Non Raceday Inquiry – PB Thistoll

Information No. 0987 alleged a breach by Mr Thistoll of Rule 420(1) of the New Zealand Rules of Racing in respect of the horse, FLO JO, in that the horse was transferred to Mr Thistoll's stable on 3 August 2004 and, up until 11 November 2004, a notice of change of ownership had not been lodged with NZTR.

Informations 0985, 0984 and 0986 alleged three breaches of Rule 420(6) in that Mr Thistoll did enter and start the horse, FLO JO, at the following race meetings between the abovementioned dates when the horse was ineligible to start ? 10 and 15 September 2004 at Canterbury Jockey Club and 1 October 2004 at Ashburton Racing Club respectively.

Mr Thistoll admitted all four breaches.

The relevant Rules provide as follows:

Mr McKenzie presented a written Summary of Facts to the Committee. The brief facts are that the horse, FLO JO, arrived at Mr Thistoll's stable on 3 August 2004 having been transferred from the North Island racing stable of Mr Frank Ritchie. The owners of the horse, Mr John and Mrs Margot Hooper, signed the lease form and arranged for it to be forwarded to Mr Thistoll who had agreed with the Hoopers and Mr Ritchie to put together the lessees for the horse to be trained and raced in the South Island. Mr Thistoll was approached by the Racecourse Inspector on 11 November 2004 at which time the lease had still not been registered. Between 3 August 2004 and 11 November 2004, Mr Thistoll trained FLO JO and had entered her and raced her on the three occasions referred to above. The nomination fees for the three races were not paid by Mr Thistoll and NZTR forwarded the accounts to Mr & Mrs Hooper for payment. Mr & Mrs Hooper complained to Mr McKenzie on or about 8 November 2004 when it was established that no lease had been registered and the horse was still registered in the names of Mr & Mrs Hooper as owners.

When spoken to by Mr Scott on 11 November 2004, Mr Thistoll acknowleged that the lease form had not been completed and forwarded as required by the Rules. He explained that he had been having trouble forming a syndicate and had arranged with the owners for the horse to continue racing in their names. However, Mr Hooper stated that the only arrangement was for the horse to be leased by Mr Thistoll and no authority was given to or agreement entered into with Mr Thistoll.

Mr Thistoll stated that a Mr Peter Archer was to arrange a syndicate to race the horse. It was some time later that Mr Archer informed Mr Thistoll that he was having some difficulty getting a syndicate together. At this stage, the horse was ready to race.

Mr Thistoll stated that he had spoken to Mr Ritchie to see whether the owners would be happy to

agree to continue racing FLO JO in their names, as Mr Thistoll wanted the horse to race, until the syndicate was finalised. Mr Thistoll said that Mr Ritchie came back to him several days later and told him that it would be fine. The horse was raced on three occasions on this basis, Mr Thistoll said.

It had been planned to give FLO JO three race starts and, if she was not performing, she would be retired to stud. The racing syndicate was never finalised, Mr Thistoll said, and the horse was retired.

Mr McKenzie submitted that breaches of the Rules relating to horses racing when ownership has not been changed are unacceptable. It is important that everybody has the opportunity to know who owns a given horse, he said. In this instance, the owners had relinquished their racing interest with the intention that the lessees would race the horse and be responsible for all aspects

pertaining to the Rules. The relevant paperwork had been sent immediately to Mr Thistoll when the horse left for the South Island. Mr Thistoll's lack of attention to detail and failure to attend to the necessary paperwork resulted in FLO JO's racing three times under the names of the original owners who were, in fact, only lessors of the horse.

Mr McKenzie submitted that Mr Thistoll's reasons for not having attended to the formalities were unacceptable and his omission to do so amounted to "gross negligence". Mr Thistoll had been informed by Mr Ritchie that the costs of racing the horse were continuing to be billed to the previous owners whose "financial credibility" was being brought into disrepute through no fault of their own.

Mr Thistoll was an experienced trainer. Rules relating to ownership are "bread and butter" rules that are fundamental to horses being trained and raced. Mr McKenzie acknowledged that Mr Thistoll was entitled to credit for his admission of the breaches.

Mr McKenzie referred to the well-established principles of sentencing as set out in the decision of the Appeal Tribunal in a well-known 1994 case. The Committee notes that these principles were restated recently in the decision of the Judicial Committee in the case of Slade (October 2004) and therefore these principles are not repeated here.

Mr McKenzie informed the Committee that he was not seeking a suspension/disqualification in this instance but he did submit that the level of the fines for such breaches should be substantially increased. Mr McKenzie referred the Committee to a number of recent similar cases and the penalties imposed by the Judicial Committees in those cases.

Mr McKenzie requested the Committee to take into consideration the fact that there are some

"serious issues" in terms of Mr Thistoll's financial position. He informed the Committee that Mr Thistoll was "working through" with NZTR some "substantial outstanding accounts". Any penalty and costs imposed would add to that problem.

Mr Thistoll stated that the indebtedness to NZTR was being addressed. He said that he had held a trainer's licence for about 10 years and, prior to that, had trained in partnership with his father. Mr Thistoll asked the Committee to have regard to his good record as a trainer in terms of complying with the ownership Rules. Mr McKenzie confirmed that there had been no previous breaches.

Following a brief deliberation, the Committee delivered the following oral decision:

"The Committee has considered all of the matters put before it by both parties in relation to the four breaches of the Rules which Mr Thistoll has admitted. The Committee is satisfied that the

breaches can be dealt with by way of a financial penalty and that it will not be necessary to suspend or disqualify Mr Thistoll. The full reasons for our arriving at the penalty that we have will be given in a full written decision which will be delivered to both parties in due course. We have adopted a totality approach in fixing the fine. Mr Thistoll is fined the sum of $1,500 on all four charges. As far as costs are concerned, we have had regard, in fixing costs, to Mr Thistoll's financial circumstances as referred to by Mr McKenzie and by Mr Thistoll. Mr Thistoll is ordered to pay costs of $250 to New Zealand Thoroughbred Racing and is further ordered to pay costs of $250 to the Judicial Control Authority."

The relevant penalty Rule is Rule 1003 (1) which provides as follows:

In determining penalty, the Committee took into account the following matters as mitigating factors:

1. Mr Thistoll's admission of the breach. However, the admission was made in the face of compelling evidence of guilt and any discount is, therefore, minimal.

2. Mr Thistoll's previous good record.

Against these factors, it has to be said that the actions of Mr Thistoll in electing to race FLO JO on three occasions knowing, as he did, the requirement to register the leasehold interest and knowing that this had not been attended to amounted to a reckless disregard on his part. Mr McKenzie described it as "gross negligence". It was clear that Mr Thistoll knew of the requirement to register the lease prior to racing the horse as is evidenced by his approaching Mr Ritchie to see whether the owners would agree to racing the horse before the new ownership details were finalised. It is not an acceptable explanation that he thought the owners had agreed. Accordingly, the Committee viewed the breaches of the Rules by Mr Thistoll as being at the upper end of the scale as far as breaches of the ownership Rules are concerned.

The horse was raced on three occasions over a 3-week period between 10 September 2004 and 1 October 2004. This fact shows Mr Thistoll's willingness to flout the Rules. It is probably fortunate for Mr Thistoll that no stake monies were earned in those races otherwise Mr Thistoll would have been facing having to make a refund of stake monies as a result of the inevitable disqualification of the horse from those races.

The Committee considered the decision of the Judicial Committee in the recent Slade case in which that Committee looked at the earlier decisions of Harris, Wheeler and Collett. In the Slade case, the Judicial Committee accepted the Defendant's explanation that the omission to register a notice of change of ownership was an oversight on his part which was unlikely to be repeated. It was accepted that there was no "malicious or devious intent" on the part of the Defendant. The case involved one horse which raced once in breach of the Rules. In that case, a fine of $750 was imposed.

Mr Thistoll's breaches were at a higher level than in the Slade case. His omission to register the lease was not an oversight. Mr Thistoll entered and raced the horse on three occasions when he was fully aware that the lease was required to be first registered but had not been so registered.

The penalty must reflect the seriousness of Mr Thistoll's actions. Equally importantly, the penalty must deter others in the industry from committing like offences. This has been stated on many occasions in the past but it is important that the penalty convey the message, not only to Mr Thistoll, but also to others involved in the racing industry that breaches of the ownership Rules will not be tolerated.