Non-Raceday Inquiry – Mr RN Burton

hearingid: 97cb2ac8f67ba21dc50e9bfacefe34fc

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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 - Mr RN Burton

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The defendant is charged with one breach of Rule 1004(1), (2) and (4) of the Rules of Harness Racing.

BEFORE A JUDICIAL COMMITTEE

AT CHRISTCHURCH

                                   IN THE MATTER of the

                                   New Zealand Rules of Harness Racing

BETWEEN               Barry Alexander KITTO -  Informant

AND                          Richard Neil BURTON

                                  Defendant  (Did not appear)

APPEARING: Mr BA Kitto for Harness Racing New Zealand.

                         Mr N Ydgren (Registrar)

                                              Mr RA Quirk

DECISION OF THE JUDICAL COMMITTEE

The defendant is charged with one breach of Rule 1004(1), (2) and (4) of the Rules of Harness Racing. Racecourse Inspector Mr Kitto produced written authority from the General Manager of Harness Racing New Zealand (Exh "1") to lodge this Information.

The charge (Information 66478) preferred by Racecourse Inspector Kitto reads as follows ?

"I, the above named informant allege that the above named Defendant

committed a breach of Rule 1004(1), (2) and (4) in that on the 19^th day

of February 2006, at Waikouaiti, Richard Neil Burton, being the trainer

of the horse "Marg's Memory", did take the said horse to a racecourse for

the purpose of engaging in a race, namely Race 12, The Mornington Tavern/Southern Wines Pace, at the Waikouaiti Trotting Club's race meeting held at Waikouaiti Racecourse, and that you failed to present the said horse for the said race, free of a prohibited substance, namely alkalising agents as evidenced by a total carbon dioxide level (TCO2) present at a concentration of 36.4 mmol/L., being in breach of Rule 1004(1), (2) and (4).

You are therefore liable to the penalty or penalties which may be imposed in

accordance with Rule 1004(7)(a) and (b) and the horse "Marg's Memory" shall be liable to the penalty or penalties which may be imposed in accordance with Rule 1004(8)."

The Rules referred to above, which come under the Prohibited Substance Rule, read as follows ?

"(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 these rules under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

(7) 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.

(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification

not exceeding five years."

Mr Burton had indicated on the Information that he admitted this breach of the

Rules. Mr Burton did not attend the hearing.

Mr Kitto informed us that the executive of Harness Racing New Zealand has set a TCO2 threshold level of 35 mmol/L. In addition an "analytical error" factor has been set at 1.2 mmol/L and no prosecution is undertaken unless the analysis exceeds 36.2 mmol/L.

Mr Burton was interviewed by Mr Kitto on 1 March 2006 and he explained that he fed his horses a teaspoon of bicarbonate in their teas and breakfasts. On this occasion he had fed the horse a teaspoon of bicarbonate in it's breakfast before he went on the float at 6-30am. Mr Burton said that he felt he should only have given his horse a spoon full of bicarbonate at night and not in the morning. We note here that during his interview with Mr Burton Mr Kitto established that the "teaspoon" referred to by him was in fact a tablespoon.

Since the introduction of the Prohibited Substance Rule (previously the Drug Negligence Rule) on 1 April 2001 there have been a number of prosecutions. From the beginning HRNZ has recognised that there should be a division in the seriousness of such breaches. The lowest level was set at between 36.3 and 37.2 mmol/L. and it was recommended that a fine of $500-00 should be the minimum penalty where there were no aggravating factors, the charge was admitted, and the defendant had a good record.

Mr Kitto submitted that Mr Burton had pleaded guilty at the first opportunity, and that he had a good record. A fine of $500-00 was recommended.

Taking into account these matters and also previous penalties, we are satisfied that Mr Burton has met all the criteria for a minimum penalty and he is fined the sum of

$500-00.

When making submissions as to penalty Mr Kitto also referred us to a number of previous decisions where the penalties ranged between $300-00 and $600-00. Although Mr Kitto recommended a fine of $500-00 in this case, he drew our attention to the appeal case of HRNZ v. M. J. Smolenski where the Appeals Tribunal gave an indication of how breaches of the Prohibited Substance Regulations (Rules) should be dealt with. Mr Kitto advised that HRNZ is now giving notice that in future prosecutions an increase in penalties will be sought.

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JM Phelan

Chairman

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Rules: 1004.1, 1004.7.a, 1004.8

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