Non Raceday Inquiry RIU v G F Brick – Decision dated 15 September 2016 – Chair, Mr A Dooley

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decisiondate: 15/09/2016

hearing_title: Non Raceday Inquiry RIU v G F Brick - Decision dated 15 September 2016 - Chair, Mr A Dooley

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Decision:

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND GLYNN FITZGERALD BRICK

Licensed Class A Trainer

Respondent

Information: A8452

Appearing: Mr O Westerlund - Investigator Racing Integrity Unit

Mr G Brick – Licensed Class A Trainer

Date of hearing: 14 September 2016

Venue: Te Rapa Racecourse

Judicial Committee: Mr A Dooley, Chairman – Mr A Godsalve, Committee Member

Charge

The Informant Mr O Westerlund, Racing Investigator, alleged that on the 2nd day of August 2016, at Whakatane, being the registered trainer for the time being in charge of the horse “4 year old mare El Hermano – Love The Beach”, which was brought to the Whakatane Racing Club Trials held at the Te Teko Racecourse for the purpose of engaging in, and did engage in Heat 28, conducted by the Whakatane Racing Club, when the said horse was found to have in its metabolism a Prohibited Substance, namely Phenylbutazone and Oxyphenbutazone which is in breach of New Zealand Thoroughbred Racing Rule 804(2) and is therefore subject to the penalty or penalties which may be imposed pursuant to Rules 804(6) and 804(7) of the said Rules.

Rule 804(2)

When a horse which has been brought to a Racecourse or similar racing facility for the Purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, as defined in Part A of Prohibited Substance Regulations, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules.

Rule 804 (7)

A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (6) of this Rule shall be liable to:

(a) be disqualified for a period not exceeding five years; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $25,000.

Mr Brick acknowledged that he understood the nature of the charge and admitted the breach.

Mr Brick acknowledged that all the relevant documents from the RIU had been disclosed to him. Mr Brick said he accepted the contents of the documents and consented to them being admitted as evidence.

The proposed procedure for the hearing was explained to Mr Brick and he had no concerns or objections.

Mr Westerlund produced a letter from Mr M Godber, Operations Manager for the Racing Integrity Unit, authorising the filing of the Information pursuant to Rule 903(2)(a).

Summary of agreed Facts by the Informant

Mr Glynn Fitzgerald BRICK is the holder of a Class A Trainer Licence issued by New Zealand Thoroughbred Racing (NZTR).

On Tuesday the 2nd day of August 2016 the horse “4 year old mare El Hermano – Love The Beach” was correctly entered and started in Heat 28 of the Whakatane Racing Club Trials at the Te Teko Racecourse.

At the time the horse was owned by Mr BRICK and Miss BAKER.

The horse “4 year old mare El Hermano – Love The Beach” finished 6th of the six horse trial.

The horse “4 year old mare El Hermano – Love The Beach” was randomly selected for a post-race swab. The horse was accompanied by Mr BRICK. A blood sample was obtained at 4.13pm approximately 19 minutes after the trial commenced at 3.54pm.

Both Mr BRICK and the RIU Veterinarian Dr Len Smith reported that there were no difficulties or irregularities with the collection of the blood from the horse “4 year old mare El Hermano – Love The Beach”.

At the conclusion of the Trials the samples were checked by a Racecourse Investigator and then placed in a tamper proof security bag with other samples taken that day and forwarded to the New Zealand Racing Laboratory in Auckland.

On the 11th August 2016, a Certificate of Analysis signed by Mr Rob Howitt, the Official Racing Analyst at the New Zealand Racing Laboratory advised that the sample taken from the horse “4 year old mare El Hermano – Love The Beach” had been analysed and contained the Prohibited Substance Phenylbutazone and Oxyphenbutazone.

Phenylbutazone is a nonsteroidal anti-inflammatory drug commonly used to treat short term pain and fever in horses. Oxyphenbutazone is a metabolite of Phenylbutazone.

In horses, and in particular race horses, Phenylbutazone is used for the following purposes: pain relief from infections and musculoskeletal disorders including sprains, overuse injuries, tendinitis, arthritis, and laminitis. It acts directly on musculoskeletal tissue to control inflammation, therefore reducing secondary inflammatory damage, alleviating pain and restoring range of motion.

Phenylbutazone is therefore a Prohibited Substance within the Rules of Racing. The presence of Phenylbutazone at a race day or trial is therefore prima facie, a breach of the Rules.

On the 16th August 2016 Mr BRICK was interviewed at his property.

In explanation he stated that the horse “4 year old mare El Hermano – Love The Beach” had a stone bruise to one leg so he had orally administered 10ml of Phenylbutazone at that time. Mr BRICK further stated that he believed that Phenylbutazone had been administered to the horse two weeks before the trials but did not keep an exact record of when. He is fully aware of the withholding period for Phenylbutazone before racing a horse.

Mr BRICK has been training for 9 years in New Zealand.

Mr BRICK is aged 46 years and has not previously appeared.

Submissions by the Respondent

Mr Brick advised that he had dedicated his life to the racing industry and operated a small stable in Karapiro. He said that he had a clear record in Asia and New Zealand over a 25 year period. He advised that his 4 year old mare had trialled on the 5th of July at Ellerslie and performed poorly. He said the mare was subsequently spelled to grow and strengthen up because she only weighed 420kgs. Mr Brick stated that he was treating his mare for a deep seated stone bruise and “without thought he made a bad mistake” when entering the mare to trial at Whakatane. He told the Committee that he only had 1 runner entered for the trials and was looking to take a mate as a companion and thought his mare would gain from the experience. He acknowledged that was in essence how this breach occurred. He advised that his record keeping was now up to date and any product that could be swabbed was locked away in a cupboard.

Decision

As Mr Brick admitted the breach we find the charge proved.

Submissions on Penalty by Informant

The respondent Glynn Fitzgerald BRICK is a Class A Licensed Trainer under the New Zealand Rules of Thoroughbred Racing. He has been involved in the racing industry since he was 15 years old and a licensed trainer for 9 years. Mr BRICK is 46 years of age with a date of birth of 18th April 1970.

Mr BRICK has admitted a breach of the rules in relation to a charge of entering, presenting and racing a horse in a trial at the Te Teko Racecourse when that horse had within its body a Prohibited Substance namely Phenylbutazone and Oxyphenbutazone.

The facts are set out in the Summary of Facts.

The penalties which may be imposed are also fully detailed in the Charge Rule Penalty provisions document.

I believe that this breach can be dealt with by way of a fine. It is submitted that a fine of $3000 should be imposed.

In support of this penalty I will refer to two previous decisions by the J.C.A which may be of some assistance.

Current NZ Cases

R.I.U v M. FRASER-CAMPIN and C. CAMPIN (1.04.16) -related to a positive test to Phenylbutazone and Oxyphenbutazone at the Matamata Trials on 9 February 2016. The penalty imposed was a fine of $3000 and the horse disqualified.

R.I.U v S. MUNRO (16.04.16) –related to a positive test to Phenylbutazone and Oxyphenbutazone at the Matamata Trials on the 9 February 2016. The penalty imposed was a fine of $4000 and the horse disqualified.

The mitigating factors in this case are:

That he has admitted the breach at the first opportunity

That he has been fully co-operative throughout the process

That he has not previously appeared

This is not a situation where the drug in this case ‘Phenylbutazone’ was administered to enhance performance. This is a case where Mr BRICK has made an error in not recording correctly when the ‘Phenylbutazone’ was administered to the horse before the trials.

Mr BRICK is fully aware of the withholding period.

None of the ‘B’ samples have been tested and the Racing Integrity Unit is seeking no costs.

An order for the disqualification of the horse ‘4 year old mare El Hermano – Love The Beach’ from the trial is sought pursuant to Rule 804(8).

Submissions on Penalty by Respondent

Mr Brick submitted the $3,000 fine was an appropriate penalty but asked the Committee for leniency based on the fact that his horse was a 4 year old mare which was not a saleable commodity. He added that he was having to make a decision whether the mare would be persevered with as a racing proposition. Mr Brick apologised to the RIU and the JCA for breaching this Rule.

Reasons for Penalty

The Committee have carefully considered all the evidence and submissions as presented.

In fixing penalty the Committee has referred to the JCA Penalty Guide effective 1 May 2015. This states the starting point for presentation offences with a prohibited substance is an $8,000 fine. However, we believe it would be disproportionally severe to apply that sum given the circumstances of this particular breach.

The mitigating factors were Mr Brick’s admission of the breach, his clear record under this Rule and his co – operation with the RIU during their investigation for which he has been given credit. It was also evident that Mr Brick showed genuine remorse for his actions.

Authorised trials are generally used to educate young horses and provide the opportunity to get horses of all ages fit and ready for raceday assignments. It is also accepted that many young horses are sold based on their potential shown at trials meetings.

Trials obviously differ to raceday in that there is no betting and no stake money on offer however where a horse puts in a promising performance its saleability is enhanced. It is imperative that, regardless of raceday or trials meetings, all horses competing run free of any prohibited substances. The safety of horse and rider is the same regardless, and remains paramount.

The Committee was satisfied there was no intent on Mr Brick’s part to gain an advantage by administering a prohibited substance namely Phenylbutazone. We accept Mr Brick made a “bad mistake” by allowing his mare to race in the trial. It is pertinent to note the 4 year old mare finished last in her trial. In our opinion her saleability would not have been enhanced if she had won or been placed in the trial.

Any penalty however has to be of a sufficient level to ensure that trainers do not become complacent or assume that trials meetings are different to race meetings in regard to prohibited substance use.

The Committee is familiar with the cases referred to by the RIU. The circumstances of this case are comparable to M. Fraser – Campin and C. Campin consequently in the interest of consistency the same penalty should be imposed.

Penalty

After taking into account all of the above factors the Committee considers a fine was an appropriate penalty. Accordingly, Mr Brick was fined $3,000.

Further we order the disqualification, under the provisions of the Rule 804 (8) of the NZTR, of the unnamed El Hermano – Love The Beach 4 year old mare from heat 28 at the trials held at the Whakatane on 2 August 2016.

Costs

The RIU made no application for costs.

As this charge was heard on a raceday, there will be no order for JCA costs.

Adrian Dooley              Alan Godsalve

Chairman                      Committee Member

15 September 2016

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