hearingid: ab7e048d98edb19cc77f76b42889c833

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non-Raceday Inquiry - E J Dawson Sept 08

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Decision:

Heard before a Judicial Committee at Christchurch

on 24 September 2008 :

DECISION OF THE JUDICIAL COMMITTEE

The defendant has been charged (Information 67384) with one breach of Rule 1004(6) of the New Zealand Rules of Harness Racing by Racecourse Inspector Mr Kitto, as follows.

“On the 13^th day of June  2008, at the Marlborough  Harness Racing Club’s meeting, held at the Waterlea racecourse, during the day of racing and prior to the horse racing, in respect of the horse “FAST TURNOVER” which was entered in a race, namely Race 10, the Speight’s Mobile Pace, you did administer by injection a substance, namely Tasmix Hi-E Plus Selenium,  in breach of Rule

1004(6) and you and the horse are liable to the penalty or penalties which may be imposed in accordance with Rules 1003(1)(a)(b)(c) and (2)(a)(b)(i)(ii)(iii) of the New Zealand Rules of Harness Racing.”

Heard before a Judicial Committee at Christchurch

on 24 September 2008 :

DECISION OF THE JUDICIAL COMMITTEE

The defendant has been charged (Information 67384) with one breach of Rule 1004(6) of the New Zealand Rules of Harness Racing by Racecourse Inspector Mr Kitto, as follows.

“On the 13^th day of June  2008, at the Marlborough  Harness Racing Club’s meeting, held at the Waterlea racecourse, during the day of racing and prior to the horse racing, in respect of the horse “FAST TURNOVER” which was entered in a race, namely Race 10, the Speight’s Mobile Pace, you did administer by injection a substance, namely Tasmix Hi-E Plus Selenium,  in breach of Rule

1004(6) and you and the horse are liable to the penalty or penalties which may be imposed in accordance with Rules 1003(1)(a)(b)(c) and (2)(a)(b)(i)(ii)(iii) of the New Zealand Rules of Harness Racing.”

          Rule 1004(6) provides as follows.

“(6)      No person shall during any day of racing, in respect of a horse

entered in a race, administer by injection, nasal gastric tube,

gastric tube, ventilator, or nebulizer any substance whatsoever. 

Where such administration occurs both the person and the

trainer commit a breach of this sub-rule unless such device was

used after the horse had raced or under the direction or supervision

of a club veterinary surgeon, Racecourse Inspector or Stipendiary

Steward.

For the purposes of this sub-rule the day of racing is deemed to

commence 12 hours prior to the first race and conclude half an hour after the last race.”

          Mr Dawson had indicated on the information that he admitted this breach of the Rules, and he confirmed that at the hearing. He also agreed that he understood the Rule and the nature of the charge.

          Mr Kitto produced a letter from the General Manager of Harness Racing New Zealand (“HRNZ”) giving written permission to bring this charge.  Mr Kitto also produced and read a Summary of Facts relating to this matter, and this is attached to this decision.

Summary of Facts:

          Mr Dawson is the trainer of “Fast Turnover” which was correctly entered for  Race 10, the Speights Mobile Pace, at the Marlborough Harness Racing Club’s meeting held at the Waterlea racecourse on 13 June 2008.

          At about 11-00am that morning Mr Dawson was observed syringing a substance down the throat of “Fast Turnover” while it was in its allocated yard.  Mr Dawson was then observed to load a syringe with an orange coloured substance. 

A short time later Mr Dawson was spoken to by Mr Kitto, and on being questioned he admitted that he had used a syringe to squirt a mixture of Tasmix Hi-E into his horse’s mouth.  He also admitted that he was about to do the same with an “Equiplex” mixture when Mr Kitto arrived.  He said that he was using these mixtures to help his horse to eat.

Mr Dawson further admitted that he had read recent Judicial decisions relating to this sort of activity.  He said that he uses a syringe at home, but had not done so on race day before.

The items used by Mr Dawson were forwarded to the Racing Laboratory for analysis and all tested negative for prohibited substances.

As a result of this incident “Fast Turnover” was scratched from the race.

Mr Dawson was asked if he agreed with the facts as stated. He said that he did, but wanted to make it quite clear that he did not use a needle for the injection. We note here that there was no suggestion that a needle was used.

Penalty:

          Mr Kitto presented and read written submissions on penalty, and these are also attached to this decision.  The penalty provisions for a breach of Rule 1004(6) are contained in Rule 1003(1) which provides as follows.

“1003(1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4), 1001 or 1004 hereof) shall be liable to the following penalties:

(a)    a fine not exceeding $5,000;  and/or

(b)    suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(c)    disqualification for a period not exceeding 12 months.

In addition to or in substitution of any penalty imposed pursuant to sub-rule (1) hereof, any horse connected with the breach of the Rule may be scratched or disqualified from any race and/or disqualified for a period not exceeding 12 months.”

Mr Kitto referred to four previous decisions which were helpful, these being HRNZ v. Parsons (2008), NZTR v. Simon (2008), NZTR v. Wigley (2007) and HRNZ v. Clementson (2007).  He listed the mitigating factors in Mr Dawsons’ favour as follows.

-         Mr Dawson has had an unblemished life time involvement in the Harness Racing industry.

-         He was thoroughly co-operative throughout the investigation being open and honest as to what had occurred.

-         He had admitted the breach at the first available opportunity.

Mr Kitto said that the aggravating factor was that Mr Dawson was well aware of the previous prosecutions for this kind of activity.

          Mr Kitto submitted that a fine of between $2500-00 and $3000-00 would be appropriate in this case.

          Mr Dawson said that his income was mainly from National Superannuation and indicated that a large fine would be harsh in his circumstances.

Decision on Penalty:

          The four cases mentioned by Mr Kitto (see above) had resulted in fines of $3000-00 (Parsons), $750-00 (Simon), $4000-00 (Wigley), and (on appeal) a 4 month disqualification plus a fine of $2500-00 (Clementson).

          We have discounted the penalty imposed in the Simon case as being an unhelpful guide.  We note that the penalty imposed was as recommended by the Informant in that case, but believe that it is well out of line with the penalties imposed in the earlier Wigley and Clementson cases.

          We also note that the Wigley case involved the “tubing” of the horse, and that the penalty in the Clementson case was more severe because of previous convictions.  For the above reasons we are satisfied that the best guide is the Parsons decision where the circumstances were very similar to the present case.

          We believe that a fine of $3000-00 would be appropriate in this case, in normal circumstances. This is not a normal case because of Mr Dawson’s financial situation.  It is clear to us that he is not well off and that a fine of $3000-00 would be unduly harsh. Nonetheless the fine imposed must reflect the detrimental effect this sort of incident has on the image of harness racing.  Taking all these matters into account we have decided that Mr Dawson will be fined the sum of $2250-00.

Costs:

          Mr Kitto advised that costs were not being sought by HRNZ.  There will however be an order for costs of $125-00 to be paid to the JCA.

J.  M. Phelan

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hearing_type: Old Hearing

Rules: 1004.6, 1003.1, 111.1

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