Non Raceday Inquiry RIU v SG Dickson – Reserved Decision dated 24 July 2018 – Chair, Mr T Utikere

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decisiondate: 26/07/2018

hearing_title: Non Raceday Inquiry RIU v SG Dickson - Reserved Decision dated 24 July 2018 - Chair, Mr T Utikere

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE
JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT
Informant

AND SG DICKSON
Respondent

Judicial Committee: Mr T Utikere (Chairman), Mrs N Moffatt (Member)

Parties: Mr S Irving (for the RIU), Mr S Dickson (Respondent)

RESERVED DECISION OF JUDICIAL COMMITTEE DATED 24 JULY 2018

FACTS
[1] The Respondent, Mr SG Dickson (Licensed Public Trainer) faces a charge under the New Zealand Rules of Harness Racing.

[2] The charge is detailed in Information A7159 and alleges a breach of the Prohibited Substance Rule: Rules 1004(1A), (2) and (3) of the New Zealand Rules of Harness Racing.

[3] The relevant Rules are as follows:

“Rule 1004
(1A) A horse shall be presented for a race free of prohibited substances.
(2) A horse shall be presented for a race with a total carbon dioxide (TCO2) level at or below the level of 36.0 millimoles per litre in plasma.
(3) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.”

[4] The relevant Penalty Provision provides as follows:

“Rule 1004(7) 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.”

[5] The specific Information alleged:

Information No A7159
THAT, on the 01st May 2018, Scott George DICKSON, the trainer of the horse MAGICAL MOE which had been taken to the Wairarapa Harness Racing Club for the purpose of engaging in a Race 5 - the Masterton Racing Club Mobile Pace - failed to present the said horse free of prohibited substances namely Bicarbonate or other alkali substance as evidenced by a blood TCO2 level of 39.2mmol/L. This is in breach of the Prohibited Substance Rule, 1004 (1A) (2) & (3).

PRELIMINARY MATTERS
[6] In a Minute (dated 8 July 2018), the Committee noted that it was in receipt of the Notice of Appointment, the Charge Rules and Penalty Provisions and an Authority to Charge Letter from the General Manager of the Racing Integrity Unit, Mr M Godber. It also detailed that following a hearing at Awapuni on 7 July, a guilty plea was entered by the respondent. There were some matters relating to Penalty that arose during the course of the Hearing and both parties were invited to provide further Penalty Submissions on matters identified in the Minute. We are in receipt of that further information, and as such, we are now in a position to issue a full decision.

SUBMISSIONS
[7] The RIU submitted the following agreed Summary of Facts:

The Respondent Scott George DICKSON is a licensed trainer under the Rules of New Zealand Harness Racing (HRNZ). He is 39 years old and has been a harness trainer and driver since 1998.

MAGICAL MOE is a four year old gelding, trained by Dickson and owned by Dickson and his partner, Licensed Thoroughbred trainer Lydia Pickford. MAGICAL MOE has now had 8 starts for 1 win and 0 placings earning stakes of $6,465. Dickson has trained the horse since 29 March 2018, having had three starts for him.

MAGICAL MOE was correctly entered for and presented to race at the Wairarapa Harness Racing Club meeting at Manawatu Raceway on 01 May 2018. The horse was driven by Zach Butcher and finished 9th of 10 runners in Race 5 (4.26pm), the Masterton Racing Club Mobile Pace, winning a stake of $140.

RIU veterinarian Ms Ellie Grieves took two TCO2 blood samples from MAGICAL MOE at 3.42pm (44 minutes prior to his race) in the presence of Racecourse Investigator Simon Irving and trainer’s representative Ms Pickford. The blood samples were recorded with the Sample ID number 47291. Ms Pickford does not contest the taking of the samples.

This was the first time MAGICAL MOE had been TCO2 tested.

On 04 May the New Zealand Racing Laboratory Services (NZRLS) issued a certificate detailing the sample had returned a TCO2 result of 39.2 mmol/L, exceeding the accepted level of 36.0 set by Harness Racing New Zealand.

Dickson was interviewed at his property on 09 May. He stated that he and Pickford transported MAGICAL MOE with three of their other horses to the races in their own truck, arriving approximately 1.30pm, one hour prior to the first race. Neither he nor Pickford could provide any reason for MAGICAL MOE’S elevated level and stated that they have never knowingly administered to the horse any alkalizing agent by ‘tubing’ or any other method.

Dickson advised he has the ability to ‘tube’ a horse and that he did have tubing equipment on the property, however he had not done so for over a year when he had used it to administer electrolytes to other horses. He also advised that MAGICAL MOE was prone to ‘tying up’ and that it may get a handful of bicarbonate of soda in its feed and that Lydia makes up the feeds.

The tubing equipment was located in his gear room and examination revealed it had not been used for considerable time. Pickford advised that she may have given a small quantity of baking soda and ‘Neutra Syrup’ in MAGICAL MOE’S daily feed for ‘tying up’ but had since run out of the baking soda. Three feed supplement samples (including ‘Neutra Syrup’) were taken from the property, in addition to TCO2 samples from two other harness horses in work and forwarded to NZRLS for testing. None of the supplements contained alkalinising agents and the horse’s TCO2 samples returned ‘normal’ levels of 30.9 and 30.4.

Dickson had ‘sacked’ MAGICAL MOE due to its poor performances and the horse had been transferred to Licensed Trainer Allen Pyers two days after the race. A TCO2 sample was taken from MAGICAL MOE at Pyers’ property where he was ‘spelling’ the following day. The result of this sample was 28.4.

Dickson trained horses have previously been TCO2 tested on 17 occasions resulting in TCO2 levels in the ‘normal’ range between 29.0 and 32.6.

Dickson has no previous charges for presenting a horse with an elevated TCO2 level or breaching the prohibited substance rule.

[8] In response to questions from the Committee, Mr Irving confirmed that he was accompanied by fellow Investigator Mr Andy Cruickshank, and that it was Mr Cruickshank who observed the tubing equipment to be dusty and located at the rear of a shipping container. It was because of the state that the tubing equipment was in, and its location, that led Investigators to the view that it had not been used for some time.

[9] He also confirmed that Ms Pickford was involved with feeding on the property and detailed the feed regime for all the standardbred horses. Upon inspection of those supplements, Investigators thought that some may contain alkalising agents so were sent for laboratory testing where they were found to not contain any alkalising agents.

[10] While Ms Pickford had confirmed that she was charged with feeding both the standardbreds and thoroughbreds, the horses did not receive the same supplements, as their feeds were slightly different. Mr Dickson confirmed that this was due to the different preparation regimes required for each of the horses.

[11] Mr Dickson confirmed that he accepted the agreed Summary and that he admitted the breach. He identified that he had purchased MAGICAL MOE from the South Island and that it had won a maiden race by 14 lengths. He believed that its recent performance indicated an underlying problem in the background, and that if he had known, he would have had some bloods taken to confirm this. He said that MAGICAL MOE used to get a handful of Baking Soda in his daily feed due to tying up issues, and that was standard practice with many trainers. He was adamant that the horse had not been administered it in any other form. His possible explanation was that the horse had returned such a high TCO2 level due to the fact that he had a major virus which caused excessive swelling in his legs in the days following the race and that the stresses of racing had “brought it all out”.

[12] Mr Dickson also supplied the Committee with two written documents to support his contention that it was possible MAGICAL MOE was not well at the time.

[13] The first was a letter from local trainer Mr Allen Pyers. He confirmed that after picking MAGICAL MOE up from Manawatu Raceway on 3 April, he had noticed some swelling in all four legs from the knee down to the hoof. Mr Pyers believed there was no obvious explanation for this, but assumed he had a virus. After consulting fellow trainer Doug Gale, Mr Pyers was satisfied that was the case. As the season was close to the end, he decided not to race MAGICAL MOE and start fresh next season. After one week Mr Pyers had noticed the swelling had gone down and the gelding had brightened up considerably.

[14] The second document was from Mr Gale, which confirmed the nature of the exchange with Mr Pyers and concluded with “...the symptoms he described in my long experience as a public trainer were indicative of a serious illness” (Written Reference from Mr Doug Gale, 5 July 2018).  Mr Gale had also explained that if the horse had a virus, it would have led the horse to hold back fluids and result in the increased TCO2 levels.

[15] Mr Dickson also believed MAGICAL MOE to be a bleeder and that due to his race performances this was highly likely; however, it was unfortunate that he had never had the horse scoped by a vet to confirm that was the case.

[16] These were the only factors that he could identify to explain the high level as all his other horses had been tested and had been within the acceptable TCO2 range.

[17] In response to questions from the Committee, he confirmed that his observations were not of any illness, but of a puffy leg from the stress of racing. He had decided not to get a vet to look at the horse as racing at Manawatu was three weeks apart, which meant the horse could be freshened up. He also confirmed that his stable gave baking soda to other runners that suffer from ‘tie up’, and that it was not standard practice to put baking soda in all feeds.

[18] He did not have any formalised recording of the feed regime as Ms Pickford did most of the feeding, but that it also depended on what else what happening on the day. He advised that he along with another stable helper may at times feed the horses. He could not understand why the levels were so high when only a small amount of baking soda had been put into its feed.

[19] Mr Dickson stated that there was no intent behind this breach for the purpose of racing performance as MAGICAL MOE had run an ‘awful’ race on 1 May.

DECISION
[20] As indicated in the Minute of the Judicial Committee dated 8 July 2018, as the charge has been admitted, we deem the charge to be proved.

PENALTY SUBMISSIONS
The RIU

[21] For the RIU, Mr Irving filed the following written Penalty Submissions:

The Respondent, 39 year old Scott George Dickson is a Licensed Public Trainer under the New Zealand Rules of Harness Racing.

He has held a HRNZ drivers licence since 1996 and a trainer’s licence since 2002 (16 years) and currently trains from his property near Marton.

HRNZ records detail that Mr Dickson has trained 822 starters during his career with 81 winners.

Mr Dickson has admitted a breach of Rule 1004(1A) (3) & (4) for presenting his horse ‘Magical Moe’ to the races on 01.05.2018 with a TCO2 level of 39.2 mmol/L above the threshold of 36.0 mmol/L.

The circumstances are detailed in the attached Summary of Facts which have been agreed.

The penalties which may be imposed are detailed in the attached Charge Rule and Penalty Provisions Document.

Penalty Submissions
The RIU believes that an appropriate penalty for this breach is a $10,000 fine.

It is acknowledged that the JCA Penalty Guidelines from 01 May 2015 detail a starting point for HRNZ breach of the TCO2 Rule ‘first offence’ is a one year disqualification and a fine of up to $10,000.

In the Prohibited Substances Regulations of the Rules of Harness Racing TCO2 is a prohibited substance when detected in venous blood over the threshold of 36.0 mmol/L.

A guard band of 0.9 mmol/L is in place giving an action level of greater than 37.0 mmol/L.

The prescribed threshold was increased from 35.0 to 36.0 mmol/L on 09 October 2014.

At the time of the increase the HRNZ Board made it clear that there was a “firm expectation” that it expects a “stiffer regime of penalties” for subsequent breaches of the new threshold and that in their opinion the current penalties were insufficient.

In RIU v MP Jones (2015) counsel for the Informant Chris Lange advised “that with the increase in the TCO2 threshold, in future cases it will be seeking a significant increase in penalty imposed for a breach of the Prohibited Substance Rule. For a first breach of the Rule a short period of disqualification will be sought, coupled with a fine. For repeated breaches of the Rule, the RIU will be submitting lengthy periods of disqualification should be imposed.”

In the same decision the Committee noted “The Informant submits that, with that increase in the TCO2 threshold, the RIU will be seeking “a significant increase” in penalties for breaches of the Rule. Mr Lange has asked this Committee to record in this decision the intended approach for future cases. The Committee is not prepared to do this. Rather, we must deal with the matter of penalty on the basis of the Rule as it existed at the date of the offence and on the basis of previous penalties under that Rule. It would not be appropriate for us to pre-empt the approach to be taken by future Judicial Committees dealing with the new Rule 1004 and penalties under it.”

It is submitted that a period of disqualification in this case would be largely unmanageable and unenforceable given Mr Dickson’s partner is also a licensed trainer and they both train exclusively from their own training track and facilities.

Rule 1303(1)(b) details that a disqualified person may not train, assist or be involved in any capacity with breaking or gaiting a horse; and Rule 1303(1)(f) – may not, without written consent of the Board, enter upon the stable area of any licensed person.

Mr Dickson and Ms Pickford also own a dairy operation and manage a dry stock farm on their property with the stables adjacent to the dwelling, implement barns and milking shed.

It is the RIU’s position that it would be impossible to enforce a disqualification under these circumstances and therefore submit that an appropriate penalty is therefore the maximum fine, in lieu of a disqualification.

There have been no other results above the threshold since the increased level.

The administration to a horse of alkalising agents such as sodium bicarbonate raises the TCO2 levels in blood.

In a report from the HRNZ Chief Veterinarian Andrew Grierson (dated 04 June 2018) he states: To date the number of race day samples tested for TCO2 is over 30,000 with a mean of around 30.70 mmol/L TCO2 and a standard deviation of 1.7 mmol/L. Profuse sweating, high body temperatures, overtraining, normal feeds, confinement during transport, diurnal and seasonal variation, the age and sex, any metabolic alkalosis or respiratory acidosis have all been shown to elevate TCO2. However the action level of 37.0 mmol/L provides a wide safety margin of one in over two million for these variations. As the level of TCO2 increases past 37.0 mmol/L so does the chance of being an untreated event and 39.2 mmol/L being an untreated event is more than one in two billion.

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 although there is no peer reviewed scientific study to show it improves (or reduces at extreme levels) performance due to the fact there are too many variables.

Mr Dickson stated that he is adamant that he did not administer any alkalinising agent to ‘Magical Moe’ and has no idea how the positive could have occurred.

He did admit to being able to ‘tube’ a horse but had not done so for well over a year when he had administered electrolytes.

Tubing equipment was located at the rear of his gear room however upon examination it had not been used for considerable time.

Mr Dickson’s partner Lydia Pickford, a licensed thoroughbred trainer, is responsible for feeding all horses on their property.

Ms Pickford stated she may have added a small quantity of Baking Soda to ‘Magical Moe’s’ feed to assist with him ‘tying up’ but had run out some time prior – confirmed by an empty 500gm container of Pams Baking Soda found in the feed room.

Three other feed supplements fed to their horses were taken for analysis and all returned results negative to alkalinising agents.
Nine days after the positive result (and a transfer of stable) ‘Magical Moe’ was tested while ‘spelling’ returning a TCO2 reading of 28.4mmol/L.

Four other Dickson trained horses were subsequently tested returning levels of 30.9 and 30.4 (non raceday; the day Dickson was interviewed) and 31.1, 31.1, 30.2 (raceday).

Mr Dickson does not bet anymore, does not have a TAB account and did not wager on his horse that day.

‘Magical Moe’ finished 9th of 10 runners and was 9/9 in the betting.

An analysis of TAB betting records revealed no unusual bets associated with the horse or the race.

‘Magical Moe’ was placed 9th earning stakes of $140 and is required to be disqualified and placings amended.

Previous Cases
16.01.2015 - RIU v MP Jones – 36.2mmol/L; second offence, $4500 fine

10.10.2014 - RIU v P & L Jones – 37.3mmol/L; $2500 fine

23.06.2014 – RIU v J Keast & H Westrum – 36.2mmol/L; second offence, six month suspension and $2000 fine

21.10.2013 – RIU v J Keast & H Westrum – 37.0mmol/L; $2500 fine

All of these decisions were prior to the increase in the threshold level and the establishment of the JCA Penalty Guidelines in May 2015.

Sentencing Principles
The four principles of sentencing can be summarised briefly and the first three apply in this case:

● 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 JCA for the type of behaviour in question.
● The need to rehabilitate the offender should be taken into account.

Mitigating Factors
Mr Dickson has been fully cooperative throughout the investigation and pleaded guilty to the breach at the first opportunity.

Mr Dickson has been training now for 16 plus years and has not had a previous breach of this rule or any prohibited substance rule.

Prior to this breach his horses had been TCO2 tested on 17 occasions with results ranging in the ‘normal’ bracket between 29.0 – 32.6 mmol/L.

Aggravating Factors
In Grierson’s report he comments “The statistics for a horse to record a natural untreated high TCO2 level of 39.2 mmol/L is more than one in two billion. In other words there is a two billionth chance that the trainer Mr Scott Dickson is being wrongly accused of using an alkalising agent… In conclusion I can find no reason to explain a racehorse being presented to the races with a TCO2 level of 39.2 mmol/L besides that of an administration of an alkalising agent.”

In the 2012 Appeals decision RIU v S 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.”

It is submitted that the level of 39.2 mmol/L is at the higher end of the scale, the fourth highest of 52 samples at or over the old prosecution level of 36.1 since 2001 (the year that the three highest levels were recorded).

Costs
The RIU are seeking no costs.

Conclusion
Given the previous cases, the aggravating and mitigating factors as listed and the overall circumstances considered in this case, I believe a $10,000 fine is an appropriate penalty.

[22] In response to questions from the Committee, Mr Irving could not elaborate on the reasons why a suspension was imposed as opposed to a disqualification in RIU v Keast & Westrum (2014). He was also able to identify that the direction to licence holders warning them that tougher penalties for TCO2 breaches would follow, was contained in the written decision of RIU v Jones (2015).

[23] Mr Irving was asked to comment on his submission that a period of disqualification would be difficult to manage and enforce. In response he said that this would be due to the fact that the respondent and his partner were both trainers who shared the property and had their own training facility on site. They did not utilise a track off premise and therefore it would be very difficult to surveil Mr Dickson given the proximity of the rest of his working farm.

[24] With regard to Rule 1303(1)(f), Mr Irving was unsure as to the intent of the rule. He was not aware if that specific rule had been engaged previously but suggested that it could possibility relate to a situation of allowing a person to associate with someone who was a disqualified person, rather than the reverse. He reiterated the RIU’s position that a disqualification might under some circumstances be manageable, but from an RIU point of view with Mr Dickson it would be very difficult to enforce.

[25] Mr Irving also sought to put his fine only penalty into comparison with the what he believed was the only other specified prohibited substance threshold; which was Cobalt. When looking at the penalties for Cobalt in more recent times he identified that there had not been any period of disqualification and that the Starting Point was a $8,000 fine for both codes. He believed there were some similarities between TCO2 and Cobalt in that they were both elements of natural products, and therefore he was unaware as to why the disparity in starting points exists. Mr Irving also sought clarification from the Committee as to whether there was any flexibility in the JCA Penalty Guidelines. He also conceded that there was an error in his Penalty Submissions as the maximum fine should be identified as $20,000.

[26] When considering aggravating factors, and with specific reference to the Appeal of RIU v S, Mr Irving accepted that when one applies the culpability test identified in the Appeal decision, Mr Dickson’s culpability sits at the high end. This was supported by the reading being the highest TCO2 reading in 17 years.

[27] The RIU also confirmed that a disqualification would cover all racing codes and overseas racing jurisdictions as well. With respect to Mr Dickson, if he was a disqualified person under HRNZ, he would have the same limitations for any thoroughbred racing activities.

Mr Dickson
[28] In making submissions on Penalty, Mr Dickson accepted that the rule had been in place for a long time. Looking back over the previous six to seven years, he said that most breaches had been dealt with by way of a fine. Specifically, that first offences resulted in a fine in the range of$2,000-$2,500.

[29] He had no expectation that MAGIC MOE would run well or any differently on 1 May, and that it had run the same as it had the week before. He had no intent to improve the horse’s performance as opposed to other charges lately where the horses had won, were then required to be disqualified and had upset the TAB and the public as a result. He believed that was relevant when considering the level of fine.

[30] When the Committee indicated that the cases Mr Dickson was referring to, were prior to the current higher Starting Point for TCO2 breaches being in place, he accepted that the current Starting Point was a guide only; and that Mr P Scaife had a scenario with a similar positive at Palmerston North in 2012 and was fined $2,000. He believed the same charges were relevant 10 years ago, so they were still relevant now.

[31] Mr Dickson believed that his breach was minor in comparison to the ‘multiple positives’ in the Dunn, Townley and Burrows cases, which resulted in minimal fines. He also identified other single TCO2-offences had attracted a fine of $2,000 and double offences up to a fine of $4,500.

[32] When invited to submit on his living circumstances and what a $10,000 fine that was submitted by the RIU might mean, he confirmed that he and Ms Pickford owned and trained their own horses, and they had put a lot of effort in and had spent a lot of money on them. They were regular Harness Club supporters, having sponsored three race nights at Manawatu in addition to sponsoring the Club. He found this breach very disappointing and he and Ms Pickford were just trying to follow their passion.

[33] He also submitted written References from Messrs W Stapleton (Public Trainer), J Doody (Racing Administrator) and J Pickford (Rangitikei Sharemilker) to attest to his character.

[34] As indicated at para 6 the Committee received further Penalty Submissions from both parties. The further submissions from the RIU stated:

RIU further penalty submissions

1. As per the Minute of Judicial Committee dated 8 July 2018 the Informant makes the following additional submissions:

2. In relation to paragraphs [6] and [7] it remains the RIU position that a period of disqualification is practically unenforceable and the same belief applies to a period of suspension.

3. Both penalties are designed to prevent the person from training or assisting in any capacity in the training of a horse.

4. Mr Dickson is in effect an ‘owner / trainer’ in that he does not train horses for other owners and he does not drive horses for other trainers, nor does he enter in or drive his horses at workouts or trials like the majority of harness trainers in metro areas.

5. Practically if suspended or disqualified Mr Dickson could effectively continue to train his horses on his property without sanction unless the RIU were to ‘catch him in the act’.

6. Practically if disqualified Mr Dickson could also continue to assist Ms Pickford with her business of training thoroughbreds again undetected unless the RIU were to observe him doing so.

7. If he were not granted written consent of the board to enter onto the p

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