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Non Raceday Inquiry RIU v A R Beck - Reserved Decision dated 12 February 2021 - Chair, Prof G Hall

Created on 15 February 2021

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

AT WINTON

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MR ALLAN ROBERT BECK

Open Horseman

Respondent

Information: A4836

Judicial Committee:  Prof G Hall, Chairman

Appearing: Mr P Meulenbroek, Racecourse Investigator, for the Informant

The Respondent in person

Date of hearing: 7 February 2021

Date of reserved decision: 12 February 2021

RESERVED DECISION OF JUDICIAL COMMITTEE

[1] Mr Beck is charged that on Wednesday 25 November 2020 at Invercargill he was the Licensed Trainer of the horse BLACK OPS which was presented for and raced in Race 7 at a race meeting conducted by the Invercargill Harness Racing Club, when the said horse was found to have a Prohibited Substance in it, namely Cobalt at a level over 100 mcg/ug, being an offence under the provisions of rr 1004A(2) and 1004A(4) and punishable pursuant to r 1004D(1) of the New Zealand Rules of Harness Racing.

[2] Rule 1004A(2) provides: “A horse shall be presented for a race free of prohibited substances.”

[3] Rule 1004A(4) states: “When a horse is presented to race in contravention of sub rule (2) the trainer of the horse commits a breach of these Rules.”

[4] The Prohibited Substances Regulations provide in reg 4: “The following substances are not prohibited when present at or below the following threshold: 4.11 Cobalt at a concentration at or below 100 mcg/L in urine.”

[5] The penalty provision is r 1004D(1) which states: “A person who commits a breach of r 1004A shall be liable to: a fine not exceeding $20,000; and to be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.”

[6] The matter was heard at Winton on 7 February. Mr Beck confirmed that he admitted the breach. After hearing submissions from the parties, the decision as to penalty was reserved to permit the Committee to consider these and the precedents that the RIU had identified in their penalty submissions.

Agreed summary of facts

[7] The Respondent is a Licensed Harness Racing Trainer operating out of Winton. He has been involved in training horses all his life and has held a Trainer’s Licence for over 25 years.

[8] BLACK OPS is a 7-year-old bay gelding standardbred raced by the Setarip Syndicate and trained by Mr Beck at his Winton stables. As of 24 November 2020 BLACK OPS had 43 race starts for 4 wins and 15 placings, earning $40,095 in stakes money.

[9] BLACK OPS was correctly entered and presented by Mr Beck to race in Race 7 at the Invercargill Harness Racing Club meeting on 25 November 2020 at Ascot Park. The horse won the race. The winning stakes money was $4,675.

[10] BLACK OPS was 5/5 in the betting odds, paying a win dividend of $10.50 and a place dividend of $3.30.

[11] BLACK OPS was post-race swabbed and a urine sample was obtained at 6.17 pm. The sample was recorded with the swab card number 146956. Mr Beck does not contest the swabbing process.

[12] On the 7 December 2020 Eurofins ELS Limited laboratory in Wellington supplied an Analytical Report which showed that sample 146956 had returned a Cobalt screening result of 290 ug/L.

[13] On 24 December 2020 Racing Analytical Services Limited (RASL), an accredited laboratory in Victoria, Australia, issued a Certificate of Analysis for sample 146956 that showed a Cobalt result of greater than 200 ug/L.

[14] These results indicate a breach of the Prohibited Substance Regulations as contained in para 4.11 of the New Zealand Rules of Harness Racing 2019 which specify that Cobalt is only permitted when present at a concentration at or below 100 ug/L.

[15] On 9 December 2020 RIU Investigators visited the training stables of Mr Beck. He was advised of the positive swab result and given a copy of RIU Sample Identity Card 146956 and copies of the ESL laboratory results report.

[16] An inspection of the stables area revealed several food and supplement sources containing Cobalt including Formula 3 Feed Mix, Vetpak 5 Elements, and Ironcyclen supplements. There was also Summit Salt Lick block available in the paddocks.

[17] Mr Beck stated that he was shocked to learn of the high Cobalt result and said it must have been from the mineral vitamin Vetpak 5 Elements that he had got from the local vet centre. He said he had been using it for ages and that no-one at the vet shop had said anything to him about it not being suitable for horses. He had assumed that they would know who he was and that he was a horse trainer, and they should have said something if it was not suitable for horses.

[18] Mr Beck did not seek any other independent veterinarian advice as to whether the products he was using were suitable or otherwise. 

[19] Mr Beck said that on this occasion the horse had raced just two days after he had given it an undiluted oral dose of Vetpak 5 Elements via syringe of 20 mls on the Monday, as he normally did. The horse usually raced several days later, which might help explain why the level of cobalt had not reduced enough by the Wednesday.

[20] Mr Beck does not keep any written records or a diary detailing when and how much of any extra supplements he provides to his horses. He relies on his memory and consistency of process.

[21] Samples were obtained from some Cobalt containing supplements and sent away for analysis. The results indicated a Cobalt content in the Vetpak 5 Elements supplement at 4198 mg/kg, when in an undiluted state, being slightly less than the product label’s stated Cobalt level of 6.0 mg/ml. The Ironcyclen Cobalt content was at 4.4 mg/kg and the commercial feed mix had very little Cobalt in it. There were no anomalies in the samples tested.

[22] The Vetpak 5 Elements mix details a product for cattle, sheep and goats with directions that the 1 litre bottle should be diluted with 19 litres of water before administration. Nothing on the label suggests it is safe for horse use, or for use in an undiluted state.

[23] The Chief Veterinarian for HRNZ states that the provision of 20 mls undiluted Vetpak 5 Elements would provide 84 mg cobalt, equivalent to 168 days of the horse’s daily requirement of 0.5 mg a day. He added that as excretion of excessive cobalt happens quickly from a horse’s body, that after five days it may not have produced an excessive result.

[24] Cobalt is an essential trace element required for life through the actions of Vitamin B12 of which Cobalt makes up about 5% of its weight. Cobalt is absorbed from the gut either as elemental or incorporated in Vitamin B12.

[25] In theory an increase in Cobalt creates more red blood cells which means a greater ability to carry oxygen and maintain higher performance levels for longer, so boosting endurance. However, there is considerable debate that Cobalt has any positive effects on performance, and it can cause serious side effects at elevated levels.

[26] The total daily Cobalt requirement for an adult horse is no more than 0.5 mg/ day. While it is a common practice, there is no medical justification to further supplement a racehorse with either Cobalt or Vitamin B12.

[27] The Cobalt threshold was reduced from 200 mcg/uL to 100 mcg/uL in 2017 following research into the effects of Cobalt on horses. The vast majority of Cobalt results are less than 25 mcg/uL.

[28] In 2012 Mr Beck was prosecuted by the RIU for administering a racehorse with a prohibited substance, namely Aminorex, pursuant to r 1001(1)(q) of the NZ Harness Rules of Racing. On that occasion he had supplied his horse a product containing a banned substance for a cough, via oral syringe. It had a three-day withholding period, which he had observed. It turned out he had provided nearly twice the dose than he thought and had not observed a recommended 24-hour buffer period in addition to the three-day withhold. He was fined $10,000.

[29] Mr Beck is 59 years old and has been involved as a Licensed Harness Trainer since 1985. He trains and resides at Winton together with his wife, who also is Registered Thoroughbred Trainer in her own name.

[30] Mr Beck addressed matters relating to the breach. He said it was clearly a mistake on his part. He had purchased the Vetpak 5 Elements at the time of the Covid-19 lockdown and had used it from time to time. He had bought it because two of his horses, one being BLACK OPS, were not getting sufficient minerals. He chose this product because it was high in Copper. He was aware it also contained Cobalt and Zinc. He believed it contained only a minimal amount of Cobalt and so he was not concerned.

[31] He had bought the product from the local veterinary supply store. He thought the staff there would know he trained horses, but he agreed there were a number of staff serving at any one time and that any one of these people would serve him from time to time.

[32] Mr Beck acknowledged he did not read the label. He had had an eyesight test but did not have prescription glasses at the time. He did not use Warehouse glasses as they were not strong enough.

[33] He had left the Vetpak 5 Elements sitting on a shelf and thought he had no reason to read the label. He gave the product to the horse in liquid form and had not diluted it as he was not aware there was a need to. It was only after he became aware of the high reading that his wife read the label and told him he should have been diluting it.

[34] Mr Beck explained he had previously had quite a large team but currently had only half a dozen horses in work. His wife, Leda, also trained thoroughbreds on the property.

[35] His practice was to give BLACK OPS the Vetpak 5 Elements on a Monday morning after working the horse. He said he gave it every week the horse was in training. The only difference on this occasion was that the horse raced on a Wednesday rather than at the more usual Friday or weekend meeting.

Informant’s submissions as to penalty

[36] The RIU submissions set out four “well-known” sentencing principles. Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be 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 the penalty has the effect of deterring others from committing similar offences. A penalty should also reflect the disapproval of the JCA for the type of behaviour in question. The need to rehabilitate the offender should be taken into account.

[37] Applying the principles that are applicable to disciplinary proceedings and focusing on the maintenance of standards, the RIU submitted that the Committee should consider:

a) The extent to which the trainer has fallen below the expected standards;

b) The reason or cause the Rule was breached; and

c) What steps could have been taken to modify their practices to ensure, or at least minimise, the risk of the breach re-occurring.

[38] The Informant identified the following aggravating factors:

a) The Cobalt test result of 290 mcg/uL is considered to be mid to high range, being close to three times the maximum permitted level of 100 mcg/uL.

b) Mr Beck has a prior breach for administering a prohibited substance in 2012. That matter involved a totally prohibited substance, Aminorex, which had been supplied in similar circumstances to the current matter, ie, via oral syringe dose prior to racing and for which Mr Beck had failed to allow a sufficient withholding time, and had accidentally oversubscribed the dose he had intended to provide.

c) For that prior administration offence, Mr Beck was fined $10,000.

d) In this matter Mr Beck purchased and supplied to his horses a product, Vetpak 5 Elements, from a vet shop shelf that is labelled as being for cattle, sheep and goats, with no mention of horses. At no time did he seek veterinary advice over the use of the product.

e) Directions on the Vetpak bottle include a requirement to dilute the 1 litre bottle in 19 litres of water before use. Mr Beck provided his horse 20 mls in an undiluted state two days before racing, which he said was done for its Copper benefit. He had not fully read the use instructions on the label, due to his poor eyesight and the small writing on it. He said his wife had pointed out the need for it to be diluted only after this incident arose.

f) Dr Andrew Grierson, Chief Veterinarian HRNZ, in a report dated 14 January 2021 states that horses require much lower levels of Cobalt than cattle, and that the provision of 20 mls was equivalent to 168 days’ worth of the horse’s daily 0.5 mg/day requirement.

g) There has been much publicity and discussion about Cobalt in both the Harness Racing Code and the Thoroughbred Code in New Zealand and Australia in recent years which should have put all licensed persons on notice. Trainers should be alert to the risks that necessarily could arise from accidental exposure to excessive Cobalt.

h) When using commercially supplied substances that are labelled as containing substances which are prohibited at certain thresholds, as is the case with Cobalt, it is incumbent upon trainers to ensure that they use only in such quantities as to remain below the permitted levels.

i) The detection of a drug in a racehorse which has competed in and won a race is a serious matter. It is detrimental to the industry and erodes public confidence in Harness Racing.

[39] Mitigating factors were:

a) The RIU accepts that there was no intent to elevate the levels of Cobalt in BLACK OPS to obtain any favourable advantage and that this was more a case of carelessness when using a product for Copper, rather than for any Cobalt benefit.

b) Mr Beck has readily accepted the results of the testing and has been fully cooperative throughout the investigation.

c) He has admitted liability at the earliest opportunity.

d) Mr Beck has an extensive history of involvement within the Industry of over 40 years with the one prior drugs offence, being nine years ago. This is a first presentation offence for Mr Beck.

e) He has trained over 3,000 race starters, including about 340 winners.

f) Mr Beck has now amended his feeding regime to preclude the use of Vetpak 5 Elements. He will take steps to seek veterinary advice before the use of further any shelf product for additional supplement provision for horses under his care and control.

[40] In support of the penalty the RIU identified previous decisions involving second drug presentation offences in Harness Racing to be of assistance:

RIU v Anderson (November 2019) – Presentation of one horse with excessive Cobalt (128 mcg) – supplements and salt lick mix at stables. Second offence – fined $5,000. In 2013 fined $1,250 (Morphine)

RIU v Chilcott (February 2020) – Presentation of one horse with prohibited substance, namely Salbutamol. Second offence – fined $5,500. In 2013 fined $3,300 (Desmethlytramadone)

RIU v Dalgety (February 2013) – Presentation of one horse with prohibited substance, namely Phenylbutazone. Second Offence – fined $6,000. In 2009 fined $3,500 (caffeine presentation)

[41] The RIU believed that the breach could be dealt with by way of a monetary penalty. The RIU accepted there was no deliberate intent to breach the Rules. The RIU submitted that the level of negligence was at a mid to high level.

[42] Mr Meulenbroek emphasised there was some similarity between the two breaches as each involved an oral dose by syringe.

[43] Taking into account both the aggravating and mitigating factors, the level of breach, together with the levels of penalties provided in earlier cases, the RIU recommended a fine of $8,000 as being the appropriate penalty.

[44] Given the matter has been heard on a raceday no costs were sought.

Respondent’s submissions as to penalty

[45] Mr Beck stated that since the breach he had changed his feeding regime and was taking veterinary advice.

[46] Mr Beck explained that his principal livelihood was selling horses. If he were to acquire a reputation for using banned substances, this would quickly be in jeopardy. Consequently, he did not do so. He reiterated the shop assistant had read the contents to him at the time of purchase and had said 50% Copper and a low level of Cobalt. He had acted on this information. He had never thought to check this with a vet.

[47] With reference to the cases cited by the RIU, Mr Beck acknowledged the level in his case was higher than in Anderson, but lower than in some others. He asked that this be considered.

[48] Mr Beck explained he had only a small team in work and had one part-time member of staff. A family member also assisted with the horses.

[49] Mr Beck said he had an executive role in the Industry in the 1990s when he was President of the Southland Owners and Trainers Association. He had not had any subsequent formal roles.

[50] Mr Beck concluded his submission by stating he was “gutted” by the positive and with having it hanging over his head. It was a threat to the good name he has in the Industry.

Decision as to penalty

[51] In assessing the appropriate starting point regard is to be had to the gravity of the breach and the culpability of the person charged. 

[52] There has been much publicity and discussion about Cobalt in both the Harness and Thoroughbred codes in New Zealand and Australia in recent years which should have put all licensed persons, including Mr Beck, on notice.

[53] Significantly, Mr Beck has acknowledged that an employee at the store where he bought the Vetpak 5 Elements discussed its ingredients with him. While stating it contained primarily Copper, which was the reason he was purchasing the product, Mr Beck was also told it contained Cobalt, albeit in markedly less proportions.

[54] To compound matters, Mr Beck did not read the instructions and instead of diluting the product in the manner in which the manufacturer intended it to be used, he gave the product, which is in liquid form, directly to BLACK OPS. As a consequence, Dr Andrew Grierson, Chief Veterinarian HRNZ, has stated that the horse received 168 days’ worth of the horse’s daily requirement.

[55] BLACK OPS had apparently started on earlier occasions after being given Vetpak 5 Elements, but this was the first time the horse had raced within two days of ingesting the product. Dr Grierson has said that a negative sample a few days later would not be surprising as the level of Cobalt would decrease rapidly because excess Cobalt is excreted quickly from horses.

[56] Mr Meulenbroek produced test results from BLACK OPS on an earlier occasion, 8 February 2020, where the result was 3.2 ug/L. Another horse trained by Mr Beck was tested in 2018 and 2019. On both occasions the levels were below 5 ug/L.

[57] Mr Beck has eyesight difficulties with respect to small print. He says he did not have spectacles at hand at the time and this was why he did not read the instructions. He has produced a prescription from Specsavers dated 20 November 2020.

[58] Trainers need to be alert to the risks that necessarily can arise from accidental exposure to excessive Cobalt. When using commercially supplied substances that are labelled as containing substances which are prohibited at certain thresholds, as is the case with Cobalt, it is incumbent upon trainers to ensure that they are used only in such quantities as to remain below the permitted levels. If necessary, trainers should seek independent veterinary advice and testing.

[59] Mr Beck did not seek independent veterinary advice as to the use of Vetpak 5 Elements on horses. This is surprising when the product states it is appropriate for use on cattle, sheep and goats. There is no mention of it being suitable for horses.

[60] There are thus a number of missteps by Mr Beck with respect to this positive result of Cobalt at 290 mcg/L (almost three times the permitted level). Mr Meulenbroek describes Mr Beck’s negligence as mid to high. The Committee views Mr Beck’s culpability and degree of carelessness in a similar light and at the higher end of that range.

[61] Moreover, Mr Beck’s actions have to be viewed in the context that he was found to be in breach of the administration Rule in not too dissimilar circumstances (oral dose by syringe) some 10 years ago. That charge is more serious, of course, than the one of presentation that is before this Committee, but the previous breach is an obvious aggravating factor. The penalty on that occasion was a fine of $10,000. The Judicial Committee, in arriving at penalty, gave considerable weight to his unblemished record in his many years as a Harness Trainer.

[62] Previous decisions where there has been an earlier breach of drug related rules need to be considered. The cases identified by the Informant and the cases referred to therein must be reviewed with regard to the specific circumstances of the breach at issue.

[63] In Dalgety (2013) the Respondent was unable to explain how the prohibited drugs, Phenylbutazone and Oxyphenbutazone, were introduced into the horse’s system. Mr Dalgety was negligent in having two horses transported to the race meeting in a public transporter, with other horses, without an attendant from his stable, and in leaving the horses unattended at the track prior to the arrival of his stable representative, who then left the horses unattended throughout the evening due to his having a drive in every race at the meeting. He was fined $6,000.

[64] In Chilcott (2020) the penalty was a fine of $5,500 for a second breach. Ms Chilcott had relied on erroneous advice from an Australian veterinarian as to withholding times. The Committee observed that it appeared as if the respondent had a low understanding of the withholding period concerning the presentation of a horse to race after being treated with drugs that might later be proven on analysis to contain banned substances.

[65] The level in Anderson (2019) was 128 mcg/uL, which was considered to be not markedly above the cut-off point and at the mid to lower end of the scale in terms of seriousness. Prior to August 2017 the threshold permitted for Cobalt was 200 mcg/uL. Due to the low Cobalt reading, there were no adverse animal welfare issues that needed to be considered. Mr Anderson had an extensive history of involvement in the harness industry over 35 years with just one prior matter that was at the lower end of the scale of offending. On that occasion both he and another trainer were charged, with Mr Anderson being overseas when the breach occurred. The circumstances of that case were very different to the charge before the Committee and was said not to merit significant emphasis. Mr Anderson was fined the sum of $5,000.

[66] The case of RIU v Hale (September 2018) is also relevant in that the circumstances of the breach were not dissimilar, although the level of 120 mcg/uL was considerably lower. The fine in that case was $4,000. It was a first breach. There was evidence of negligence on Mr Hale’s part. The source of the Cobalt was believed to be a salt block that was not manufactured specifically for horses (or racehorses) to which the horse in question had unrestricted access. The Respondent had failed to read the ingredients in the multivitamin salt block and had made no inquiries as to the amount of Cobalt in the block.

[67] A further case is RIU v Dixon (April 2018). The horse had a Cobalt level of 293 mcg/uL. Several supplements were found at the stables. It was a first offence, and he was fined $6,500. Another is RIU v Brosnan (February 2018). Three horses were found to have Cobalt readings of 136 mcg, 128 mcg, 522 mcg, respectively. Vials and syringes were present at the stables with Cobalt contained within. It was a first offence and Mr Brosnan was fined $19,200 for the three offences. While in RIU v Dalgety (May 2017) the penalty was a fine of $32,000 for five breaches where five horses had excess Cobalt (584 mcg, 600+, 250, 300, 245). The source was likely to be a salt mix supplement. Culpability was assessed at high to mid-level and the Respondent had two prior offences.

[68] The circumstances in each of these cases, as is to be expected, vary. There is quite a range of penalties and no case is directly apposite to the present matter. The facts in Hale are the closest. That, however, was a first breach with a significantly lower level of Cobalt.

[69] The JCA Penalty Guide provides an $8,000 starting point for a first breach of the presentation rule, and a two-year disqualification and a fine of up to $10,000 for a second breach. The RIU does not seek a disqualification in this case and this Committee agrees disqualification is not an appropriate penalty.

[70] The principal mitigating factor is Mr Beck’s excellent reputation in the Harness Industry which is reinforced by the character references that he has placed before the Committee. He is a respected Trainer and has trained over 340 winners. His admission of the breach and his full and immediate co-operation with the RIU’s investigation also are to his credit.

[71] The final considerations are the need to uphold the integrity of and maintain public confidence in Harness Racing, and the animal welfare concerns that are raised by the high level Cobalt in this case. The penalty that is imposed upon the Respondent must address these concerns, denounce his actions, hold him accountable, and deter him and others from future breaches of the Rule. As the Appeals Tribunal in Justice v HRNZ (8 February 2012) stated at [81], “[t]here is a need to bring home to Trainers/Owners the heavy responsibility of presenting horses free of prohibited substances.”

[72] The Penalty Guide, as noted, states that a fine of up to $10,000 should be taken as a starting point for a second breach. The figure of $10,000 is adopted. Any lesser amount would not reflect the degree of culpability in this case which, as previously observed, is clearly above mid-range. There were many omissions and consequently a distinct lack of care on Mr Beck’s part. There is a reduction of $2,000 for personal mitigating factors.

[73] Mr Beck is fined the sum of $8,000.

[74] Pursuant to r 1004D(2), in a Ruling dated 13 December last, BLACK OPS was disqualified from race 7 at the Invercargill HRC meeting on 25 November 2020.

[75] The RIU does not seek costs.

[76] The matter was heard on raceday. A small contribution to JCA costs is both just and reasonable.

[77] There is an order for costs in the sum of $200 to the JCA.

Dated at Dunedin this 12th day of February 2021.

Geoff Hall, Chairman

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