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Non Raceday Inquiry RIU v D & C McGowan - Written Penalty Decision dated 20 May 2019 - Chair, Mr G Jones

Created on 22 May 2019

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of New Zealand Rules of Harness Racing

Mr O Westerlund (Investigator)

RACING INTEGRITY UNIT

INFORMANT

Mr D and Mrs C McGowan (Licensed Training Partnership)

RESPONDENTS

Judicial Committee: Mr G Jones (Chairman) & Mr A Smith

Present: Mr O Westerlund for the Racing Integrity Unit (RIU), Mr D McGowan and Mrs C McGowan (Respondents)

Hearing at Alexandra Park on 17 May 2019

Date of oral decision: 17 May 2019

Date of written decision: 20 May 2019

PENALTY DECISION OF THE JUDICIAL COMMITTEE

INTRODUCTION

1. This charge was heard at the Alexandra Park racecourse on 17 May 2019. Licensed Harness Trainers David and Clare McGowan (“the Respondents”) appeared in person to answer a charge alleging they breached New Zealand Rules of Harness Racing; specifically rule numbers 1004(1A) and 1004(3) which relate to the requirement to present a horse to race free of any prohibited substance.

2. On 10 April 2019, pursuant to Rule 1108 (2), Mr M Godber the RIU General Manager, authorised Racing Investigator, Mr O Westerlund to lodge an information charging the Respondents with breaching Rules 1004(1A) and 1004(3).

3. On 12 April 2019 Information Number A8474 was served on Mr McGowan on behalf of the Respondents. He endorsed the Information “I do admit the breach of the rule”.

THE CHARGE

4. The particulars of the charge (Information Number A8474) alleges that:

On Wednesday the 6th March 2019 at Cambridge, the training partnership of David and Clare McGowan were the licensed trainers of the standardbred harness race horse LE GIRL which was presented for and raced in Race 1, the Henley Hotel Mobile Pace 2200m, at a race meeting conducted by the Waikato Bay of Plenty Harness - failed to present the said horse free of the prohibited substance, namely Clenbuterol, being an offence under the provisions of Rules 1004 (1A) & 1004 (3) and punishable pursuant to Rule 1004 (7) & (8) of the New Zealand Rules of Harness Racing.

Plea and Disqualification of LE GIRL

5. At the commencement of the hearing Mr McGowan on behalf of the Respondents confirmed their admission of the breach. He also confirmed that prior to the hearing they received all relevant disclosure documents.

6. The Respondents advised the Committee they have read and fully accept the Summary of Facts and the Penalty Submissions filed by Mr Westerlund on behalf of the RIU.

7. Once the guilty plea was entered, pursuant to Rule 1004(8) the Committee ordered that LE GIRL shall be disqualified from Race 1, the Henley Hotel Mobile Pace 2200m, on 6th March 2019 at the Waikato Bay of Plenty Harness meeting and forfeit the winning stake money of $5775.

THE RELEVANT RULES

8. 1004 (1A) provides that:

A horse shall be presented for a race free of prohibited substances.

9. Rule 1004 (3) provides that:

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.

10. Rule 1008 provides that:

In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:

a) it shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the Rule;

and

b) any breach of a Rule shall be considered as an offence of strict liability.

SUMMARY OF FACTS (salient points)

11. The Respondents are licensed Public Trainers in accordance with the New Zealand Rules of Harness Racing.

12. LE GIRL is a 4 year-old mare owned by the Les Girls No 2 Syndicate and is trained by the Respondents.

13. On Wednesday the 6th March 2019 LE GIRL was correctly entered and presented to race by the Respondents in the Henley Hotel Mobile Pace 2200m at the Waikato Bay of Plenty Harness at the Cambridge Raceway, Cambridge.

14. In the 8 horse field LE GIRL finished in first place and won stake money of $5775.

15. LE GIRL underwent a random Post Race urine swab. The Respondents do not contest the swabbing process.

16. All swab samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under New Zealand Rules of Harness Racing.

17. On the 21st March 2019 the Official Racing Analyst reported in writing that the samples from LE GIRL had tested positive to Clenbuterol.

18. Clenbuterol is used in the equine treatment of allergic respiratory disease, being a decongestant and bronchodilator. It is a prohibited substance per the HRNZ regulations in that it is a substance capable of acting on the respiratory system.

19. Mr McGowan was spoken to on Friday the 22nd March 2019 at his stable in Pukekohe. He could offer no explanation for the positive test result other than the fact that cross contamination may have occurred. He further stated that another horse he is training was prescribed by his local Vet the product, Airway Gel, which contains Clenbuterol for the treatment of a recurrent airway obstruction. It is highly likely that a cross contamination occurred following the use of this product.

20. Also, on the Friday the 22nd March 2019 Mrs McGowan was spoken to at the Pukekohe stable. She confirmed that the Airway Gel product was used to treat another horse in the stable, thus reinforcing the possibility of cross contamination.

21. During its investigation the Racing Integrity Unit (RIU) noticed that the area in which LE GIRL was kept is next to the area that is used specifically for the treating of other horses. Airway Gel is a gel which is administered orally with a syringe. Great care is imperative when handling medication near other horses.

22. The RIU believe that the likely cause is contamination through carelessness when handling or administering medication.

23. LE GIRL was not given Clenbuterol at any stage.

24. Located in the stable block was the product Airway Gel container which was prescribed by Kara Watson from Franklyn Vets with a withholding period of 18 days. The container was half empty.

25. Mr McGowan has been involved in the Harness Racing Industry all his adult life. He has been in training in partnership with his wife, Clare for 20 years.

26. Neither Respondent has previously appeared on a breach of this nature.

27. Pursuant to Rule 1004(8) an order is sought for the horse LE GIRL to be disqualified from the race and the stake money to be repaid.

PENALTY PROVISIONS

28. Rule 1004(8) provides that any horse connected with a breach of this rule shall be disqualified from the race and may in addition be disqualified for a period not exceeding five years.

29. Rule 1004(7) provides that every person who commits a breach of sub-rule (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 5 years.

PENALTY SUBMISSIONS - RIU

The RIU submitted the following written penalty submissions. The salient points are as follows:

30. The Respondents have admitted a breach of the rules in relation to a charge of presenting and racing a horse at the Waikato Bay of Plenty Harness meeting by failing to present the said horse free of the Prohibited Substance namely ‘Clenbuterol’.

31. The facts are detailed in the Summary of Facts which has been agreed.

32. A fine of $4000 is submitted.

Sentencing Principles

33. The four principles of sentencing can be summarised briefly:

a) Penalties are designed to punish the offender for his/her wrong doing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence, but the offender must be met with a punishment.

b) In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.

c) A penalty should also reflect the disapproval of the JCA for the type of offending in question.

d) The need to rehabilitate the offender should be taken into account.

34. The RIU submits that the first three principles have relevance in this case.

Precedents

35. In support of penalty the RIU refer to three previous decisions which they submit may be of some assistance to the Committee.

RIU v M G BERGER (HRNZ 2009) – 1 x Clenbuterol positive. Total fine imposed of $2400. It is noted however that this case was pre March 2011 when the maximum HRNZ fine for this type of offence was doubled from $10,000 to $20,000, reflecting the desire to provide a greater deterrent.

RIU v B J TOWERS (HRNZ 2015) – 2 x Clenbuterol positives. Total fines imposed of $4000.

RIU v L R NOBLE (NZTR 2010) – 1 x Clenbuterol positive. Total fine imposed of $6000.

Mitigating Factors – The RIU submit:

36. That the Respondents have admitted the breach.

37. That the Respondents have been fully co-operative throughout the process.

38. That the Respondents although careless in their actions they have acted without intent.

39. That the Defendants have been involved in the training partnership for 20 years as Public Trainers.

40. That the Respondents have no previous offending against or breaching the rules of Racing.

Aggravating Factors – The RIU submit:

41. That the Respondents are experienced horseman who should be well aware of the caution required when using supplements in horse racing management.

42. That it is imperative care is taken when handling medication; and the Respondents should have taken extreme care when treating a horse with a prohibited substance so as not to cross contaminate other horses.

Conclusion

43. The RIU submit that breach can be dealt with by way of a monetary penalty and to that end the RIU seek a fine of $4000.

44. The RIU are seeking no costs.

PENALTY SUBMISSIONS – Mr and Mrs McGowan

The Respondents made the following oral penalty submissions. The salient points are as follows:

45. They submitted that although LE GIRL won the race in question by 6 lengths, it was a poor field and her training leading up to the race indicted she was close to a winning run. And further although LE GIRL was well supported in the betting (3/2 in the betting) they do not bet and did not place a wager on her.

46. They said they maintain a treatment diary for all horses in their care and believed that they took all necessary steps to avoid contamination occurring.

47. They submitted that on being notified of the positive result they spent considerable time and effort trying to identify how this result could have happened. This led them to the conclusion that contamination was the most likely cause and they put forward two possible scenarios – namely:

i. that the tie up stall for horses receiving treatment on the property is situated next to LE GIRLS box and following the Airway Gel treatment to another horse (a 2 year old), contact has been made with LE GIRL; and/or

ii. that they regularly assist other trainers by transporting their horses to the races and one of those horses may have been under treatment using a product containing Clenbuterol, resulting in the contamination to LE GIRL.

48. The Respondents were resolute in their belief that neither of them had knowingly administered any substance to LE GIRL that would have given rise to the positive result.

49. The Respondents outlined their personal financial circumstances which we have taken due cognisance, but there is no need for us to report this in detail other than to note that for the past 3 years the training operation has been running at a financial loss and they are not in a strong position to pay a fine.

50. The Respondents submitted that they have offered to repay the forfeited stake money to the owners of LE GIRL resulting from her disqualification. They said that although the owners were not seeking reimbursement, they have offered to train LE GIRL at no cost to make up for the loss of stake money and they have since, as a gesture of goodwill, also broken in another horse for the owners at no cost. 

51. In wrapping up their submissions the Respondents said that they have since undertaken a significant clean up of their property to avoid the possibility of a similar contamination issue reoccurring in the future. They have also taken steps to colour code the product ‘Airways Gel’ as in its pure form is a colourless solution. In doing so they believe it will avoid any future risk of contamination from that particular product.

The RIU Position summarised

52. The position of the RIU can be simply stated in the following terms. Although LE GIRL was never knowingly administered Clenbuterol, the investigation concluded that the most likely cause was due to cross contamination. The probable contaminant being the product Airway Gel which had been recently administered to another horse in the stable. This product is a gel which can be administered either orally with a syringe and had been correctly prescribed by the Respondents Vets to be used for the purpose in which it was intended.

53. During the course of their investigation the RIU found that the place in which LE GIRL was kept is next to an area that is used specifically for treating other horses. Given the proximity between the two areas within the stables, the RIU submitted that this was the most likely scenario for the contamination to have occurred. The RIU highlighted the need for care when handling medication near other horses, and on this occasion the they submit the Respondents were careless.

54. The RIU highlighted precedent cases and submitted that a fine of $4000 would be an appropriate penalty.

The Respondents position summarised

55. The position of the Respondents is that this breach is the result of unintended contamination in that LE GIRL has been exposed to what is most likely to have been Airway Gel.

56. They accept they may have been careless, but not negligent. They are adamant they routinely take care in ensuring correct medication is applied the right horse(s); with-holding periods are met and treatment diary records are maintained.

57. The respondents are equally adamant that at no time did they knowingly or deliberately administer the prohibited substance to LE GIRL.

58. They take no issue with the summary of facts.

59. The Respondents submit that they are not in a strong financial position to pay a fine and that they are extremely remorseful.

REASONS FOR DECISION

60. In determination of an appropriate penalty the Committee fully considered all of the relevant facts as well as the submissions lodged by the Informant and Respondents. The Committee’s decision making framework was guided by the JCA Penalty Guide; precedent cases (for consistency); mitigating and aggravating factors; all of which we applied to the particular circumstances of this case together with our assessment of the Respondents’ respective culpability as well as their personal situation.

61. The Committee also recognised our responsibility to ensure that the purpose of proceedings requirements, as set out in the 5th Schedule of the Rules of Harness, were considered as part of our determination; namely: (a) to ensure racing is conducted in accordance with the code rules; (b) to uphold and maintain the high standards expected of those participating in the sport of racing and the racing industry; (c) to uphold and maintain the integrity of the sport of racing and the racing industry; and (d) and to protect the participants in the sport of racing, the racing industry, and the public.

62. Given that LE GIRLS win was a form reversal; it was 3/2 in the betting and won the race by 5 ½ lengths we felt it was of interest to not only the betting public, but also stakeholders generally that we ask some searching questions about this to suppress any speculation about the form reversal. We did so after hearing penalty submissions from both the Informant and Respondents.

63. Mr Westerlund advised the Committee that the scope of the RIU investigation included enquires with the RIU Betting Analyst which revealed no abnormal betting patterns for race. He said that although LE GIRL was favoured in the betting (at 3/2) there were no large wagers placed on her.

64. The Respondents advised that they do not bet and the win was not a huge surprise to them as LE GIRL has always shown potential in her track work.

65. With regards to the winning margin they submitted that it was more a reflection of the quality of the opposition and when LE GIRL raced clear of the field early in the run home, the opposition were simply not good enough to catch her.

66. Further information provided to the Committee included the race time and sectional splits. LE GIRL won the race in a time of 2-45.0 which is unremarkable.

67. The JCA Penalty Guide establishes a starting point of $8000 fine for a first breach of a presentation offence. In relation to fixing a starting point we have taken guidance from the formula adopted for assessing penalty in the decision of the Appeals Tribunal R DUNN and J DUNN v RIU, dated 1 June 2018, notwithstanding we are conscious of the various points of difference between that case and this one. For example, DUNN and DUNN was a breach that involved multiple charges, whereas this is a single breach. Further in DUNN and DUNN starting point discount was applied having regard to the totality principle. Putting those differences aside it establishes a very useful for guide and benchmark for this Committee to follow.

68. In DUNN and DUNN the Tribunal adopted a $6000 starting point and applied a further third discount.

69. Of the precedent cases, notably RIU v BERGER (2009), RIU v Noble (NZTR 2010 and RIU v TOWERS (2015), we believe that BERGER and TOWERS closely match the circumstances of this case in that they relate to presentation offences detected following a race win. The penalties for those cases were $3000 and $4000 respectively. In each case the horses concerned were also disqualified.

70. The detection and prosecution of offences relating to presenting horses to race (with a prohibited substance) in Harness Racing are relatively rare. The Committee has noted that since 2015 there have been 12 such cases determined by a Judicial Committee. These have resulted in fines ranging from $32000 (for multiple charges) to $4000.

71. The Respondents acknowledged they have used prescribed Airway Gel for the treatment of another horse on their property. The Committee accepts that contamination is the most likely cause of LE GIRL returning a positive swab. The exact means by which the contamination occurred cannot be established. Various scenarios have been suggested all of which are feasible and credible.

72. We do not believe the Respondents were negligent or reckless in their handling of the Airway Gel product. But they were careless. They are well aware of the consequences of this breach and have been proactive in undertaking a clean up around their property and colour coding the Gel in an effort to avoid contamination occurring in the future.

73. We observed that this breach has taken its toll on the Respondents. Having sat and observed their reaction to the proceedings we are of the view that their remorse is absolutely genuine.

74. We have had due regard for and agree with the mitigating factors highlighted by the RIU in their submissions; namely:

 The Respondents admission of the breach and their full cooperation with the investigation

 The Respondents unblemished record after a combined 40 years industry participation

75. We also had due regard for the Respondents submissions, namely:

 Their personal/financial circumstances

 Their exemplary record

 Their genuine contrition

 The steps they have taken to avoid a recurrence

76. The Respondents have proposed, as a gesture of goodwill and loyalty to their owners, that they reimburse them the $5775 stake money forfeited by LE GIRL as a result of her disqualification. They submitted this burden will add to their current financial predicament. Although an admirable gesture we place little weight on this. LE GIRL could never be entitled to the stake money after having competed in and won the race with a detected prohibited substance. Disqualification and forfeiture of stake money is an inevitable consequence.

77. Having regard to the JCA Guide starting point of $8000 and in consideration of all the relevant factors specific to this case, particularly the Respondents culpability, we adopted a $6000 starting point, which we believe is not inconsistent with other like cases of this nature. From that starting point we have given further consideration to other mitigating factors that may merit a further discount.

78. In the recently published Appeal Decision RIU v LAWSON (May 2019) useful guidance was provided for Judicial Committees in terms of assessing quantum of discount to be applied for early plea. It was stated….all licence holders and those who advise them, should understand and bear in mind that the R v Hessell conclusions make it clear that automatic discounts – at whatever percentage – do not occur simply because of admission of wrong doing. Many features are to be taken into account.

79. In DUNN and DUNN the Tribunal determined that “In considering an appropriate allowance for mitigation the Tribunal considers that there might properly have been greater recognition of the position arrived at by the RIU and the Dunns’ advisors, Dr Molloy and Mr Dale. The extent to which the Appellants cooperated with RIU and the extent to which the RIU endeavoured to follow up the Appellants’ concerns is a situation for which both parties should receive recognition. That level of cooperation is seen all too infrequently within harness racing and the other two codes over which the JCA has authority. An appropriate figure to measure mitigation in the circumstances outlined would have been 40 per cent”.

80. We have assessed the Respondents level of culpability to be at the low end and after taking all factors into account applied a 30% discount to our $6000 starting point ($1800), thus arriving at $4200. This is in consideration of the relevant mitigating factors specific to this case. This is slightly less than the 40% applied in DUNN and DUNN and that is because of the somewhat different circumstances between the two cases. We assess each of the Respondents as being equally culpable with each liable to a 50% share of the fine.

DECISION AND COSTS

Disqualification

81. We impose a fine of $4200 to be shared equally between each of the Respondents.

82. As highlighted earlier in this decision pursuant to Rule 1004(8) we order that LE GIRL shall be disqualified from Race 1, the Henley Hotel Mobile Pace 2200m, on 6th March 2019 at the Waikato Bay of Plenty Harness meeting and forfeit the winning stake money of $5775. As a consequence of the disqualification, the amended results for the race are as follows:

1st Karolyi
2nd Arty Pharty
3rd Sarabi
4th E Cat

COSTS

83. The RIU do not seek costs. As this matter was heard on a raceday we make no order for costs incurred by the Judicial Control Authority.

DATED this 20th day of May 2019

Gavin Jones MNZM

Chairman

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