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Non Raceday Inquiry RIU v K and G Opie - Decision dated 11 January 2019 - Chair, Mr A Dooley

Created on 14 January 2019

BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER
of the New Zealand Thoroughbred Racing Rules
BETWEEN THE RACING INTEGRITY UNIT (RIU)
Informant
AND Messrs K and G Opie
Licenced Class A Trainers
Respondents
Information No
: A8470
Date of hearing: 9 January 2019
Venue: Matamata Racecourse
Judicial Committee: Mr A Dooley, Chairman - Mr A Godsalve, Committee Member
Appearing: Mr O Westerlund, Investigator, Racing Integrity Unit - Mr N Grimstone, Investigator, Manager Integrity Assurance - Mr K Opie – Licenced Trainer, Mr G Opie – Licensed Trainer

Charge:
The Informant Mr O Westerlund, Racing Investigator, alleged that on the 5th day of October 2018, at Tauranga, being the registered trainers for the time being in charge of “Ticket To Ride” the 6 year old Mare by ‘Shocking ’ – ‘Classy Bawn’, which was brought to the Racing Tauranga meeting for the purpose of engaging in, and did engage in Race 7, the ‘Almanzor At Cambridge Stud 1600metres’ conducted by the Racing Tauranga Club, when the said horse was found to have in its metabolism a Prohibited Substance, namely Cobalt which is in breach of New Zealand Thoroughbred Racing Rule 804(2) and is therefore subject to the penalty or penalties which may be imposed pursuant to Rules 804(6) and 804(7) of the said Rules.

The relevant Rules are as follows:
Rule 804(2)
When a horse which has been brought to a Racecourse or similar racing facility for the Purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, as defined in Part A of Prohibited Substance Regulations, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules.
Rule 804(1)
Any horse connected with a breach of sub-Rule (2) or (3) or (4) or (5) or (6) of this Rule shall be, in addition to any other penalty which may be imposed, disqualified from any Race or trial to which the Third Appendix hereto applies and/or be liable to a period of disqualification not exceeding five years.

Penalty Provisions
Rule 804 (7)
A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (6) of this Rule shall be liable to:

(a) be disqualified for a period not exceeding five years; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or
(c) a fine not exceeding $25,000.

Messrs K and G Opie acknowledged that they understood the Rules and confirmed that they admitted the breach.

Messrs K and G Opie acknowledged that all the relevant documents from the RIU had been disclosed to them.

Messrs K and G Opie confirmed that the Summary of Facts were not disputed.

Mr Westerlund produced a letter from Mr N McIntyre, General Manager Stewards, under Rule 903(2) authorising to lodge an Information charging Trainers Keith and Gavin Opie with a breach of Rule 804(2) and 804 (7).

Agreed Summary of Facts by the Informant:
The respondents Keith and Gavin OPIE are the holders of a Class ‘A’ Trainers Licence issued by New Zealand Thoroughbred Racing (NZTR).

On Friday the 5th October 2018 “Ticket To Ride” was correctly entered and presented to race by Keith and Gavin OPIE in Race 7 – Almanzor At Cambridge Stud 1600 metres – at Racing Tauranga meeting in Tauranga.

“Ticket To Ride” is a 6 year-old bay mare (Shocking – Classy Bawn) owned by Mrs M Christian, Mr P Setchell and Ticket To Ride Partnership.

“Ticket To Ride” finished first of the fourteen horse field and won a stake of $15,625.

“Ticket To Ride” underwent a random Post Race urine swab. Keith and Gavin OPIE do not contest the swabbing process.

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

On the 17th October 2018 the Official Racing Analyst reported in writing that the samples from “Ticket To Ride” indicated a positive to Cobalt.

The horse returned a Cobalt level of 160 ug/L (micrograms per litre).

Cobalt at a concentration above 100 micrograms per litre in urine is a Prohibited Substance within the meaning of the Rules and its presence in a raceday sample is, prima facie, a breach of the Rules.

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.

Keith and Gavin OPIE were spoken to on Thursday the 25th October 2018. They could offer no explanation for the positive test result on the horse.

In the Stable Block various samples were taken for Cobalt concentration analysis by Asure Quality Limited.

A Certificate of Analysis provided by the Assure Quality laboratory confirmed there were no anomalies in any of the samples tested.

The indicative result of 160 ug/l (micrograms per litre) was confirmed in writing by Racing Analytical Services in Melbourne on 22nd October 2018.

Mr Keith OPIE has been involved in the Thoroughbred Racing Industry his entire adult life. He has been a trainer for 40 years.

He has been in a training partnership with his son Gavin OPIE for 8 years.

They hold a Class ‘A’ Trainers License.

Keith and Gavin have not previously appeared on a Breach of the Rules.

An order is sought for the horse “Ticket To Ride” to be disqualified from the race and the stakes money to be repaid.

In response to a question from the Committee, Mr Westerlund said that the RIU analysis of TAB betting records revealed that there was nothing out of the ordinary associated with the betting patterns on TICKET TO RIDE.

Submissions by the Respondent:
Mr K Opie advised the Committee that he was devastated when Mr Westerlund told him that TICKET TO RIDE was found to have Cobalt in its system. During the RIU’s investigation the Opie’s were unable to offer any explanation for the positive test result. However, subsequently Mr K Opie went back over the last 5 days leading up to the race at Tauranga on 5 October 2018.

Mr K Opie submitted that on his Veterinarian’s advice he had given TICKET TO RIDE a magnesium oxide product because the horse had an “off week”. He said that TICKET TO RIDE had been treated for a stone bruise early in the week and the horse was “sulking” and was not drinking much water. He said on 4 October TICKET TO RIDE did some light work and her rider said she felt 95 % right so the training partnership elected to run her. Mr Opie freely admitted that he had given TICKET TO RIDE a double dose (120 grams) of a magnetism oxide product. He was of the view that because TICKET TO RIDE wasn’t drinking much water this was a key reason for the horse returning a positive swab result. He believed that the quantity of other multivitamins he had given TICKET TO RIDE during the week to “perk her up” were still in the mare’s system and were not “flushed out”.

In response to questions from the Committee, Mr Opie said the magnesium oxide product was purchased from a local farm source and there was no indication on the bag that it contained Cobalt.

Mr K Opie added that as a result of the positive result he took all his horses off all multivitamins.

Mr G Opie stated that he was absolutely shocked when contacted about the positive test to Cobalt. He said he would not work up to 15 hours a day and jeopardise his career by trying to influence a result by deliberately producing a horse to race with a high Cobalt reading.

Mr K Opie provided the Committee with a letter from Te Aroha Veterinary Services. It was Mr K Rooney, Veterinarian’s, opinion that the level of Cobalt detected in the post-race sample from TICKET TO RIDE was from accidental over supplementation from a number of sources. He was of the view that it appeared the magnesium oxide supplementation given to TICKET TO RIDE prior to urine sample taken at Tauranga Races was a significant contributing factor to the detection of Cobalt in her urine.

The Racing Integrity Unit analysis of the magnesium oxide product from Opie Racing Stables showed a high level of Cobalt, at twenty per cent. Te Aroha Veterinary Services said that is extremely surprising and somewhat concerning. They stated this product should contain no Cobalt or if there is any it should only be a very low level.

Decision:
As Mr K and G Opie admitted the breach the Committee found the charged proved.

Submissions on Penalty by Informant:
INTRODUCTION:

1.1 The Respondents are under the training partnership of Keith and Gavin OPIE who are Class ‘A’ Licensed Trainers under the New Zealand Rules of Thoroughbred Racing.
1.2 The Respondents have been involved in the racing industry as public trainers for a period of forty eight years collectively –
1.2.1 Mr K OPIE for 40 years
1.2.2 Mr G OPIE for 8 years
1.3 Mr K OPIE is 68 years of age and Mr G OPIE is 45 years of age.

OFFENDING:

2.1 This matter deals with a charge brought against the Respondents under rule 804(2) of the New Zealand Rules of Thoroughbred Racing. It arises from a horse trained by the Respondents returning a positive test for the presence of a Prohibited Substance namely ‘cobalt’ at a race meeting held by Racing Tauranga at Tauranga Racecourse on the 5th October 2018.
2.2 The Respondents have admitted a breach of the rules in relation to a charge of entering, presenting and racing a horse at the Racing Tauranga meeting when that horse had within its body a Prohibited Substance namely ‘cobalt’.
2.3 The facts are detailed in the Summary of Facts which have been agreed to.

PENALTY PROVISIONS:

3.1 The penalties which may be imposed are fully detailed in the Charge Rule Penalty Provisions document.

SENTENCING PRINCIPLES:

4.1 The four principles of sentencing can be summarised briefly:
-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.
-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 offending in question.
-The need to rehabilitate the offender should be taken into account.
4.2 The first three principals have relevance in this matter.

PRECEDENTS:

5.1 In support of this penalty I will refer to previous decisions by the JCA which may be of some assistance.

THOROUGHBRED

5.1.1 RIU v D CASKEY (01/10/18) – 1 x Cobalt Positive at a level of 375 ug/L. The result being a fine of $8000 and the horse disqualified.

5.1.2 RIU v G RICHARDSON and G PARKER (10.03.18) – 1 x Cobalt Positive at a level of 198 ug/L. The result being a fine of $6000 and the horse disqualified.
5.1.3 RIU v A I BAMBRY (4.12.17) - 1 x Cobalt Positive at a level of 172ug/L. The Committee adopted a starting point of $15,000 with a discount of 25% for mitigating factors. The result being a fine of $11,000 and the horse disqualified.
5.1.4 RIU v L O’SULLIVAN & A SCOTT (22.03.2016) – 3x Cobalt positives at levels of 309ug/L, 541 and 640 (when the threshold was 200ug/L). Given the high recorded levels of Cobalt, horse welfare was also a major issue and the degree of negligence was described by the Committee as "high", resulting in a total fine imposed of $50,000, and the horses disqualified.
HARNESS

5.1.5 RIU v S HALE (15/08/18) – 1 x Cobalt positive at a level of 120ug/L. The result was a fine of $4500 and the horse disqualified.

5.1.6 RIU v G DIXON (10.04.18) 1 x Cobalt positive at a level of 293 ug/L. The Committee adopted a starting point of $8000 and discounted $1500 for mitigating factors. The result was a fine of $6,500 and the horse disqualified.

5.1.7 RIU v R BROSNAN (9.02.18) – 3 x Cobalt positives at level of 128ug/L; 136 and 522. The committee adopted the penalty guideline starting point of $8000. It then multiplied that figure by 3 for the number of positives and then gave Mr Brosnan a 20% discount. Total fine imposed $19,200 and the horses disqualified.

MITIGATING FACTORS:

6.1 That the Respondents have admitted the breach.

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

6.3 That the Respondents have been involved in the racing industry as public trainers for a period of forty eight years collectively-

6.3.1 Mr K OPIE for 40 years

6.3.2 Mr G OPIE for 8 years

6.4 That the Respondents have a blemish free record of offending against or breaching the rules of Racing.

6.5 That the Respondents are highly regarded by their peers as honest and hardworking and are a credit to the industry.

AGGRAVATING FEATURES:
7.1 That legal precedent provides that ‘Trainers’ have an absolute liability for presenting their horses free of Prohibited Substances.

8. CONCLUSION:
8.1 The RIU believe that this breach can be dealt with by way of a monetary penalty.
To that end the RIU seek a fine of $6500.
8.2 An order for the disqualification of the horse ‘Ticket To Ride’ from race 7 at the Racing Tauranga meeting on the 5th October 2018 pursuant to Rule 804(1).

Submissions of Penalty by Respondent:
Mr K Opie submitted that he would let the Committee determine a fair and appropriate penalty. He added that he has dedicated his whole life to the industry.

Mr G Opie asked the Committee to take into account their unblemished record over a combined 48 years. He added that had this breach occurred 2 years ago TICKET TO RIDE’s result would have been under the threshold.

Reasons for Penalty:
The Committee have carefully considered all the evidence and submissions presented.

The JCA Penalty Guide has a starting point of $8,000 fine for a first offence of presenting a horse to race with a prohibited substance in its system. That figure was adopted in this case.

The Committee notes that on the 1st August 2016 the threshold for Cobalt was reduced from a mass concentration of 0.20 milligrams (200ug) per litre of urine to 0.10 milligrams (100ug) per litre. Therefore we applied no weight to Mr G Opie’s submission regarding the former threshold. We have considered the circumstances of this charge on the basis that the current threshold has been breached.

The Committee was conversant with the 4 precedent Thoroughbred decisions referred to by the RIU.

The Committee notes that NZTR records show that TICKET TO RIDE has had 31 career starts for 5 wins, 8 seconds and 4 thirds.
We accept that the positive Cobalt result appears to have been as a result of accidental over supplementation from a number of sources that were fed to TICKET TO RIDE during the week leading up to 5 October 2018. By his own admission Mr K Opie said that he “overdosed” TICKET TO RIDE with the magnesium oxide product. Based on the evidence presented we accept that Mr K Opie had no knowledge that the magnesium oxide product contained Cobalt.

There has been much publicity and discussion about Cobalt in the Thoroughbred Code in New Zealand and Australia in recent years. This should have put all Licenced Holders on notice.

The purpose of Rule 804 is to maintain the integrity of Thoroughbred Racing and to impose an obligation on all Trainers to ensure horses are presented to race free of Prohibited Substances. It is a long established principle of racing that there is a high obligation on the part of Licence Holders who transport a horse to a race meeting to ensure compliance with the Rules. It is therefore paramount that racing is conducted on a level playing field.

The cases from Harness Racing are of some assistance but it is the Committee’s view that consistency within the Thoroughbred code is of particular importance for this case.

There were no aggravating factors that warranted an uplift in penalty.
The mitigating factors for which we afforded Mr K & G Opie a reduction in penalty were:

Mr K and G Opie admission of the breach.

Mr K and G Opie were fully cooperative with the RIU during their investigations.

The high regard that Mr K and G Opie are held in the industry
The training partnership of Mr K and G Opie had an unblemished record under this Rule after a combined 48 years of training.

The level of Cobalt detected (160 ug/L) in TICKET TO RIDE’s system was in the low range and compared to the other Thoroughbred cases involving this Prohibited Substance.

Having regard for the particular circumstances of this case coupled with the significant mitigating factors we deemed that an appropriate reduction from the starting point was $2,500.

After taking into account all of the above factors the Committee considered that an appropriate penalty was a $5,500 fine.
Penalty:
Accordingly, Mr K and G Opie were fined the total sum of $5,500.

Disqualification of the Horse:
Under the provisions of Rule 804 (1) the Committee orders the disqualification of TICKET TO RIDE from Race 7 at Tauranga on the 5th day of October 2018. As a result all of those horses that finished behind TICKET TO RIDE in that race will be promoted by 1 position. It follows from the disqualification that the stake money to which the connections of TICKET TO RIDE would otherwise have been entitled is forfeit.

This was accepted by Mr K Opie at the hearing.

Therefore the Committee authorised the payment of stakes in accordance with the amended placings.

Costs:
The RIU has sought no costs.

As this charge was heard on a race day, there was no order for JCA costs.

Dated this 11th day of January 2019

Adrian Dooley
Chairman


 

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