Non Raceday Inquiry – RJ Dunn

DECISION OF THE JUDICAL COMMITTEE

The defendant is charged with one breach of Rule 1004(1), (2) and (4) of the Rules of Harness Racing. The charge (Information 65041) preferred by Racecourse Inspector Kitto reads as follows ?

"I, the above named informant allege that the above named Defendant

The Rules referred to above, which come under the Prohibited Substance Rule, read as follows ?

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

(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose

of engaging in a race otherwise then in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.

(4) A breach of these rules under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

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

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1. a fine not exceeding $10,000; and/or
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2. be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

(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."

Mr Dunn had previously indicated that he admitted this breach of the Rule, and

he confirmed that at the hearing.

The Executive of Harness Racing New Zealand has set a TCO2 level of 35

mmol/L. In addition an "analytical error" factor has been set at 1.2 mmol/L and no prosecution is undertaken unless the analysis exceeds 36.2 mmol/L.

Summary of Facts: Mr Kitto presented a "Summary of Facts" which is attached to this decision. The horse "Wait and See" was entered for and finished 7^th in the Postie Plus Handicap Pace at the Westport Trotting Club's meeting on 28 December 2004.

Prior to the race the horse was pre-race blood tested, and the subsequent analysis revealed a TCO2 level of 36.8 mmol/L.

Mr Dunn was later interviewed by Mr Kitto and he denied administering any substance to his horse that would have raised its TCO2 level. It was also established that "Wait and See" had been tested twice before 28 December 2004 and the levels returned were 31.4 and 32.6 which were within the legal limits. "Wait and See" was again tested on 7 January 2005 and returned a test level of 33.5.

Mr Kitto also stated that a breach of the Prohibited Substance Rule was an offence of strict liability. I agree. Rule 1004(4) makes this quite clear.

Mr Dunn gave evidence that he believes that he does not give his horses anything that could explain this high level. He also pointed out the difference between the levels returned for (what was essentially) the same field of horses tested on 26 and 28 December 2004. Mr Dunn also raised other matters and it was apparent to me that he was very concerned about what had happened.

Submissions on Penalty: Mr Kitto's written submissions on penalty are also attached to this decision. The main points of these submissions are as follows.

Since the introduction of the Prohibited Substance Rule (previously the Drug Negligence Rule) on 1 April 2001 there have been a number of prosecutions. From the beginning HRNZ has recognised that there should be a division in the seriousness of such breaches. The lowest level was set at between 36.3 and 37.2 mmol/L. and it was recommended that a fine of $500-00 should be the minimum penalty where there were no aggravating factors, the charge was admitted, and the defendant had a good record.

Mr Kitto submitted that Mr Dunn had pleaded guilty at the first opportunity, and that he had a good record. A fine of $750-00 was recommended.

Mr Kitto also referred me to a number of previous decisions. In HRNZ v. Hamilton the penalty imposed was a fine of $300-00, but in later cases the level of this fine has not been followed. In HRNZ v. Boa a fine of $1000-00 was imposed, but I note that the level in that case was 37.1, which was at the top end of the scale, and also that no credit was given to Mr Boa by the Judicial Committee for an early guilty plea.

In HRNZ v. Morris a fine of $600-00 was imposed for a level of 36.9. In HRNZ v. Butt fines of $500-00 were imposed for two breaches where the levels were 36.4 and 37.0. In HRNZ v. Martin the level was 36.9 and in HRNZ v. Webber the level was 36.6, and in both these cases a fine of $500-00 was imposed.

Decision on Penalty: In the present case I find that there were no aggravating factors in relation to this charge. I am also satisfied that Mr Dunn has a good record and that he pleaded guilty at the first opportunity.

Taking into account these matters and also previous penalties, I am satisfied that Mr Dunn has met all the criteria for a minimum penalty and he is fined the sum of

$500-00.

Costs: Mr Kitto advised that no costs were being sought by HRNZ as this matter was heard on a race night. For this same reason no costs are being sought by the JCA. There will be no order for costs.

Disqualification: In accordance with Rule 1004(8) it is mandatory to disqualify "Wait and See" from the race. Accordingly "Wait and See" is disqualified from 7^th place in the Postie Plus Handicap Pace (Race 6) at the Westport Trotting Club's meeting on 28 December 2004 and the stake money is to be refunded to HRNZ.