Non Raceday Inquiry – RIU v AR Beck 3 February 2012 – Decision 7 February 2012

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informantnumber: A2651

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decisiondate: 02/02/2012

hearing_title: Non Raceday Inquiry - RIU v AR Beck 3 February 2012 - Decision 7 February 2012

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND MR ALLAN BECK
Licensed Public Trainer and Open Horseman
Respondent

Information: A2651
Judicial Committee  Prof G Hall, Chairman - Mr N Skelt, Committee Member
Appearing: Mr B Kitto, for the informant
The respondent in person, with the assistance of Mr B Negus
Venue: Ascot Park
Date of Hearing: 3 February 2012
Date of Decision: 7 February 2012
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DECISION OF JUDICIAL COMMITTEE
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[1] Mr Beck appears before this Judicial Committee on a charge of administering a prohibited substance, namely Aminorex, in breach of r 1001(1)(q).

The Rule 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 purpose of engaging in a race any prohibited substance.”

[2] Mr Kitto produced written permission to file the information in accordance with r 1103(4)(c) from the Operations Manager of the Racing Integrity Unit, Mr M Godber, alleging a breach of r 1001(1)(q).

[3] Information number A2651 and the schedule of charge were served on the respondent personally on 17 January 2012. Mr Beck admitted the breach, which we thus find proved in accordance with r 1111(1)(d).

Facts and related submissions

[4] Mr Beck entered and started the registered standard bred CALL OF DUTY in Race 3, the McKnight and Brown mobile pace at the Invercargill Harness Racing Club’s race meeting held at Ascot Park raceway on Tuesday 20 September 2011. CALL OF DUTY finished second winning a stake of $337. The horse was 3/4 in the betting and paid a place dividend of $2.20.

[5] After the race CALL OF DUTY was post-race swabbed and a urine sample obtained at 1.52 pm. The sample was sent to the New Zealand Racing Laboratory for analysis. On the 25 October 2011 Dr G Beresford reported the swab was “Aminorex and Levamisole detected”. Aminorex was described as being “a stimulant drug and is an equine metabolite of Levamisole”.

[6] The respondent was interviewed by Mr Kitto on 27 October 2011. Mr Beck said that he had administered what he thought was 20 mls of the product called Levicare High Mineral, which contains 4% Levamisole, about midday on the Saturday prior to the race meeting on the Tuesday, which would be about 74 hrs prior to racing. The reason he used it was because the horse had a cough. He said he was “pretty sure” the veterinarian had told him that it had a 3 day withholding time.

[7] On examination it was discovered that the syringe that the respondent had used was in fact a 35ml syringe, so Mr Beck inadvertently had administered nearly twice the amount he thought he was giving the horse.

[8] The 35 ml syringe used to administer the Levicare High Mineral over the tongue to CALL OF DUTY and a 20ml syringe containing a control sample from the Levicare High Mineral container were analysed by Dr Beresford. Both items were examined and Levamisole detected.

[9] Dr A Grierson, Chief Veterinarian for Harness Racing New Zealand produced a report dated 23 December 2011, which confirmed Aminorex as a prohibited substance. His report stated that a study found Aminorex was detectable for over 50 hrs after administration of Levamisole. Levamisole was virtually undetectable after 24 hrs.

[10] Mr Kitto produced a document titled “The period of detection list for NZEVA veterinarians” dated 23 December 2010. This listed the detection time (commonly referred to as the withholding time) for Aminorex as being 3 days with the express advice in the first paragraph of the document to add a further 24 hours time buffer to this (as with all the listed drugs). Mr Kitto further advised that the listed detection time for Aminorex was increased to 4 days only a few weeks after the respondent had administered the Levamisole. He emphasised the need for trainers to seek advice from veterinarians as to withholding times.

[11] Mr Beck informed this Committee that he believed the reason that Levamisole was also detected in the swab, when this was usually only within 24 hours of administration, was because of the possibility that the syringe he had used to administer minerals to CALL OF DUTY up until the day prior to raceday was contaminated by the Levamisole administered on the Saturday.

[12] Mr Negus spoke on behalf of the respondent. He emphasised Mr Beck’s integrity and lack of intent. He explained that Levamisole was commonly used as a sheep drench and it had been found to be effective in building up the immune systems in horses. The recommended use for maximum therapeutic benefit in horses was 60 ml for 3 days, to treat coughs and colds. He emphasised the withholding time was originally 14 days, and was now 4 days. In Australia he believed it was 5 days. He said he understood the move in New Zealand from 3 to 4 days was because of improvements to the drug detection equipment, which meant that the presence of minute quantities could be identified.

[13] We accept the thrust of Mr Negus’ argument but note the respondent was not within the 24-hour buffer which was recommended by the NZEVA. He had either overlooked this or was unaware of it. In addition, Mr Beck now acknowledged the possibility of contamination of the syringe.

[14] Mr Negus also produced the record of CALL OF DUTY. This demonstrated that the time run by the horse on the day in question did not differ from times returned by the horse in subsequent starts. In fact, he said, the horse could be seen to have run quicker mile rates in his later races.

Penalty submissions
[15] The penalties which may be imposed for a breach of r 1001(1)(q) are contained in rr 1001(2)(a), (b), (c) and (3) and 1004D.

[16] Rule 1001(2) states: “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.

[17] Rule 1001(3) provides: “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.” In addition r 1004D states: “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.”

[18] The aggravating features identified by the informant were that Mr Beck failed to get proper veterinary advice and, although he said he had spoken to a veterinarian some months earlier, he could not remember who the veterinarian was or the precise information given in relation to administering Levamisole. He also had administered 35 mls of product when he thought he was giving only 20 mls. The mitigating factors acknowledged by the informant were the respondent’s co-operation throughout the investigation, his early admission of the breach of the rule, and his previous good record.

[19] The informant submitted that the appropriate penalty was a period of disqualification of six months. He referred to the S Appeal Tribunal decision of 17 November 2005, which stated that a starting point for a breach of r 1001(1)(q) should be 12 months’ disqualification or suspension. He observed, however, that that decision recognised that in exceptional circumstances a fine might be considered to be the appropriate penalty.

[20] The informant stated that the respondent is a married man with a small child. He has had a lifetime of involvement in the Harness Racing Industry. He enjoys a reputation for honesty and is well respected. His wife is a Licensed Trainer under the New Zealand Rules of Thoroughbred Racing. They do not train in partnership but train from the same property. They own their training establishment but still have a mortgage on the property.

[21] Mr Wally Davidson, part-owner of CALL OF DUTY, attested orally to the respondent’s good character and abilities as a horseman and stockman. He said he had never had reason to doubt Mr Beck’s honesty and would not hesitate to continue to give him horses to train.

[22] Mr Negus supported the testimony of Mr Davidson and gave examples of the respondent’s good standing in the harness racing community, including one where Mr Beck’s open disclosure of a possible problem with a horse had led to a sale not being completed to his obvious detriment.

[23] Mr R Freeman, the secretary of the Invercargill Harness Racing Club, said he had 30 years experience in the industry and during this time he had found Mr Beck to be honest and trustworthy and to be of excellent character. He said he was a mentor to younger drivers.

[24] Mr Beck explained the practical difficulties he would encounter were he to be disqualified. He would not be able to reside at the house unless his wife relinquished her thoroughbred licence and all 16 horses on the property would have to be removed and rehoused. His not stepping foot on the property was not a feasible alternative as there was other stock, both sheep and cattle, to which he would need to attend. Suspension also raised similar problems, particularly with the harness horses, which numbered 12 at the present time. He said they usually had up to 20 horses on the property at any one time.

Decision as to penalty
[25] S states that the decision is intended to offer guidance to future non-raceday committees. In this regard it suggests a starting point of 12 months’ disqualification or suspension for a first breach of r 1001(1)(q) before mitigating and aggravating factors are taken into account. However, that decision also recognises (at 6) that in exceptional circumstances a fine might be considered the appropriate penalty and emphasises (at 10) that it is “mindful of the wide variety of circumstances which will surround each breach of r 1001(1)(q)”. After emphasising the need for consistency, the Appeal Tribunal stated that it was “also mindful that Judicial Committees ought to retain a genuine discretion when imposing those penalties.” We also note that these comments rest a little uneasily alongside the statement (at 9) that “[i]n cases such as this involving the administration of a prohibited substance the personal circumstances of the offender and the consequences of disqualification tend to recede and cannot outweigh the need for deterrence to ensure drug free racing and to maintain public confidence.” We agree that the need for deterrence is an important consideration, but we also believe that mitigating factors may, in exceptional cases, point to a penalty other than disqualification. Significantly, the S decision does not elaborate upon what might be found to be exceptional circumstances in which a fine might be considered to be the appropriate penalty.

[26] The informant referred us to 2 cases decided by non-raceday committees. In C 16 August 2004 the penalty imposed was a fine of $6000. C used voltaren gel, which he had obtained from a pharmacy, on a horse over a period of days immediately prior to and on the day of its racing. His culpability is clearly greater than that of respondent; the committee described his administering the substance without any veterinarian advice as “grossly negligent, even reckless”. But like Mr Beck he co-operated with the inquiry, admitted the breach and was of good character. We accept this penalty was imposed prior to the guidance in S, but we note the emphasis the committee placed on the consequences of disqualification upon Mr C, his family, his staff and his owners, which they held would be “out of all proportion to the circumstances of the administration” and would “unduly punish Mr C”. A fine of $6000 was said to be “sufficient to maintain integrity and public confidence in harness racing and will still operate as a deterrent.”

[27] The case of Cs 26 October 2007 is quite different to that before us today, both with respect to culpability and the consequences of a disqualification, as the informant was quick to acknowledge. Mr Cs had continued to feed his horse both prior to and subsequent to racing a mixture containing PBZ granules, which he acknowledged he would have been told at the time he had been supplied with them by his veterinarian that there was a withholding time. In imposing an 8-month disqualification, the committee found that “Mr Cs knew or ought to have known that he was administering a prohibited substance to that horse”, and rejected his submission that “he had forgotten what the mixture contained”. Mr Cs was training 3 horses and this was not his principal source of income.

[28] There is no suggestion of any deliberate intent to breach the rules by the respondent. That is simply not part of the informant’s case. But there is no doubt that the respondent has been mistaken both as to the quantity of Levamisole he was administering and the need to factor in a 24-hour buffer when calculating the withholding time of Aminorex. He was also careless in not ensuring that the syringe was either thoroughly washed after use or that the minerals given subsequently to CALL OF DUTY were administered with a different syringe. These matters, alone, would not lead us to impose a penalty other than suspension or disqualification. The exceptional circumstances in this case thus are not principally to be found in the circumstances of the breach.

[29] We do not overlook that this is a serious racing offence or the provisions of r 1114(1)(c) and (d) which require us to consider any consequential effects upon any person or horse, as a result of breach of r 1001(1)(q), and the need to maintain integrity and public confidence in Harness Racing. In this case the breach will result in the disqualification of CALL OF DUTY, this being mandatory under r 1004D, and we place emphasis on the fact that those investing on horses in the race in which CALL OF DUTY competed when positive to Aminorex are entitled to assume that all horses are drug free and thus are racing on an equal footing.

[30] However, when regard is had to the circumstances of the breach, the culpability of the respondent, and, more particularly in this case, his personal circumstances, we believe the respondent can be held accountable through the imposition of a substantial fine. We are satisfied from listening to the respondent at the hearing that specific deterrence need not be at the forefront of our penalty decision and we believe general deterrence can be met by a five-figure fine. His remorse and concern that he had brought into disrepute the industry that he had put so much time and energy into over a number of years was very evident to us.

[31] The personal circumstances that have weighed heavily with us are first the respondent’s good character. In addition to the oral references from Messrs Negus, Freeman and Davidson, we have had placed before us by Mr Negus a number of written testimonials from well-respected identities in the harness racing industry. We will not identify these people by name but they each spoke of knowing Mr Beck for a number of years and, in addition to attesting to his honesty and integrity, a number stated that they perceived the breach as arising out of a genuine misunderstanding on his part. We do not believe it to be an exaggeration to describe Mr Beck as being a southern stalwart in the harness racing industry.

[32] Secondly, the respondent has co-operated fully in the informant’s inquiry. He was open and honest concerning his administration of Levamisole to CALL OF DUTY when questioned by Mr Kitto and today he has offered an explanation as to why both Aminorex and Levamisole were detected, which undoubtedly elevates his level of culpability. He could have remained silent as to this, but we believe it is “the mark of the man” that he has acknowledged his further carelessness with the syringe. In addition, had he remained mute as to his administration of Levamisole, he may, as the informant acknowledged, have merely been charged under the drug negligence rule with its lesser penalties.

[33] Thirdly, Mr Beck has readily admitted his breach of r 1001(1)(q) at the first opportunity and has at all times demonstrated remorse for his actions.

[34] Fourthly, he has had no previous breach of this rule or any related rule.

[35] Finally, harness racing is the respondent’s principal source of income. It is supplemented by farming. Disqualification or suspension will deprive him of his harness income and negate or at least substantially restrict his ability to work on the property, which will impact heavily on his family. A further compounding factor is the flow-on effects, previously identified, for his wife who is a licence-holder in the thoroughbred industry.

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penalty:

[36] The factors that weighed heavily with the committee in C are all applicable to Mr Beck. Indeed his culpability is significantly less than that of Mr C and the consequences for his wife and his farming property are more acute. Unlike the committee in C we are not disposed to place great weight on the interests of the owners, as inconvenience to them is an inevitable consequence of disqualification. The fine in C was $6000. That was seven and a half years ago and the need for a deterrent penalty, although clearly considered by the committee in that case, could be viewed as having been afforded further weight in S. We exercise our “genuine discretion” (to adopt the words in that case) as to penalty and impose a fine of $10,000. We acknowledge that this (together with costs) is a substantial financial impost for the respondent. But the need to uphold the integrity of the harness racing industry and to maintain the confidence of the public we believe requires no lesser penalty.

Disqualification of horse
[37] Pursuant to r 1004D, which is mandatory, (but we would also have exercised our discretion to disqualify under s 1001(3)) CALL OF DUTY is disqualified from second placing in race 3 at the Invercargill Harness Racing Club’s race meeting on Tuesday 20 September 2011.
[38] Revised placings are:
1st BETTOR YARN
2ND LEAVE MEALONE
3RD LITE JAGERMEISTER
4TH WEEKEND AT BERNIES

[39] The stakes are authorised to be paid accordingly.

Costs
[40] The RIU made no application for costs. The respondent is ordered to pay Judicial Control Authority costs in the sum of $500.

G Hall Chairman

hearing_type: Non-race day

Rules: 1001(1)(q)

Informant: Mr B Kitto - Racing Investigator - RIU

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PersonPresent: Mr B Negus - assisting Mr Beck

Respondent: MR AR Beck - Licensed Public Trainer and Open Horseman

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