Non-Raceday Inquiry – MS Cations

hearingid: d3b0ae400ef95efdf7d8143e06cefa1e

informantnumber:

horsename:

hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

newcharge:

plea:

penaltyrequired:

decisiondate: no date provided

hearing_title: Non-Raceday Inquiry - MS Cations

charge:

facts:

appealdecision:

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

The defendant is charged with one breach of Rule 1001(1)(q) of the Rules of Harness Racing. The charge (Information 66970) preferred by Racecourse Inspector Kitto

DECISION OF JUDICIAL COMMITTEE

The defendant is charged with one breach of Rule 1001(1)(q) of the Rules of Harness Racing. The charge (Information 66970) preferred by Racecourse Inspector Kitto reads as follows –

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

committed a breach of Rule 1001(1)(q) - 1001(2)(a), (b),(c), (3), 1004(D) in that on the 14^th day of September 2007, Michael Stephen CATIONS did administer to a horse, namely "CALL BILL NOW" which was taken to a racecourse, namely the Forbury Park Racecourse for the purpose of engaging in a race, namely Race 1, The Amalgamated Builders Trot held by the Forbury Park Trotting Club a prohibited substance, namely "Phenylbutazone" and the metabolite "oxyphenylbutazone" in breach of Rule 1001(1)(q) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rules 1001(2)(a)(b)(c), 3 and 1004(D)."

Rule 1001(1)(q) is a Serious Racing Offence and reads as follows.

"1001(1) 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 racecourse for the purposes of engaging in a race any prohibited substance…."

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

Rules, and he confirmed this at the hearing.

Mr Kitto produced written permission pursuant to Rule 1103(4)(c) from the General Manager of Harness Racing New Zealand to file this information.

Mr Kitto presented a "Summary of Facts" which is attached to this decision. The horse "Call Bill Now" was entered for and finished 2^nd in the Amalgamated Builders Trot at the Forbury Park Trotting Club’s meeting held at Forbury Park on 14 September 2007. After the race the horse was swabbed and the subsequent analysis revealed the presence of "Phenylbutazone" and "Oxyphenylbutazone" (PBZ) which are prohibited substances under the New Zealand Rules of Harness Racing. A "Certificate of Analysis" and written evidence from Dr A. R Grierson were produced in evidence.

Mr Cations was interviewed by Mr Kitto on 24 September 2007 and a transcript of this interview is attached to this decision. Mr Cations was at first unable to explain this positive swab and denied that he had given his horse anything containing the prohibited substances. No such substances were found in Mr Cations drug cabinet, but an empty PBZ granules packet was found in a rubbish bag.

After this discovery Mr Cations then recalled obtaining sachets from a veterinarian quite some time ago. Subsequent enquires from this veterinarian established that Mr Cations had obtained 10 sachets of PBZ granules on 18 July 2006.

Mr Cations also explained that "Call Bill Now" had over a period of time shown soreness in his back. For this reason he had obtained the PBZ from his veterinarian and fed it to the horse when it showed signs of soreness.

Mr Cations was asked Mr Kitto if he had fed a spoonful [of the mixture] to "Call Bill Now" prior to going down to Forbury. In answer Mr Cations said –

"Yes it would have had probably a spoonful of that in its night feed

for a week or so because it was a wee bit hitchy."

Mr Cations was again interviewed on 9 October 2007, and a transcript of this interview is also attached to this decision. Mr Cations then explained that five of the sachets of PBZ granules would have been sprinkled over feed and fed at the time they were prescribed in 2006. The other five sachets had been blended with "Bio-Mos" which is a nutritional support supplement for horses. Mr Cations again admitted that he had fed this mixture to "Call Bill Now" in its night feed for several days preceding the Forbury Park race, and for several days after it raced.

Mr Cations also agreed that he would have been told of the withholding times by his veterinarian at the time he was supplied with the sachets. His explanation for feeding the prohibited substance was that at the time he did so he had forgotten about mixing it with "Bio-Mos", and had not consciously given it the horse.

After hearing from Mr Kitto Mr Cations agreed that he had no dispute with the facts as presented.

Mr Kitto’s written submissions on penalty are also attached to this decision. Rules 1001(2) and (3) of the New Zealand Rules of Harness Racing provide for the following penalties in this case.

"(2) Every person who commits a serious racing offence shall be liable to the following penalties:

(a) a fine not exceeding $25,000; and/or

(b) suspension from holding or obtaining a licence, for any specific period or for life; and/or

(c) disqualification for a specific period or for life.

(3) The Judicial Committee may in addition to or substitution of any penalty imposed under sub-rule (2) hereof disqualify from any race and/or for any specific period or for life any horse connected with the serious racing offence."

Mr Kitto referred to what he considered to be the mitigating and aggravating

aspects of this breach of the Rules, and these we have set out in full.

"The mitigating factors for Mr Cations are:

1. Mr Cations co-operation throughout this investigation.

2. His previous good record.

3. His early admission of the breach.

The aggravating factors are:

--

--
1. Mr Cations used PBZ granules in the feed of possibly all his horses.
--
2. He mixed at least five of the sachets into a container of "bio-moss", a nutritional support supplement for horses, without attaching any identification to that container that it contained a prohibited substance.
--
3. He gave the horse "CALL BILL NOW" a spoon full from the Biomoss container each night in the horses evening feed until the day it raced and probably each evening after it raced.
--
4. He was aware of the recommended withholding time as explained by his Veterinarian for Phenylbutizone which is, for 3 grams, 5 days – 10 days on multiples.
--
5. When first interviewed he could not recall giving any Phenylbutizone or sachets containing powder to "CALL BILL NOW". Only when Mr Ydgren found the empty sachet in the rubbish bag in the course of the stable search was he then able to recall what may have happened."

Mr Kitto referred to the Appeals Tribunal decision in HRNZ v. Mark John

Smolenski (2005) as being authority for the recommendation of HRNZ that a period of disqualification should be imposed in this case.

Mr Cations provided written submissions concerning personal matters which had been causing him problems over recent times. Mr Cations also provided a written reference from his employer and a prominent harness racing horseman to vouch for his good character.

In relation to penalty Mr Cations said that he would prefer a fine to a disqualification, as it would be difficult for him to recover his harness racing career after a disqualification. It was also established that Mr Cations was at present training three horses that were ready to race, and that harness racing was not his principal source of income.

We record that Rule 1114(2) requires a Judicial Committee to have regard to

four specific matters when considering penalty. Clauses (a) and (b) refer to the status and stake payable in the race, but these two matters are not significant in the present case, as the race was a maiden trot with a stake of $6935-00.

The other two matters we need to take into account are –

"(c) any consequential effects upon any person or horse as a result of breach of the Rule;

(d) the need to maintain integrity and public confidence in Harness Racing."

In the Smolenski decision the Appeals Tribunal [in relation to the administration of a prohibited substance] quoted with approval the following statement made by the Judicial Committee.

"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 decision in the Smolenski case is important when we come to consider the matter of penalty. In that case the original penalty was a fine of $5000-00, and on appeal this decision was overturned and replaced with a disqualification for a period of five months. In coming to this decision the Appeals Tribunal had this to say about the principles to be adopted when considering an appropriate penalty for a breach of Rule 1001(1)(q).

"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."

In deciding on an appropriate term of disqualification in the Smolenski case the

Appeals Tribunal determined that there were significant mitigating factors, but that they were not exceptional. These factors were listed by the Judicial Committee as –

"1.Mr Smolenski’s co-operation and frankness throughout the investigation.

--

--
1. His previous good record.

--

--
1. His early admission of the breach.
--
2. The fact that he obtained the Ranitidine through his veterinarian.
--
3. 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.
--
4. The fact that he did not deliberately breach the Rule."

The Appeals Tribunal accepted that the Judicial Committee was entitled to

place weight on the first three factors, but not on the other three.

In the present case the first three factors referred to above are also present. There can be no credit given to Mr Cations in relation to his obtaining the PBZ granules from a veterinarian, and he certainly did not exercise any degree of care when using the granules in the "Bio-mos".

As to aggravating factors, these are quite substantial. It is quite clear that Mr Cations mixed the PBZ granules with the "Bio-mos". It is also quite clear that Mr Cations fed the mixture to "Call Bill Now" on several occasions. We find that Mr Cations knew or ought to have known that he was administering a prohibited substance to that horse, and we reject his submissions that he had forgotten what the mixture contained.

Taking all the above matters into account we are satisfied that a disqualification is the only appropriate penalty in this case.

To Mr Cations’ credit we take into account the mitigating factors that he co-operated with Mr Kitto during the investigation, that he has not previously breached this Rule, and that he pleaded guilty at the first opportunity.

The aggravating factors are that Mr Cations was solely responsible for mixing the PBZ granules with the Bio-Mos, and also solely responsible for administering this mixture to "Call Bill Now". We also find that Mr Cations’ explanation that he overlooked the make-up of the mixture is unacceptable. He was aware that PBZ was a prohibited substance with a substantial withholding period, and should have been well aware of his responsibility not to feed it to "Call Bill Now" shortly before a race.

We are bound to follow the decision in the Smolenski case that a starting point for a disqualification under this Rule should be "….in the order of 12 months…." . We find that the facts of the present case are more serious than in the Smolenski case and have decided that a disqualification for a period of eight months is appropriate. This disqualification will take effect from 19 November 2007 and end on 18 July 2008, both dates inclusive.

Mr Kitto advised that no costs were being sought by HRNZ as this matter was heard on a race night. There will however be an order for the payment of costs of $100-00 to the JCA.

Rule 1004D of the New Zealand Rules of Harness Racing provides as follows.

"Any horse which has been taken to a racecourse for the purpose of

engaging in a race which is found to have administered to it or

ingested by it any prohibited substance shall be disqualified from that race."

Accordingly it is mandatory to disqualify "Call Bill Now" from its 2^nd place in the race. "Call Bill Now" is therefore disqualified from 2^nd place in the Amalgamated Builders Trot at the Forbury Park Trotting Club’s meeting on 14 September 2007 and the stake money is to be refunded to HRNZ and paid according to the amended places. The amended places are as follows.

1^st – O’Sheas (8)

2^nd – John Barrie (6)

3^rd – Tozzies Sister (4)

4^th – Shara Boy (11)

5^th – Honey Pie (10)

6^th – Painted Cloud (9)

_____ ______ _____ ______

--
10. M. Phelan                                      R. G. McKenzie

Chairman                                                 Panel Member

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Old Hearing

Rules: 1001.1.q, 1103.4.c, 1114.2

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: