Non Raceday Inquiry RIU v PL Shailer – 8 October 2011 – Decision dated 9 October 2011

hearingid: 3ca0ea93869650ff2b071e3f5a81ff91

informantnumber: 67325

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startdate: no date provided

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decisiondate: 11/10/2011

hearing_title: Non Raceday Inquiry RIU v PL Shailer - 8 October 2011 - Decision dated 9 October 2011

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

NON RACEDAY ENQUIRY BEFORE THE JUDICIAL CONTROL AUTHORITY

COMMITTEE: R M Seabrook, Chairman – A J Godsalve, Committee Member
VENUE: Matamata Racecourse
DATE: 8 October 2011
INFORMATION NO: 67325

BETWEEN
Mr R Carmichael - Chief Racecourse Inspector for Racing Integrity Unit
Informant

AND
Mr Paul Leon Shailer – Licensed Horse Trainer
Defendant

ALSO PRESENT: Mr B Oliver - Registrar, Mr D Keenan – Veterinary Surgeon

The charge reads as follows:
‘that on the 8th day of June 2011,at Matamata, Paul Leon Shailer was the registered trainer and the person for the time being in charge of the horse ‘Tiz Weissmuller’ which was presented to race in race four at a race meeting conducted by racing Matamata, when the said horse was found to have had administered to it a prohibited substance, namely Phenyl Butazone, and that Paul Leon Shailer is in breach of rules 804 (1) and 804 (2) of the rules of racing and therefore subject to the penalty or penalties which may be imposed pursuant to rules 804 (6) and 804 (7)'.

Mr Shailer confirmed to the Committee he had been served a copy of the charge and the Rules it pertains to. He confirmed he understood them and admitted the breach of the Rule with which he is charged.

Summary of Facts presented by Mr R Carmichael:

Paul Leon SHAILER, the Defendant in these proceedings, is a licensed trainer, licensed under the New Zealand Rules of Racing. Mr SHAILER has been involved in the racing industry for about 15 years. As a jockey and more latterly as stable foreman for a large thoroughbred training establishment in Sydney. He has held a trainers license on his own account since September 2010.

Mr SHAILER is charged with a breach of Rule 804 (1) and (2) (the Prohibited Substance Rule). This breach arises from the detection of the substance Phenyl Butazone in a routine raceday sample.

The basic facts surrounding this offence are not in dispute and may be summarised as follows:

1. On the 8 June 2011 the horse ‘TIZ WEISSMULLER’ was correctly entered for and started in race 1 (CLASSIC CUISINE CATERING Maiden Highweight) at a race-meeting conducted by Racing Matamata at the Matamata Racecourse.

2. ‘TIZ WEISSMULLER’ finished first, earning gross stake money of $3,125.

3. ‘TIZ WEISSMULLER’ was selected as a post-event swab. During the swabbing process the horse was accompanied by a stable employee. He has not reported any difficulties or irregularities with the collection and packaging of the samples from ‘TIZ WEISSMULLER’.

4. At the conclusion of the meeting the samples were checked by the raceday Veterinarian and swab steward and then placed, together with the other raceday samples into a tamper-proof security bag for transit to the Racing Laboratory.

5. On 27 June 2011 Rob HOWITT, the Racing Analyst, reported in writing that the sample from ‘TIZ WEISSMULLER’ had tested positive to Phenyl Butazone and Oxyphenbutazone.

6. Phenyl butazone is a non-steroidal anti-inflammatory drug for the short-term treatment of pain. Oxyphenbutazone is a metabolite of Phenyl Butazone.

7. Phenylbutazone is therefore a Prohibited Substance within the meaning of the Rules of Racing. The presence of Phenyl Butazone in a race-day sample is Prima Facie, a breach of the Rules.

8. Mr SHAILER was interviewed in connection of the offence at his Waharoa stables on 29 June 2011.

9. Mr SHAILER admits the use of a product sold commercially as ILIUM NABUDONE P which has Phenyl Butazone as the principal composition. It was obtained for legitimate purposes as general use within the stable and was properly prescribed by his Veterinarian Dr Dave KEENAN. The product was properly secured in a locked refrigerator in a room used as an office/tearoom at the stables.

10. Mr SHAILER produced very good records which he maintains for each horse in his stable. These records show that ‘TIZ WEISSMULLER’ was treated with ‘bute’10 mls’ on 18th and 19th May, after racing at Matamata on 18th May 2011 and again on the 30th May 2011.

11. The guide for NZEVA members lists Phenyl Butazone with a detection time of 5 days. That guide at para. 1 makes the recommendation that Veterinarians are advised to add 24 hours to the detection time as a ‘buffer’ for individual variances. It was therefore 9 days from the last date of administration until the 8th June 2011.

Summary of Facts presented by Mr P Shailer:

He States:

I am a self-employed public trainer licensed under the Rules of Thoroughbred Racing. I have held a license for approximately 10 months and train from a leased property at 265 Wardville Road, Waharoa.

I am the official trainer of the horse ‘TIZ WEISSMULLER’. I have been advised that ‘TIZ WEISSMULLER’ has returned a positive test to Phenyl Butazone following a swab at Matamata on 8 June 2011. I attended the Matamata races on 8 June and was in charge of the horse although I did not take it to the swabbing area. This was done by Daniel the stable-hand who works for me fulltime. He has not said anything about the swabbing procedure.

As far as I can remember ‘TIZ WEISSMULLER’ had not been treated with ‘bute’ in the days leading up to the Matamata races, although I would need to check my records to confirm that. If I had treated the horse I would have a record as it would be charged to the owners.

I have handed Mr CARMICHAEL 2 empty ILIUM NABUDONE P bottles. These contain Phenyl Butazone as an injectable. This has not been prescribed for any horse in particular, but for general use in the stable. It is prescribed as an anti-inflammatory on a horse that may have been injured or has inflammation or soreness.

I have checked my most record sheets and I note that ‘TIZ WEISSMULLER’ was treated with ‘bute’ on 8 June 2011 (after it raced that day) and 11 June 2011. Prior to that, the last time it had ‘bute’ was on 30th May 2011.

The ‘bute’ is administered by injection by me personally. I use a new syringe for every treatment and the dose given is generally 10 mls.

The ‘bute’ is prescribed by Dr KEENAN from Matamata Vets. I believe that he advised that the with-holding time was 6 days but I have always gone 7 days to be sure.

I note that there is nothing on the bottle to say what the actual with-holding time for either a single administration or multi-treatment is.

I wish to add that I have not intentionally administered anything, ‘bute’ in particular, to enhance the performance of the horse. It has been administered on proper grounds and as a treatment.

Penalty Submissions presented by Mr R Carmichael:

When fixing penalty the Informant respectfully submits that the Defendant is entitled to credit for the following reasons:

1. He has accepted responsibility for the positive swab but finds it difficult to understand the result, given the time allowed from the date of the last treatment until the horse raced.

2. He has admitted the offence at the first opportunity and has consented to the matter being heard on a race-day thus minimising costs to the industry.

3. The substance detected had a legitimate therapeutic use in equine medicine and was properly prescribed.

4. Although Mr SHAILER had only been training on his own account for 10 months at the time of this offence, he was stable foreman for a number of years at a large Sydney stable and had a very good employment record and was not involved in any similar offence.

It is therefore the recommendation of the Informant that neither disqualification nor suspension is appropriate and that the matter can properly be disposed of by way of a fine. I have been instructed to seek a fine of $6,000, but that is a matter for the Judicial Committee, taking into account various matters set out in the sentencing guide and the matters in mitigation referred to by Mr SHAILER and confirmed in this Summary.

Rule 804 (7) provides for the mandatory disqualification of a horse presented to race when a prohibited substance has been detected. It is therefore submitted that ‘TIZ WEISSMULLER’ must be disqualified from Race 1 at Matamata on 8th June 2011 and that placings be amended accordingly. The Informant makes no submission in relation to costs.

Penalty Submission by Mr P Shailer:

In asking the Committee for leniency Mr SHAILER advised the Committee that when told of his breach of Rule 804 (1) and (2) he was advised a likely penalty would be in the range of $3000 so he pleaded guilty, and stated that he was very surprised to hear a fine of $6,000 was now being requested. He also emphasised the negative publicity the charge had created and the impact it will have on his business. He stated that he relied on information from his Vet as to with-holding times. He also stated that he was aware of the with-holding list in use by New Zealand Thoroughbred Racing in use in 2007.

Penalty Reasons:

In coming to an appropriate penalty the Committee carefully considered all the evidence presented as well as the submissions from Veterinarian Dr D KEENAN.

Firstly the Committee is satisfied there was no deliberate intent by Mr SHAILER to gain an advantage by the administration of a prohibited substance.

However regardless of how a horse is found to have administered to it a drug or prohibited substance that is capable of affecting speed, stamina, courage or conduct, it is deemed to have had an unfair advantage. NZTR’s objective is to have a level playing field for all those who participate in racing.

The difficult position facing this Committee today is that we are dealing with a trainer whose integrity is not challenged, who has an unblemished record, and who runs a first class operation with high quality staff. Another mitigating factor is Mr SHAILER’S admission of the breach and his full co-operation with the Investigators. It is evident that Mr SHAILER complied with the with-holding requirements pertaining to Phenyl Butazone. Dr KEENAN has been high in his praise of Mr SHAILER and his ability as a trainer and the procedures he adopts at his training establishment.

Mr SHAILER will have to face a financial penalty but apart from that he has to endure the embarrassment resulting from the publication of a positive swab from one of his horses. Mr SHAILER said in his submissions there was no precedent regarding the matter he is facing. However the Committee is mindful of two cases in the past 18 months involving trainers ‘S’ and ‘N’ who were both fined $6,000. While different drugs were involved the circumstances were both very similar to the charge Mr SHAILER is facing with both being first offences. It is perhaps somewhat unfortunate that Mr SHAILER had been led to believe that he may be facing a penalty of a lesser amount than the two cases referred to. However this cannot have any bearing on the decision this Committee makes as to penalty.

The Rules of Racing were updated and came into effect in October 2009. Maximum penalty provisions were increased to reflect what was appropriate in today’s standards as set out in Rule 804. RIU has submitted that a fine of $6,000 is appropriate and the Committee is aware that the range of fines for cases similar to this are in the $7,500 to $10,000 range. Bearing in mind previous penalties for this type of offence and also the increased penalties set out in the Rules a fine in this range could have been justified. In imposing a fine in that range we would have to however ignore the mitigating factors in this particular case which are well documented above.

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Accordingly after taking all the above matters into account we impose a fine of $6,000.

As this enquiry was held on a raceday there will be no order for costs.

Further we order the disqualification under the provisions of Rule 804 (7) the horse ‘TIZ WEISSMULLER’ be disqualified from Race 1 at Matamata on 8 June 2011 and the placings be amended accordingly. All stake monies earned shall be refunded to NZTR.

The amended placings will now be

4 PENT ATTITUDE -1st
1 THE HOFF - 2nd
2 GOLDEN GATE - 3rd
7 TWIST ‘N SHOUT - 4th
3 ZACKAROO - 5th

R SEABROOK, Chairman               A GODSALVE, Committee Member
 

hearing_type: Non-race day

Rules: 801(1)and 804(2)

Informant: Mr R Carmichael - Chief Racecourse Inspector

JockeysandTrainer:

Otherperson:

PersonPresent: Mr B Oliver - Registrar, Mr D Keenan - Veterinary Surgeon

Respondent: Mr PL Shailer

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