Non Raceday Inquiry – RIU v CT Dalgety 9 February 2013 – Decision dated 20 February 2013
ID: JCA16606
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT ASHBURTON
IN THE MATTER of the New Zealand Rules of Harness Racing
IN THE MATTER of Information No. A5004
BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit
Informant
AND CRAN TERRY DALGETY of Christchurch, Licensed Public Trainer and Open Driver
Respondent
Date of Hearing: 9 February 2013
Venue: Ashburton Racecourse, Ashburton
Judicial Committee: R G McKenzie (Chair), S C Ching (Committee Member)
Present: Mrs K R Williams, the Informant - Mr C T Dalgety, the Respondent - Mr J M McLaughlin, Stipendiary Steward (Registrar)
Date of Decision: 20 February 2013
RESERVED DECISION OF JUDICIAL COMMITTEE
The Charge:
[1] Information No.A5004 alleges that:
On the 22nd November 2012, Cran Terry Dalgety, being the registered trainer of the standardbred MACINTOSH, presented the horse to race in Race 5, Don Cuttance Life Member Mobile Pace, at the Forbury Park Trotting Club meeting with a prohibited substance, namely Phenylbutazone and Oxyphenbutazone in its system. This is in breach of the Prohibited Substance Rule, Rule 1004 (1), (2) and (4).
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.
(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise that in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.
(4) A breach of these Rules under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.
The Plea:
[3] Mr Dalgety had signed the Statement by the Respondent at the foot of the information form indicating that he admitted the breach of the Rule. He confirmed this at the hearing. The charge was found proved.
Summary of Facts:
[4] MACINTOSH is a 3-year-old bay gelding (Mach Three – Style By The Mile) owned by Dr M R Marlow and B G Marlow and is trained by the Respondent, Licensed Public Trainer, Mr C T Dalgety.
[5] MACINTOSH was correctly entered and presented to race by the Respondent and was driven by Licensed Open Horseman, Mr D J Dunn, to win Race 5, Don Cuttance Life Member Mobile Pace, at the Forbury Park Trotting Club meeting on the 22nd November 2012.
[6] Following the race, the horse was routinely swabbed with “Licence to Train” trainer, Paul James Howlett, presenting the horse in the swab area for testing. A blood sample was taken by the Club’s Veterinarian, Mr John Keenan, after MACINTOSH failed to provide a urine sample.
[7] On the 6th day of December 2012, the New Zealand Racing Laboratory Services issued a Certificate of Analysis advising of the presence of Phenylbutazone and Oxyphenbutazone, substances that are prohibited under the Rules and Regulations of Harness Racing New Zealand, detected in the swab. Oxyphenbutazone is an active equine metabolite of Phenylbutazone.
[8] Phenylbutazone, commonly known as “bute”, is a non-steroidal anti-inflammatory drug used for the short-term treatment of pain and fever in horses. It is routinely used for pain relief from infections and musculoskeletal disorders. It acts directly on the musculosketal tissue to control inflammation, alleviating pain and allowing a restored range of movement. It may be administered orally, via a paste or a powder in a horse’s feed, or intravenously.
[9] Mrs Williams presented a letter from Dr Andrew Grierson, Chief Veterinarian for Harness Racing New Zealand, confirming that Phenylbutazone and the metabolite Oxyphenbutazone are classed as prohibited substances within the Rules and Regulations of that body.
10] On the 10th day of December 2012, Mrs Williams went with Racing Investigator, Mr Robin Scott, to Mr Dalgety’s property at West Melton where they advised him of the positive swab returned by MACINTOSH to the presence of Phenylbutazone and Oxyphenbutazone.
[11] Mr Dalgety confirmed to them that he had been unable to attend the race meeting on 22nd November and that the two horses he had racing at the meeting, MACINTOSH and FOR THE LADIES, were taken to Forbury Park by Public Horse Transport owned by Licensed Public Trainer, Mr R A Jenkins. Mr Dalgety dropped the two horses off at the stable premises of Mr Jenkins and they were tied to a wall, with Mr Dalgety leaving the property before they were loaded onto the truck.
[12] Mr Jenkins, when interviewed, confirmed that it was about 20-30 minutes later that the horses were loaded onto the truck for transporting to Dunedin. Mr Jenkins advised that, at the time, he was not treating any horses on his property with “bute”, but a horse had been treated with “bute” during Cup Week, a week earlier. He was adamant that MACINTOSH was never put in a box and that the gelding was not near the box in which the treated horse had been stabled and fed.
[13] On the float, were three hacks that were put at the front of the truck, four of Mr Jenkins’ own racehorses and Mr Dalgety’s two were placed at the back of the truck, in a drop down area on their own.
[14] The horses were off-loaded and placed in their allocated raceday boxes by Mr Jenkins at Forbury Park and given a lunchtime feed that had been pre-prepared by Mr Dalgety. The horses were fed in feed buckets, also supplied by Mr Dalgety. At Forbury Park, there are no permanent feeders in the boxes for trainers to use, primarily to avoid contamination.
[15] The horses were then left unattended for nearly an hour before stable representative, Mr D J Dunn, arrived on course. Mr Dunn geared the horses up before Race 1 and they were then left unattended for the majority of the night due to Mr Dunn’s driving commitments. Mr Dunn had a drive in every race and, for that reason, Mr Howlett took MACINTOSH to be swabbed, rather than a direct stable employee or representative.
[16] The swab sample was a blood sample so there was no control sample for analysis. The blood was taken directly from the vein of the horse into the vacutainer by the Club’s Veterinarian, Mr John Keenan. In a written statement produced at the hearing, Mr Keenan, who has been the Club’s raceday Veterinarian since 1978, stated that “there were no issues with taking the blood samples and they were taken in accordance with the New Zealand Rules of Harness Racing directions for taking blood samples”.
[17] Mr Dalgety elected to have the second sample tested by the approved Racing Analytical Services Limited in Victoria, Australia. They confirmed by fax on 9 January 2013 that the blood sample forwarded to them contained Phenylbutazone and Oxyphenbutazone. Mrs Williams forwarded to Mr Dalgety a copy of the e-mail from New Zealand Racing Laboratory Services with a copy of the fax from the Racing Analytical Services Limited attached.
[18] While Mrs Williams and Mr Scott were at Mr Dalgety’s property on 10 December 2012, two small pottles of Phenylbutazone were found in his drug cabinet. One of the pottles was labelled “Spero” which, they were advised, would have been for SPERO DENARIO, a 7-year-old bay gelding which Mr Dalgety had previously trained but which had been exported and cleared to Australia on 21 March 2011. The other pottle was unnamed.
[19] The two pottles were forwarded to the New Zealand Racing Laboratory Services for analysis. The Laboratory subsequently confirmed that both samples contained Phenylbutazone.
[20] Veterinary Surgeon, Mr Bill Bishop, who is Mr Dalgety’s primary Veterinarian, has confirmed that the two small pottles found on Mr Dalgety’s property were from his practice but they would have been dispensed prior to October 2011, as the withholding time had been changed from 6-10 days to 7-11 days after that date, as shown on the pottles. Dr Bishop also advised that he had not treated any horse on Mr Dalgety’s property with Phenylbutazone and that he had never treated MACINTOSH.
[21] While the Racing Investigators were at Mr Dalgety’s property, they also had MACINTOSH inspected by Veterinarian, Mrs Mitzi Taylor. She advised that the horse showed no signs of previous or present injuries and/or soreness that would require the use of Phenylbutazone.
22] Mr Dalgety confirmed that MACINTOSH had never been sore or sustained any injury that required any form of treatment. Mr Dalgety was very aware how using “bute” on a racehorse would show up like a “red light” and be easily detected in a swab. If he has cause to use “bute”, he gets a veterinary surgeon to give it by intravenous injection, he said. He does not currently keep supplies of “bute” for self-administration and, only on very rare occasions, has the vet left him any for continuous use as in the case of SPERO DENARIO, and certainly none in recent history.
[23] MACINTOSH has been swabbed twice since returning the positive swab (on 8 December and 23 December 2012) and they have both been negative.
Informant’s Submissions:
[24] Mrs Williams informed the Committee that Mr Dalgety had been extremely open and forthright in his dealings with the Racing Integrity Unit. He was entitled to credit for his early admission of the breach.
[25] Mr Dalgety was unable to explain how Phenylbutazone and Oxyphenbutazone were introduced into the horse’s system, as he had never treated MACINTOSH.
[26] In any racing stable in which medication has been given to a horse, there is potential for contamination. However, Mr Dalgety appears to have a good stable practice where any medication is given only by a veterinary surgeon or himself. Mr Dalgety and Dr Bishop have both advised that they had not treated any horse on the property within the previous month with Phenylbutazone. It was not able to be stated categorically how Phenylbutazone got into MACINTOSH’s system.
[27] Under the Rules, the Informant is not required to prove how a prohibited substance was introduced into a horse’s system, only that it was present. This present case can only be classified as a case of negligence rather than intent. Mr Dalgety has shown a degree of negligence in that the horses were transported on a public transporter, with other horses, without a stable representative. The horses were then left at Forbury Park, without any supervision, for a period of time before a stable representative arrived on course. The horses were then left unattended throughout the night due to the stable representative having other commitments.
[28] It was accepted that Mr Dalgety did not, by himself or with another person, wilfully administer the substance, Phenylbutazone, and that any administration was inadvertent.
[29] Notwithstanding that, the detection of a drug in a racehorse which has competed in and won a race is a serious matter. It is detrimental to the industry and erodes public confidence in harness racing. Mr Dalgety, as the person responsible for the horse and for producing it at the races free of prohibited substances, has accepted his responsibility under the Rules.
Submissions of Informant on Penalty:
[30] Mr Dalgety has a previous record for a breach of the Prohibited Substance Rule. After a hearing on 17 December 2009, he was fined the sum of $3,500 and ordered to pay costs of $350 to the JCA after HIP HOP ANVIL, trained by him, returned a positive swab to caffeine after placing 3rd in a Group 1 race on 10 November 2009.
[31] Mr Dalgety is a respected trainer and has trained over 800 winners. He is currently the leading trainer in New Zealand this season.
[32] Having regard to Mr Dalgety’s record, and the manner in which he has conducted himself, the Informant submitted that a fine in the vicinity of $6,000 to $7,000 should be imposed.
Respondent’s Submissions:
[33] Mr Dalgety said that he was a “third generation horse trainer” and he had been training for 21 years on his own account. He is not a “fly by nighter” or a “drug cheat”.
[34] He has had discussions with his foreman and staff in an endeavour to find out how the positive swab had come about. He had not been treating any other horse or horses with “bute”. Treatment was normally administered by injection post-race or by a paste in the mouth several days after the race, a simple procedure, he said.
[35] With regard to the two pottles that were found on his property, one was for SPERO DENARIO which was a bad knee knocker and tended to “blow up” in the knees. The pottles had been there for 3-4 years, Mr Dalgety said.
[36] This was not a case where he had been treating a horse and had made a mistake with the withholding period.
[37] On a trip to Forbury Park, he would normally use his own float or either of the horse transport operators, Interisland or Majestic. However, for this particular meeting, neither of those operators was going to Forbury Park. It was a common practice to pool with other trainers, he said. He paid Mr Jenkins to transport the two horses to Forbury Park. He did not attach any blame to Mr Jenkins for what happened.
[38] Mr Dalgety said that he prided himself on his professionalism and desired an “even playing field” to help him try to win a trainers’ premiership. He wanted to be successful in the industry. He has horses and staff doing a lot of travelling. He would like to be with every horse at every meeting but he had to rely on his staff. It was the nature of his business, he said.
[39] The Committee asked Mr Dalgety to comment on Mrs Williams’ submission that he had been negligent in certain respects (paragraph [26] above). He said it was commonplace for horses to be left unattended at the racecourse. This would have been the case, even if he had accompanied the horses. There was little or no security at Forbury Park, he said.
[40] Mr Dalgety produced a character reference from Bernard Marlow, part-owner of MACINTOSH. That letter confirmed that Mr Dalgety had paid out to the owners the stake that would be lost through the horse being disqualified. Mr Dalgety said that he did not wish the horse’s owners to suffer any loss.
[41] Mr Dalgety told the Committee that he had incurred the cost of having the second blood sample analysed and this had cost him $1,500. This, on top of a fine and reimbursing the owners, would be a major financial burden, he said.
[42] Of great concern to him was the stain on his reputation that came with a drug or prohibited substance charge.
Disqualification of the horse:
[43] Mrs Williams referred to Rule 1004D of the Rules of Harness Racing which provides:
Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested any prohibited substance shall be disqualified from the race.
[44] Mrs Williams said that the winning stake has not been paid out. Mr Dalgety confirmed that disqualification of the horse was not contested. Mrs Williams sought disqualification of MACINTOSH.
[45] The Committee ordered that MACINTOSH be disqualified (effective from 9 February 2013) from Race 5, Don Cuttance Life Member Mobile Pace, at the meeting of Forbury Park Trotting Club held at Forbury Park Raceway on 22nd November 2012. As a consequence of the disqualification, the amended result for the Race is as follows:
1st Harmony Rule
2nd Just A Marvel
3rd Donostia
4th Ultimate Blue Jean
The Committee ordered that stakes for the Race be paid in accordance with that amended result.
Reasons for Penalty:
[46] The relevant 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.
[47] The Committee notes that the maximum fine under Rule 1004 (7) (a) was increased by Harness Racing New Zealand from $10,000 to $20,000 in 2011, reflecting the desire of that body to provide a greater deterrent. In the Committee’s view, penalties imposed for breaches of the Rule prior to March 2011 need to be looked at in the light of that.
[48] The principal mitigating factors, to which the Committee has had regard in determining penalty, are Mr Dalgety’s early admission of the breach and his cooperation with the Racing Integrity Unit during its investigation. In addition, the Committee has taken into account that Mr Dalgety has paid the winning stake of $3,000 to the owners of MACINTOSH. Those factors deserve significant weight.
[49] Against those factors, is the ever-present need to maintain the integrity of and public confidence in harness racing by adequately punishing the breach and deterring Mr Dalgety and others from offending in a similar manner in the future.
[50] The previous breach by Mr Dalgety in 2009 is an obvious aggravating factor. Mr Dalgety was fined the sum of $3,500 on that occasion and the Judicial Committee, in arriving at penalty, gave considerable weight to his unblemished record in 17 years as a trainer. Aggravating factors in that case included the status of the race (Group 1) and the stake payable ($200,000). The race won by MACINTOSH was a race for non-winners for a total stake of $4,517 so the status of the race and the stake payable are not factors to be taken into account in the present case.
[51] The Informant has not alleged that Mr Dalgety had deliberately administered the prohibited substance to MACINTOSH and the Committee has no basis for any finding that he did so.
[52] Nevertheless, the Committee finds that Mr Dalgety was negligent in a number of respects, as submitted by Mrs Williams. Specifically, he was negligent in having the two horses transported to the race meeting in a public transporter, with other horses, without an attendant from his stable, and in leaving the horses unattended at the track prior to the arrival of his stable representative, Mr Dunn, who then left the horses unattended throughout the evening due to his having a drive in every race at the meeting. It has been held, in many previous cases, that it is negligent to leave a horse or horses unattended at the racecourse for any length of time. In saying this, the Committee accepts that to do otherwise can often involve very real logistical problems for trainers.
[53] The Committee attaches little or no weight to the fact that two pottles of the substance “bute” were found in Mr Dalgety’s drug cabinet and accepts the reason, as given by Mr Dalgety, for their presence there.
[54] Mrs Williams referred the Committee to a number of earlier cases in which penalties have been imposed for breaches of the Prohibited Substance Rule. She made reference to two previous cases involving Phenylbutazone – D in 2011 and M in 2011, in which the trainers were fined $1,800 and $2,000 respectively. The D case predated the amendment of the Rule increasing the maximum fine from $10,000 to $20,000 while, in M, the case arose out of a qualifying trial.
[55] Mrs Williams referred the Committee to a number of other previous cases of breaches of the Rule and the penalties imposed. In the most relevant of those cases, the fines appeared to range from $1,800 at the lower end to $3,500 at the upper end. All but one preceded the increase of the maximum fine under Rule 1004 (7) (a). One fine of $3,500 referred to was imposed on the trainer of the winner of a major race (Interdominion Pacers Grand Final) for a positive to DMSO (Dimethylsulfoxide).
[56] In the view of the Committee, the most helpful case involving a breach of the Prohibited Substance Rule is the recent case of W (December 2012). That case involved a well-respected and successful trainer with an unblemished record in which a horse trained by him had returned a positive swab to Procaine. The fine imposed by the Judicial Committee in the W case was $3,500.
[57] Having regard to all of the matters referred to above, the Committee is satisfied that a fine of $6,000 is an appropriate penalty in this case. We believe that such a penalty will satisfy the principal requirements of sentencing – that is to say, to punish the offender, to deter the offender and others in the industry and the need to maintain integrity and public confidence in harness racing.
Penalty:
[58] Mr Dalgety is fined the sum of $6,000.00.
Costs:
[59] Mrs Williams did not seek any award of costs in favour of the Racing Integrity Unit and, accordingly, no order is made.
[60] Mr Dalgety is ordered to pay costs in the sum of $350.00 to the Judicial Control Authority by way of contribution to the hearing costs of the Authority.
R G McKenzie S C Ching
(Chair) (Commitee Member)
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 19/02/2013
Publish Date: 19/02/2013
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: cb99de998cadd66f9cb8939c829e334c
informantnumber: A5004
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 19/02/2013
hearing_title: Non Raceday Inquiry - RIU v CT Dalgety 9 February 2013 - Decision dated 20 February 2013
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT ASHBURTON
IN THE MATTER of the New Zealand Rules of Harness Racing
IN THE MATTER of Information No. A5004
BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit
Informant
AND CRAN TERRY DALGETY of Christchurch, Licensed Public Trainer and Open Driver
Respondent
Date of Hearing: 9 February 2013
Venue: Ashburton Racecourse, Ashburton
Judicial Committee: R G McKenzie (Chair), S C Ching (Committee Member)
Present: Mrs K R Williams, the Informant - Mr C T Dalgety, the Respondent - Mr J M McLaughlin, Stipendiary Steward (Registrar)
Date of Decision: 20 February 2013
RESERVED DECISION OF JUDICIAL COMMITTEE
The Charge:
[1] Information No.A5004 alleges that:
On the 22nd November 2012, Cran Terry Dalgety, being the registered trainer of the standardbred MACINTOSH, presented the horse to race in Race 5, Don Cuttance Life Member Mobile Pace, at the Forbury Park Trotting Club meeting with a prohibited substance, namely Phenylbutazone and Oxyphenbutazone in its system. This is in breach of the Prohibited Substance Rule, Rule 1004 (1), (2) and (4).
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.
(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise that in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.
(4) A breach of these Rules under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.
The Plea:
[3] Mr Dalgety had signed the Statement by the Respondent at the foot of the information form indicating that he admitted the breach of the Rule. He confirmed this at the hearing. The charge was found proved.
Summary of Facts:
[4] MACINTOSH is a 3-year-old bay gelding (Mach Three – Style By The Mile) owned by Dr M R Marlow and B G Marlow and is trained by the Respondent, Licensed Public Trainer, Mr C T Dalgety.
[5] MACINTOSH was correctly entered and presented to race by the Respondent and was driven by Licensed Open Horseman, Mr D J Dunn, to win Race 5, Don Cuttance Life Member Mobile Pace, at the Forbury Park Trotting Club meeting on the 22nd November 2012.
[6] Following the race, the horse was routinely swabbed with “Licence to Train” trainer, Paul James Howlett, presenting the horse in the swab area for testing. A blood sample was taken by the Club’s Veterinarian, Mr John Keenan, after MACINTOSH failed to provide a urine sample.
[7] On the 6th day of December 2012, the New Zealand Racing Laboratory Services issued a Certificate of Analysis advising of the presence of Phenylbutazone and Oxyphenbutazone, substances that are prohibited under the Rules and Regulations of Harness Racing New Zealand, detected in the swab. Oxyphenbutazone is an active equine metabolite of Phenylbutazone.
[8] Phenylbutazone, commonly known as “bute”, is a non-steroidal anti-inflammatory drug used for the short-term treatment of pain and fever in horses. It is routinely used for pain relief from infections and musculoskeletal disorders. It acts directly on the musculosketal tissue to control inflammation, alleviating pain and allowing a restored range of movement. It may be administered orally, via a paste or a powder in a horse’s feed, or intravenously.
[9] Mrs Williams presented a letter from Dr Andrew Grierson, Chief Veterinarian for Harness Racing New Zealand, confirming that Phenylbutazone and the metabolite Oxyphenbutazone are classed as prohibited substances within the Rules and Regulations of that body.
10] On the 10th day of December 2012, Mrs Williams went with Racing Investigator, Mr Robin Scott, to Mr Dalgety’s property at West Melton where they advised him of the positive swab returned by MACINTOSH to the presence of Phenylbutazone and Oxyphenbutazone.
[11] Mr Dalgety confirmed to them that he had been unable to attend the race meeting on 22nd November and that the two horses he had racing at the meeting, MACINTOSH and FOR THE LADIES, were taken to Forbury Park by Public Horse Transport owned by Licensed Public Trainer, Mr R A Jenkins. Mr Dalgety dropped the two horses off at the stable premises of Mr Jenkins and they were tied to a wall, with Mr Dalgety leaving the property before they were loaded onto the truck.
[12] Mr Jenkins, when interviewed, confirmed that it was about 20-30 minutes later that the horses were loaded onto the truck for transporting to Dunedin. Mr Jenkins advised that, at the time, he was not treating any horses on his property with “bute”, but a horse had been treated with “bute” during Cup Week, a week earlier. He was adamant that MACINTOSH was never put in a box and that the gelding was not near the box in which the treated horse had been stabled and fed.
[13] On the float, were three hacks that were put at the front of the truck, four of Mr Jenkins’ own racehorses and Mr Dalgety’s two were placed at the back of the truck, in a drop down area on their own.
[14] The horses were off-loaded and placed in their allocated raceday boxes by Mr Jenkins at Forbury Park and given a lunchtime feed that had been pre-prepared by Mr Dalgety. The horses were fed in feed buckets, also supplied by Mr Dalgety. At Forbury Park, there are no permanent feeders in the boxes for trainers to use, primarily to avoid contamination.
[15] The horses were then left unattended for nearly an hour before stable representative, Mr D J Dunn, arrived on course. Mr Dunn geared the horses up before Race 1 and they were then left unattended for the majority of the night due to Mr Dunn’s driving commitments. Mr Dunn had a drive in every race and, for that reason, Mr Howlett took MACINTOSH to be swabbed, rather than a direct stable employee or representative.
[16] The swab sample was a blood sample so there was no control sample for analysis. The blood was taken directly from the vein of the horse into the vacutainer by the Club’s Veterinarian, Mr John Keenan. In a written statement produced at the hearing, Mr Keenan, who has been the Club’s raceday Veterinarian since 1978, stated that “there were no issues with taking the blood samples and they were taken in accordance with the New Zealand Rules of Harness Racing directions for taking blood samples”.
[17] Mr Dalgety elected to have the second sample tested by the approved Racing Analytical Services Limited in Victoria, Australia. They confirmed by fax on 9 January 2013 that the blood sample forwarded to them contained Phenylbutazone and Oxyphenbutazone. Mrs Williams forwarded to Mr Dalgety a copy of the e-mail from New Zealand Racing Laboratory Services with a copy of the fax from the Racing Analytical Services Limited attached.
[18] While Mrs Williams and Mr Scott were at Mr Dalgety’s property on 10 December 2012, two small pottles of Phenylbutazone were found in his drug cabinet. One of the pottles was labelled “Spero” which, they were advised, would have been for SPERO DENARIO, a 7-year-old bay gelding which Mr Dalgety had previously trained but which had been exported and cleared to Australia on 21 March 2011. The other pottle was unnamed.
[19] The two pottles were forwarded to the New Zealand Racing Laboratory Services for analysis. The Laboratory subsequently confirmed that both samples contained Phenylbutazone.
[20] Veterinary Surgeon, Mr Bill Bishop, who is Mr Dalgety’s primary Veterinarian, has confirmed that the two small pottles found on Mr Dalgety’s property were from his practice but they would have been dispensed prior to October 2011, as the withholding time had been changed from 6-10 days to 7-11 days after that date, as shown on the pottles. Dr Bishop also advised that he had not treated any horse on Mr Dalgety’s property with Phenylbutazone and that he had never treated MACINTOSH.
[21] While the Racing Investigators were at Mr Dalgety’s property, they also had MACINTOSH inspected by Veterinarian, Mrs Mitzi Taylor. She advised that the horse showed no signs of previous or present injuries and/or soreness that would require the use of Phenylbutazone.
22] Mr Dalgety confirmed that MACINTOSH had never been sore or sustained any injury that required any form of treatment. Mr Dalgety was very aware how using “bute” on a racehorse would show up like a “red light” and be easily detected in a swab. If he has cause to use “bute”, he gets a veterinary surgeon to give it by intravenous injection, he said. He does not currently keep supplies of “bute” for self-administration and, only on very rare occasions, has the vet left him any for continuous use as in the case of SPERO DENARIO, and certainly none in recent history.
[23] MACINTOSH has been swabbed twice since returning the positive swab (on 8 December and 23 December 2012) and they have both been negative.
Informant’s Submissions:
[24] Mrs Williams informed the Committee that Mr Dalgety had been extremely open and forthright in his dealings with the Racing Integrity Unit. He was entitled to credit for his early admission of the breach.
[25] Mr Dalgety was unable to explain how Phenylbutazone and Oxyphenbutazone were introduced into the horse’s system, as he had never treated MACINTOSH.
[26] In any racing stable in which medication has been given to a horse, there is potential for contamination. However, Mr Dalgety appears to have a good stable practice where any medication is given only by a veterinary surgeon or himself. Mr Dalgety and Dr Bishop have both advised that they had not treated any horse on the property within the previous month with Phenylbutazone. It was not able to be stated categorically how Phenylbutazone got into MACINTOSH’s system.
[27] Under the Rules, the Informant is not required to prove how a prohibited substance was introduced into a horse’s system, only that it was present. This present case can only be classified as a case of negligence rather than intent. Mr Dalgety has shown a degree of negligence in that the horses were transported on a public transporter, with other horses, without a stable representative. The horses were then left at Forbury Park, without any supervision, for a period of time before a stable representative arrived on course. The horses were then left unattended throughout the night due to the stable representative having other commitments.
[28] It was accepted that Mr Dalgety did not, by himself or with another person, wilfully administer the substance, Phenylbutazone, and that any administration was inadvertent.
[29] Notwithstanding that, the detection of a drug in a racehorse which has competed in and won a race is a serious matter. It is detrimental to the industry and erodes public confidence in harness racing. Mr Dalgety, as the person responsible for the horse and for producing it at the races free of prohibited substances, has accepted his responsibility under the Rules.
Submissions of Informant on Penalty:
[30] Mr Dalgety has a previous record for a breach of the Prohibited Substance Rule. After a hearing on 17 December 2009, he was fined the sum of $3,500 and ordered to pay costs of $350 to the JCA after HIP HOP ANVIL, trained by him, returned a positive swab to caffeine after placing 3rd in a Group 1 race on 10 November 2009.
[31] Mr Dalgety is a respected trainer and has trained over 800 winners. He is currently the leading trainer in New Zealand this season.
[32] Having regard to Mr Dalgety’s record, and the manner in which he has conducted himself, the Informant submitted that a fine in the vicinity of $6,000 to $7,000 should be imposed.
Respondent’s Submissions:
[33] Mr Dalgety said that he was a “third generation horse trainer” and he had been training for 21 years on his own account. He is not a “fly by nighter” or a “drug cheat”.
[34] He has had discussions with his foreman and staff in an endeavour to find out how the positive swab had come about. He had not been treating any other horse or horses with “bute”. Treatment was normally administered by injection post-race or by a paste in the mouth several days after the race, a simple procedure, he said.
[35] With regard to the two pottles that were found on his property, one was for SPERO DENARIO which was a bad knee knocker and tended to “blow up” in the knees. The pottles had been there for 3-4 years, Mr Dalgety said.
[36] This was not a case where he had been treating a horse and had made a mistake with the withholding period.
[37] On a trip to Forbury Park, he would normally use his own float or either of the horse transport operators, Interisland or Majestic. However, for this particular meeting, neither of those operators was going to Forbury Park. It was a common practice to pool with other trainers, he said. He paid Mr Jenkins to transport the two horses to Forbury Park. He did not attach any blame to Mr Jenkins for what happened.
[38] Mr Dalgety said that he prided himself on his professionalism and desired an “even playing field” to help him try to win a trainers’ premiership. He wanted to be successful in the industry. He has horses and staff doing a lot of travelling. He would like to be with every horse at every meeting but he had to rely on his staff. It was the nature of his business, he said.
[39] The Committee asked Mr Dalgety to comment on Mrs Williams’ submission that he had been negligent in certain respects (paragraph [26] above). He said it was commonplace for horses to be left unattended at the racecourse. This would have been the case, even if he had accompanied the horses. There was little or no security at Forbury Park, he said.
[40] Mr Dalgety produced a character reference from Bernard Marlow, part-owner of MACINTOSH. That letter confirmed that Mr Dalgety had paid out to the owners the stake that would be lost through the horse being disqualified. Mr Dalgety said that he did not wish the horse’s owners to suffer any loss.
[41] Mr Dalgety told the Committee that he had incurred the cost of having the second blood sample analysed and this had cost him $1,500. This, on top of a fine and reimbursing the owners, would be a major financial burden, he said.
[42] Of great concern to him was the stain on his reputation that came with a drug or prohibited substance charge.
Disqualification of the horse:
[43] Mrs Williams referred to Rule 1004D of the Rules of Harness Racing which provides:
Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested any prohibited substance shall be disqualified from the race.
[44] Mrs Williams said that the winning stake has not been paid out. Mr Dalgety confirmed that disqualification of the horse was not contested. Mrs Williams sought disqualification of MACINTOSH.
[45] The Committee ordered that MACINTOSH be disqualified (effective from 9 February 2013) from Race 5, Don Cuttance Life Member Mobile Pace, at the meeting of Forbury Park Trotting Club held at Forbury Park Raceway on 22nd November 2012. As a consequence of the disqualification, the amended result for the Race is as follows:
1st Harmony Rule
2nd Just A Marvel
3rd Donostia
4th Ultimate Blue Jean
The Committee ordered that stakes for the Race be paid in accordance with that amended result.
Reasons for Penalty:
[46] The relevant 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.
[47] The Committee notes that the maximum fine under Rule 1004 (7) (a) was increased by Harness Racing New Zealand from $10,000 to $20,000 in 2011, reflecting the desire of that body to provide a greater deterrent. In the Committee’s view, penalties imposed for breaches of the Rule prior to March 2011 need to be looked at in the light of that.
[48] The principal mitigating factors, to which the Committee has had regard in determining penalty, are Mr Dalgety’s early admission of the breach and his cooperation with the Racing Integrity Unit during its investigation. In addition, the Committee has taken into account that Mr Dalgety has paid the winning stake of $3,000 to the owners of MACINTOSH. Those factors deserve significant weight.
[49] Against those factors, is the ever-present need to maintain the integrity of and public confidence in harness racing by adequately punishing the breach and deterring Mr Dalgety and others from offending in a similar manner in the future.
[50] The previous breach by Mr Dalgety in 2009 is an obvious aggravating factor. Mr Dalgety was fined the sum of $3,500 on that occasion and the Judicial Committee, in arriving at penalty, gave considerable weight to his unblemished record in 17 years as a trainer. Aggravating factors in that case included the status of the race (Group 1) and the stake payable ($200,000). The race won by MACINTOSH was a race for non-winners for a total stake of $4,517 so the status of the race and the stake payable are not factors to be taken into account in the present case.
[51] The Informant has not alleged that Mr Dalgety had deliberately administered the prohibited substance to MACINTOSH and the Committee has no basis for any finding that he did so.
[52] Nevertheless, the Committee finds that Mr Dalgety was negligent in a number of respects, as submitted by Mrs Williams. Specifically, he was negligent in having the two horses transported to the race meeting in a public transporter, with other horses, without an attendant from his stable, and in leaving the horses unattended at the track prior to the arrival of his stable representative, Mr Dunn, who then left the horses unattended throughout the evening due to his having a drive in every race at the meeting. It has been held, in many previous cases, that it is negligent to leave a horse or horses unattended at the racecourse for any length of time. In saying this, the Committee accepts that to do otherwise can often involve very real logistical problems for trainers.
[53] The Committee attaches little or no weight to the fact that two pottles of the substance “bute” were found in Mr Dalgety’s drug cabinet and accepts the reason, as given by Mr Dalgety, for their presence there.
[54] Mrs Williams referred the Committee to a number of earlier cases in which penalties have been imposed for breaches of the Prohibited Substance Rule. She made reference to two previous cases involving Phenylbutazone – D in 2011 and M in 2011, in which the trainers were fined $1,800 and $2,000 respectively. The D case predated the amendment of the Rule increasing the maximum fine from $10,000 to $20,000 while, in M, the case arose out of a qualifying trial.
[55] Mrs Williams referred the Committee to a number of other previous cases of breaches of the Rule and the penalties imposed. In the most relevant of those cases, the fines appeared to range from $1,800 at the lower end to $3,500 at the upper end. All but one preceded the increase of the maximum fine under Rule 1004 (7) (a). One fine of $3,500 referred to was imposed on the trainer of the winner of a major race (Interdominion Pacers Grand Final) for a positive to DMSO (Dimethylsulfoxide).
[56] In the view of the Committee, the most helpful case involving a breach of the Prohibited Substance Rule is the recent case of W (December 2012). That case involved a well-respected and successful trainer with an unblemished record in which a horse trained by him had returned a positive swab to Procaine. The fine imposed by the Judicial Committee in the W case was $3,500.
[57] Having regard to all of the matters referred to above, the Committee is satisfied that a fine of $6,000 is an appropriate penalty in this case. We believe that such a penalty will satisfy the principal requirements of sentencing – that is to say, to punish the offender, to deter the offender and others in the industry and the need to maintain integrity and public confidence in harness racing.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
[58] Mr Dalgety is fined the sum of $6,000.00.
Costs:
[59] Mrs Williams did not seek any award of costs in favour of the Racing Integrity Unit and, accordingly, no order is made.
[60] Mr Dalgety is ordered to pay costs in the sum of $350.00 to the Judicial Control Authority by way of contribution to the hearing costs of the Authority.
R G McKenzie S C Ching
(Chair) (Commitee Member)
hearing_type: Non-race day
Rules: 1004 (1),(2) and (4)
Informant: Ms KR Williams - RIU Racing Investigator
JockeysandTrainer:
Otherperson:
PersonPresent: Mr JM McLaughlin - Registrar
Respondent: Mr CT Dalgety - Licensed Public Trainer and Open Driver
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: