HRNZ v J T Peary – Penalty Decision – Decision dated 17 June 2011
ID: JCA11324
Decision:
DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
Introduction:
1.1 On the 7th of March 2011 the Committee delivered its Decision on the charge brought against Mr Peary for a breach of Rule 1004(6) of the Rules of Harness Racing New Zealand (HRNZ Rules). The breach that the Committee found proven was that on the 2nd day of July 2010 Mr Peary did administer by nasal gastric tube a substance containing Sodium Bicarbonate to the horse MACHABELLA which was to start in Race 5 at a Race Meeting conducted by the Thames Harness Racing Club at Alexandra Park on the 2nd day of July 2010.
1.2 At the Hearing evidence was given by Ms E who was the Trainer of MACHABELLA and Mr Peary and various other witnesses. There is no need to repeat the evidence in detail other than to highlight the following:
(a) It was accepted that Mr Peary tubed MACHABELLA on the day in question.
(b) We did not find Mr Peary to be a credible witness.
1.3 At the conclusion of the Hearing the parties were invited to make submissions as to the effect of Rule 1008(b) of the HRNZ Rules on the facts as presented to the Committee. A timetable was put in place for this process. Submissions were subsequently received from both Messrs Carmichael and Ryan.
1.4 In our Decision of the 7th of March 2011 the parties were then invited to make submissions as to penalty. A further timetable was put in place for this process and submissions as to penalty and costs have since been received.
1.5 On behalf of HRNZ Mr Carmichael provided brief submissions as to penalty, the essence of such submissions being that “it is difficult to imagine a more serious breach of Rule 1004(6).
Mr Carmichael submitted that the aggravating features in this case were:
(a) No credit could be given to Mr Peary for an early guilty plea.
(b) That Mr Peary had previously been dealt with in relation to a breach of the Drug Rules in Victoria in 1999. Mr Carmichael provided a copy of that Decision. Whilst of some interest we do not find that Decision to be particularly relevant and of course it is historical.
1.6 Mr Ryan presented submissions on behalf of Mr Peary and his submissions can be summarized as follows:
(a) That the principal offender was Ms E the Trainer of the horse and not Mr Peary. Mr Peary’s role was only to assist a fellow Trainer in tubing the horse.
(b) That “Mr Carmichael in his submissions states that it is an aggravating feature to defend a charge brought by HRNZ in these circumstances.” Mr Ryan says that as a matter of law that is not correct. We take the view that Mr Carmichael in his submissions has clearly said that Mr Peary cannot be given credit for an early guilty plea. He is not saying that Mr Peary should be penalised for a not guilty plea. Indeed it is everyone’s right to defend any charges brought against them and neither this Committee nor any JCA Committee would penalise anyone for exercising his or her rights in this regard. Committees are able to give some credit where there is a guilty plea.
(c) Mr Ryan gave details of Mr Peary’s family circumstances which have caused a lot of upset to Mr Peary and his family. Mr Ryan has raised these difficulties as part of his submission as to mitigation of penalty.
(d) Mr Ryan also raised the issue of a recent incident between Ms E the Trainer of MACHABELLA and Mr Peary. We hardly think that this incident is relevant.
(e) Mr Ryan also referred to the Australian Decision submitted by Mr Carmichael and we have dealt with this earlier in this decision.
(f) Mr Ryan also told us that Mr Peary has an excellent personal record and as a Licensed Trainer of horses he has been training for approximately 27 years. In that time the only charge against him was the one in Victoria in 1999.
(g) Finally Mr Ryan submits that Mr Peary has been a minor player in this incident and that any penalty imposed upon him should be substantially less than that imposed on Ms E. Mr Ryan submitted that a suspension of Mr Peary’s license and a modest fine is appropriate.
1.7 In dealing with and arriving at the appropriate penalty, this Committee has taken into account the following:
(a) The Integrity of Harness Racing and Racing in general is paramount and all participants in the Racing Industry need to always be aware of this. An Industry that is reliant upon the gambling dollar needs to always uphold its Integrity to retain the Public’s confidence.
(b) Regardless of how they got there the existence of drugs in a horse in a race attacks the very core of this Integrity.
(c) It is necessary to have a level playing field for all those that participate in Racing and a deliberate administration of drugs to a horse on Race Day (as was the case here) is totally contrary to that Principle.
(d) Sentencing Principles have been well set out in two previous cases being NZTR v P and NZTR v C and this Committee is well aware of those principles. Clearly any penalty must not only recognise the seriousness of the charge but also the extent of the Defendant’s involvement in the incident giving rise to the charge. Furthermore any penalty must also be a deterrent to all those who participate in Racing.
(e) Mr Ryan has submitted to us that Mr Peary was a minor player in this incident. We do not accept that. Mr Peary has been a Licensed Trainer for some 27 years. He has certain responsibilities as a Licensed Professional Trainer and one of those responsibilities is not to administer drugs to a horse for any reason on Race Day. Mr Peary, in our view, would have been very well aware of what he was doing.
(f) Mr Peary in his evidence at the substantive Hearing told us that he did not know the name of the horse he was tubing nor that it was racing that night and he also did not know what the substance was that he was administering to the horse. We did not believe Mr Peary’s evidence at all in regard to this. In any event, and if as Mr Peary told us, he failed to make any enquiry as to the identity of the horse, whether it was racing and what substance he was administering by way of tube then that is almost equivalent to wilful blindness. The assessment of penalty in this case reflects that level of culpability. We are concerned about Mr Peary’s attitude towards tubing a horse on Race Day and that fact that he still had that attitude at the Hearing.
(g) Mr Carmichael submitted that “it is difficult to imagine a more serious breach of Rule 1004(6)”. Bearing in mind the length of time Mr Peary has held a Trainer’s License and also his involvement in this incident we agree with Mr Carmichael’s submission. Mr Carmichael submitted that a penalty of 9 months disqualification should be imposed on Mr Peary.
Even though Mr Peary tubed the horse at the request of Ms E he is, in our view, almost as equally culpable as she was. We therefore take the penalty imposed on Ms E as being the starting point but will give Mr Peary a slight discount because he was not the prime instigator in this matter.
Penalty:
1.8 For the above reasons the Committee makes the following orders:
(a) Mr Peary is disqualified pursuant to the Rules of HRNZ for a period of seven months. That disqualification period to commence immediately.
(b) Mr Peary is ordered to pay costs to the JCA of $750.00.
Dated this 17th day of June 2011
BJ Scott (Chairman)
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 23/06/2011
Publish Date: 23/06/2011
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.
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decisiondate: 23/06/2011
hearing_title: HRNZ v J T Peary - Penalty Decision - Decision dated 17 June 2011
charge:
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appealdecision: NO LINKED APPEAL DECISION
isappeal:
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reasonsfordecision:
Decision:
DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
Introduction:
1.1 On the 7th of March 2011 the Committee delivered its Decision on the charge brought against Mr Peary for a breach of Rule 1004(6) of the Rules of Harness Racing New Zealand (HRNZ Rules). The breach that the Committee found proven was that on the 2nd day of July 2010 Mr Peary did administer by nasal gastric tube a substance containing Sodium Bicarbonate to the horse MACHABELLA which was to start in Race 5 at a Race Meeting conducted by the Thames Harness Racing Club at Alexandra Park on the 2nd day of July 2010.
1.2 At the Hearing evidence was given by Ms E who was the Trainer of MACHABELLA and Mr Peary and various other witnesses. There is no need to repeat the evidence in detail other than to highlight the following:
(a) It was accepted that Mr Peary tubed MACHABELLA on the day in question.
(b) We did not find Mr Peary to be a credible witness.
1.3 At the conclusion of the Hearing the parties were invited to make submissions as to the effect of Rule 1008(b) of the HRNZ Rules on the facts as presented to the Committee. A timetable was put in place for this process. Submissions were subsequently received from both Messrs Carmichael and Ryan.
1.4 In our Decision of the 7th of March 2011 the parties were then invited to make submissions as to penalty. A further timetable was put in place for this process and submissions as to penalty and costs have since been received.
1.5 On behalf of HRNZ Mr Carmichael provided brief submissions as to penalty, the essence of such submissions being that “it is difficult to imagine a more serious breach of Rule 1004(6).
Mr Carmichael submitted that the aggravating features in this case were:
(a) No credit could be given to Mr Peary for an early guilty plea.
(b) That Mr Peary had previously been dealt with in relation to a breach of the Drug Rules in Victoria in 1999. Mr Carmichael provided a copy of that Decision. Whilst of some interest we do not find that Decision to be particularly relevant and of course it is historical.
1.6 Mr Ryan presented submissions on behalf of Mr Peary and his submissions can be summarized as follows:
(a) That the principal offender was Ms E the Trainer of the horse and not Mr Peary. Mr Peary’s role was only to assist a fellow Trainer in tubing the horse.
(b) That “Mr Carmichael in his submissions states that it is an aggravating feature to defend a charge brought by HRNZ in these circumstances.” Mr Ryan says that as a matter of law that is not correct. We take the view that Mr Carmichael in his submissions has clearly said that Mr Peary cannot be given credit for an early guilty plea. He is not saying that Mr Peary should be penalised for a not guilty plea. Indeed it is everyone’s right to defend any charges brought against them and neither this Committee nor any JCA Committee would penalise anyone for exercising his or her rights in this regard. Committees are able to give some credit where there is a guilty plea.
(c) Mr Ryan gave details of Mr Peary’s family circumstances which have caused a lot of upset to Mr Peary and his family. Mr Ryan has raised these difficulties as part of his submission as to mitigation of penalty.
(d) Mr Ryan also raised the issue of a recent incident between Ms E the Trainer of MACHABELLA and Mr Peary. We hardly think that this incident is relevant.
(e) Mr Ryan also referred to the Australian Decision submitted by Mr Carmichael and we have dealt with this earlier in this decision.
(f) Mr Ryan also told us that Mr Peary has an excellent personal record and as a Licensed Trainer of horses he has been training for approximately 27 years. In that time the only charge against him was the one in Victoria in 1999.
(g) Finally Mr Ryan submits that Mr Peary has been a minor player in this incident and that any penalty imposed upon him should be substantially less than that imposed on Ms E. Mr Ryan submitted that a suspension of Mr Peary’s license and a modest fine is appropriate.
1.7 In dealing with and arriving at the appropriate penalty, this Committee has taken into account the following:
(a) The Integrity of Harness Racing and Racing in general is paramount and all participants in the Racing Industry need to always be aware of this. An Industry that is reliant upon the gambling dollar needs to always uphold its Integrity to retain the Public’s confidence.
(b) Regardless of how they got there the existence of drugs in a horse in a race attacks the very core of this Integrity.
(c) It is necessary to have a level playing field for all those that participate in Racing and a deliberate administration of drugs to a horse on Race Day (as was the case here) is totally contrary to that Principle.
(d) Sentencing Principles have been well set out in two previous cases being NZTR v P and NZTR v C and this Committee is well aware of those principles. Clearly any penalty must not only recognise the seriousness of the charge but also the extent of the Defendant’s involvement in the incident giving rise to the charge. Furthermore any penalty must also be a deterrent to all those who participate in Racing.
(e) Mr Ryan has submitted to us that Mr Peary was a minor player in this incident. We do not accept that. Mr Peary has been a Licensed Trainer for some 27 years. He has certain responsibilities as a Licensed Professional Trainer and one of those responsibilities is not to administer drugs to a horse for any reason on Race Day. Mr Peary, in our view, would have been very well aware of what he was doing.
(f) Mr Peary in his evidence at the substantive Hearing told us that he did not know the name of the horse he was tubing nor that it was racing that night and he also did not know what the substance was that he was administering to the horse. We did not believe Mr Peary’s evidence at all in regard to this. In any event, and if as Mr Peary told us, he failed to make any enquiry as to the identity of the horse, whether it was racing and what substance he was administering by way of tube then that is almost equivalent to wilful blindness. The assessment of penalty in this case reflects that level of culpability. We are concerned about Mr Peary’s attitude towards tubing a horse on Race Day and that fact that he still had that attitude at the Hearing.
(g) Mr Carmichael submitted that “it is difficult to imagine a more serious breach of Rule 1004(6)”. Bearing in mind the length of time Mr Peary has held a Trainer’s License and also his involvement in this incident we agree with Mr Carmichael’s submission. Mr Carmichael submitted that a penalty of 9 months disqualification should be imposed on Mr Peary.
Even though Mr Peary tubed the horse at the request of Ms E he is, in our view, almost as equally culpable as she was. We therefore take the penalty imposed on Ms E as being the starting point but will give Mr Peary a slight discount because he was not the prime instigator in this matter.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
1.8 For the above reasons the Committee makes the following orders:
(a) Mr Peary is disqualified pursuant to the Rules of HRNZ for a period of seven months. That disqualification period to commence immediately.
(b) Mr Peary is ordered to pay costs to the JCA of $750.00.
Dated this 17th day of June 2011
BJ Scott (Chairman)
hearing_type: Non-race day
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PersonPresent: Mr T R Carmichael - by submissions on behalf of HRNZ, Mr A J Ryan - by submissions on behalf of Mr J T Peary
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