit
Informant
AND PETER JOHN SCAIFE of Foxton, Licensed Public Trainer
Respondent
Judicial Committee: Mr R G McKenzie (Chairman) - Mrs N Moffatt
Counsel for Parties: Mr C J Lange for Informant, Ms M-J Thomas for Respondent
Date of Decision: 22 June 2012
DECISION OF JUDICIAL COMMITTEE
The Charge
[1] Information No.67339 alleges that:
On the 9th day of February 2012, Peter John Scaife was the trainer and person for the time being in charge of the horse Innes Lad which was presented to race in race 6, The Whistle Blowers Mobile Pace, at a race meeting conducted by the Manawatu Harness Racing Club at Manawatu Raceway, when a pre-race blood sample taken from Innes Lad was found upon analysis to have a TCO² level of 37.2 mmol/L, in breach of the provisions of Rule 1004 (1A), 1004 (1) and 1004 (3) of the Rules of Harness Racing.
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.
(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.
(8) A 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.
The Plea
[3] In a teleconference on 16 April 2012, Ms Thomas, as Counsel for Mr Scaife, indicated that the charge was admitted.
[4] It was agreed by Counsel for the Informant and the Respondent, and accepted by the Committee, that it was not necessary to have a hearing but that the charge could be dealt with “on the papers”.
[5] A written Summary of Facts and Penalty Submissions have been filed by the Counsel for the Informant. Written submissions have also been received on behalf of the Respondent.
Summary of Facts
[6] Mr Scaife is a Public Trainer and Open Horseman. He has held a trainer’s licence for about 20 years.
[7] On 9 February 2012 the horse, INNES LAD, was officially trained by Mr Scaife at Foxton.
[8] On 9 February 2012, INNES LAD was correctly entered for and started in Race 6, The Whistler Blowers Mobile Pace, for horses with 2 wins for lifetime and horses with a claiming price up to and including $3,500 at a race meeting conducted by Manawatu Harness Racing Club at Manawatu Raceway. INNES LAD finished 10th of 12 starters in the race, was 11/11 in the betting and earned no stake money.
[9] INNES LAD was one of twelve horses pre-race blood tested in Race 6. All twelve horses had previously been tested for TCO² levels.
[10] The identification of the horse and the witnessing of the sample collection were carried out in accordance with the Regulations by the Veterinarian, Lucy Cahill, in the presence of the Racing Investigator and Mr Scaife. Mr Scaife signed the “Notice to Owner, Trainer, or Authorised Representative”.
[11] On 16 February 2012, the Racing Laboratory reported that the sample from INNES LAD had recorded a TCO² level of 37.2 mmol/L.
[12] Results from the 19 samples collected at the meeting ranged from 27.3 to 37.2 mmol/L. The second highest level recorded was 35.5.
[13] INNES LAD had been tested on two previous occasions (32.6 on 24/4/2009 and 35.5 on 24/4/2011) and on one occasion subsequent to 9 February 2012 (32.3 on 23/2/2012).
[14] Mr Scaife was interviewed at his stables on 20 February 2012. He has denied the administration of any alkali, by any means, to INNES LAD on 9 February 2012. He was unable to explain the elevated TCO² level that was recorded. He said that it was “a while ago” when he last used the product calcium propionate and he had none on his property.
[15] On 22 February 2012, Stipendiary Stewards from the Racing Integrity Unit went to Mr Scaife’s stable in Foxton as part of a routine stable inspection in the area. Samples of two products found at the property were subsequently analysed by NZ Racing Laboratory Services. One, which did not contain any significant amount of calcium, was found to be creatine and not calcium propionate. The other was a product known as “Jet Breath” which was found to not contain calcium propionate but an amount of carbonate species, probably sodium bicarbonate.
Penalty Submissions by the Informant
[16] A horse may be given a slurry of sodium bicarbonate (known colloquially as a “milkshake”) or other alkalising agents before a race in an attempt to enhance the performance of the animal.
[17] In a recently published paper by Messrs Hibbert, Armstrong & Vine – “Total CO² Measurements in a Horse: Where to Draw the Line” – a copy of which was produced to the Committee, the authors investigated the likelihood of a “non-doped horse” returning a positive test. The authors concluded:
For TCO² in horses, the present action threshold of 37.0 mmol/L is quite generous and would give a chance of conviction of an innocent trainer of less than 2,000,000 to 1.
[18] It was submitted for the Informant that the appropriate basis for this Committee to proceed is on is that the elevated level in this case is more probable than not to have resulted from an administration of an alkaline substance to the horse.
[19] The Informant conceded that it has not been possible to establish who was responsible for the administration to the horse. Accordingly, Mr Scaife has been charged on the basis that he has breached the Prohibited Substance Rule (Rule 1004) as opposed to the administration Rule - Rule 1001 (1) (q) and, it was submitted, penalty must be considered on the basis that Mr Scaife has failed to comply with his duty to ensure the horse was presented to race free of prohibited substances.
[20] The Informant referred to a number of leading cases in support of his submission that the duty on a trainer is high, that proper care and vigilance is required at all times at the stable and at the track, and that breaches as a result of negligence must be seriously viewed by Judicial Committees.
[21] The Informant referred to a statement by the Appeals Tribunal in the recent case of J (2012):
Once a breach is established, general deterrence and denunciation is appropriate in imposing penalty. There is a need to bring home to trainers/owners the heavy responsibility of presenting horses free of prohibited substances. Previous penalties have failed to do this…
[22] Since the decision in J, the Racing Integrity Unit has issued a notice to the racing industry that it would be seeking harsher penalties for breaches of the Prohibited Substance Rule. In addition, Harness Racing New Zealand has increased the maximum penalty for a breach of the Rule.
[23] The Informant invited the Committee to proceed on the basis that:
• The elevated TCO² level in the present case arose from an administration of an alkali substance;
• The administration could only have occurred where the Respondent failed to put in place expected standards of control and security;
• The failure to do so was grossly negligent and a major aggravating feature;
• The penalty needs to be one that provides general deterrence to other trainers that might be like minded to act; and
• The historical approach of imposing financial penalties has not acted as a general deterrent.
[24] The Informant submitted that, where the positive swab arises from an administration and the trainer has failed to put in place appropriate standards of control and security, an appropriate starting point is 6 months disqualification. A credit of between 1 and 2 months is appropriate where there is an admission of the breach.
Submissions by the Defendant
[25] Under the current interpretation of the Rule, the offending is one of absolute liability and, accordingly, the Respondent has admitted the breach.
[26] The Informant has relied on an article (see Paragraph [15]) to assert that this is a case where “it is more probable than not” that the elevated TCO² level has resulted from the administration of an alkaline substance to the horse. Notwithstanding that, the Informant has not charged the Respondent with administration, which carries a higher maximum penalty and is a serious racing offence.
[27] Ms Thomas referred to the 2010 case of J where the Respondent had presented a horse with a TCO² level of 38.2. In that case, the Informant submitted that a graduated categorisation of penalties should be imposed in the case of elevated TCO² levels. The Committee is aware that these guidelines, originally proposed by Harness Racing New Zealand, have been adopted by Judicial Committees since testing for TCO² levels was introduced over 10 years ago.
[28] Those guidelines provided for, in the case of a level between 36.2 and 37.2, a fine of $500. For a level between 37.3 and 38.5, a fine of $2,000 and/or suspension for 3 months was suggested and above 38.5 a fine in the vicinity of $5,000 and/or disqualification for up to 6 months was suggested as appropriate.
[29] In the J case, a fine of $2,000 was imposed, the Committee adopting the graduated scale and considering that a suspension or disqualification was not called for. Ms Thomas stressed that, in the J case, the Informant had submitted that the scale of penalties referred to was appropriate.
[30] By seeking a period of disqualification, the Informant is seeking to significantly increase the level of penalties imposed for “presentation” offences. Ms Thomas questioned whether increased penalties acted as a general deterrent and submitted that the Informant had not provided any evidential basis for the submission that the current level of sentences is insufficient.
[31] Ms Thomas referred to the cases referred to by the Informant in support of its submission that an increase in the penalty for a breach of the Prohibited Substance Rule is appropriate. In each of those cases, she pointed out, a fine was imposed as being a sufficient penalty to meet the need for general deterrence.
[32] Ms Thomas made reference to the Informant’s reference to the case of J (see Paragraph [19] above). She submitted that the statement must be read in the light of the entire decision and the fact that a fine was imposed. The Appeals Tribunal in that case held that a fine was sufficient to meet the need for general deterrence.
[33] It was submitted that certain factors support the contention that the Informant’s submission, that the “tariff” penalty for a first offence of TCO² be increased from a $500 fine to a starting point of 6 months’ disqualification, is unreasonable and unjustified. Ms Thomas cited the decision of the Appeals Tribunal in J which involved a similar Rule and a fine of $3,500 was imposed. She also submitted that it was wrong in principle to increase the penalties for TCO² breaches in reliance on one Australian study (refer paragraph [15] above). Finally, she submitted, that there was no evidence before the Committee that higher penalties are needed.
[34] Ms Thomas submitted that, if the Committee should decide to significantly increase sentencing tariffs as sought by the Informant, the Committee should not impose the new tariff on the Respondent. To do so would be contrary to the rule of legal certainty, which is a central requirement of the Rule of law.
[35] Finally, Ms Thomas submitted, the Committee should not impose a penalty on the Respondent that is clearly out of line with previous penalties imposed and submitted that the Committee should impose a fine of $500 in accordance with the Informant’s current penalty “model”.
The Penalty Rule
[36] 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.
[37] The maximum fine was increased in 2011 from $10,000. The reason for the increase given in the Harness Racing Weekly at the time was as follows:
The higher limits should act as a strong deterrent against breaching the Rules. This also does not mean that the level of fines will increase. It just allows Judicial Committees the flexibility to impose greater financial penalties in cases where they believe it is warranted.
Reasons for Penalty
[38] The Informant has submitted that the appropriate penalty in this case is a disqualification of the Respondent with a starting point of 6 months but with a discount of 1-2 months for his admission of the breach.
[39] The Informant submitted that the Committee should, in considering penalty, proceed on the basis that the elevated TCO² level is more probable than not to have resulted from an administration of an alkaline substance to the horse. In this regard he relies on the paper referred to in paragraph [15] above.
[40] The Informant has not been able to present any evidence whatsoever of administration and the Committee is not prepared to make a finding of administration in the absence of any such evidence, notwithstanding Hibbert, Armstrong & Vine’s article. The Informant acknowledged that it was not possible to establish who had been responsible for any administration to the horse.
[41] The Informant submitted that the Respondent had been “grossly negligent” in failing to put in place “expected standards of control and security”. This, it was submitted, was a “major aggravating feature”.
[42] The other principal thrust of the Informant’s submissions was that penalties for breaches of the Prohibited Substance Rule should be increased as a general deterrent and, in particular, that financial penalties have not proved to be a sufficient deterrent.
[43] Ms Thomas argued against a penalty significantly higher than previous penalties for elevated TCO² levels. She referred to the scale of penalties, graduated according to the level in each particular case, which has been previously followed and, in particular, she referred to the case of J (2010) in which a trainer was fined the sum of $2,000 for presenting a horse with a TCO² level of 38.2 mmol/L, a somewhat higher level than in the present case.
[44] The Committee was also persuaded by Ms Thomas’ submission that fines are the norm for breaches of the Prohibited Substance Rule and its predecessor, the so-called Drug Negligence Rule.
[45] Ms Thomas made particular reference to the penalty in the recent case of J (2012), a high profile case arising out of the Interdominion Pacers Grand Final in 2011. The trainer, Mr J, was fined the sum of $3,500 for a breach of the Prohibited Substance Rule where there was no evidence of the administration of the particular prohibited substance in that case, dimethyl sulphoxide (DMSO).
[46] We are persuaded, in particular by the two cases of J, that a monetary penalty will suffice in the present case. In arriving at that position, we have had regard also to the Respondent’s previous good record and his admission of the breach. Ms Thomas had also produced two commendatory character references on behalf of her client.
[47] In determining the quantum of fine, the Committee has used, as a starting point, the graduated scale of fines originally produced by Harness Racing New Zealand for charges arising out of elevated TCO² levels (see Paragraph 28). At the same time, the Committee recognises that the maximum fine for a breach of the Rule was increased by Harness Racing New Zealand in 2011 from $10,000 to $20,000. We consider that the fine in this case must reflect that.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
[48] Taking all of the factors set out in our reasons above, the Committee considers that the appropriate penalty is a fine of $2,000 and the Respondent is fined the sum of $2,000 accordingly.
Disqualification of Horse
[49] The horse, INNES LAD, is disqualified from the race pursuant to Rule 1004(8).
Costs
[50] Both parties are invited to file written submissions in relation to costs. The Informant shall file any such submissions within 7 days of the date of this decision and the Respondent within 7 days of receiving the Informant’s submissions.
R G McKENZIE N MOFFATT
Chairman Panelist
hearing_type: Non-race day
Rules: 1004(1A), 1004(1) and 1004(3)
Informant:
JockeysandTrainer:
Otherperson:
PersonPresent: Mr CJ Lange - Counsel for the Informant, Ms Mary Jane Thomas - Counsel for Mr Scaife
Respondent: Mr PJ Scaife - Licensed Public Trainer
StipendSteward:
raceid:
race_expapproval:
racecancelled:
race_noreport:
race_emailed1:
race_emailed2:
race_title:
submittochair:
race_expappcomment:
race_km:
race_otherexp:
race_chair:
race_pm1:
race_pm2:
meetid:
meet_expapproval:
meet_noreport:
waitingforpublication:
meet_emailed1:
meet_emailed2:
meetdate: no date provided
meet_title:
meet_expappcomment:
meet_km:
meet_otherexp:
tracklocation:
meet_racingtype:
meet_chair:
meet_pm1:
meet_pm2:
name: