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Non Raceday Inquiry RIU v H Westrum - Decision dated 18 October 2017 - Chair, Prof G Hall

Created on 22 October 2017

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

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

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MS HENRIETTE WESTRUM

Licensed Public Trainer

Respondent

Information: A6644

Judicial Committee: Prof G Hall, Chairman

Mr A Smith, Committee Member

Appearing: Mr C Allison, for the Informant

The Respondent in person

DECISION OF JUDICIAL COMMITTEE

[1] The informant, the RIU, has laid information A6644 with respect to the respondent, Ms Westrum.

[2] This information states: “On 26 May 2017, Henriette Westrum, being the registered trainer of the Standardbred ELITE EXCUSE presented the horse to race in Race 2, the PI AND GJ KENNARD BLOODSTOCK MOBILE PACE, at the New Zealand Metropolitan Trotting Club’s meeting with a prohibited substance, namely Phenylbutazone, in its system in excess of 100 micrograms per litre of urine. This is a breach of the prohibited substance rule, r 1004(1A), (3) and (4) and you are therefore liable to the penalty or penalties which may be imposed in accordance with r 1004(7)(a) and (b) and to the horse penalties in r 1004(8) and 1004(D).”

[3] The informant produced written authority in accordance with r 1108(2), dated 24 August 2017, from Mr M Godber, the General Manager of the RIU, to file a non-race day information for a breach of r 1004(1A).

[4] A teleconference was held with the parties on 14 September last, at which Ms Westrum stated that she admitted the breach.

[5] We thus find the breach of r 1004(3) proved.

[6] The relevant rules provide:

1004(1A) A horse shall be presented for a race free of prohibited substances.

(3) When a horse is presented to race in contravention of sub-rule (1A) … the trainer of the horse commits a breach of these Rules.

(4) A breach of sub-rule (1A), … (3) … is committed regardless of the circumstances in which the TCO2 level or prohibited substance came to be present in or on the horse.

[7] The penalty provisions which apply in this case are rr 1004(7) and (8) and 1004D:

1004(7) 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 five years.

(8) Any horse connected with a breach of sub-rule … (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.

1004D Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.

[8] The Committee determined that the matter be heard on the papers. We received written submissions from the parties and held a further teleconference on 5 October at which both parties made oral submissions.

The facts

[9] The respondent in this matter, Ms Westrum, has been licensed with HRNZ since 2011. First as a Stablehand, and then a year later, with a Licence to Train. She currently holds a Public Trainer’s Licence.

[10] Ms Westrum entered and started the registered Standardbred ELITE EXCUSE in Race 2, the PI AND GJ KENNARD BLOODSTOCK MOBILE PACE, at the New Zealand Metropolitan Trotting Club meeting held on Friday 26 May 2017. Total stake money for the race was $9,950. The breakdown of stake money was 1st $5740, 2nd $1120, 3rd $560, 4th $360, 5th $280, and others $210.

[11] ELITE EXCUSE was driven by Mr D Keast and won the race, which was run over 1950 metres, by a head in a time of 2.22.6. ELITE EXCUSE was 14/14 in the betting and was the rank outsider of the field. She paid $62.90 to win and $11.50 for a place.

[12] On the night of the races ELITE EXCUSE was a four-year-old bay mare and she had started 13 times for one win, one 2nd, and one 3rd, for total stake money of $9,445. As at 12 September 2017, she had had three subsequent races for two unplaced runs and one 3rd placing. ELITE EXCUSE is owned by Ms H Westrum, P J Cusdin, C P Keast and B J Sangster.

[13] Following the race, the Chairman of Stewards, Mr Tidmarsh, requested that ELITE EXCUSE be swabbed. A urine sample numbered 133194 was obtained from ELITE EXCUSE at 6.10 pm in the presence of stable representative, Mr D Keast. This sample was subsequently sent to the New Zealand Racing Laboratory Services for analysis.

[14] On 4 July 2017, this Laboratory formally advised the sample numbered 133194 contained the prohibited substance Phenylbutazone (commonly referred to as Bute). The concentration of Phenylbutazone exceeded 200 micrograms per litre of urine, which was the upper limit of the calibration range of the method used. The regulatory limit is 100 micrograms of Phenylbutazone per litre of urine. The control sample was clear. Mr Howitt the General Manager of the Laboratory later advised the reading was extremely high.

[15] Dr Grierson, the Chief Veterinarian for HRNZ, forwarded a formal report, which confirmed Phenylbutazone was a prohibited substance under the Rules of HRNZ.

[16] On Wednesday 5 July 2017 Racing Investigators visited Ms Westrum at her stable at Yaldhurst on the outskirts of Christchurch. Ms Westrum is assisted in the daily training and preparation of her horses by her partner, Mr J Keast, who is licensed as an open horseman. Ms Westrum and Mr Keast had previously been licensed together, up until this season. Three other trainers use the stable complex, with two main barns shared by the trainers.

[17] When advised of the positive test, Ms Westrum was surprised and advised the Racing Investigators she had never used Phenylbutazone on ELITE EXCUSE. She was at a total loss to explain how the sample contained Phenylbutazone. Ms Westrum was co-operative throughout the investigation and openly made her stable available for inspection immediately she was advised of the positive result.

[18] The RIU stated that Ms Westrum’s medicine cupboard was insecure and, when searched, no Phenylbutazone was located. However, insecure DMSO, which is required to be prescribed by a veterinarian, was located. The RIU described the security of medicines at the stable complex as “poor”, with prescribed medication being kept by other trainers in insecure and unlocked areas. Feed rooms were also insecure. The main bulk feed of barley and bailage was shared by all the trainers at the stable.

[19] The inspection located Phenylbutazone in an unlocked cupboard in the main smoko room. This had been prescribed to another trainer at the stable and had been used on a broodmare, which had spent time in the stable complex.

[20] The broodmare, which was being treated for laminitis, was being administered Phenylbutazone in a box in the stable area directly across from where ELITE EXCUSE was boxed.

[21] Ms Westrum and the trainer using the Phenylbutazone, Mr Kennedy, advised there was no possibility that they had mixed the horses up as the mare being treated was particularly lame and had a poultice on her infected leg.

[22] Ms Westrum initially advised she did not use Phenylbutazone at her stable but, when later spoken to, she acknowledged she had used it around 18 months previously. Enquiries revealed Mr Keast had purchased a 500ml container of Phenylbutazone in November 2015. This had been used on the horse JEANIE POPS, which had suffered a fractured pastern. She also acknowledged she had been prescribed Phenylbutazone for the horse ARCHIMEDES but this was after ELITE EXCUSE had raced and tested positive. Mr Allison’s inquiries confirmed this was the case.

[23] The stable has a security fence, which is closed later in the afternoon, however it can be opened with the push of a button without a security code being required.

[24] Ms Westrum did not keep records of any medications she had used, as she only has a small racing team. Inquiries with Ms Westrum’s veterinarian, Dr Senior, confirmed Ms Westrum had never purchased any product containing Phenylbutazone from him for ELITE EXCUSE. That horse was not suffering from any injuries or issues that required the use of Phenylbutazone or any other pain killer or anti-inflammatory.

[25] Ms Westrum accepted the swabbing process was conducted correctly and declined the opportunity to have the “B” sample tested.

[26] ELITE EXCUSE was swabbed on 7 July 2017 at the New Zealand Metropolitan Trotting Club meeting where she finished in 10th placing. The swab returned no irregularities.

[27] The two horses Ms Westrum raced on the evening at issue were both transported to the races in a double float by Mr Keast. During the evening of the races Ms Westrum left ELITE EXCUSE unattended while watching another horse race earlier in the evening. The stables at Addington Raceway are well policed and the horses were stabled in full view of other licence holders.

[28] Inquiries with the RIU Betting Analyst failed to detect any irregular betting patterns.

[29] The cause of the positive test is unknown.

Informant’s submissions

[30] Ms Westrum holds a Public Trainer’s licence on her own account, however she had previously been licensed as a Public Trainer in partnership with Mr J Keast for the 2013 and 2014 season.

[31] Rule 1004(1A), (3) covers the conduct of licence holders in relation to the presenting of a horse free of a prohibited substance at any race meeting.

[32] The four principles of sentencing could be summarised as:

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 a 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.

[33] The RIU believed all four principles were applicable in this case.

[34] The Rules of HRNZ include the principles for Judicial Committees. These are reflected in cl 5.1 of the Rules of Practice and Procedure for the Judicial Committee and Appeals Tribunal which states:

The purpose of proceedings before a Judicial Committee or Appeals Tribunal include:

to ensure that racing is conducted in accordance with the code rules;

to uphold and maintain the high standards expected of those participating in the sport of racing and the racing industry;

to uphold and maintain the integrity of the sport of racing and the racing industry; and

to protect the participants in the sport of racing, the racing industry, and the public.

[35] The RIU identified a number of decisions, which might be of assistance to the Judicial Committee.

[36] In RIU v Dalgety 20 February 2013, Mr Dalgety presented a horse to race with the presence of Phenylbutazone. Phenylbutazone was located at the stable, however Mr Dalgety could not explain how the horse tested positive. The breach was admitted. Mr Dalgety had a previous breach of the prohibited substance rule. Mr Dalgety admitted the breach and was fined $6,000 plus $350 in JCA costs.

[37] In RIU v A & L Neal 7 May 2015, Mr and Mrs Neal presented a horse to race with Flunixin, a non-steroidal anti-inflammatory drug, analgesic (pain relief) and antipyretic (reduce fever). The Neals advised they had been treating the horse within the withholding period guidelines for the medication. The Neals had a previous breach of the prohibited substance rule. The breach was admitted and the penalty was a $5,500 fine.

[38] The final case was NZTR v Howe 12 November 2015. Mr Howe presented a horse with Dextrorphan, which is found in cough medicines and suppressants. Mr Howe was unable to offer an explanation as to how the positive swab occurred. The breach was admitted and Mr Howe, who had not previously breached the prohibited substance rule, was fined $5,000.

[39] The RIU identified the aggravating features of the case as being:

a. The security of prescribed medications at the stable was poor with medications not being locked away securely.

b. Other trainers at the stables also had medications insecure including Phenylbutazone.

c. The stables were shared by four trainers at the time of the positive swab occurring, with none of the trainers present securely locking their respective medicines.

d. Ms Westrum had left the horse ELITE EXCUSE unattended for a short period of time when watching another stable runner race.

e. This was the third breach of the prohibited substance rule within a four-year period for Ms Westrum.

f. Ms Westrum’s two previous breaches of this rule were while training in partnership with her partner Mr J Keast. Both these breaches involved high TCO2 readings. Ms Westrum was fined $2,500 plus $700 JCA costs for the first breach in July 2013. For the second breach in November 2013, Ms Westrum was suspended for a six-month period and fined $2,000 plus costs of $600 to the RIU. The decision stated the breaches had occurred a short time after the initial decision was released, which was an aggravating feature. Mr Keast did not have his horseman’s licence suspended and was permitted to continue driving.

g. The level of Phenylbutazone in ELITE EXCUSE was very high.

[40] Mitigating circumstances were:

a. When spoken to by RIU Racing Investigators, Ms Westrum was co-operative and made her stables openly available for inspection.

b. Ms Westrum’s stable was clean and presented in a tidy condition.

c. The stable entrance has a homestead in the driveway that has to be passed prior to gaining access to the stabling area.

d. Ms Westrum admitted the breach of the Rules at the first available opportunity.

e. Ms Westrum’s conduct throughout the investigation had been totally professional and she had been co-operative at all times.

[41] The RIU sought the disqualification of ELITE EXCUSE pursuant to r 1004D.

[42] The JCA guidelines dated 1 May 2015 provide a starting point of $8,000 for a breach of r 1004(1A). The RIU submitted a fine of $10,000 was appropriate after taking into consideration the aggravating factors, which they believed outweighed the mitigating factors.

[43] The RIU made no application for costs.

Respondent’s submissions

[44] Ms Westrum commenced her written submissions by stating ELITE EXCUSE had surprised her connections by winning the race in question. Leading up to the race, the horse and stablemate HANDLEBAR HANK had been working together during the week. HANDLEBAR HANK had improved in his work and “had the mare covered every step of the way”. She had advised her owners that this week it would be his “time to shine”.

[45] The respondent stated that betting records would show the stable connections put their money on HANDLEBAR HANK. Nobody touched ELITE EXCUSE because the stable did not think she could win from her poor draw.

[46] HANDLEBAR HANK had raced well but did not win. Ms Westrum explained she was not watching ELITE EXCUSE’s race, as she was “on the Lindauer Lawn wrangling her 2-year-old as he had had enough of the races at this stage. Towards the end of the race the other guys caught my attention as they screamed louder than anyone else. I looked up and couldn’t believe my eyes when I spotted ELITE EXCUSE in front and charging for home with several lengths on the others. She won the race.”

[47] Ms Westrum said she was very surprised ELITE EXCUSE had returned a positive, as the stable did not use Bute on their racehorses. The only time the stable would use Bute would be if there was an injury and the vet advised that the horse be put on that medication. In those circumstances, the horse would not be racing.

[48] The level of Bute in ELITE EXCUSE at the time of swabbing was extremely high, and the respondent said this had not happened by contamination or carelessness. Someone had administered one or more excessive doses of Bute close to the mare's race day. She said: “It sure wasn’t me, and I am surprised and disappointed that the RIU is holding the extremely high level of Bute in the swab against me as an aggravating factor. If anything, it indicates that whoever gave the horse Bute wanted to be sure it was to be over the threshold.” She said she would never know who did it but she was adamant that someone had purposely done this to harm her and Mr Keast. She described how his stock saddle had been taken to with a knife recently and rugs and bits of gear (overchecks and leads) had gone missing.

[49] Ms Westrum explained that she had now shifted into a different stable on the property, and she was taking precautions to stop anyone from getting to her horses. The gear room, in which there was a cabinet for medications, was padlocked every afternoon. They had also installed cameras and several warning signs to notify of the surveillance.

[50] Ms Westrum reiterated that she did not give Bute to ELITE EXCUSE or any other horse on any occasion. She would have absolutely nothing to gain and everything to lose by giving such a drug to a horse close to race day. She stated:

You will never win a race on Bute and escape a positive swab. So, you don’t get the stake, you have the embarrassment of telling the owners they are not going to get the several thousand dollars payout they were expecting, and as the trainer I risk losing my licence as well as being fined heavily. You could argue that I could have collected off the big dividend of $62 that the mare paid to win. Only I didn’t, because I didn’t bet on the horse at all, and I am positive that investigations into the betting records on the horse on the night showed no one had a decent punt on it. Why on earth would I put myself through this trouble with absolutely nothing to gain? I do not feel that I have been negligent in caring for our horses, and I think that if somebody targets you and deliberately trips you up by giving something to your horse(s) there is little you can do about it when you don’t see it coming.

[51] Ms Westrum said she understood the point of sending a message out that a trainer could not give a horse a prohibited substance close to the races and get away with little consequence. However, she added, “The rigid rule of needing to punish anyone who has a positive swab unless they have solid proof of no wrongdoing sets it up for someone who wants to get one over an opponent.”

[52] The respondent said her and her partner’s financial situation was not great. They have a young child, and also provide for his elderly mother who lives with them, as she is recovering from a stroke.

[53] The past year she and her partner had finally managed to get some nice horses around them, and Mr Kotzikas, whose property they were training from, had given them a great opportunity to break in all his young stock that were coming through. This had also resulted in some quality horses for her to train for him.

[54] Ms Westrum asked that the Committee take her circumstances into consideration and take the race off her only. It would be “terribly unfair that [she] should be punished harshly by a large fine or worse for something that not only did [she] not do, but whoever gave the horse Bute did so to achieve exactly that harsh punishment for [her].”

[55] When questioned by the Committee at the telephone conference on 5 October, Ms Westrum stated she had informed the RIU about the vandalised gear (overchecks, leads, etc) but not the police. She said this had been in the old gear room in the barn that they used to share. She believed there had been a burn up in a drum on the property and that was possibly where the gear had ended up. Mr Allison confirmed that she had spoken to him about the gear. He had seen the damaged saddle, and he had advised her to improve security and to go to the police.

[56] Ms Westrum explained that she and Mr Keast had not gone to the police at the time as the owner of the place, Mr Kotzikas, was overseas and, by the time he had returned, they thought it was then too late to go the police. She stated this was after the positive test.

[57] Ms Westrum said the stable feeding practice was that the first person in the barn in the morning would feed the horses. The horses were not in named boxes but each horse had its own box that it occupied on a regular basis. There was an automatic water trough that was fixed in the horse’s box. Prior to the positive test, the only concern was with her horses not eating. Since they had changed barns, this was no longer a worry.

[58] Mr Allison stated that the RIU had investigated Ms Westrum’s claims. The persons, to whom they had spoken, had all vehemently denied any involvement. There had been a claim from these persons that ELITE EXCUSE had received a bonus winning maiden payment but the RIU had concluded there was nothing to this claim. Ms Westrum said there was a possibility this claim was made because other trainers were jealous she and Mr Keast were breaking in horses for Mr Kotzikas and, as a consequence, they were receiving some good horses to train.

[59] Ms Westrum said the horse with laminitis that was being treated with Bute had been in and out of the stable. It was only there sometimes. She understood the Bute was being administered by way of a paste.

[60] Mr Allison confirmed that there were a number of trainers sharing the barn that ELITE EXCUSE was stabled in at the time. Medications were not held securely. This included the Bute, which belonged to another trainer, and the respondent’s own medications, which were in unlocked drawers. Ms Westrum stated that now they had moved barns, all her medications were locked away in a secure area.

Decision

[61] The maximum fine under r 1004(7)(a) was increased by HRNZ from $10,000 to $20,000 in 2011, reflecting the desire of that body to provide a greater deterrent. Therefore, in the Committee’s view, penalties imposed for breaches of the rule prior to March 2011 need to be viewed in that light, and we refrain from referring to these.

[62] The JCA Penalty Guidelines provide a starting point of $8,000 for a breach of r 1004(1A). We adopt this figure.

[63] The RIU submit a fine of $10,000 is the appropriate final penalty. This figure seems high when regard is had to the JCA starting point, and to Dalgety ($6,000 — similar fact scenario to the case before us and there had been a previous breach of the prohibited substance rule) and Williamson (December 2012 — $3,500 — procaine — no previous breaches of rule). We note that both these cases predate the JCA Penalty Guide, which applies from 1 May 2015. We also refer to Neal (horse treated with drug within withholding periods — previous breach of rule — $5,500 — RIU submitted a $6,000 fine was appropriate — no reference to JCA Penalty Guide).

[64] The parties agree it is imperative for the future of the industry that racing be perceived to be, and indeed is, drug free. To this end, in imposing penalty we believe the relevant considerations were correctly identified by the Appeals Tribunal in Justice (14 March 2012) when it stated at [81]: “Once a breach is established, general deterrence and denunciation are appropriate in imposing penalty. There is a need to bring home to trainers/owners the heavy responsibility of presenting horses free of prohibited substances.”

[65] We agree that the duties on trainers with respect to prohibited substances are high and appropriately so. As stated by the Appeals Tribunal in L 27 April 1998, which considered the predecessor to the prohibited substance rule, the drug negligence rule, proper care and vigilance is required at all times at the stables and the track.

[66] The RIU have submitted the aggravating features outweigh the mitigating ones. Hence, the submission that a fine of $10,000 is the appropriate final penalty. We now examine whether this is so.

[67] The circumstances of the breach can be described as “unusual”. The level is very high, the horse, which won the race, was racing poorly at the time, as evidenced by the fact that the horse was the outsider in the field, and the betting patterns evidenced no irregularities.

[68] The charge, of course, is one of presenting, not one of administration. As is common with cases of presenting a horse to race with a prohibited substance, there is no explanation as to how the horse came to return a positive test. The onus under r 1004(1A), however, is on the trainer to present a horse free of any prohibited substance.

[69] This breach of the Rules is one of absolute liability: see Justice 2011 — confirmed both by an Appeals Tribunal and by the High Court in Justice v HRNZ [2012] NZHC 3484. Hence, the respondent’s admission of the breach. We acknowledge that this admission has been made in circumstances where Ms Westrum cannot see an obvious fault of her doing. Her suspicions are that unknown “unscrupulous persons” who have a vendetta against her have “got at” the horse. If this is so, and we draw no conclusion on this point, as there is simply no evidence before us, other than to note Ms Westrum has expressed concern to the RIU as to unauthorised activities (damage to gear, etc) at the property, including her stabling area.

[70] The parties’ submissions as to penalty are disparate. The RIU has submitted a final penalty $2000 above the starting point in the JCA Penalty Guide is appropriate due to the respondent’s previous breaches and poor security. Ms Westrum has requested that there be no penalty, due to the fact, as we have noted, she believes she has not been at fault and has only admitted the breach because she is aware it attracts absolute liability. She has submitted that a suspension is not appropriate and, if we impose a penalty, that it should be only a modest fine.

[71] We believe this breach of the Rules is not of such gravity that we need to place Ms Westrum’s livelihood in jeopardy by way of the imposition of a penalty of disqualification or suspension. Nevertheless, the penalty that is imposed upon the respondent has to be at a level that protects the public by ensuring appropriate standards of professional behaviour. This is a key consideration.

[72] As Mr Allison acknowledges in his penalty submission, the RIU investigation has been unable to determine the cause of the positive test. Ms Westrum is adamant that neither she nor Mr Keast had been responsible for the positive.

[73] That someone unknown has been able to give Bute to the horse, or there was a mix up in the feeding, or the Bute was given not to the horse housed opposite ELITE EXCUSE but to ELITE EXCUSE, raises the issue of stable security. And this is where the emphasis has to be when we determine penalty.

[74] Mr Allison described the security at the stable as “poor” or “lax”. The RIU inspection of the respondent’s stable evidenced that the gate to the property could be opened without a code and cabinets containing medications were insecure. We are reluctant on the evidence before us to draw any inference adverse to the respondent from the fact that other trainers at the stables shared by Ms Westrum had insecure medications. We thus do not accept points, b. and c. (see [39]) in the informant’s submissions, as constituting aggravating factors. Ms Westrum is only responsible for her cabinet and its medications but we would have thought previous breaches of the prohibited substance rule would have alerted Ms Westrum to the need to ensure prohibited substances were securely housed and that her team of horses were kept at an appropriate distance from horses being treated with such substances. This clearly was not the case.

[75] We note that Ms Westrum left ELITE EXCUSE unattended whilst watching another horse in her team race. This, of course, is not an unusual practice where trainers have a number of horses racing on the card. The Club provides security at the stables. We observe the Committee in Dalgety stated: “It has been held, in many previous cases, that it is negligent to leave a horse or horses unattended at the racecourse for any length of time. In saying this, the Committee accepts that to do otherwise can often involve very real logistical problems for trainers.” Thus, in assessing Ms Westrum’s degree of culpability, we do not attach any significant weight to the fact she left ELITE EXCUSE unattended for a short period of time.

[76] A further factor when assessing Ms Westrum’s degree of culpability and the seriousness of the breach is how much weight to give to the fact that the level of Phenylbutazone was very high. The issue of the effect upon the horse of Bute at the level disclosed in the test has not been addressed in the submissions before us. However, the informant’s submissions appear to ask us to draw the inference that this is a factor that influenced the performance of the horse. The fact the horse’s performance was out of character when regard is had to her recent starts would support this, but the respondent also has a valid point when she submits that had a person “got at the horse”, then the higher the level, the greater the chance the horse would perform well and that the horse would be drug tested after the race. In the circumstances of this case, we are reluctant to place undue weight on the level of Phenylbutazone. It is a factor that goes into the mix and is considered in the round.

[77] The respondent’s previous breaches were different in nature to the one before us, involving, as they did, elevated TCO2s. They occurred at a time when Ms Westrum was not training in her own right but was co-training with Mr J Keast. Nonetheless, this a third breach of the prohibited substance rule in four years.

[78] There has to be an increase in the $8,000 starting point for the previous breaches but the fact they were TCO2s rather than Bute is, in our view, a relevant consideration. In addition, we recognise the need to have regard to proportionality with both our starting point and the penalty imposed on the earlier occasions when assessing the size of this uplift.

[79] Taking into account also the comparable cases that we have identified (where there had been only one previous breach), and the security measures then in place at the respondent’s stable, we believe an uplift in the starting point to $10,000 is appropriate.

[80] The most significant mitigating factors are the admission of the breach and Ms Westrum’s immediate co-operation with the RIU investigation. With the breach of the prohibited substance rule being one of absolute liability, we believe a 10% reduction is appropriate for the admission. Factoring in a further 10% discount for co-operation, remorse and personal circumstances, the total discount is 20%.

[81] Ms Westrum is fined the sum of $8,000.

Disqualification of horse

[82] Pursuant to rr 1004(8) and 1004D, we order that ELITE EXCUSE be disqualified from race 2, the PI AND GJ KENNARD BLOODSTOCK MOBILE PACE, at the New Zealand Metropolitan Trotting Club’s meeting on 26 May 2017. Stakes are to be paid accordingly.

Costs

[83] The RIU do not seek costs. The matter has been heard “on the papers”. There is no award in favour of the JCA.

Dated at Dunedin this 18th day of October 2017.

Geoff Hall, Chairman

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