Non Raceday Inquiry – RIU v MJ Smolenski 14 December 2011 – Reserved Decision dated 16 January 2012
ID: JCA15846
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of Informations Nos. A2602, A2603 and A2604
BETWEEN CAMERON GEORGE, Chief Stipendiary Steward for the Racing
Integrity Unit
Informant
AND MARK JOHN SMOLENSKI, Licensed Public Trainer
Respondent
Date of Hearing: Wednesday, 14 December 2011
Venue: Judicial Room, Addington Raceway, Christchurch
Judicial Committee: R G McKenzie, Chairman - J Millar, Committee Member
Present: Mr Cameron George (the Informant), Mr N M Ydgren, Stipendiary Steward, Mr M J Smolenski (the Respondent), Mrs C Smolenski Ms M-J Thomas, Counsel for Mr Smolenski (by telephone)
Date of Decision: 16 January 2012
RESERVED DECISION OF JUDICIAL COMMITTEE
The Charges
[1] Mr Smolenski is charged with three breaches of Rule 1004 (6) in that, in respect of each of the horses TIP YOUR HAT LOUI, AWESOME PROSPECT and GLENALVON, on Friday 14 October 2011 at approximately 9.30 am, the day on which those horses were engaged to race in Races 1, 3 and 5 respectively at New Zealand Metropolitan Trotting Club’s race meeting at Addington Raceway he did administer to each of those horses by injection a substance namely “15% Osmitrol” (15% Mannitol Injection USP).
The Plea
[2] Ms Thomas, on behalf of Mr Smolenski, took the three charges as read and said that all three were admitted. The three charges were found proved accordingly.
The Rule
[3] Rule 1004 of the New Zealand Rules of Harness Racing provides as follows:
(6) No person shall during any day of racing, in respect of a horse entered in a race, administer by injection, nasal gastric tube, gastric tube, ventilator, or nebulizer any substance whatsoever. Where such administration occurs both the person and the trainer commit a breach of this sub-rule unless such device was used after the horse had raced or under the direction or supervision of a club veterinary surgeon, Racecourse Inspector or Stipendiary Steward.
For the purposes of this sub-rule the day of racing is deemed to commence 12 hours prior to the first race and conclude half an hour after the last race.
The Facts
[4] Mr George presented the following Summary of Facts (set out verbatim):
1. Mark Smolenski is a Licensed Trainer with Harness Racing New Zealand.
2. He nominated three horses under his training to compete at the Addington
racemeeting on 14 October 2011.
3. Trainers have a requirement as per Rule 1004 (6) not to administer any substance on a day in which they are competing in a race. The time specified in respect to this Rule is 12 hours before the first race.
4. Stipendiary Stewards Mr Nick Ydgren and Mr Andrew Ray attended the stable of Mark Smolenski at approximately 4.30 pm on the day of the races.
5. The Stipendiary Stewards observed a container which contained needles in the stabling complex.
6. In their view the needles had relatively fresh blood present on them.
7. When Mark Smolenski was questioned about the presence of needles he advised the Stipendiary Stewards he had earlier in the day used them to needle the three horses that were racing that night at approximately 9.30 am.
8. Mr Ydgren and Mr Ray followed due process and the horses were subsequently scratched from their races and all horses were drug tested.
9. The results of the tests revealed that there was the presence of 15% Osmitrol (15% Mannitol Injection USP). This was consistent with the evidence of Mark Smolenski and substance collected from the stables.
[5] The Committee sought an explanation from the parties as to the product “Osmitrol", the reasons for its use by trainers and its effects on horses. Mr George stated that he understood that it was a diuretic. It was a naturally-occurring sugar alcohol product that can be found in plants, he said. A horse could test positive to the product if it were ingested naturally, but there had been no threshold set and it was not a prohibited substance under the New Zealand Rules of Harness Racing. Mr George said that no study had been done, of which he was aware, as to the effect of “Osmitrol” on a horse’s performance.
[6} Ms Thomas said that her understanding of the product was that it aided a horse’s recovery by flushing out toxins from the kidneys. She submitted that, if it were performance-enhancing, it would be a prohibited substance.
[7] Mr Smolenski told the Committee that he had only used “Osmitrol” on a couple of occasions. He had been advised by his veterinarian that it was good practice to use it in aiding a horse to empty its kidneys prior to racing. Furthermore, a horse which races with fluid in the lungs may bleed. It was for these reasons that he had administered it to the three horses. The product could only be obtained through a veterinary surgeon. Mr Smolenski said that the horses had urinated within a relatively short space of time when samples were required for testing purposes, so the product was effective.
Penalty Submissions by the Informant
[8] Mr George presented written submissions which, again, are set out verbatim.
[9] 1. The Judicial Committee is charged with the responsibility of ensuring correct penalties are put in place for breaches of the Rules after considering the evidence before it.
2. Mark Smolenski has shown complete disregard for the Rules of Harness Racing.
3. The charge of administering a substance to a horse on raceday can vary from a very low level breach to a very serious breach which also carries an impact on the Harness Racing Industry’s image.
4. A low level breach in the Stewards view would be an oral administration of a substance not on the prohibited list and a serious breach is forced administration by needles or tubing, the seriousness again will vary with the substance and thresholds.
5. Mark Smolenski in his disregard for the Rules has carried out an act which in the opinion of the RIU is a serious one.
6. Constantly the RIU are trying to quash rumours and innuendo about drug administration of animals on raceday and yet the first stables the RIU representatives arrive at on 14 October 2011 the trainer concedes to needling horses.
7. The impact this has for all participants is damaging.
8. Mark Smolenski carried out this act to deceit [sic] the authorities and the Rules of Harness Racing otherwise he would have abided by the Rules.
9. It is obvious in the RIU’s opinion he has tried to gain an advantage and to compete on a different level to his competitors.
10. If the Stewards had not been proactive in their enforcement of the Rules and to ensure a level playing field for participants and punters then Mr Smolenski may have been rewarded (both financial and reputation) for his deliberate breach of the Rules.
11. It is imperative that the Judicial Committee protect the racing fraternity, the sport’s image and it needs to maintain betting confidence when applying penalties.
12. Even though the substance is not prohibited as per the Rules it is submitted that the Committee should not place significant weight on that aspect alone. It is accepted that a lesser penalty should apply as opposed to when it is a prohibited substance but the act carried out is where significant consideration should be placed. For example, if the RIU discovers a person “tubing” a horse on raceday with bicarbonate (TC0) and the level is at the time of testing below the threshold as per the Rules, it is the RIU’s view that that does not mean that the penalty should fall at the low end. The act carried out is what is deemed serious and damaging to the sport and the test results are another consideration to have in terms of an aggravating factor.
The RIU submits the following:
• A serious breach of the Rules of Harness Racing
• The need to deter other participants from similar activity, send a clear message that this conduct will not be tolerated in racing
• Administration of a substance by “needling” on raceday
• The act carried out by Mr Smolenski was to cheat the system
• Previous breach for a positive swab – 7.12.05 Trainer: Disqualified. HRNZ appeal 14.7.05 hearing upheld and $5,000 fine replaced with 5 months’ disqualification, Rule 1001 (1) (q).
13. The RIU submits a starting point of 14 months’ disqualification for each breach however the RIU considers the following as mitigating factors in reference to this particular case:
• Mr Smolenski’s conduct towards the Stipendiary Stewards was honest when they were making their investigation
• Mr Smolenski’s guilty plea.
14. Taking into account the mitigating factors the RIU submits a penalty of 12 months’ disqualification for each charge to be served concurrent.
Submissions by the Defendant
[10] Ms Thomas had filed written submissions on penalty on behalf of Mr Smolenski and she addressed these at the hearing.
[11] It was submitted that the tenor of the Informant’s submissions is certainly that Mr Smolenski be made an example of by asking the Committee to ignore previous case law and create a new penalty precedent for this offence.
[12] Ms Thomas challenged the submissions made by the Informant set out in paragraph [9] 3 & 4.
[13] She submitted that there is no logic in the argument that an “off course” administration of a non-prohibited substance on race day is a “low level breach” if administered orally and yet an “off course” administration of a non-prohibited substance on race day is a serious breach if administered by injection or tubing.
[14] Ms Thomas submitted that repeated use of the term “needling” in the Informant’s submissions was unnecessarily provocative. The fact that the horses were injected with the substance was not the charge – it was the fact that this occurred outside of the allowable time frame.
[15] This is not a case of administering a prohibited substance, Ms Thomas submitted, and the Informant’s submissions call on the Committee to give a penalty as high as if it were. She submitted that could not be correct in principle. She referred to the Informant’s submission set out in paragraph [9] 12 above.
[16] Ms Thomas submitted that that submission was misplaced. It would be impossible to argue that a trainer who was found in the act of milkshaking a horse on raceday and was “lucky enough” to fall below the threshold level had not been guilty of a serious offence because milkshaking is in itself inherently against the Rules. In this case it is not the substance that is against the Rules nor the way it was administered, it was the time of administration.
[17] In relation to the previous breach (referred to paragraph [9] 12 above), the present case was not for a positive swab in relation to the use of a prohibited substance.
[18] Ms Thomas referred the Committee to a number of previous cases involving breaches of the particular Rule. Some of these will be referred to later in this decision.
[19] Ms Thomas submitted that an important consideration for the Committee was consistency of penalty.
[20] Ms Thomas acknowledged that Mr Smolenski’s record was not “unblemished” but she asked Mr Smolenski to explain the circumstances of his prior breach. The substance involved in that previous charge was “Ranitidine”. Mr Smolenski said that he had been using the product for 10 years and it had no withholding period shown on the container. However, unbeknown to him, the Rule was changed and the substance was brought into the category of antihistamines and a 48-hour withholding period became applicable. The horse returned a positive swab to “Ranitidine”. The horse had been a hot favourite for a $200,000 race and the owners had travelled from Australia to watch it race.
[21] Ms Thomas submitted that the Rule was aimed at prohibiting anything at all being given to a horse and the method of administration was irrelevant. She submitted that the use of a needle off-course was no worse than administration of a “tonic” and reiterated that, since the substance in this case is not a prohibited substance, the Rule is aimed at making it a breach to give a horse anything at all. Furthermore, Ms Thomas took exception to the use of the term “needling”.
[22] To start at the maximum penalty for a breach of this Rule, one is looking at “significantly aggravated offences”. The present case is not one of them, Ms Thomas submitted.
[23] Ms Thomas further submitted that the Committee should take a totality approach to the three breaches. She referred to the thoroughbred case of P and the case of L (2007) in which a fine of $500 was imposed. In the case of D a significant fine of $2,250 was imposed but no disqualification. She also referred to the case of L (2009) in which a trainer was fined $1,000 for administering Colloidal Silver, Rapid Response, Aloe Vera Gel and Performa 3 by injection on the morning of the New Zealand Trotting Cup to a runner in that race.
[24] Ms Thomas submitted that disqualification carried such a “bite” with it – it had the effect of taking a person’s livelihood away. A suspension of the period submitted by Mr George would, effectively, put Mr Smolenski out of business.
[25] Mr Smolenski should receive a significant discount of penalty for making “frank admissions”. Mr Smolenski may have been well advised to have said nothing. He was not present in the stables area when the RIU representatives called at his property. He arrived after they had found the evidence and elected to make a full and frank admission, when he may well have decided to say nothing.
[26] In the case of C, there were three charges which were defended.
[27] Finally, Ms Thomas submitted that there is “a real sting” to being charged. She referred to a recent article in the “Christchurch Star” which suggested Mr Smolenski was a “drug cheat”. All that can be said is that the substance made the horses “pee” before a race and, while it is conceded that Mr Smolenski should not have given it to the horses, on a scale of drug cheats, Mr Smolenski’s offending falls at the lower end.
[28] Ms Thomas, on the subject of deterrent penalties, agreed that there needed to be deterrent penalties. The RIU has very publicly stated that it intends to seek out drug cheats. Everyone involved in the industry wishes there to be a level playing field but the Committee should not make an example of Mr Smolenski just because it is the beginning of a new era. The breaches were not of such a level that Mr Smolenski should be removed from the industry.
[29] Neither should any fine imposed be of such amount as to be “crippling” and have the effect that a person cannot continue in the industry, Ms Thomas submitted. The industry is going through difficult times at present and many participants are struggling financially.
The Penalty Rule
[30] The relevant penalty provision is contained in Rule 1003 (1) under the heading “General Penalties” and provides:-
A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4), 1001 or 1004) shall be liable to the following penalties:
(a) a fine not exceeding $5,000.00; and/or
(b) suspension from holding or obtaining a licence for any specific period not exceeding five years; and/or
(c) disqualification for a period not exceeding 12 months.
Penalty Reasons
[31] In deciding on an appropriate penalty in this case, there were a number of considerations for the Committee.
[32] The principal mitigating factor is, clearly, Mr Smolenski’s immediate admission of his wrongdoing to and cooperation with the Stipendiary Stewards, Messrs Ray and Ydgren, who called at his property on 14 October 2011. Ms Thomas stressed this point and the Committee agrees that it is a significant mitigating factor. In many instances, a Respondent has little option but to admit a breach of the Rules because of clear and compelling evidence against him. We do not think that this is such a case. It would have been open to Mr Smolenski to deny any wrongdoing and to put the Informant to the task of having to carry out a full investigation and prove their allegations at a defended hearing of charges. To his credit, Mr Smolenski did not do so. In the Committee’s view, he is entitled to a significant discount of penalty in this regard.
[33] The principal aggravating factor is the previous breach of the prohibited substance Rule by Mr Smolenski in 2005. However, the circumstances of that breach were quite different from the circumstances of the breaches with which we are now dealing (see paragraph 20 above). It is also relevant that the previous breach was 6 years ago.
[34] The Rule is designed to prohibit administration, by any of the specified means, of any substance, whether prohibited or not, on any day of racing.
[35] In this case, Mr Smolenski administered a non-prohibited substance, 15% Osmitrol, to three horses at approximately 9.30am on the day on which they were to race. The Rule prohibits administration of any substance, but it is obviously of relevance whether the particular substance is a prohibited substance. Administration of a non-prohibited substance is manifestly less serious than administration of a prohibited substance, which would be categorised as a “serious racing offence” if the horse or horses raced with the substance in their system.
[37] The Committee also considers that the administration is less serious if administered at home, as in the present case, rather than at the racecourse.
[37] The evidence before us as to the nature and effect of 15% Osmitrol was not detailed. Mr George indicated that his understanding was that it was a diuretic and a naturally-occurring sugar alcohol product that could be found in plants. Mr Smolenski confirmed that it was a diuretic which could be obtained from a veterinary surgeon. It seems that the product is intrinsically harmless.
[38] Mr George submitted that to have administered the substance by needle or injection, somehow, made the breach more serious than administering by any of the other means referred to in the Rule – nasal gastric tube, gastric tube, ventilator or nebulizer. Ms Thomas submitted that such a submission was “unnecessarily provocative” and submitted that the administration of the substance was not the charge, but rather that the administration was outside of the allowable time frame.
[39] The Committee agrees with Ms Thomas in that regard. The Rule does not differentiate between any of the methods of administration and no one method is expressed to be any more serious or liable to incur any greater penalty than any of the others.
[40] We now turn to look at the other cases referred to by Ms Thomas. In only one case was a period of disqualification imposed – 4 months, together with a fine of $2,500 after an appeal in the case of C. In that case the charges were defended. In the P case, a fine of $3,000 was imposed on a trainer who administered glycerine orally by syringe at the racecourse prior to the horse racing. Fines imposed in other cases were L (2007) $500, D (2009) $1,000, L (2009) $1,000 involving a runner in the New Zealand Trotting Cup (see paragraph 23) and S (2008) $375.
[41] The Committee is aware of a thoroughbred case of W involving administration of a saline drench at the racecourse on raceday. The defendant in that case was fined the sum of $4,000 by the Judicial Committee.
[42] It was stated by the Judicial Committee in the 2011 case of J that “broad consistency in the levels of penalties imposed for like offences is obviously desirable”. We have taken considerable guidance from the penalties in those previous cases in arriving at penalty in this case.
[43] Mr George submitted that the appropriate penalty was a term of disqualification on each charge for a period of 12 months to be served concurrently. He cited no previous cases or penalties in support of that submission but submitted that it was a serious breach of the Rules, that a deterrent was necessary, that the administration was by “needling” and that Mr Smolenski was attempting to “cheat the system”.
[44] Ms Thomas submitted that Mr George was ignoring previous case law and attempting to create a new penalty precedent for a breach of the Rule and that he was wishing to make an example of Mr Smolenski.
[45] The Committee took all of the above matters into account in arriving at penalty.
[46] The Rule provides for a maximum period of disqualification of 12 months and/or a fine not exceeding $5,000. The maximum penalties, and disqualification in particular, are reserved for the very worst breaches of the Rule. We do not see the present case as being in that category.
[47] Looking at all of the circumstances of this case in the light of the other cases referred to and the penalties imposed, the Committee is not persuaded that a disqualification is appropriate.
[48] In arriving at what the Committee considers an appropriate penalty, the Committee has adopted a totality approach on the basis that, although three horses were involved, the offending could reasonably be viewed as one offence. Accordingly, one penalty is being imposed in respect of the three charges.
Penalty:
[49] Mr Smolenski is fined the total sum of $3,600.
Costs
[50] Costs are reserved. The Informant is required to file with the Judicial Control Authority submissions relating to costs, which are to include a detailed schedule
of expenses claimed, within 7 days of the date of this decision.
[51] The Respondent is to file submissions in reply within 7 days of the date of the receipt by him of the RIU’s submissions.
R G McKENZIE J MILLAR
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 02/04/2012
Publish Date: 02/04/2012
JCA Decision Fields (raw)
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Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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penaltyrequired:
decisiondate: 02/04/2012
hearing_title: Non Raceday Inquiry - RIU v MJ Smolenski 14 December 2011 - Reserved Decision dated 16 January 2012
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of Informations Nos. A2602, A2603 and A2604
BETWEEN CAMERON GEORGE, Chief Stipendiary Steward for the Racing
Integrity Unit
Informant
AND MARK JOHN SMOLENSKI, Licensed Public Trainer
Respondent
Date of Hearing: Wednesday, 14 December 2011
Venue: Judicial Room, Addington Raceway, Christchurch
Judicial Committee: R G McKenzie, Chairman - J Millar, Committee Member
Present: Mr Cameron George (the Informant), Mr N M Ydgren, Stipendiary Steward, Mr M J Smolenski (the Respondent), Mrs C Smolenski Ms M-J Thomas, Counsel for Mr Smolenski (by telephone)
Date of Decision: 16 January 2012
RESERVED DECISION OF JUDICIAL COMMITTEE
The Charges
[1] Mr Smolenski is charged with three breaches of Rule 1004 (6) in that, in respect of each of the horses TIP YOUR HAT LOUI, AWESOME PROSPECT and GLENALVON, on Friday 14 October 2011 at approximately 9.30 am, the day on which those horses were engaged to race in Races 1, 3 and 5 respectively at New Zealand Metropolitan Trotting Club’s race meeting at Addington Raceway he did administer to each of those horses by injection a substance namely “15% Osmitrol” (15% Mannitol Injection USP).
The Plea
[2] Ms Thomas, on behalf of Mr Smolenski, took the three charges as read and said that all three were admitted. The three charges were found proved accordingly.
The Rule
[3] Rule 1004 of the New Zealand Rules of Harness Racing provides as follows:
(6) No person shall during any day of racing, in respect of a horse entered in a race, administer by injection, nasal gastric tube, gastric tube, ventilator, or nebulizer any substance whatsoever. Where such administration occurs both the person and the trainer commit a breach of this sub-rule unless such device was used after the horse had raced or under the direction or supervision of a club veterinary surgeon, Racecourse Inspector or Stipendiary Steward.
For the purposes of this sub-rule the day of racing is deemed to commence 12 hours prior to the first race and conclude half an hour after the last race.
The Facts
[4] Mr George presented the following Summary of Facts (set out verbatim):
1. Mark Smolenski is a Licensed Trainer with Harness Racing New Zealand.
2. He nominated three horses under his training to compete at the Addington
racemeeting on 14 October 2011.
3. Trainers have a requirement as per Rule 1004 (6) not to administer any substance on a day in which they are competing in a race. The time specified in respect to this Rule is 12 hours before the first race.
4. Stipendiary Stewards Mr Nick Ydgren and Mr Andrew Ray attended the stable of Mark Smolenski at approximately 4.30 pm on the day of the races.
5. The Stipendiary Stewards observed a container which contained needles in the stabling complex.
6. In their view the needles had relatively fresh blood present on them.
7. When Mark Smolenski was questioned about the presence of needles he advised the Stipendiary Stewards he had earlier in the day used them to needle the three horses that were racing that night at approximately 9.30 am.
8. Mr Ydgren and Mr Ray followed due process and the horses were subsequently scratched from their races and all horses were drug tested.
9. The results of the tests revealed that there was the presence of 15% Osmitrol (15% Mannitol Injection USP). This was consistent with the evidence of Mark Smolenski and substance collected from the stables.
[5] The Committee sought an explanation from the parties as to the product “Osmitrol", the reasons for its use by trainers and its effects on horses. Mr George stated that he understood that it was a diuretic. It was a naturally-occurring sugar alcohol product that can be found in plants, he said. A horse could test positive to the product if it were ingested naturally, but there had been no threshold set and it was not a prohibited substance under the New Zealand Rules of Harness Racing. Mr George said that no study had been done, of which he was aware, as to the effect of “Osmitrol” on a horse’s performance.
[6} Ms Thomas said that her understanding of the product was that it aided a horse’s recovery by flushing out toxins from the kidneys. She submitted that, if it were performance-enhancing, it would be a prohibited substance.
[7] Mr Smolenski told the Committee that he had only used “Osmitrol” on a couple of occasions. He had been advised by his veterinarian that it was good practice to use it in aiding a horse to empty its kidneys prior to racing. Furthermore, a horse which races with fluid in the lungs may bleed. It was for these reasons that he had administered it to the three horses. The product could only be obtained through a veterinary surgeon. Mr Smolenski said that the horses had urinated within a relatively short space of time when samples were required for testing purposes, so the product was effective.
Penalty Submissions by the Informant
[8] Mr George presented written submissions which, again, are set out verbatim.
[9] 1. The Judicial Committee is charged with the responsibility of ensuring correct penalties are put in place for breaches of the Rules after considering the evidence before it.
2. Mark Smolenski has shown complete disregard for the Rules of Harness Racing.
3. The charge of administering a substance to a horse on raceday can vary from a very low level breach to a very serious breach which also carries an impact on the Harness Racing Industry’s image.
4. A low level breach in the Stewards view would be an oral administration of a substance not on the prohibited list and a serious breach is forced administration by needles or tubing, the seriousness again will vary with the substance and thresholds.
5. Mark Smolenski in his disregard for the Rules has carried out an act which in the opinion of the RIU is a serious one.
6. Constantly the RIU are trying to quash rumours and innuendo about drug administration of animals on raceday and yet the first stables the RIU representatives arrive at on 14 October 2011 the trainer concedes to needling horses.
7. The impact this has for all participants is damaging.
8. Mark Smolenski carried out this act to deceit [sic] the authorities and the Rules of Harness Racing otherwise he would have abided by the Rules.
9. It is obvious in the RIU’s opinion he has tried to gain an advantage and to compete on a different level to his competitors.
10. If the Stewards had not been proactive in their enforcement of the Rules and to ensure a level playing field for participants and punters then Mr Smolenski may have been rewarded (both financial and reputation) for his deliberate breach of the Rules.
11. It is imperative that the Judicial Committee protect the racing fraternity, the sport’s image and it needs to maintain betting confidence when applying penalties.
12. Even though the substance is not prohibited as per the Rules it is submitted that the Committee should not place significant weight on that aspect alone. It is accepted that a lesser penalty should apply as opposed to when it is a prohibited substance but the act carried out is where significant consideration should be placed. For example, if the RIU discovers a person “tubing” a horse on raceday with bicarbonate (TC0) and the level is at the time of testing below the threshold as per the Rules, it is the RIU’s view that that does not mean that the penalty should fall at the low end. The act carried out is what is deemed serious and damaging to the sport and the test results are another consideration to have in terms of an aggravating factor.
The RIU submits the following:
• A serious breach of the Rules of Harness Racing
• The need to deter other participants from similar activity, send a clear message that this conduct will not be tolerated in racing
• Administration of a substance by “needling” on raceday
• The act carried out by Mr Smolenski was to cheat the system
• Previous breach for a positive swab – 7.12.05 Trainer: Disqualified. HRNZ appeal 14.7.05 hearing upheld and $5,000 fine replaced with 5 months’ disqualification, Rule 1001 (1) (q).
13. The RIU submits a starting point of 14 months’ disqualification for each breach however the RIU considers the following as mitigating factors in reference to this particular case:
• Mr Smolenski’s conduct towards the Stipendiary Stewards was honest when they were making their investigation
• Mr Smolenski’s guilty plea.
14. Taking into account the mitigating factors the RIU submits a penalty of 12 months’ disqualification for each charge to be served concurrent.
Submissions by the Defendant
[10] Ms Thomas had filed written submissions on penalty on behalf of Mr Smolenski and she addressed these at the hearing.
[11] It was submitted that the tenor of the Informant’s submissions is certainly that Mr Smolenski be made an example of by asking the Committee to ignore previous case law and create a new penalty precedent for this offence.
[12] Ms Thomas challenged the submissions made by the Informant set out in paragraph [9] 3 & 4.
[13] She submitted that there is no logic in the argument that an “off course” administration of a non-prohibited substance on race day is a “low level breach” if administered orally and yet an “off course” administration of a non-prohibited substance on race day is a serious breach if administered by injection or tubing.
[14] Ms Thomas submitted that repeated use of the term “needling” in the Informant’s submissions was unnecessarily provocative. The fact that the horses were injected with the substance was not the charge – it was the fact that this occurred outside of the allowable time frame.
[15] This is not a case of administering a prohibited substance, Ms Thomas submitted, and the Informant’s submissions call on the Committee to give a penalty as high as if it were. She submitted that could not be correct in principle. She referred to the Informant’s submission set out in paragraph [9] 12 above.
[16] Ms Thomas submitted that that submission was misplaced. It would be impossible to argue that a trainer who was found in the act of milkshaking a horse on raceday and was “lucky enough” to fall below the threshold level had not been guilty of a serious offence because milkshaking is in itself inherently against the Rules. In this case it is not the substance that is against the Rules nor the way it was administered, it was the time of administration.
[17] In relation to the previous breach (referred to paragraph [9] 12 above), the present case was not for a positive swab in relation to the use of a prohibited substance.
[18] Ms Thomas referred the Committee to a number of previous cases involving breaches of the particular Rule. Some of these will be referred to later in this decision.
[19] Ms Thomas submitted that an important consideration for the Committee was consistency of penalty.
[20] Ms Thomas acknowledged that Mr Smolenski’s record was not “unblemished” but she asked Mr Smolenski to explain the circumstances of his prior breach. The substance involved in that previous charge was “Ranitidine”. Mr Smolenski said that he had been using the product for 10 years and it had no withholding period shown on the container. However, unbeknown to him, the Rule was changed and the substance was brought into the category of antihistamines and a 48-hour withholding period became applicable. The horse returned a positive swab to “Ranitidine”. The horse had been a hot favourite for a $200,000 race and the owners had travelled from Australia to watch it race.
[21] Ms Thomas submitted that the Rule was aimed at prohibiting anything at all being given to a horse and the method of administration was irrelevant. She submitted that the use of a needle off-course was no worse than administration of a “tonic” and reiterated that, since the substance in this case is not a prohibited substance, the Rule is aimed at making it a breach to give a horse anything at all. Furthermore, Ms Thomas took exception to the use of the term “needling”.
[22] To start at the maximum penalty for a breach of this Rule, one is looking at “significantly aggravated offences”. The present case is not one of them, Ms Thomas submitted.
[23] Ms Thomas further submitted that the Committee should take a totality approach to the three breaches. She referred to the thoroughbred case of P and the case of L (2007) in which a fine of $500 was imposed. In the case of D a significant fine of $2,250 was imposed but no disqualification. She also referred to the case of L (2009) in which a trainer was fined $1,000 for administering Colloidal Silver, Rapid Response, Aloe Vera Gel and Performa 3 by injection on the morning of the New Zealand Trotting Cup to a runner in that race.
[24] Ms Thomas submitted that disqualification carried such a “bite” with it – it had the effect of taking a person’s livelihood away. A suspension of the period submitted by Mr George would, effectively, put Mr Smolenski out of business.
[25] Mr Smolenski should receive a significant discount of penalty for making “frank admissions”. Mr Smolenski may have been well advised to have said nothing. He was not present in the stables area when the RIU representatives called at his property. He arrived after they had found the evidence and elected to make a full and frank admission, when he may well have decided to say nothing.
[26] In the case of C, there were three charges which were defended.
[27] Finally, Ms Thomas submitted that there is “a real sting” to being charged. She referred to a recent article in the “Christchurch Star” which suggested Mr Smolenski was a “drug cheat”. All that can be said is that the substance made the horses “pee” before a race and, while it is conceded that Mr Smolenski should not have given it to the horses, on a scale of drug cheats, Mr Smolenski’s offending falls at the lower end.
[28] Ms Thomas, on the subject of deterrent penalties, agreed that there needed to be deterrent penalties. The RIU has very publicly stated that it intends to seek out drug cheats. Everyone involved in the industry wishes there to be a level playing field but the Committee should not make an example of Mr Smolenski just because it is the beginning of a new era. The breaches were not of such a level that Mr Smolenski should be removed from the industry.
[29] Neither should any fine imposed be of such amount as to be “crippling” and have the effect that a person cannot continue in the industry, Ms Thomas submitted. The industry is going through difficult times at present and many participants are struggling financially.
The Penalty Rule
[30] The relevant penalty provision is contained in Rule 1003 (1) under the heading “General Penalties” and provides:-
A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4), 1001 or 1004) shall be liable to the following penalties:
(a) a fine not exceeding $5,000.00; and/or
(b) suspension from holding or obtaining a licence for any specific period not exceeding five years; and/or
(c) disqualification for a period not exceeding 12 months.
Penalty Reasons
[31] In deciding on an appropriate penalty in this case, there were a number of considerations for the Committee.
[32] The principal mitigating factor is, clearly, Mr Smolenski’s immediate admission of his wrongdoing to and cooperation with the Stipendiary Stewards, Messrs Ray and Ydgren, who called at his property on 14 October 2011. Ms Thomas stressed this point and the Committee agrees that it is a significant mitigating factor. In many instances, a Respondent has little option but to admit a breach of the Rules because of clear and compelling evidence against him. We do not think that this is such a case. It would have been open to Mr Smolenski to deny any wrongdoing and to put the Informant to the task of having to carry out a full investigation and prove their allegations at a defended hearing of charges. To his credit, Mr Smolenski did not do so. In the Committee’s view, he is entitled to a significant discount of penalty in this regard.
[33] The principal aggravating factor is the previous breach of the prohibited substance Rule by Mr Smolenski in 2005. However, the circumstances of that breach were quite different from the circumstances of the breaches with which we are now dealing (see paragraph 20 above). It is also relevant that the previous breach was 6 years ago.
[34] The Rule is designed to prohibit administration, by any of the specified means, of any substance, whether prohibited or not, on any day of racing.
[35] In this case, Mr Smolenski administered a non-prohibited substance, 15% Osmitrol, to three horses at approximately 9.30am on the day on which they were to race. The Rule prohibits administration of any substance, but it is obviously of relevance whether the particular substance is a prohibited substance. Administration of a non-prohibited substance is manifestly less serious than administration of a prohibited substance, which would be categorised as a “serious racing offence” if the horse or horses raced with the substance in their system.
[37] The Committee also considers that the administration is less serious if administered at home, as in the present case, rather than at the racecourse.
[37] The evidence before us as to the nature and effect of 15% Osmitrol was not detailed. Mr George indicated that his understanding was that it was a diuretic and a naturally-occurring sugar alcohol product that could be found in plants. Mr Smolenski confirmed that it was a diuretic which could be obtained from a veterinary surgeon. It seems that the product is intrinsically harmless.
[38] Mr George submitted that to have administered the substance by needle or injection, somehow, made the breach more serious than administering by any of the other means referred to in the Rule – nasal gastric tube, gastric tube, ventilator or nebulizer. Ms Thomas submitted that such a submission was “unnecessarily provocative” and submitted that the administration of the substance was not the charge, but rather that the administration was outside of the allowable time frame.
[39] The Committee agrees with Ms Thomas in that regard. The Rule does not differentiate between any of the methods of administration and no one method is expressed to be any more serious or liable to incur any greater penalty than any of the others.
[40] We now turn to look at the other cases referred to by Ms Thomas. In only one case was a period of disqualification imposed – 4 months, together with a fine of $2,500 after an appeal in the case of C. In that case the charges were defended. In the P case, a fine of $3,000 was imposed on a trainer who administered glycerine orally by syringe at the racecourse prior to the horse racing. Fines imposed in other cases were L (2007) $500, D (2009) $1,000, L (2009) $1,000 involving a runner in the New Zealand Trotting Cup (see paragraph 23) and S (2008) $375.
[41] The Committee is aware of a thoroughbred case of W involving administration of a saline drench at the racecourse on raceday. The defendant in that case was fined the sum of $4,000 by the Judicial Committee.
[42] It was stated by the Judicial Committee in the 2011 case of J that “broad consistency in the levels of penalties imposed for like offences is obviously desirable”. We have taken considerable guidance from the penalties in those previous cases in arriving at penalty in this case.
[43] Mr George submitted that the appropriate penalty was a term of disqualification on each charge for a period of 12 months to be served concurrently. He cited no previous cases or penalties in support of that submission but submitted that it was a serious breach of the Rules, that a deterrent was necessary, that the administration was by “needling” and that Mr Smolenski was attempting to “cheat the system”.
[44] Ms Thomas submitted that Mr George was ignoring previous case law and attempting to create a new penalty precedent for a breach of the Rule and that he was wishing to make an example of Mr Smolenski.
[45] The Committee took all of the above matters into account in arriving at penalty.
[46] The Rule provides for a maximum period of disqualification of 12 months and/or a fine not exceeding $5,000. The maximum penalties, and disqualification in particular, are reserved for the very worst breaches of the Rule. We do not see the present case as being in that category.
[47] Looking at all of the circumstances of this case in the light of the other cases referred to and the penalties imposed, the Committee is not persuaded that a disqualification is appropriate.
[48] In arriving at what the Committee considers an appropriate penalty, the Committee has adopted a totality approach on the basis that, although three horses were involved, the offending could reasonably be viewed as one offence. Accordingly, one penalty is being imposed in respect of the three charges.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
[49] Mr Smolenski is fined the total sum of $3,600.
Costs
[50] Costs are reserved. The Informant is required to file with the Judicial Control Authority submissions relating to costs, which are to include a detailed schedule
of expenses claimed, within 7 days of the date of this decision.
[51] The Respondent is to file submissions in reply within 7 days of the date of the receipt by him of the RIU’s submissions.
R G McKENZIE J MILLAR
Chairman Committee Member
hearing_type: Non-race day
Rules: 1004(6)
Informant: M C George - Chief Stipendiary Steward
JockeysandTrainer:
Otherperson:
PersonPresent: Mr NM Ydgren - Stipendiary Steward, Mr MJ Smolenski, Mrs C Smolenski, Ms M-J Thomas - Counsel for Mr Smolenski (by telephone)
Respondent: Mr MJ Smolenski - Licensed Public Trainer
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