Non Raceday Inquiry RIU v JM Howe – Decision dated 12 November 2015

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decisiondate: 16/11/2015

hearing_title: Non Raceday Inquiry RIU v JM Howe - Decision dated 12 November 2015

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BEFORE THE JUDICIAL COMMITTEE

AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT

Kylie Williams - Racecourse Investigator

Informant

AND John Millar HOWE - Public Trainer HRNZ

Respondent

DECISION OF JUDICIAL COMMITTEE

INTRODUCTION

1. Following the running of the “Changeover Mobile Pace, being Race 2 at the Timaru Harness Racing Club’s meeting on 30th August 2015, JACKALACK SUE the race winner, was routinely swabbed. As a result of a positive test being received, the horse’s trainer, John Millar Howe was charged with a breach of the Prohibited Substance Rule, (Rule 1004(1A)(3) & (4).

The rule reads as follows:

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

(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.

(4) A breach of sub-rule (1A) or (3A) is committed regardless of the circumstances in which the TCO2 level or prohibited substance came to be present in or on the horse.

2. Mr Howe admitted the breach of the rules. As a consequence, the charge is deemed to be proved.

3. Mrs. K R Williams, acting as Informant on behalf of the Racing Integrity Unit, presented the following documents to the hearing:

• Information & Charge Sheet;

• Authority to Charge

• Charge Rule & Penalty Provisions;

• Agreed Summary of Facts;

• Certificate of Analysis;

• RIU Sample Identity Record;

• RIU Swabbing Record;

• Letter from Chief Veterinarian Dr Andrew Grierson, confirming Dextrorphan is a prohibited substance;

• Penalty Submissions;

• Race Results.

SUMMARY OF FACTS

4. The facts are as follows: JACKALACK SUE is a 4 year old Black mare and is trained by Public Trainer Mr John Howe. JACKALACK SUE is owned by G W Davis and K R Corbett. JACKALACK SUE has raced 6 times for 1 win and 1 placing and stakes of $5,323 as at 20 October 2015.

5. JACKALACK SUE was correctly entered and presented to race by trainer Mr Howe at the Timaru Harness Racing Club on 30 August 2015. JACKALACK SUE was driven in Race 2, the CHANGEOVER MOBILE PACE by Mr J Cox, finishing in 1st place winning a stake of $3,425.

6. Swabbing Steward Mrs. Mavis Orr collected a urine sample from JACKALACK SUE at 12.50pm after the mare entered the swab box at 12.37pm. The urine sample was taken in the presence of licensed trial driver and stable employee Mr Sam Payne. The urine sample was recorded with the Sample number 111277. Mr Howe does not contest the taking of the samples.

7. On the 9th September 2015 the New Zealand Racing Laboratory reported Dextrorphan was detected in Sample Number 111277. Dextrorphan is found in cough medicines and cough suppressants.

8. On the 10th of September 2015 Racecourse Investigators Mrs. Kylie Williams and Mr Peter Lamb went to Mr Howe’s, 12 Painters Road, R D 1, Christchurch, and advised Mr Howe of the positive swab result returned by JACKALACK SUE.

9. Mr Howe was given a copy of the Certificate of Analysis, Copy of the Swab Card, RIU Swabbing Record Book, Race Results, Horse details, copy of the Prohibited Substance Rule of the New Zealand Rules of Harness Racing and a copy of the definition of Dextrorphan (Wikipedia).

10. Mr Howe advised that JACKALACK SUE was taken to the races by part owner G Davis and that someone was present most of the time the horse was at the Timaru HRC meeting on the 30th August 2015.

11. A sample of Leg Up – Essential Equine Oil, Exhibit Sample One, was taken from Mr Howe’s premises and forwarded to the Racing Laboratory for testing.

12. Mr Howe could not offer an explanation for the presence of Dextrorphan in the urine sample taken from JACKALACK SUE. Mr Howe advised he did not have on his property any products that contain dextrorphan with Veterinarian Dave Senior advising he had not used or supplied any registered products that contain dextrorphan.

13. Further samples were taken on 11 September 2015 and forwarded to the NZ Racing Laboratory for testing. They were listed as Exhibit Sample 2 – Tree samples and Exhibit Sample 3 – Hibitane, active ingredient Chlorhexidine digluconate, used by a horse dentist.

14. Mr Howe advised that JACKALACK SUE had been treated by a horse dentist the day before racing.

15. The New Zealand Racing Laboratory advised on 7th October 2015 that Dextrorphan was not detected in Exhibit 1 or 3. The Laboratory did not analyze Exhibit 2, the tree samples.

16. Mr Howe has not previously been charged with a breach of Rule 1001 (1A)(2)(4) and has held a trainer’s license since 1990/1991 and trained 128 winners.

MR HOWE’S RESPONSE

17. Mr Howe said that he was at a complete loss to understand how JACKALACK SUE came to have a prohibited substance in its system. He has been making enquiries as to what might have happened, but said that he was unable to provide any proof of what he suspected. His major suspect was another trainer who has leased three boxes of his stables. He said that this person used the services of a veterinarian (not Mr Howe’s) on what seemed to him, quite a regular basis, that is to say, much more often than he did – perhaps three to four times per week. He had no knowledge of what substances were being used to by the other veterinarian but had a suspicion that some of the prohibited substance may have crystallized in a feed bowl to which JACKALACK SUE may have had access.

18. Mr Howe said that an equine dentist has treated JACKALACK SUE, the day before the race meeting, but advised that even though the equine dentist may have used antiseptic on his instruments that he did not believe that Dextrorphan was present in any substance used. Mr Howe could not accurately recall if anyone was with the equine dentist when the horse’s teeth were treated. His only instruction to the equine dentist was that the horse was racing the following day and that he did not want anything done which would leave the horse with a sensitive mouth.

19. A co-owner of the horse, transported the horse to the races at Timaru, but Mr Howe drove at the same time. He said that so far as he was concerned, his co-owner did not stop on the journey and in any event, he would have no cause to administer anything to the horse.

20. In summary, Mr Howe said that he just could not explain how the prohibited substance could have got into his horse’s metabolism.

21. He produced a number of character references to the hearing.

PENALTY SUBMISSIONS

Mrs Williams presented the following penalty submission:

22. Mr HOWE has pleaded guilty to a breach of Rules 1004(1A)(3)(4) after presenting JACKALACK SUE at the races with a prohibited substance in its system, namely Dextrorphan, at the Timaru HRC race meeting on 30th August 2015.

23. The penalty provisions that apply in this case are outlined in Rule 1104(7).

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; and/or

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

24. The rules also require the mandatory disqualification of the horse: Rule 1004(8) states:

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.

25. Sentencing Principles -

The four principals of sentencing can be summarised briefly

• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

• In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offences.

• A penalty should also reflect the disapproval of the J.C.A for the type of behaviour in question.

• The need to rehabilitate the offender should be taken into account.

The first three principles are particularly important here.

26. Relevant Precedents –

In addition to the sentencing principles the Judicial Committee should have regard to relevant precedents.

R.I.U. v J M Whittaker – 17 August 2015

Subject: Caffeine positive with a horse – fined $1,000, costs $1,800. Extract from Whittaker decision: “RIU v L J Justice (2011) where that Committee stated ….. penalties will be imposed for breaches of the rule which will recognise, reinforce and give effect to the pivotal significance of the rule in maintaining the integrity of racing, whether or not culpable conduct is involved. Naturally where culpable conduct is involved, penalties imposed will normally be greater than in cases where such conduct is absent but we think it is wrong and contrary to the intent and purpose of the rule to assume the absence of culpable conduct should attract no, or only a token penalty.”

R.I.U. v P M Williamson – 10 December 2012

Subject: Procaine positive with a horse – fined $3,500, costs $350 to JCA. The source of the positive swab was not identified. “Against those factors is the ever-present need to maintain the integrity of and public confidence in harness racing by adequately punishing the breach and deterring Mr Williamson and others from offending in a similar manner in the future.”

R.I.U. v C T Dalgety – 17 August 2015

Subject: Phenylbutazone “Bute” positive with a horse – fined $6,000 (second offence), costs $350 to JCA. The source of the positive swab was not identified.

There are no previous cases of a trainer being charged with presenting a horse with Dextrorphan in its system however one horse has been disqualified after being presenting with it in its system.

HRNZ v D S Kessell – 12 September 2003

AUSSIE MOZZIE was disqualified from Race 4 at the Kapiti Coast HRC meeting on 5 January 2003 after returning a positive to Dextrorphan after being treated with Ulcer Guard that was contaminated. The horse was disqualified but the trainer was not charged.

27. Aggravating Features –

There are no aggravating features.

28. Mitigating Factors –

There was no malicious intent. The source of the Dextrorphan has not been established.

Mr Howe admitted the breach at the first opportunity and has co-operated fully throughout the investigation.

Mr Howe has an unblemished record after holding a Public Trainer’s licence since 1990/1991. Mr Howe has had starters in over 1200 races for 128 wins.

29. Conclusion –

The Racing Integrity Unit seeks a monetary penalty of a fine of $6,000.

The reason for this figure is that the JCA guidelines, 1st May 2015, have a starting point of $8,000 for a first offence of presenting a horse with a drug in its system.

Mr Howe has to be given credit for the manner in which he has conducted himself during this enquiry and admitting the breach at the first opportunity however the onus is on trainers at all times to ensure that a horse in their care and control is completely drug free when presented at the races.

We also seek the disqualification of JACKALACK SUE under Rule 1004(8).

30. The R.I.U. is not seeking to recover any costs in this matter.

PENALTY DECISION

31. The starting point for the imposition of penalty, in accordance with the Judicial Control Authority’s Penalty Guide, is for a fine of $8,000.00.

32. Even though the rule provides for a further or alternative penalty of a disqualification of trainer’s licence for up to five years, this is not pursued by the RIU, and neither in this instance do we consider it appropriate.

33. We turn now to look at aggravating and mitigating factors in order to arrive at an appropriate penalty.

34. In this case we do not find any aggravating factors which would warrant an uplift on the starting point of $8,000.00. Had there been evidence of some negligence, (as there often seems to be in a lot of similar cases) it may well have been different. There was no such evidence of negligence. Regrettably however, for Mr Howe, this is an absolute liability case – the substance was either in the horse’s system or it was not. There is uncontested evidence of the prohibited substance being present.

35. Insofar as mitigating factors are concerned we are of the view that the following points can be taken into account:

• Mr Howe is at a complete loss to understand how the substance came to be in the metabolism of JACKALACK SUE. He has gone on enquiries, all of which have failed to provide him with any assistance. He is suspicious of the tenant who leased three of his horse boxes at his stable but has no proof. He considers that JACKALACK SUE may have ingested the substance off a contaminated feed bowl;

• Mr Howe has been co-operative with RIU’s enquiry process, assisting them in any way that he could;

• He has acknowledged his breach of the Rules at an early stage. He was most co-operative in the hearing process, which minimised the time required to deal with this matter;

• He has produced references which speak well of him, including a reference from a former Chief Stipendiary Steward of Harness Racing, who has known him for approximately 37 years, 24 of which was from when Mr Howe first took out his professional trainer’s licence. This referee referred to such matters as one who did not have a medical cabinet as to referee’s knowledge; Mr Howe simply turned his horses out to spell on a “green” paddock. The referee also spoke as to Mr Howe’s honesty and the fact that he had never witnessed unused syringes or packets of medication in the stable area when he visited.

36. We have considered the various precedents submitted by Mrs Williams. These precedents are a guideline in terms of determining penalty, although we do note that some were decided before the recent amendments to the Penalty Guide.

37. Mrs Williams has submitted that a fine of $6,000.00 should be imposed. It is this committee’s view, that after taking into account, the mitigating factors referred to above, that we can afford Mr Howe a discount of $3,000.00 on that starting point. We do not question his integrity.

PENALTY

Mr Howe is fined the sum of $5,000.00.

As this matter was heard on a race day, there is no order as to costs.

DISQUALIFICATION OF JACKALACK SUE – Rule 1004(8)

38. JACKALACK SUE is disqualified from first place in the “Changeover Mobile Pace” at Timaru on 30th August 2015.

39. Amending placings are as follows;

• 1st – HOPEFUL HARRIET (9)
• 2nd – BETTOR IN THE DARK (4)
• 3RD – LOLLAPALOOSA MIDFREW (3)
• 4TH – PARTY RAGE (1)
• 5TH – ROCK DIVA (5)

40. Stakes are to be paid in accordance with the amended placings as set out above.

KG HALES                  Chairman

RG McKenzie             Committee Member

12 November 2015

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