Appeal – MJ Smolenski

hearingid: ca22d4b3e4b94a3ec881ed269d511c2c

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Appeal - MJ Smolenski

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On 25 July 2005 the Judicial Committee found that the respondent had committed a breach of Rule 1001(1)(q)

BEFORE THE APPEALS TRIBUNAL

HELD AT CHRISTCHURCH

IN THE MATTER OF New Zealand Rules of Harness Racing

BETWEEN Harness Racing New Zealand  -  Appellant

and

MARK JOHN SMOLENSKI  -  Respondent

APPEAL TRIBUNAL  -  Judge J Bisphan (Chairman) & Mr BJ Scott

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DECISION OF APPEALS TRIBUNAL

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On 25 July 2005 the Judicial Committee found that the respondent had committed a breach of Rule 1001(1)(q) which is as follows:

"Every person commits a serious racing offence within the meaning of these Rules who in New Zealand or in any other country;

(q) Administers, causes or permits to be administered or who attempts to administer or to cause to be administered or who permits any person to administer or cause to be administered to any horse which is taken or is to be taken to a race course for the purpose of engaging in a race any prohibited substance."

The penalties for commission of a serious racing offence are contained in Rules 1001(2) and (3) and also Rule 1004(D). The respondent had admitted the breach which occurred on or about 13 May 2005. The prohibited substance is Ranitidine which is prohibited by reason of the Prohibited Substance Regulations which relevantly came into force on 19 February 2004. Ranitidine falls under the definition of an "antihistamine" set out in paragraph (b) of the Regulations.

The facts are fully set out in the Judicial Committee's decision which also deals with the imposition of the penalty, the subject of this appeal by the Informant. The penalty imposed on the respondent was a fine of $5,000.00. The respondent was also required to pay $500.00 costs to the Judicial Control Authority and the horse involved Racy Rocket was disqualified from the relevant race pursuant to Rule 1004(D). The issue before this Tribunal is whether the penalty imposed is manifestly excessive or inadequate or inappropriate. The Appellant submits that the fine of $5,000.00 in the circumstances is manifestly inadequate or inappropriate. On the other hand, the respondent maintains that that penalty is excessive.

As this is an Informant's appeal we have to be fully satisfied that the sentence is manifestly inadequate or inappropriate, in other words there has been an under-sentencing outside the range available to the Judicial Committee. If we come to that conclusion we are obliged to replace the penalty with an appropriate penalty towards the bottom end of the range which we find ought to have been available to the Judicial Committee.

Mr Lange submits that the Judicial Committee ought to have imposed a period of disqualification for this offence. Whilst pointing to mitigating factors Mr Lange emphasised that this was a case of deliberate administration of a prohibited substance prior to the horse racing. Mr Lange pointed to the scheme of penalties contained in the Rules of Harness Racing which shows, and indeed it is obvious, that breaches of serious racing offences are in general to be met with the most significant penalties.

Mr Lange referred to a number of cases. We consider that those involving Rule 1001 are of assistance to us. In Howard the prohibited substance was Indomothacin. The horse involved had returned positive tests on two race days. The Judicial Committee in that case imposed a fine of $8,250.00 with costs of $2,500.00 and suspended the respondent from holding or obtaining a licence permitting him to train for a period of two years. These sentences were upheld on appeal. In Fleming there was an attempt to administer Sodium Bicarbonate on the racecourse which was interrupted so that the horse did not race. The respondent was disqualified for four months and that penalty was upheld on appeal. In Court the prohibited substance involved was Diclofenac which had got into the horse's system by reason of the respondent rubbing Voltaren Emulgel on the horse's knee. The respondent was fined $6,000.00.

In McGrath the prohibited substance was Propenthaline which had been administered on three occasions. At the Judicial Committee level the respondent was disqualified for three years. This was reduced to eighteen months on appeal. The appeal was not a contested hearing but an agreed position after negotiation between the parties and the Appeal Tribunal.

Lastly in Purdon a decision of the Judicial Committee of 22 August 2005, the respondent was charged with a breach of Rule 1001(1)(v)(i). The respondent admitted acting in a manner detrimental to the interests of harness racing in the circumstances in which he administered, on two occasions, a substance to a horse which was then taken to a race course for the purpose of engaging in a race. There was no proof in that case that the horse had ingested or been administered a prohibited substance but the respondent admitted that he had injected the horse about six hours before it raced. The Judicial Committee in considering penalty used a starting point of twelve months disqualification. The respondent was disqualified for four months and fined $15,000.00.

We feel obliged to comment on Purdon as it is the latest case involving a breach of Rule 1001. Whilst the starting point of twelve months may have been adequate we do not regard the penalty imposed as having precedent value in this case. We propose to treat Purdon as a case confined to its own facts.

Mr Lange submitted that the trend in the cases referred to indicated that a period of disqualification or at least suspension is appropriate for a breach of Rule 1001(1)(q). Mr Lange pointed to the need for judicial committees to adopt a consistent approach when sentencing for breaches of the Rule.

Mr McMenamin in his submissions complained of the lack of proper notice of the change to the Prohibited Substance Regulations and also referred to the mitigating factors which he had raised before the Judicial Committee including his client's clean record. He pointed to the acceptance by the Judicial Committee of strongly mitigating factors. He contrasted the conduct of the respondent in refraining from administering the prohibited substance on race day with that of other respondents referred to in the cited cases. He submitted that the Judicial Committee had placed too much emphasis on the fact that Ranitidine had been prescribed for another horse but given to Racy Rocket. He laid emphasis on the fact that the respondent had been using Ranitidine for a number of years, certainly prior to the coming into force of the Prohibited Substance Regulations.

The Judicial Committee correctly set out why a prohibited substances breach is required to be regarded seriously in the following terms:

It is serious because it is detrimental to the image of the industry and has the very real potential to affect the confidence of the public that supports harness racing by investing on the outcome of races. It is therefore in the best interests of the industry that Judicial Committees, in imposing penalties, ensure that the confidence of the betting public is maintained. In addition, there needs to be a "level playing field" on which all competitors can compete on a fair and equal footing, with no competitor having any unfair advantage over its rivals as the result of having a prohibited substance in its system. These principles have been widely reported in previous cases."

The Judicial Committee also referred to Rule 1114(2)(d).

We find that although the Judicial Committee has thereby fully articulated the relevant considerations, in imposing a fine only in this case it has not given sufficient expression to those considerations. The scheme of the penalties in the rules and the need to impose deterrent penalties to ensure drug free racing generally requires more than a fine in our view. We are satisfied that the imposition of disqualification or suspension is the only realistic way to achieve that deterrence and it will be only in exceptional circumstances where a breach of Rule 1001(1)(q) can be dealt with by way of a fine alone.

The Judicial Committee in coming to its decision took into account a number of mitigating factors. It set these out as:

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1. Mr Smolenski's co-operation and frankness throughout the investigation.
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2. His previous good record.
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3. His early admission of the breach.
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4. The fact that he obtained the Ranitidine through his veterinarian.
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5. The fact that he took care not to use the Ranitidine on the horse on race day and thereby did exercise some degree of care.
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6. The fact that he did not deliberately breach the rule.

It then referred to the following aggravating factors:

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1. Mr Smolenski used Ranitidine on Racy Rocket that had been specifically prescribed for another horse, namely, Lycatoff; and
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2. In doing so, Mr Smolenski at no stage enquired of his Veterinary Surgeon as to whether any changes had been made to the drug/prohibited substances Rule.
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We are also satisfied that the Judicial Committee placed too much weight on the mitigating factors in this case. Certainly it was entitled to place weight on the first three mentioned factors. We agree with Mr Lange that the obtaining of a prohibited substance through a veterinarian is not a mitigating factor and indeed that factor underlines the respondent's carelessness in not inquiring of his veterinarian as to whether Ranitidine was a prohibited substance. As Mr Lange points out the breach will often arise as a result of the misuse of a substance legitimately obtained. We do not find the fact that the respondent took care not to use Ranitidine on race day greatly assists the respondent. It may on the one hand show that the respondent exercised some degree of care but on the other it surely draws an inference that the respondent was aware that if the substance was used close to race day he could fall foul of the rules. In its decision the Judicial Committee refers to the respondent's awareness of an element of risk in using Ranitidine in those circumstances. We also find that the respondent was reckless in his use of an "ulcer treatment" without making proper enquiry about its legality considering the considerable publicity surrounding the McGrath case and the so called use of an "ulcer treatment."

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The Committee also found that the respondent did not deliberately breach the rules. We find difficulty in the circumstances of this case in accepting that as a mitigating factor. As Mr Lange points out, deliberateness is not an element of the rule. There was in any event a deliberate administration of Ranitidine. We accept that the Judicial Committee found that the respondent was not aware that Ranitidine was a prohibited substance. It is a situation akin to the respondent being ignorant of the law. We would have thought that it is only in unusual circumstances that ignorance of the law or something equivalent can provide mitigation. Furthermore, this so called "mitigating factor" is simply the reverse side of the aggravating factor of the respondent failing to be aware that Ranitidine was a prohibited substance.

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As to the aggravating factors, we do not entirely agree with Mr McMenamin that the fact that a substance prescribed for one horse when given to another horse does not constitute an aggravating factor. In our view it is an additional element of the lack of care or negligence on the respondent's part in not making inquiries about Ranitidine before it was given to another horse. We are, however, satisfied that the respondent's failure to be aware of the provisions of the relevant Prohibited Substance Rule and that Ranitidine was in fact a prohibited substance is an aggravating feature. The respondent was given the same notice of the Prohibited Substance Regulations via the Harness Racing Weekly as were all other industry participants. To ensure that there is fair competition free from the involvement of prohibited substances, a high degree of vigilance in compliance is demanded of those involved in harness racing, particularly trainers and those in charge of horses. The greater the degree of carelessness or negligence the more seriously the breach will be viewed.

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The Judicial Committee in its decision properly gave expression to the considerations involved in Rule 1114(2)(c). It referred to the far reaching consequences of disqualification being out of all proportion to the circumstances of this case. We do not agree. In cases such as this involving the administration of a prohibited substance the personal circumstances of the offender and the consequences of disqualification tend to recede and cannot outweigh the need for deterrence to ensure drug free racing and to maintain public confidence.

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Mr Lange referred to the World Anti Doping Code of which New Zealand is a signatory. It largely refers to human beings but is seen to apply to animals as well. The Code does not have precedent value in this case but is a useful means of comparison. Article 2.1 headed "Anti-Doping Rule Violations" is as follows:

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The following constitute anti-doping rule violations:

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1. The presence of a prohibited substance or its metabolites or markers in an athlete's bodily specimen

2.1.1. It is each athlete's personal duty to ensure that no prohibited substance enters his or her body. Athletes are responsible for any prohibited substance or its metabolites or markers found to be present in their bodily specimens. Accordingly it is not necessary that intent, fault, negligence or knowing use on the athlete's part be demonstrated in order to establish an anti doping violation under Article 2.1

This clearly has a parallel in Rule 1004 of the New Zealand Rules of Harness Racing. The maximum penalty under Rule 1004 is disqualification not exceeding five years and a fine not exceeding $10,000. By way of contrast the standard penalty for a Code 2 violation under the World Anti Doping Code is contained in Article 10.2:

First Violation: 2 years ineligibility

Second Violation: Lifetime ineligibility.

It is not possible to draw a direct comparison between the World Anti Doping Code and HRNZ Rules but the provisions of the Code underline how seriously doping breaches are taken worldwide.

Submissions were made by Counsel as to whether this Tribunal should set a type of penalty tariff for these sort of cases. Mr Lange pointed to the fact that inconsistent decisions and inconsistent penalties in this area do nothing for public confidence in racing and the judicial system in racing. Mr McMenamin submitted that the appeal appeared to have been brought more for the benefit of the appellant obtaining a tariff rather than dealing with this specific case. We are aware that one of the difficulties for an Appeals Tribunal when fixing a tariff is to ensure that the respondent is not treated unfairly.

We take the view that as the relevant Prohibited Substance Regulations have now been in force for approximately eighteen months and bearing in mind that there is some inconsistency in penalties imposed for breaches of Rule 1001(1)(q) that an indication should be given to Judicial Committees as to how these cases should be dealt with.

In so doing we are mindful of the wide variety of circumstances which will surround each breach of Rule 1001(1)(q) but there is a strong central commonality in such cases which requires consistency, as far as possible, in penalties. We are also mindful that Judicial Committees ought to retain a genuine discretion when imposing those penalties.

Our view is that for a first breach of Rule 1001(1) (q) the starting point should be to the order of twelve months disqualification or suspension. Mitigating and aggravating factors can then be taken into account. Where a respondent is facing more than one charge then the period of disqualification or suspension will be increased and a starting point as high as two years will be appropriate. A respondent who has a previous breach of this Rule can expect a starting point between eighteen months and two years disqualification or suspension. In all cases the disqualification or suspension may be coupled with an appropriate level of fine.

Turning now to this particular case we are satisfied that the penalty imposed was manifestly inappropriate and that a penalty of disqualification ought to have been imposed. We are satisfied that there are significant mitigating factors but they are not exceptional. Cumulatively they are not sufficient to reduce the penalty to a fine only. Bearing in mind that this is an Informant's appeal and that the penalty imposed should be at the lower end of what is the appropriate range, we consider that a term of disqualification for five months is the appropriate sentence in place of the fine that was imposed.

The appeal is allowed. The respondent is disqualified for 5 months from the 7^th day of December 2005.

The remaining orders are to stand.

We were not addressed on the question of costs. Counsel are to file memoranda within the next 14 days and we will decide that issue on the papers.

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hearing_type: Old Hearing

Rules: 1001.1.q, 1004.d, 1001.1.v.i, 1114.2.d, 1114.2.c

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