Non Raceday Inquiry – Mr EM Ryan

An Information filed by Mr Scott was before the Committee. Mr Scott sought and was granted leave to withdraw information number 64016 and to substitute information number 64017 alleging a breach of rule 1004(1), (2), (5) and (6) - the prohibited substance rule. The defendant, Mr Ryan, initially did not admit the breach of rule 1004, but upon the hearing at Forbury Park being adjourned, and after having received legal advice, he admitted the breach at the resumed hearing at Oamaru Raceway on September 26.

We have sighted the authority to proceed with the charge. The breach that is admitted relates to the presentation of the horse Jilaire's Standby by the defendant which he took to the Phar Lap Raceway at Timaru on the 6^th of January 2004 for the purpose of engaging in a race and that he failed to present the said horse for the race, free of a prohibited substance, namely bicarbonate or other alkali substance as evidenced by a blood TCO2 level of 38.7 mmol/L.

Rule 1004 provides:

(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 than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules. ?

(4) A breach of the Rules under sub-rule (2) or (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

(5) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

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1. a fine not exceeding $10,000; and/or
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2. be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.
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(6) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race and/or liable to a period of disqualification not exceeding five years.

TCO2 testing is permitted by the Rules of Harness Racing. The maximum permissible TCO2 level is 35.0 mmol/L.

On the 6 January 2004 the defendant was the trainer and person for the time being in charge of the horse Jilaire's Standby, which was presented to race in race 9 at a race meeting conducted by the Timaru Harness Racing Club at the Phar Lap raceway at Timaru. Jilaire's Standby was one of the horses pre-race blood tested from race 9. The defendant was present when the sample was obtained and signed the relevant documentation. Jilaire's Standby finished in 11^th place and did not earn stake money.

All samples from the meeting were packaged in accordance with the Regulations and forwarded by courier to the Racing Laboratory. On analysis, the sample from Jilaire's Standby recorded a TCO2 level of 38.7 mmol/L. The Certificate of Analysis was admitted as Exhibit A.

The defendant was interviewed on the 9 January 2004 at his stables at Waimate. He denied the intentional or accidental administration of any product containing sodium bicarbonate or other alkali to Jilaire's Standby prior to the horse racing at Timaru on the 6 January 2004. He stated he did tube his horses with salts but kept no records of when he did this. He claimed he had no bicarbonate on his property and none was found by the racecourse inspector. He said the only change in the feeding programme for his horses was a stockfeed muesli he purchased locally. A sample of this feed was analysed at the Racing Laboratory and the Racing Analyst advised that in his opinion there was no evidence to suggest that using this product could have led to an elevated TCO2 level in a horse. A formal interview was carried out and recorded on tape. A transcript of the interview was made - this was admitted as Exhibit B.

Between 12 July 2002 and 4 January 2004 Jilaire's Standby had been pre-race blood tested on ten occasions. The TCO2 levels were normal ranging from 29.5 mmol/L to 34.1 mmol/L. The level on the 4 January 2004 was 31.6 mmol/L. Jilaire's Standby was tested a further three occasions between the 23 January 2004 and 1 February 2004 and these were analysed as normal ranging from 27.9 mmol/L to 32.4 mmol/L. The results of these tests were admitted as Exhibit C.

The defendant had been dealt with on two previous charges of a similar nature. On the 9 February 1997 he pleaded guilty and was convicted on two drug negligence charges for starting two horses at the Greymouth Trotting Club's meeting on the 28 March 1995 having bicarbonate levels of 7.8 and 8.9 above the race mean. On the first charge the defendant was fined $1,000, costs $1,000 and his trainer's licence suspended for six months. On the second charge he was fined $1,000. The informant produced a copy of the defendant's trainers' penalty sheet and the Tribunal's decision. This was admitted as Exhibit D.

Mr Scott submitted that it had been accepted in HRNZ v Thornley and similar cases that a horse's TCO2 level may be elevated by the administration of alkalising agents. This can be done deliberately by a practice known as 'milkshaking', or it can be done inadvertently through the horse's feed or by administration of tonics or other supplements that contain alkalising agents.

The decision of the Appeal Tribunal in Thornley suggested penalty levels based on a graduated scale according to the TCO2 level in cases where there had been prompt admission of guilt by a defendant with a good record:

36.2 - 37.2 mmol/L. Fine not less than $500.00

37.3 - 38.5 mmol/L. Fine $2,000 and/or suspension up to three months

38.6 mmol/L. and above Fine $5000 and/or disqualification up to six months

In its decision the Tribunal in Thornley said of the scales, "they are of assistance to those engaged in sentencing but must always yield to a consideration of the facts of the particular case including aggravating and mitigating features' we consider the suggested scale is a useful guide to provide some consistency in this area of sentencing". We note there is a marked difference in the penalty of both a fine and a period of disqualification in contrast to the imposition of one penalty or the other. We believe that this is a matter that could be addressed by an Appeals Tribunal in the future.

The informant's submission was that the facts in this case fall within the third category in Thornley, however the penalties there were in the case of a "prompt admission of guilt by the defendant with a good record". The defendant had two previous breaches of the Rules relating to identical breaches. The effect of drug administration eroding public confidence in racing and the need for deterrence, and in particular, in the case of repeat offenders was noted. The Committee was referred to the very recent decision in McGrath, Burrows and Keast (September 2004) and the increased public interest in the matter of drug administration.

The informant submitted that the penalty imposed should be a fine greater than $5000 and a period of disqualification greater than six months. He acknowledged that a penalty in keeping with the level existing at the time of the defendant's offending was appropriate. He sought costs of $500 to Harness Racing New Zealand and a share of the costs in relation to the Judicial Committee.

The defendant stated that he had taken legal advice which had cost him "a bit of money" and had obtained data from the Conference. He accepted the advice that it was "a no win situation" and, whilst he did not want to admit it, acknowledged that he was caught by the rule. He indicated that he had had strife with respect to a personal relationship that had come to an unfortunate end and that the particular person had arrived in Waimate the night before the meeting at Timaru. He alleged that the level could be as a consequence of her actions. However, he said this was pure surmise on his part as he could not prove it. He said she had made things difficult for him in respect of other matters in his business life. He also said that the horse was an "in or out sort" and had gone badly when she recorded the level the subject of the charge and had performed better when she had recorded a level of 31. He said that were he to deliberately administer a drug (which he hadn?t) he would not have chosen this horse. He said he was a small time investor, a dollar each way or $5 to win. He said he wished to train until he was 80 and had only had three winners last season. With reference to his financial situation, he stated he had substantial current costs, and he itemised expenditure.

The defendant placed before the Committee a letter from his daughter Ms Maree Price which confirmed a number of matters in his submissions, including his level of investment on his horses. She said there could be no suggestion her father had acted for financial gain. She spoke of her father's lifetime involvement in the industry and named a number of current licence holders whose start in the industry was under her father's guidance. She said "he loved the game" and been actively involved over the years in organising workouts. He was involved in the registration of the first ever syndicate in this country to race a horse. She said when her father had been found guilty in 1997 of a breach of this rule in 1995 it was under the old rules with the levels based on the mean level for the horses in the field. She said, and this was re-iterated by the defendant, that the rules were changed soon after (some two weeks, she said), with the figures being altered, and had the new rules applied to her father, he would not have been found guilty. She confirmed the defendant's allegation that a particular person may have administered a substance to the horse. The defendant's health had not been good for the past 18 months and she emphasised the importance to him of his horses, stating they were his life.

In this case there is no evidence of a deliberate or negligent administration of sodium bicarbonate or other alkali. Nevertheless, the level of TCO2 detected in the sample taken from Jilaire's Standby falls within the upper category, albeit by only 0.2 mmol/L. The prohibited substances rule creates, in effect, an offence of strict liability. The defendant has admitted the breach on this basis after taking legal advice. He is adamant, and the informant has not argued to the contrary, that any administration was not the consequence of any deliberate actions on his part. We note the allegation with respect to a named third person placed before us by the defendant but, in the absence of any corroborating evidence, we impose penalty on the basis that the cause of the high level is not known.

We note that Jilaire's Standby was not a high bicarbonate horse. She had been tested nine times. This was the only level returned by the horse that was above 34.1, the majority being around 31. The stable average over all horses over a period of time was 31.5.

The breach has been admitted and we take that into account. While not entered at the first available opportunity, the delay was in order that the defendant could take legal advice. In light of the application of the principle of strict liability, we treat this plea of guilty as being as early as circumstances permitted. We also note that this delay has operated to the defendant's detriment as he has spent the past four months recuperating from an operation, a period during which he could otherwise have substantially served his period of disqualification.

We accept the informant's submission that the penalty should be in keeping with the criteria existing at the time of the commission of the breach. This is consistent with the principles that operate when sentencing for criminal offences in the Courts, generally. There is no doubt that attitudes to breaches of the drug administration rule have hardened recently as demonstrated by the case of HRNZ v McGrath, Burrows and Keast (23 August 2004). The defendant's actions were before this decision was given. We thus impose sentence on the basis of the guidelines to be found in Thornley: viz, for a level above 38.5 mmol/L a fine in the vicinity of $5000 and/or disqualification of up to six months.

Of concern to the Committee is that this is the defendant's third breach of this rule, although we note the two previous breaches occurred on the one occasion, the 28^th of March 1995. We accept this was under the provision as previous worded, and while the defendant has stated that he would not have been found guilty under the rule as subsequently amended, we note a licence holder's obligation is to comply with the Rules of Harness Racing as they are at the time of racing. He pleaded guilty to both charges and the total penalties for the two offences were $2,000 fines, $1,000 costs and six months' suspension.

With respect to penalties in related cases, the penalty upheld in Thornley (19 February 2002) for three breaches (levels of 37.4, and 40.9 x2) was: first charge, a fine of $1,000; second charge, disqualification for six months and a fine of $2,000; third charge, disqualification for nine months and a fine of $2,000. Costs of $1,250 were awarded to the respondent and $200 to the JCA. In HRNZ v Webber (6 February 2004) where it was also a third offence, the penalty for a level of 36.6 was a disqualification of three months with costs of $250.

We note the eloquent submission written on her father's behalf by Ms Price. We accept he has devoted a life-time to harness racing and this weighs very heavily in the balance. Nonetheless, we are obliged to protect the integrity of the industry and to ensure that horses are presented free of drugs. In addition to the need for deterrence, we note the Judicial Committee in Thornley (5 December 2001) emphasised the penalty imposed must punish the offender for his wrongdoing and must be a realistic punishment but not excessively retributive. Reference is also made in that case to prevention and rehabilitation. We further note that the Appeals Tribunal in that case stated that "increased penalties should be imposed if there is evidence of, or a proper inference can be drawn that administration was deliberate or as the result of substantial or gross negligence." No such inference can be drawn in the defendant's case.

We apply these principles and take particular guidance from the level of penalty confirmed on appeal in Thornley. In that case a third breach resulted in a fine of $2,000 and six months' disqualification. Thornley had re-offended within two years, there was no credit for an early guilty plea, there were three elevated levels resulting in three charges relating to two different race meetings, and the horse had a level of 40.9 with respect to the third and fourth breaches. All these matters place Thornley's offending on a higher plane than that of the defendant.

While recognising sentencing is not an exact science, we do not believe the defendant's penalty should be in excess of that imposed upon Thornley, despite making allowance for the likelihood of the Tribunal considering the totality of the financial penalties when imposing penalty for each breach in that case. The key points of difference are that there is only one breach (unlike the three before the Tribunal in Thornley), there is a nine year gap between the breaches of the rule, the guilty plea was entered immediately after obtaining legal advice, and the level is 38.7. Taking into account these matters, we disqualify the defendant for a period of six months and impose a fine of $2,000, together with costs of $500 to HRNZ and $550 to the JCA. In accordance with rule 1301(2) and in order to give the defendant the opportunity to make arrangements for the placement of the horses in his stable, the period of disqualification is to commence on the 14^th of October 2004.

Rule 1004(6) provides that any horse connected with a breach of sub-rule (1) or (2) of 1004 shall be disqualified. Jilaire's Standby is therefore disqualified from 11^th place in race 9 at the Timaru Harness Racing Club's meeting of 6 January 2004. Placings are to be amended accordingly.

G Hall, Chairman

J Eagles, Member

29 September 2004.