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Appeal SG Dickson v RIU - Decision dated 12 September 2018 - Chair, Prof G Hall

Created on 13 September 2018

BEFORE AN APPEALS TRIBUNAL
OF THE JCA

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A7159
BETWEEN Mr SG DICKSON
Appellant

AND RIU
Respondent

Appeals Tribunal: Prof G Hall, Chairman - Mr A Dooley, Member

Parties: Mr S Dickson, Mr S Irving for the RIU

WRITTEN DECISION OF APPEALS TRIBUNAL

[1] Information A7159 alleges a breach of the Prohibited Substance Rule: r 1004(1A), (2) and (3) of the New Zealand Rules of Harness Racing.

[2] It states: THAT, on the 1st May 2018, Scott George DICKSON, the trainer of the horse MAGICAL MOE which had been taken to the Wairarapa Harness Racing Club for the purpose of engaging in Race 5 - the Masterton Racing Club Mobile Pace - failed to present the said horse free of prohibited substances, namely Bicarbonate or other alkali substance as evidenced by a blood TCO2 level of 39.2 mmol/L.

[3] Rule 1004 provides:
(1A) A horse shall be presented for a race free of prohibited substances.
(2) A horse shall be presented for a race with a total carbon dioxide (TCO2) level at or below the level of 36.0 mmol/L in plasma.
(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] The penalty provision is r 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.

[5] Mr Dickson admitted the breach of r 1004(3) and in a reserved written decision dated 24 July 2018 the Judicial Committee fined him the sum of $12,000. The horse MAGICAL MOE was disqualified. Mr Dickson has appealed the quantum of the fine. There is no appeal against the disqualification.

[6] A telephone conference was held on 9 August and it was agreed that the appeal would be heard on the papers.

[7] Both the appellant and the respondent have filed written submissions and Mr Dickson has also made a brief response to the respondent’s submission.

Facts and submissions before the Judicial Committee
[8] We do not repeat the facts which are recorded in by the Judicial Committee at para [7] of their decision. We have had regard to the agreed summary and identify the key points.

[9] MAGICAL MOE was presented for and started in Race 5 at the Wairarapa Harness Racing Club’s meeting on 1 May 2018. The horse finished ninth of 10 runners and was 9/9 in the betting. There were no unusual betting patterns.

[10] Blood samples were taken from the horse prior to the race. On 4 May NZ Racing Laboratory Services (NZRLS) issued a certificate detailing the sample taken from MAGICAL MOE on 1 May had returned a TCO2 result of 39.2 mmol/L, exceeding the accepted level of 36.0 mmol/L set by HRNZ.

[11] Mr Dickson advised the RIU that MAGICAL MOE was prone to tying up and that it might get a handful of bicarbonate of soda in its feed and that his partner, Ms Pickford, makes up the feeds.

[12] Ms Pickford advised the RIU that she may have given a small quantity of baking soda and Neutra Syrup in MAGICAL MOE’s daily feed for tying up but had since run out of the baking soda.

[13] Three feed supplement samples (including Neutra Syrup) were taken from the property, in addition to TCO2 samples from two other harness horses that Mr Dickson had in work. These were forwarded to NZRLS for testing. None of the supplements contained alkalinising agents, and the horses’ TCO2 samples returned normal levels of 30.9 and 30.4 mmol/L.

[14] Mr Dickson had “sacked” MAGICAL MOE due to its poor performances and the horse had been transferred to licensed trainer Mr A Pyers two days after the race. A TCO2 sample was taken the following day from MAGICAL MOE at Mr Pyers’ property where the horse was spelling. The result of this sample was 28.4 mmol/L.

[15] Prior to this breach Mr Dickson’s horses had been TCO2 tested on 17 occasions with results ranging in the normal bracket between 29.0 and 32.6 mmol/L.

[16] Mr Dickson had no previous charges for presenting a horse with an elevated TCO2 level or for breaching the prohibited substance rule.
[17] Mr Dickson believed that the horse’s recent performance indicated an underlying problem and, that if he had known, he would have had some bloods taken to confirm this. He said that MAGICAL MOE used to get a handful of baking soda in its daily feed due to tying up issues, and that was standard practice with many trainers. He was adamant that the horse had not been administered it in any other form. His possible explanation was that the horse had returned such a high TCO2 level due to the fact that it had a major virus which caused excessive swelling in its legs in the days following the race, and that the stresses of racing had "brought it all out".

[18] Mr Dickson did not have any formalised recording of the feed regime as Ms Pickford did most of the feeding. It also depended on what else what happening on the day. He advised that he along with another stable helper might at times feed the horses. He did not understand why the levels were so high when only a small amount of baking soda had been put into its feed.

[19] The RIU in their submissions to the Judicial Committee identified the following cases as being relevant.

16.01.2015 - RIU v MP Jones - 36.2mmol/ L; second offence, $4,500 fine
10.10.2014 - RIU v P & L Jones - 37.3mmol/L; $2,500 fine
23.06.2014 - RIU v J Keast & H Westrum - 36.2mmol/ L; second offence, six months’ suspension and $2,000 fine
21.10.2013 - RIU v J Keast & H Westrum - 37.0mmol/ L; $2,500 fine

Decision of the Judicial Committee
[20] The level of 39.2 mmol/L was observed by the Committee to be at the higher end of the scale, the fourth highest of 52 samples at or over the old prosecution level of 36.1 since 2001 (the year that the three highest levels were recorded). The Committee referred to the 2012 Appeal decision in RIU v S where it was stated "Where the culpability falls on the spectrum of seriousness is best determined by reference to the extent to which the elevated level is in excess of the statutory limit."

[21] When considering aggravating factors, and with specific reference to RIU v S, Mr Irving had accepted in his submission, when applying the culpability test identified in that decision, that Mr Dickson's culpability was at the high end. This was supported by the reading being the highest TCO2 reading in 17 years.

[22] The Judicial Committee referred to Dr Grierson's report that had, or at least a portion of it, as we understand it, been incorporated into the RIU’s penalty submission. Dr Grierson commented: "The statistics for a horse to record a natural untreated high TCO2 level of 39.2 mmol/ L is more than one in two billion. In other words there is a two billionth chance that the trainer Mr Scott Dickson is being wrongly accused of using an alkalising agent.... In conclusion I can find no reason to explain a racehorse being presented to the races with a TCO2 level of 39.2 mmol/ L besides that of an administration of an alkalising agent."

[23] The Committee also referred to Mr Irving’s submission that a fine only penalty could be compared with what he believed was the only other specified prohibited substance threshold, Cobalt. When looking at the penalties for Cobalt in more recent times he identified that there had not been any period of disqualification and that the starting point was a $8,000 fine for both Codes. He believed there were some similarities between TCO2 and Cobalt in that they were both elements of natural products. He could not explain the disparity in starting points.

[24] The Judicial Committee observed that all of the decisions cited to it were prior to both the increase in the threshold level and the establishment of the JCA Penalty Guidelines.

[25] Mr Dickson believed that his breach was minor in comparison to the multiple positives in the Dunn, Townley and Burrows cases, which he said had resulted in “minimal fines”. He also identified other single TCO2 breaches had attracted a fine of $2,000 (presumably Scaife 2012) and, double offences, up to a fine of $4,500 (which we take is a reference to Jones 2015).

[26] The cases highlighted by Mr Dickson were observed to relate to prohibited substances, which were not specifically stated as requiring a distinct starting point and pre-dated the increase in the TCO2 threshold (October 2014) and the JCA Penalty Guide (May 2015). Because the penalties were imposed under a different penalty regime or different starting point, the Committee said these decisions gave them “very little assistance”.

[27] The Judicial Committee noted that the only alkalising agent that MAGICAL MOE may have had from time to time was a handful of baking soda and Neutra Syrup. Of concern to the Committee was that it appeared there was no formalised feed regime in place for the horses on Mr Dickson’s property. This was identified as an important aspect of any licence holder’s responsibilities, and particularly important when standardbred and thoroughbred horses were being trained from the single premises, as in this case.

[28] The Committee was told initially that Ms Pickford was the only person to feed the horses. However, Mr Dickson confirmed that he and another person at times took care of the feeding duties, depending on the nature of the day. The Judicial Committee concluded: “It is apparent that there is a fairly relaxed approach to feeding and further highlights the need for a more formalised regime in place as it is apparent that Ms Pickford was in fact not solely responsible for administering the horse's feed. It is entirely possible that three different persons could be involved in the feeding of the horses at the premises on any one day. This is a form of negligence that we would not expect from a licensed trainer with the level of experience that Mr Dickson has.”

[29] There was no evidence before the Committee to indicate that MAGICAL MOE had a serious illness and that was the reason behind the increased TCO2 level. This led the Committee to reject the suggestion that it was due to illness, “as science suggested otherwise”. We assume this was in reference to Dr Grierson’s report. The Committee also rejected any notion that the high levels were a natural occurrence, as Dr Grierson had indicated that such an occurrence had a one in two billion chance.

[30] The Committee rejected the suggestion that a starting point similar to that identified for a Cobalt prohibited substance breach was appropriate. While the two substances might have some similarities, the difference was there was a specified starting point for a TCO2 breach. To disregard that would be an inappropriate exercise for the Committee to undertake.

[31] After agreeing with the RIU that the level of TCO2 was high, the Committee said so too was Mr Dickson’s culpability. This led the Committee to adopt an initial starting point of a $20,000 fine; the maximum fine possible under the Rules.

[32] After noting this was a presentation rather than an administration offence, the starting point was adjusted to $18,000.

[33] After a 33 per cent discount for personal mitigating factors, the penalty was a fine of $12,000.

Appellant’s submissions
[34] Mr Dickson said he had been charged with presenting the horse MAGICAL MOE to race with a high TCO2 reading. (We add he had admitted this breach before the Judicial Committee). He could not explain how the reading had come to be this elevated other than to say the horse was clearly unwell, which was reflected in the horse’s poor performance.

[35] Mr Dickson stated the horse used to be fed a handful of baking soda in its feed regularly in order to aid or prevent the tying up issue it experienced. He said this was a common practice among many trainers.

[36] Mr Dickson said he had never had any previous issues regarding prohibited substances throughout his training career, despite the fact he had had many horses pre-race tested and randomly swabbed. Considering this fact, he believed the penalty of $12,000 for a first time offence was “extremely harsh”.

[37] Mr Dickson drew this Tribunal’s attention to previous TCO2 cases which he said, “have had minimal fines in comparison, although I do accept these were a while ago.” These cases were:
2015-M Jones fined $4,500
2014-P & L Jones fined $2,500
2013-J Keast & H Westrum fined $2,500 (1st offence)

[38] Mr Dickson submitted that TCO2 is and should be considered very similar to Cobalt so therefore there should be similar penalties. The starting point for Cobalt cases is $8,000.

[39] Mr Dickson therefore believed the starting point in his case should also be $8,000. He emphasised that the original submission by the RIU was for a fine of $10,000.

[40] Recent Cobalt cases listed by Mr Dickson were:
2018-S Hale fined $4,500
2018-G Dixon fined $6,500
2018-R Brosnan fined $19,200 (for 3 charges)
2017-C Dalgety fined $32,000 (for 5 charges)

[41] Another notable first offence case, Mr Dickson believed, was Negus (2018) where the fine was $5,500. We note this case related to the substance, Ketoprofen.

[42] Mr Dickson continued by stating that all the horses on his property were generally fed by his partner, Ms Lydia Pickford, a licensed thoroughbred trainer, who was very experienced in the feeding regimes and the everyday running of a racing stable. The horses could be fed up by other experienced horse people, under their instruction, if either he or she were away or were busy on the farm. He believed this was standard practice in any racing stable, big or small.

[43] Ms Pickford had also never had any prohibited substance issues throughout her training career.

[44] Mr Dickson concluded his submission by commenting that the penalty was “effectively being deemed as bad as major multiple offence cases which I believe is unfair. I am not opposed to paying a fine, but I would like it to be fair and comparable with all other first offence penalties of the equivalent nature in Harness Racing. A fine of $12,000 dramatically impacts on our ability to justify training racehorses (in either code).”

Respondent’s submissions
[45] Mr Irving commenced the respondent’s submission by stating it remained the RIU’s position that an appropriate fine was one of $15,000.

[46] The RIU based its submissions on the JCA Penalty Guidelines of 1 May 2015, which set a starting point for HRNZ breach of the TCO2 Rule first offence at a one year’s disqualification and a fine of up to $10,000.

[47] It is understood that this seemingly "harsh" starting point, as compared to other prohibited substances like Cobalt, was in response to the 1.0 mmol/L increase in the TCO2 threshold which by design removed any real possibility (greater than one in two million) that a horse with a level at or over 37.1 mmol/L had occurred naturally.

[48] Mr Irving stated that in Mr Grierson’s opinion at 39.2 mmol/L the probability increases to greater than two billion, which also inferred the administration (tubing) of an alkalising agent as the only possibility of reaching this high level.

[49] All TCO2 cases listed by the appellant, Mr Irving emphasised, were prior to the May 2015 JCA starting points and the increase in the penalty threshold.

[50] It was the RIU's position that the $12,000 fine imposed by the JCA was “fair, reasonable and proportionate”.

Appellant’s response
[51] Mr Dickson responded by questioning the basis on which Dr Grierson had formed the opinion that we have recorded above at [22].

[52] Mr Dickson emphasised that the RIU investigators had found the tubing equipment at his stable was covered in dust. MAGICAL MOE had definitely not been tubed. He confirmed his belief that illness and bleeding issues had “majorly contributed to MAGICAL MOE’s high reading”.

Decision
[53] An appeal is by way of rehearing: Rules of Harness Racing, 5th Schedule, cl 44. We are required to apply our own evaluative judgment to the facts of the case. A penalty will not be reduced unless it is wrong in principle or is manifestly excessive.

[54] Neither party has submitted that a fine is not the appropriate penalty in the circumstances of this case, so we limit our consideration to the quantum of the fine that was imposed by the Judicial Committee. The issue for us is thus whether the penalty of a fine of $12,000 is excessive.

[55] MAGICAL MOE has been found to have been presented to race at Wairarapa Harness Racing Club on 1 May last with a TCO2 level of 39.2 mmol/L.

[56] Prior to 9 October 2014 the threshold was 35.0 mmol/L. This was increased to 36.0 mmol/L. There was no alteration to the maximum penalties provided in r 1004(7).

[57] The JCA Penalty Guide has a starting point of one year’s disqualification and a fine of up to $10,000 for a first breach of r 1004(2). This is effective from 1 May 2015.

[58] There are no authorities subsequent to the 2015 Penalty Guide to assist us.

[59] In support of his appeal Mr Dickson has referred to a number of cases but they predate this time and thus are of little assistance. In Jones, for example, the Judicial Committee expressly states at [22]:
[W]e again wish to make it clear that we are imposing penalty in this case based on the Rule that was in force at the date of the offence and not the new Rule. We understand that the RIU will be seeking substantially greater penalties for breaches of that new Rule but that does not concern this Committee.

[60] Like the Judicial Committee, we do not find the Cobalt cases to be of help. We do not accept the substance is very similar, as Mr Dickson has submitted. We note the starting point in the Penalty Guide for cases of this nature is an $8,000 fine rather than the $10,000 for a TCO2 breach.

[61] The RIU contend the penalty is not excessive and submit, as they did at first instance, that a fine of $15,000 is appropriate.

[62] We look first at the issue of the starting point. The starting point adopted by the Committee is the maximum penalty. We are satisfied that the Judicial Committee was in error in adopting a starting point at this high a level, as this would only be appropriate were the breach to be within the most serious or worst example of its type. The Committee may have concluded it was, but they did not expressly state this to be so. However, it is perhaps implicit in their decision that they did form this view. It does not necessarily follow from this conclusion, however, that the penalty is excessive, although too high a starting point is an indication that it may be so.

[63] While the TCO2 level is very high, we are not of the view that the breach falls within the description of the worst example of its type. The evidence is that baking soda was regularly mixed with the feed of MAGICAL MOE to avoid the horse tying up. The horse performed poorly on the day and there was no suggestion in the summary of facts, the submissions from either party, or the decision of the Judicial Committee that this was done deliberately on this particular occasion in order that the horse produce a performance in the race in question that was well above that which could be expected of it, having regard to its form in its previous starts.

[64] In our view, the appropriate starting point is $10,000 as in the Penalty Guide, which we note provides for a fine of up to $10,000 and one year’s disqualification. Aggravating and mitigating factors may lead us higher or lower than this point. We add we would recommend consideration be given to simplifying the starting point by expressing it as a one year’s disqualification or a fine of $10,000.

[65] First, having regard to factors relating to the breach, the level, as the Committee noted, is very high. They identified only three cases with higher levels in 52 samples at or over the old prosecution level of 36.1 mmol/L since 2001 (the year that the three highest levels were recorded). We are of the view that the high level is an aggravating factor.

[66] We note Dr Grierson’s assessment as to the frequency of this high a TCO2 level and an alleged cause, but this is disputed by Mr Dickson, who has not had the opportunity to question Dr Grierson on the matter. Dr Grierson’s report is referred to in the RIU’s penalty submissions to the Committee and in their submissions on appeal. We have viewed the agreed summary of facts, and, as Dr Grierson’s report was not part of that summary, we put the report to one side. It is not appropriate for material such as this (which effectively alleges conduct by the appellant, which is not the conduct that is alleged in the agreed summary) to be introduced in this manner.

[67] It is not clear what meaning Dr Grierson intended to convey when he stated he could find “no reason to explain a racehorse being presented to the races with a TCO2 level of 39.2 mmol/ L besides that of an administration of an alkalising agent.”

[68] Mr Irving in his submission to us states: “[Dr] Grierson’s opinion that at 39.2 mmol/L the probability increases to greater than two billion also infers the administration (‘tubing’) of an alkalising agent as the only possibility of reaching this high level.”

[69] Mr Dickson, not surprisingly, also took Dr Grierson’s comment as an allegation that he had tubed the horse. (In this regard, we note Mr Dickson is correct when he says the evidence at the stables suggested the tubing equipment had not been used in recent times, as the RIU investigators had observed it was covered in dust. In this regard, we observe the summary states: “[T]ubing equipment was located in his gear room and examination revealed it had not been used for considerable time.”)

[70] Dr Grierson may have been of the opinion that there had been administration by tubing, or simply have meant by his comment that in his view the level of 39.2 mmol/L was not as a result of a natural occurrence, for example due to this horse’s particular metabolism. We note that the admission of the breach and the imposition of penalty did not proceed on the basis there had been administration. Dr Grierson’s views as to the likelihood of there being administration would thus, in our view, have been better not to have been placed before the Committee.

[71] Mr Dickson, on appeal, has reiterated his belief that illness and bleeding issues had “majorly contributed to MAGICAL MOE’s high reading”. There had been no veterinary inspection of the horse. Again, we are simply unable on the evidence to draw any conclusions with respect to this issue. No evidence as to there being anything amiss with the horse was placed before the Judicial Committee (other than a statement by Mr Dickson that the horse had a major virus which caused excessive swelling in his legs in the days following the race ([11]), and we also note, in response to questions from the Committee, he confirmed that his observations were not of any illness, but of a puffy leg from the stress of racing [17] and somewhat vague statements from trainers, Messrs Pyers and Gale). No new or fresh evidence was before us.

[72] We proceed simply on the basis the TCO2 level is 39.2 mmol/L and that that is a high reading.

[73] In addition, with respect to aggravating factors, the feeding regime appears to be haphazard with “a handful” of baking soda or Neutra Syrup being added to the feed to prevent tying up. No record was kept of the feeds that each horse in the stable received. We do not go as far as the Committee and describe the situation of having multiple persons involved in feeding the horses as negligent as we understand that practice is not uncommon, whatever the size of the stable. The failure to accurately record feed and any additives thereto, however, is far from best practice, and is relevant when determining the degree of culpability.

[74] We note the Penalty Guide does not differentiate between administration and presenting breaches in setting a starting point for TCO2 breaches. We agree with the Judicial Committee that presentation is a lesser breach. We also factor this into our assessment of the gravity of the breach.

[75] We believe an uplift in the $10,000 starting point to $14,000 (40%) is appropriate for these aggravating factors relating to the breach.

[76] There are no personal aggravating factors.

[77] The Judicial Committee correctly identified the personal mitigating factors to be Mr Dickson’s admission of the breach, his record under this rule (which we note is excellent as he has been training for over 16 years and has not had a previous breach of this or any prohibited substance rule), and his co-operation during the investigation process.

[78] The Committee’s reduction of one third (from their $18,000 starting point) for these factors was an appropriate recognition of these mitigating factors.

[79] We similarly afford a one third reduction from our starting point of $14,000.

[80] We round this calculation in favour of Mr Dickson.

[81] The appeal is successful. The fine of $12,000 is quashed and is substituted with a fine of $9,200.

[82] The appeal was heard on the papers. There is no award of costs.

Dated at Dunedin this 12th day of September 2018.

 

Geoff Hall, Chairman

 

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