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Non Raceday Inquiry RIU v JJ Clementson - Reserved Penalty Decision dated 23 December 2019 - Chair, Mr RG McKenzie

Created on 26 December 2019

BEFORE A JUDICIAL COMMITTEE
HELD AT METHVEN

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A7232

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit
Informant

AND JOSEPH JOHN CLEMENTSON of Oxford, Holder of Licence to Train
Respondent

Date of Hearing: 8 December 2019
Venue: Mt Harding Racecourse, Methven
Judicial Committee: R G McKenzie (Chair) - O K Jarvis (Member)
Present: Mrs K R Williams, the Informant - Mr J J Clementson, the Respondent
Date of Written Decision: 23 December 2019

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RESERVED PENALTY DECISION OF JUDICIAL COMMITTEE

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The Charge

[1] Information No. A7232, filed by Racing Investigator, Mrs K R Williams, alleges that Mr Clementson, as the registered trainer of IDEAL INVASION, which had been taken to the Banks Peninsula TC meeting held at Motukarara on 29 September 2019 for the purpose of engaging in Race 9, “What The Hill" Fast, Fresh & Fertile Handicap Trot, failed to present the horse free of prohibited substances, namely, Morphine, in breach of the Prohibited Substance Rule, Rule 1004 (1A), (3) and (4).

[2] Mrs Williams produced a letter dated 26 November 2019 from Mr M R Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 1108 (2), authorising the filing of the Information. The information was served on Mr Clementson on 17 November 2019 and was heard at the meeting of Methven TC held at Mt Harding Racecourse on 8 December 2019.

[3] The charge and the rules were read to Mr Clementson at the commencement of the hearing. He confirmed that he understood both and that he admitted the charge.

The Rules

[4] The relevant rule is rule 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) or (2) the trainer of the horse commits a breach of these Rules.
(4) A breach of sub-rule (1A), (2), (3) or (3A) is committed regardless of the circumstances in which the TCO2 level or prohibited substance came to be present in or on the horse.

Summary of Facts

[5] Mrs Williams presented the following Summary of Facts which, Mr Clementson acknowledged, were agreed by him.

1. IDEAL INVASION is a 7-year-old bay gelding trained by Mr Joe Clementson. IDEAL INVASION is owned by Mr Clementson and his wife, Rosemary Clementson. IDEAL INVASION has had 40 race starts for five wins and two placings as at 31 October 2019.

2. IDEAL INVASION was correctly entered and presented by trainer Mr Clementson to race in Race 9, the “What The Hill” Fast, Fresh & Fertile Handicap Trot at the Banks Peninsula Trotting Club meeting on 29th September 2019. IDEAL INVASION won the race winning a stake of $4,590. This stake has not been paid out.

3. IDEAL INVASION was post-race swabbed and a urine sample was taken immediately it entered the swab box at 5.19pm in the presence of Junior Driver, Miss Sarah O’Reilly. Miss O’Reilly drove the horse to win the race. The sample was recorded with the swab card number 147346. Mr Clementson does not contest the taking of the samples.

4. On the 22nd October 2019, the New Zealand Racing Laboratory reported that Urine Sample Number 147346 had returned a positive for Morphine. This is in breach of the New Zealand Rules of Harness Racing.'

5. On 25th October 2019, RIU Investigators, Mrs Kylie Williams and Mr Peter Meulenbroek, visited the training premises of Mr Clementson. Mr Clementson was advised of the positive swab and interviewed. Mr Clementson was given a copy of the Certificate of Analysis, Swab Card details and a copy of the Prohibited Substance Rule of the New Zealand Rules of Harness Racing.

6. An inspection of the property revealed the presence of a number of poppy plants around the washdown area. Mr Clementson has since advised that another laneway area that the horses graze also has poppy plants. The ingestion of these plants can return a positive result for morphine in a horse.

7. A number of samples were taken from the premises and forwarded to the New Zealand Racing Laboratory for analysis including a blood sample from the IDEAL INVASION.

8. On the 28th October 2019 Mr Clementson signed a statement agreeing to the fact that under the Rules IDEAL INVASION shall be disqualified. This hearing was heard at the Kaikoura TC meeting on 4 November 2019 with IDEAL INVASION being disqualified from 1st place by the JCA.

9. Dr Andrew Grierson, Chief Veterinarian for HRNZ advised: In 2008 and 2012 there were positives recorded in NZ from racehorses found to have eaten parts of opium plants. Morphine is present in the flowers, seeds, stalks and leaf of poppy plants often grown in flower gardens for the pretty colourful flowers they produce. These poppy plants are ornamental varieties sold in garden centres and on occasion they self-germinate from gardens into wasteland and farmland pasture. In 2008 I conducted a trial and administered 500gms of ornamental poppy plant leaf found in a paddock of a training establishment. The resulting urine samples tested by the NZRLS were positive to morphine.
Morphine primarily acts as an analgesic but has a general action on several body systems. One effect on the central nervous system can cause euphoria and excitement in a horse especially in low doses. In high doses respiratory depression and sedation are more common signs.
In the Prohibited Substances Regulations (a) prohibited substances are defined as substances capable at any time acting directly or indirectly on one or more of the mammalian body systems. Morphine is capable of acting upon the nervous system, the musculoskeletal system, the respiratory system and the cardiovascular system. Furthermore, Morphine falls under the category listing of “analgesics” in (b) Substances falling within the following categories of substances.
Morphine and its metabolites are prohibited substances under the Prohibited Substances Regulations in the Rules of Harness Racing.

10. On 21 November 2019 the New Zealand Racing Laboratory advised that the plant material was tested and morphine was detected. The blood sample taken from IDEAL INVASION, was negative for morphine.

11. Mr Clementson has held a trainer’s licence with HRNZ since 1995/96 and has trained 34 winners. Mr Clementson was fined $2,250 in 2001 for a positive swab for caffeine returned by MAJOR DECISION. In 2007, Mr Clementson was disqualified for four months and fined $2,500 for administering a substance on raceday.

12. Mr Clementson has been very co-operative throughout the investigation.

Penalty Submissions of the Respondent

[6] Mrs Williams presented the following penalty submissions;

1. Mr Clementson has pleaded guilty to a breach of Rules 1004(1A), (3) and (4) after presenting IDEAL INVASION at the Banks Peninsula TC meeting with a prohibited substance in its system, namely Morphine on the 29th September 2019.

2. The penalty provisions that apply in this case are outlined in Rule 1004(7).
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.

3. Relevant Precedents –
The Judicial Committee should have regard to the following precedents:
RIU v G Anderson & A Hoffman - 5 March 2013 - Harness
Subject: Presented standardbred with Morphine in its system - ate poppy plants. Fined $1,250
RIU v J Allen - 9 September 2014 - Greyhound
Subject: Presented greyhound with Morphine in its system - ate bread with poppy seeds in it. Fined $2,000
NZTR v P Schrafft - 2001 - Thoroughbred
Subject: Presented Thoroughbred on two occasions with Morphine in its system - ate poppy plants. Fined $4,000
RIU v M Roberts - 15 November 2012 - Greyhound
Subject: Presented greyhound with Morphine in its system - ate bread with poppy seeds in it. Fined $2,000

4. It has been widely publicised that the eating of poppy plants, flowers and seeds can result in positive swabs in racing animals as well as poppy seeds in bread and baked goods can result in positive swabs in greyhounds and people. This certainly is not a new thing.

5. Mr Clementson advised that they generally spray around the area that the poppies were found around the wash area but due to the large number of days that it had rained this had not been done.

6. Aggravating Features –
Even though Mr Clementson is a ‘hobby trainer’ he is still required to train within the rules and ensure that he is aware of anything that may potentially result in a breach of the rules at all times.
Mr Clementson needed to ensure that he was fully aware of what his horse was eating at all times and only graze in areas that he can ensure has been checked for any plants that may result in a horse returning a positive.
This is Mr Clementson’s second offence for presenting a horse at the races with a drug in its system although his previous offence was 18 years ago.

7. Mitigating Factors –
Mr Clementson has to be given credit for the manner in which he has conducted himself during this inquiry and in the original hearing to disqualify the horse, and then admitting the breach at the first opportunity. However, the onus is on trainers at all times to ensure that a horse in their care and control is completely drug free when presented at the races.
There was no intent on Mr Clementson’s part to deliberately introduce Morphine into the horse’s system on raceday. Unlike other positive swabs, this positive swab was not as a result of the horse being incorrectly treated. The positive was as a result of environmental contamination.

8. Conclusion –
Under the former approach to sanctions which used the criminal justice approach fines for a breach of the prohibited substance rule had ranged from $2,500.00 to $12,000.00. The RIU submits that given Mr Clementson had a previous offence, albeit many years ago this is his second offence for a breach of the prohibited substance rule, a financial sanction in the mid-range is appropriate.

9. The RIU are not seeking any costs.

Submissions of Respondent

[7] Mr Clementson said that he had no knowledge of the presence of the plants until it was drawn to his attention by Mrs Williams. Some neighbours had been growing poppy plants and they had been arrested, he understood, as a result of this investigation.

[8] He is not sure how the poppies got onto his property, perhaps windblown, he suggested. They were also growing on the roadside, Mr Clementson said. He did not know at the time what the plants were or that they may have contained a prohibited substance for racehorses. He said that he paid $800 to the Ministry of Agriculture and Forestry to carry out a comprehensive spraying of his property. He has been told that the plants will not regrow. He had also been concerned that some may have got into his hay. He was expecting Department of Conservation to visit the property and carry out testing. He understood that some neighbouring properties had a similar problem with self-seeding poppy plants.

[9] Mrs Williams agreed, when asked by the Committee, that the level of culpability was low. The plants were small and, unless one knew what one was looking for, one would have thought they were weeds, she said.

Reasons for Penalty

[10] Mr Clementson has admitted a charge of presenting IDEAL INVASION, trained by him, to race at the meeting of Banks Peninsula Trotting Club at Motukarara on 29 September 2019 not free of prohibited substances. Morphine, a prohibited substance under the Prohibited Substance Regulations in the New Zealand Rules of Harness Racing, was detected in a post-race urine sample taken from the horse.

[11] The facts, as set out in paragraph [5] above, are not disputed by the Respondent.

[12] It seems very likely, and the Committee accepts, that the source of the morphine was poppy plants which had self-germinated in the washdown area in Mr Clementson’s stables and in and about other areas of his property, and along the roadside.

[13] It is difficult to find any great degree of negligence on the Respondent’s part given that, according to the Informant, the plants had the appearance of weeds to anyone without an expert eye. The Respondent, we accept, was totally unaware of and could not be expected to know what the plants were or what the consequences of having them growing on his property could possibly be.

[14] The sole aggravating factor submitted by the Informant is that Mr Clementson needed to make himself aware of what plants were growing in parts of his property where the horse could eat them and ensure that such plants did not contain a prohibited substance. The Committee considers that such a requirement places an unduly heavy burden on a trainer who has no knowledge of what the plants are, and no reason whatsoever to suspect that they contain a prohibited substance. We have not considered this to be an aggravating factor.

[15] Neither has the Committee regarded, as an aggravating factor, Mr Clementson’s previous breach of the prohibited substance rule which, we were told, was 18 years ago. This is not a bad record.

[16] The positive swab resulted from, what the Informant described as “environmental contamination”. This is significant because there is no suggestion that Mr Clementson has been negligent in feeding the horse something that he ought not have, or done any act that caused or contributed to the positive swab. Such negligence is often the cause of a positive swab. This is a clear mitigating factor.

[17] Other mitigating factors were highlighted by the Informant – Mr Clementson’s cooperation during the course of the inquiry and his admission of the breach. We have also identified, as a mitigating factor, the fact that Mr Clementson has incurred a not inconsiderable expense in having the poppy plants professionally removed to ensure that a similar problem does not arise in the future. In addition, it is relevant that he has had to forfeit the stake of $4,590 won by the horse. This would not be a mitigating factor in every case, but the Committee believes that it is in this case, because of the circumstances that Mr Clementson was blameless.

[18] The Committee has decided that a fine is the appropriate penalty. In considering quantum, we have gained some guidance from the very recent case of RIU v J & J Dickie, a case under the same rules. The Respondents were fined $2,000. The decision of the Judicial Committee made reference to a previous case of RIU v D J Simpson (July 2019) in which the Respondent was fined $1,750. It was commented in the Dickie decision that the fine in Simpson was “very lenient”. We are inclined to agree.

[19] The cases of Dickie and Simpson are, in the Committee’s view, more relevant than the other morphine cases referred to in the Informant’s penalty submissions, although it is noted that the fines in those earlier cases were between $1,250 and $4,000, that higher penalty involving two charges.

[20] We believe that having regard to the new approach to sentencing, taking into the account the mitigating factors referred to, and considering the penalties in the Dickie and Simpson cases and the circumstances of the breach in each of those cases, the appropriate penalty in this case is a fine of $2,000. We would regard a fine of that amount as being a minimum fine for a breach of the prohibited substance rules. This has regard, as stated by the Judicial Committee in Simpson, to the need “to uphold and maintain the high standards expected of those participating in the industry in order to ensure its integrity”. This is an important principle of sentencing.

Penalty

[21] Mr Clementson is fined the sum of $2,000.

Disqualification of Horse

[22] The disqualification of IDEAL INVASION from Race 9 at Bank Peninsula TC on 29 September 2019 was ruled by a Judicial Committee on 4 November 2019. No further order is required.

Costs

[23] The Informant did not seek an order for costs.

[24] The hearing of this charge took place on a raceday and, accordingly, there will be no order for costs in favour of the Judicial Control Authority.

R G McKenzie
Chair

 

 

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