Non Raceday Inquiry RIU v B Towers – decision dated 15 May 2015

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decisiondate: 19/05/2015

hearing_title: Non Raceday Inquiry RIU v B Towers - decision dated 15 May 2015

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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 Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND BRENDAN TOWERS

Respondent

Judicial Committee: Mr T Utikere, Chairman - Mr P Williams, Committee Member

Appearing: Mr S Irving (Informant) – Mr B Towers (Respondent)

Registrar: Mr L Tidmarsh

Venue: Manawatu Raceway

Date of Hearing: 15 May 2015

Date of Decision: 15 May 2015

DECISION OF JUDICIAL COMMITTEE

Mr Towers appears before this Judicial Committee on the following charges:

Information Number A4165

THAT On the 04th April 2015 at Hawera, Brendan John Towers, registered trainer and person for the time being in charge of the horse, presented ‘RIGHTEOUS ROYALE’ to the Hawera Harness Racing Club for the purpose of engaging in and did engage in Race 6 - the Murray Bros/RD1 Mobile Pace - failed to present the said horse free of the prohibited substance namely Clenbuterol, in breach of the New Zealand Harness Racing Rule 1004(1A) & (3) and 1004(D) and subject to the penalties pursuant to Rules 1004(7) & (8).

Information Number A4166

THAT On the 16th April 2015 at Palmerston North, Brendan John Towers, registered trainer and person for the time being in charge of the horse, presented ‘RIGHTEOUS ROYALE’ to the Wairarapa Harness Racing Club for the purpose of engaging in, and did engage in Race 2 – the More FM Wairarapa Mobile Pace - failed to present the said horse free of the prohibited substance namely Clenbuterol, in breach of the New Zealand Harness Racing Rule 1004(1A) & (3) and 1004(D) and subject to the penalties pursuant to Rules 1004(7) & (8).

The relevant rules read as follows:

1004(1A) – “A horse shall be presented for a race free of prohibited substances.”

1004(3) – “When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.”

1004(D) – “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.”

The relevant Penalty provisions read as follows:

1004(7) – “Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

a. a fine not exceeding $20,000.00; and/or

b. be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.”

1004(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.”

At the hearing, Mr Towers confirmed that he understood the relevant rules and that he admitted the charges.

Mr Irving tabled a signed authority from the Racing Integrity Unit (RIU) to proceed with the charge against Mr Towers. Copies of the Informations, the appropriate notices to the various parties, and the appointment of the Judicial Committee were also tabled.

FACTS

At the hearing, the Committee was provided with a Summary of Facts by Mr Irving outlining the circumstances from which the charges arose. The Summary of Facts stated:

“The respondent Brendan John Towers is a licenced trainer under the Rules of New Zealand Harness Racing. He has held a Harness Trainer’s licence and a Thoroughbred Owner/Trainer licence for approximately 20 years. He usually only has one or two horses in work.

Mr Towers co-owns and trains 5yo mare RIGHTEOUS ROYALE which won a C1 pace at the Hawera Harness Racing Club’s Easter Saturday meeting on the 04th April 2015. RIGHTEOUS ROYALE earned gross stake money of $4200. The horse was post-race swabbed (#095418) and on the 17th April the NZ Racing Laboratory Services issued a certificate of analysis detailing the sample positive to Clenbuterol.

On the 16th April at the Wairarapa Harness Racing Club meeting at Manawatu Raceway, RIGHTEOUS ROYALE won a C2/C3 pace and was post-race swabbed (#095444). The horse earned gross stake money of $3350. On the 01st May NZ Racing Laboratory Services issued a certificate of analysis detailing a second sample positive to Clenbuterol.

Clenbuterol is used in the equine treatment of allergic respiratory disease, being a decongestant and bronchodilator. It is a prohibited substance per the HRNZ regulations in that it is a substance capable of acting on the respiratory system.

On the 28th April Mr Towers was interviewed at his property near Hawera. He does not contest the swabbing process. Mr Towers admitted to adding the product Airway Tmps to RIGHTEOUS ROYALE’s daily feed as the horse had an ongoing nasal discharge problem. In explanation he stated that he had been given the product from his vet and was unaware that it contained any prohibited substance or had any withholding period. He stated he had been using what he thought was the same product when the horse had won three races last year and therefore was safe to use.

Inquiries with Mr Towers’ vet Jim Robins revealed that he recalled being telephoned by Mr Towers regarding the ongoing discharge problem. He delivered a container of Airway Tmps into Mr Towers’ letterbox on the 11th January 2015. He believes he would have advised Mr Towers of the seven day withholding period during their telephone conversation. The previous year he had prescribed Bromo Tmps (14th April 2014) for the same ailment. Bromo Tmps has no race-day withholding period and does not contain any prohibited substance.

The container of Airway Tmps was located in Mr Towers’ stable medicine cabinet and is labelled with a Class 1 Prescription Animal Remedy (P.A.R). It has a ‘meat withholding period’ warning of 63 days. An empty container of Bromo Tmps was also located in his stables. It is also labelled with a ‘meat withholding period’ warning of 63 days but no P.A.R warning.

Mr Towers has been involved in the racing industry for approximately 35 years, initially as a jockey. He has had no previous charges in either racing code.”

Mr Irving also presented the Bromo Tmps and Airways Tmps containers before the Committee to indicate the extent of the warnings on each of the labels.

When given the opportunity to seek clarification on any matters raised by the Informant, Mr Towers, believed that the Summary of Facts indicated that his vet did not disclose to him that the Airways Tmps had a withholding time period.

When given the opportunity to address the Committee, Mr Towers supplied a copy of the Bill from the vet indicating that on 11 January 2015 the Airways Tmps product was supplied after hours without any consultation fee. Mr Towers stated that he had been using the ‘powders’ previously, specifically the year before, to remedy a discharge issue that RIGHTEOUS ROYALE had and that the mare had had three wins at the time. When there continued to be a discharge problem, he contacted the vet for the replacement ‘powders’ that had been given previously and that as a result, the Airways Tmps product was delivered to his letterbox.

The Airways Tmps was then added to the mare’s feed which seemed to put RIGHTEOUS ROYALE off her feed, so he stopped using the product. The mare then started at the Taranaki Harness Meeting at New Plymouth on 17 March 2015, where she went out as the favourite but ran last. The stipendiary stewards placed a warning on the mare’s record as a result of her performance. A post-race veterinary inspection took place and the race day vet did not find any abnormalities with the mare. Mr Towers then submitted that he contacted Mr Robins upon returning to Hawera, and a consultation was undertaken. Mr Robins recommended the use of the powder Mr Towers had obtained in January to remedy a nasal discharge problem which Mr Robins believed may be having an impact upon her race day performance. Mr Towers then recommenced use of the Airways Tmps product by mixing it in with molasses daily. He carried on with this approach without any understanding that any withholding period applied. The research Mr Towers had subsequently undertaken on Clenbuterol after being advised of the positive swab return suggested that the substance should not be used for a period in excess of 14 days.

Mr Towers stated he read the label on the container and did not note it was subject to any withholding period, except for a 63 day meat withholding period. When the wording “added to feed twice daily for 6-10 days” was pointed out to Mr Towers on the Airways Tmps container’s label, he indicated he was unaware that was there.

Mr Towers stated he had no issues with the swabbing process that was undertaken, but did submit that had he known that RIGHEOUS ROYALE had returned a positive swab earlier, he would not have started the horse on the second day of the Wairarapa Harness Meeting which led to the second positive swab being returned.

DECISION

As the charges are admitted, the committee find the charges proved.

PENALTY SUBMISSIONS BY INFORMANT

Mr Irving tabled his written submission on penalty which is quoted in full below.

“The respondent Brendan John Towers is a licenced trainer under the New Zealand Rules of Harness Racing and holds an Owner/Trainer licence in the Thoroughbred code.

Mr Towers is 53 years old and has been involved in the horse racing industry for approximately 35 years, having begun his career as a jockey. He is a self-employed plumber and for the last 20 years as a ‘hobby’ trainer normally has one or two horses in work.

Mr Towers has admitted two separate breaches of Rule 1004(1A) & (3). The circumstances are detailed in the Summary of Facts which have been agreed.

Mr Irving believed that an appropriate combined penalty for these two breaches is a $5000 fine. This case is very similar in fact and circumstance to HRNZ v M G Berger (May 2009) in which a $2400 fine was imposed for one breach of presenting a horse with the same prohibited substance, Clenbuterol. It is noted however that this case was pre March 2011 when the maximum HRNZ fine for this type of offence was doubled from $10,000 to $20,000, reflecting the desire to provide a greater deterrent.

In the recent RIU v A Neal & L Neal (May 2015) decision a $5500 fine was imposed for a positive to Flunixin. While the circumstances and drug are somewhat different - the main point in issue being withholding times - and this was their second offence, the decision refers to negligence and ‘reasonable care’ when presenting horses to race.

It appears from previous penalties where there has been two counts of the same charge resulting from the same ‘act’, that the fine imposed has been one and a half times what a single charge would incur, rather than a cumulative fine (RIU v JT McInerney August 2013).

Under Rule 1004(8) RIGHTEOUS ROYALE is required to be disqualified from both races.

The RIU are seeking no costs.

It is acknowledged that Mr Towers has been fully co-operative with the investigation and pleaded guilty to the breaches at the first opportunity.

Mr Towers is part-owner of RIGHTEOUS ROYALE with his wife Mrs Toni Towers. He and his wife’s loss of stake earnings from the two disqualifications is $7,550.

The two positive results have essentially been from the same careless action, in this case regular administration to the horse’s feed, rather than two specifically separate incidents.

Mr Towers had regularly used the non-prohibited product Bromo Tmps in 2014 to treat RIGHTEOUS ROYALE, including three wins where the horse returned negative swabs. When he ran out of this product he was supplied Airway Tmps and used it believing that the products were the same. They are similarly packaged and labelled.

Mr Towers stated that he does not believe his vet Mr Robins told him over the phone that there was a withholding period for the product Airway Tmps and that he always asks about withholding periods on new products. Mr Robins disputes this but it is not disputed that he delivered the product into Mr Towers’ letterbox one evening and there was no contact between the two when this occurred.

At the time Airway Tmps was supplied by Mr Robins, Eltham Vet Services did not have ‘Caution’ stickers placed on all drugs dispensed for race horses - a policy they now employ.

There is some conjecture over the performance enhancing benefits of Clenbuterol in both healthy and ailing horses, however in this case it is not suggested that Mr Towers was attempting to improve RIGHTEOUS ROYALE’s performance by administering Airway Tmps.

Although careless in his actions Mr Towers has acted without intent and has made an innocent mistake.

Mr Towers has an exemplary record in both codes over a lengthy period of time.

Mr Towers is an experienced horseman who has previously worked in large racing stables overseas and has been a ‘hobby’ trainer for a number of years. He is well aware of the caution required when using supplements in horse racing management.

A Brief of Evidence from Mr Towers’ vet Jim Robins has been tabled before this Committee, in which Mr Robins states: “I would have told him that Airway Tmps had a seven day withholding period which is the standard withholding for Airway. It is standard procedure that a vet will advise a racing client of any product that has a withholding period.”

Airway Tmps has (among other directions) written on the label: “PRESCRIPTION ANIMAL REMEDY (P.A.R) Class 1. For use only under the authority or prescription of a veterinarian.” Bromo Tmps does not carry the same warning label.

The Dosage and Administration heading on the Airway Tmps label details a course of 6-10 days. Mr Towers stated he had been adding it to RIGHTEOUS ROYALE’s feed for a few months.

The HRNZ Prohibited Substance Regulations detail the following prohibited substances under subsection 1(a). Substances capable at any time of acting directly or indirectly on one or more of the following mammalian body systems: the respiratory system.

Although careless in his actions it is inferred that Mr Towers is also culpable of ‘low-mid level’ negligence – failing to take proper and reasonable care - by not interpreting the Airway Tmps label correctly and not specifically checking with Mr Robins upon receiving the new product.”

In response to a question from the Committee, Mr Irving indicated he was aware of the Purdon (August 2011) case where the prohibited substance was also Clenbuterol but had some difficulty gaining access to the decision. Mr Irving was aware that the fine imposed in the Purdon case was one of $3,000.

In response to a question from the Committee regarding the line between negligence and deliberate administration, Mr Irving believed deliberate administration occurred where the license holder acknowledges that the product is prohibited and the substance is still administered. He said in this case the RIU contends that Mr Towers did not realise the product he was giving his horse was prohibited, and therefore no intent existed on the part of Mr Towers.

Mr Irving confirmed the RIU was also seeking the disqualification of RIGHTEOUS ROYALE from Race 6 of the Hawera Harness Meeting on 4 April 2015 and Race 2 of the Wairarapa Harness Meeting on 16 April 2015.

PENALTY SUBMISSIONS BY RESPONDENT

Mr Towers stated that he had not received the stake monies of $7550 as a result of the two wins. He described himself as a ‘hobby trainer’ with one or two horses at a time. He now acknowledges that the label contained a warning of 6-10 days but he did not know that at the time and he strongly believed that it was not pointed out to him by his vet either. However, he did accept that both charges related to absolute liability on his part and he took responsibility for both breaches.

As a result of these breaches, he believed that there should be some consistent industry-wide approach to ensure that labelling of products subject to withholding times were clearly visible. Mr Irving confirmed that since this product was delivered to Mr Towers in January 2015, the vet practice in which Mr Robbins is employed, has adopted a new approach for the labelling of its products for racehorses which are subject to withholding timeframes.

Mr Towers said he stopped using Airways Tmps as soon as the RIU investigators visited him at his property and advised him it contained a prohibited substance, namely Clenbuterol. He reiterated that there was definitely no intent on his part to deliberately race his horse with a prohibited substance.

Mr Towers submitted that he had been involved in the industry, in both harness and thoroughbred codes, for a number of years. He also noted that he had previously ridden over steeples, ridden a winner at Aintree and that his was the first time he had appeared before a Judicial Committee on a breach of this nature.

He said he owned a small plumbing business in Hawera, which had also had its fair share of bad builders and bad debts of late and sought a fine that was as low as possible. He had thought about asking the Committee to consider a period of disqualification in lieu of a fine, but opted not to place that request before the Committee as the implications would be undesirable.

REASONS FOR PENALTY

Mr Towers has admitted two charges relating to the prohibited substance Clenbuterol.

In coming to our decision we have carefully considered all of the submissions placed before us. We consider a fine as the appropriate penalty on this occasion. The current JCA Penalty Guidelines indicate a starting point of an $8,000 fine for a breach of this rule. However; this starting point cannot be applied as both breaches currently before the committee occurred prior to the current Penalty Guidelines taking effect. Therefore, we are required to look to the previous Penalty Guidelines, which do not offer the committee any assistance as to a defined starting point.

The previous cases that the RIU have submitted also provide little guidance when seeking to establish a starting point. HRNZ v Berger provides some similarity in that the prohibited substance was delivered to the stable, where the licence holder had also previously been using the Airways Tmps product. The penalty of a fine of $2,400 for the singular breach was also prior to the increase in maximum financial penalty for a breach of this nature.

In RIU v Purdon a fine of $3,000 was imposed for a positive return to Clenbuterol, the same prohibited substance currently before this committee. Mr Irving, whilst familiar with the quantum of fine, was not familiar with the specific circumstances of the case. The committee did note that the Purdon decision was also prior to the increase in penalties that took effect in 2011.

The recent RIU v A Neal & L Neal decision does refer to ‘withholding times’ being at issue, but offers little guidance as whilst the decision deals with a second breach of the Prohibited Substances rule, such a breach is not as a result of a singular on-going act, and the Judicial Committee in that decision refers to that aspect being a significant aggravating factor.

RIU v McInerney was submitted to support the submission that when setting a quantum, the committee could look to set the financial penalty for the second breach at a level which was half that of the original breach. An approach in line with that adopted in McInerney supports the view that to impose a quantum for each breach, albeit resulting from the same on-going action - in this case Mr Towers unintentionally providing feed containing Clenbuterol on a regular basis - would result in a penalty that would be disproportionate and deemed excessive in the circumstances. The totality principle leads the Committee to ensure that the overall penalty is appropriate in the specific circumstances of Mr Towers’ offending. Accordingly, we have adopted a starting point of a $4,000 fine.

In aggravation, the Committee considered that Mr Towers has had experience in the racing industry over a number of years and must understand that there is an onus of responsibility upon him to ensure he presents a horse for racing without a prohibited substance in its system. While it is clear that the evidence does not fully support the proposition that his vet Mr Robbins definitely advised him of a withholding period for the product Airways Tmps, Mr Towers accepts that the ultimate responsibility rests with him as the licensed trainer. It is also clear that he did not make adequate enquiry into the use of the Airways Tmps product, and that the product was used continuously by Mr Towers over a prolonged period. This was clearly outside of the guidelines on the label which indicated that the product be “added to feed twice daily for 6-10 days”. Although the Airways Tmps container was slightly different in name and appearance to the previous Bromo Tmps product, Mr Towers still did not follow this up with his vet.

In mitigation, the Committee notes Mr Towers has been fully co-operative with the investigative and hearing process and had demonstrated remorse for his actions; accepting that the liability for both breaches rested with him. He has admitted the breaches at the earliest opportunity and the Committee accepts that there was no deliberate attempt to administer the prohibited substance. Mr Towers has been involved in the industry for a lengthy period and his previous record can be described as very good; having no previous breaches of this nature over his 35 year involvement.

While not overly persuaded, we do note the RIU’s submission that the pending disqualification of RIGHTEOUS ROYALE was a mitigating factor, as such action will result in the forfeiture of $7,550 in stake monies by Mr and Mrs Towers.

In determining penalty, Rule 1114(2)(c) affords the Judicial Committee the discretion to have regard to any consequential effects upon Mr Towers as a result of the breach. In doing so, we acknowledge that Mr Towers is a ‘hobby trainer’ and the financial impact of this penalty will have a significant impact upon Mr Towers, whilst also serving as a deterrent.

After considering all matters of mitigation, and aggravation, the Committee, on balance, considered that a $4,000 fine is an appropriate penalty on this occasion.

The Committee also determines that the disqualification of RIGHTEOUS ROYALE from the two races for which she tested positive to Clenbuterol must also follow.

PENALTY

Mr Towers is fined $4,000.

This Committee orders the disqualification of RIGHTEOUS ROYALE from the following races under the provision of Rule 1004(8):

Hawera Harness Racing Club’s meeting on 4 April 2015 – Race 6;

Wairarapa Harness Racing Club’s meeting on 16 April 2015 –Race 2.

The amended results for each race is as follows:

Hawera Harness Racing Club – 4 April 2015 – Race 6
1st PRESENT ARMS
2nd ALOTBETTOR
3rd CHEVRON EXCITES
4th CLASSIC BET
5th MEGATRON

Wairarapa Harness Racing Club - 16 April 2015 –Race 2
1st WESTBURN COURAGE
2nd P TOMADO
3rd LUCKY JOHN
4th BUTE MACH
5th PLAYAWAY

The committee also orders the payment of stake monies in accordance with these amended results.

COSTS

The RIU indicated no costs were being sought, accordingly no such order will be made.

Tangi Utikere             Paul Williams

Chairman                   Committee Member

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