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Non Raceday Inquiry RIU v K D Townley - Reserved Penalty Decision dated 12 March 2018 - Chair, Mr R G McKenzie

Created on 14 March 2018

BEFORE A JUDICIAL COMMITTEE

OF THE JUDICIAL CONTROL AUTHORITY

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A7220

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

Informant

AND KEVIN DAVID TOWNLEY of Russley, Licensed Public Trainer

Respondent

Judicial Committee: Mr RG McKenzie (Chair), Mr DJ Anderson (Committee Member)

Venue: Addington Raceway, Christchurch

Present: Mrs KR Williams, the Informant

Mr KD Townley, the Respondent

Mr SP Renault, Stipendiary Steward (Registrar)

Date of Hearing: 2nd March 2018

Date of Decision: 12th March 2018

RESERVED PENALTY DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A7220 alleges that:

On the 3rd day of February 2018, Kevin David Townley, being the registered trainer of the standardbred WELL DEFINED, presented the horse to race in Race 2, Michael Jones Geraldine Butchery / Team Teal Trot, at the Geraldine Trotting Club meeting, with a prohibited substance, namely Ketoprofen, in its system. This is in breach of the Prohibited Substance Rule, Rule 1004(1A) (3) & (4).

The Rules

[2] Rule 1004 of the Rules of Harness Racing provides as follows:

(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), or (3A) is committed regardless of the circumstances in which the. . . prohibited substance came to be present in or on the horse.

[3] The penalty Rule is Rule 1004 (7) which provides as follows:

(1) Every person who commits a breach of sub-Rule (2) or (3) shall be liable to:

(a) a fine not exceeding $20,000.00; and/or

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

[4] Mrs Williams presented a letter signed by Mr M R Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 1108(2) authorising the filing of the information.

The Plea

[5] The information was served on Mr Townley on 1 March 2018 and he had signed the Statement by the Respondent on the information form indicating that he admitted the breach of the Rule.

[6] Mr Townley was present at the hearing of the information. The charge and relevant Rules were read to him, after which he confirmed that he admitted the breach. The charge was found proved accordingly.

Summary of Facts

[7] Mrs Williams presented the following Summary of Facts:

1. WELL DEFINED is a 3-year-old brown gelding and is trained by Mr Kevin David Townley. WELL DEFINED is owned by Mr Townley’s wife, Mrs M E Townley. WELL DEFINED has raced 10 times for 1 win and lifetime stakes of $7,545 as at 28 February 2018.

2. WELL DEFINED was correctly entered for and presented to race by trainer, Mr Kevin Townley, at the Geraldine Trotting Club meeting on 3 February 2018. WELL DEFINED was driven in Race 2, the MICHAEL JONES GERALDINE BUTCHERY/TEAM TEAL TROT by Mr D J Dunn, winning the race and a stake of $5,415. This stake has not been paid out.

3. Following the race, the Stipendiary Stewards ordered that WELL DEFINED be post-race swabbed. WELL DEFINED entered the swab box at 1.15pm and Swabbing Steward, Mr M P McCann, obtained a urine sample from the gelding at 1.20pm. The race was programmed to start at 12.58pm. The urine sample was taken in the presence of stable representative, Mr K Stevens. The urine samples were recorded with the Sample number 134362. Mr Stevens and Mr Townley do not contest the taking of the sample.

4. On the 15th February 2018, the New Zealand Racing Laboratory reported Ketoprofen was detected in Sample Number 134362. The Control Sample was clear.

5. On the 20th of February 2018, Racecourse Investigators Mrs Kylie Williams and Mr Peter Lamb went to the training establishment of Mr Townley at 59 Russley Road, Christchurch, and advised him of the positive swab returned by WELL DEFINED.

6. Mr Townley was given a copy of the Certificate of Analysis, copy of the Swab Card, RIU Swabbing Record Book and Race Results.

7. Mr Townley advised that he took WELL DEFINED to the races in his own float and that the gelding was one of three horses he had racing that day.

8. Mr Townley could not offer an explanation for the presence of Ketoprofen in the urine sample taken from WELL DEFINED and could not advise when the gelding was last treated with Ketoprofen. Mr Townley keeps a diary in which he enters treatments but admits that not all treatments are recorded.

9. A bottle of “Key Injection” which contains Ketoprofen was found in the stables which noted a 4-day withhold on the box and this was also written on the bottle by the administering Veterinarian. It was written by the Veterinarian on the bottle to use 10ml I/V (intravenously). On the box it states 10ml per 450kg bw (body weight). The bottle was one of two supplied on 26 July 2017.

10. Mr Townley advised that WELL DEFINED had never had any lameness issues, but he makes a point of going over his horses once they have worked and checks for any muscle soreness or any signs of tying up for which Mr Townley then administers Ketoprofen, if needed.

11. Mr Townley is well aware of the 4.2 day withholding time for Ketoprofen and is particular to adhere to any withholding time of any drug.

12. Mr Townley advised that he weighed WELL DEFINED on 21st February and that the gelding only weighed 355kgs with a rug on.

13. Mr Townley, when administering Ketoprofen, always administers 10ml as directed by the Veterinarian. Mr Townley cannot discount that he may have given WELL DEFINED 10ml of Ketoprofen earlier in the week after fast work. This would have been outside the withholding time of 4.2 days from raceday. Mr Townley concedes that, due to the gelding’s small stature and weight, it should be given a smaller dose. The appropriate dose for the gelding would be 7.9mls based on its weight.

14. On 23rd February 2018 Mr Townley was given a report from Dr Andrew Grierson, Chief Veterinarian HRNZ, confirming that Ketoprofen is a prohibited substance under the Prohibited Substances Regulation.

15. Mr Townley has been training since 1986/87, initially in partnership with D J Townley and then on his own from 1994/95. Mr Townley has trained over 460 winners.

16. Mr Townley was previously charged with a breach of the prohibited substance rule in Australia in 2003 for Clenbuterol and was fined $2,000 with a three-months suspension, suspended for 12 months.

[8] Mr Townley said that he accepted the facts as set out in the summary presented by Mrs Williams, but he wished to make a comment. He said that the summary, based on the interview he gave at the time he was originally spoken to, stated that he had no idea how the prohibited substance got in the horse’s system. In fact, he said, he was now sure that he was responsible for it, as he was in the practice of administering the “Key Injection” to his horses but is always very aware of the withholding period. He would have treated WELL DEFINED on the Tuesday morning before Saturday’s race, he said (see also Mr Townley’s submissions in para [11] hereunder).

[9] Mrs Williams confirmed that she had received an email in response to her question to Dr Andrew Grierson as to whether the weight of the horse would affect the withholding period which stated:

“Dose rate should have been 8.3 for a 375 kilogram horse [7.9 mls based on the actual weight of the horse, 355 kilograms] but because a plasma elimination half-life is 18 minutes that dose should not affect the result unless there are damaged tissues. Ketoprofen is known to store in affected tissues exudate and not all stored in plasma and eliminates slowly over time. This is a classic two-compartment model so in theory a high dose rate can affect the detection time (see the Casey case below). In summary, a high dose rate may possibly increase the detection time in some horses especially if they had inflammatory tissues in a drug bound to the exudate. Perhaps this is the explanation depending when he said he actually administered”.

Informant’s Penalty Submissions

[10] Mrs Williams presented the following penalty submissions:

1. Mr Townley has pleaded guilty to a breach of Rules 1004(1A), (3) & (4) after presenting WELL DEFINED at the races with a prohibited substance in its system, namely Ketoprofen, at the Geraldine TC meeting on the 3rd February 2018.

2. The penalty provisions that apply in this case are outlined in Rule 1104(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. The rules also require the mandatory disqualification of the horse: Rule 1004(8) states:

1004 (8) Any horse connected with a breach of sub-rule (1), (2), or (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.

4. Sentencing Principles -

The four principles of sentencing can be summarised briefly

● Penalties are designed to punish the offender for his / her wrongdoing. They are not 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 like 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.

The first three principles are particularly important here.

5. Relevant Precedents –

In addition to the sentencing principles the Judicial Committee should have regard to relevant precedents.

R.I.U. v C & A Edmonds – 31 March 2016

Subject: Ketoprofen positive with two horses – fined $9,000. Extract from Edmonds’ decision: “The Committee finds that it was negligent on the part of the Respondents to leave their medication cabinet unlocked and this is an aggravating factor”.

NZTR v A D Scott – 22 November 2010

Subject: Ketoprofen positive with a thoroughbred – fined $6,000, costs $750 NZTR, $600 JCA.

NZTR v K & L Rae – 28 May 2009

Subject: Ketoprofen positive with a thoroughbred – fined $4,000, costs $3,000 NZTR, $500 JCA.

NZTR v A W Pike & M Donoghue – 22 August 2008

Subject: Ketoprofen positive with a thoroughbred – fined $6,000.

R.I.U. v J M Whittaker – 17 August 2015

Subject: Caffeine positive with a horse – fined $1,000, costs $1,800. Extract from Whittaker decision: “RIU v L J Justice (2011) where that Committee stated ….. penalties will be imposed for breaches of the rule which will recognise, reinforce and give effect to the pivotal significance of the rule in maintaining the integrity of racing, whether or not culpable conduct is involved. Naturally where culpable conduct is involved, penalties imposed will normally be greater than in cases where such conduct is absent but we think it is wrong and contrary to the intent and purpose of the rule to assume the absence of culpable conduct should attract no, or only a token penalty.”

R.I.U. v P M Williamson – 10 December 2012

Subject: Procaine positive with a horse – fined $3,500, costs $350 to JCA. The source of the positive swab was not identified. “Against those factors is the ever-present need to maintain the integrity of and public confidence in harness racing by adequately punishing the breach and deterring Mr Williamson and others from offending in a similar manner in the future.”

The EVA withholding time of 4.2 days is only a guideline.

Veterinary Council of New Zealand v Dr P Casey - 8 July 2013

“In October 2011, a revised list entitled “NZEVA Prohibited Substance Recommended Withholding Times” was issued. Amongst other cautionary statements, it stated: “The information in this list is predominantly derived from NZ practitioner experience and not necessarily from scientific studies with adequate numbers of animals. This guideline includes a buffer time to allow for individual variation between horses’ drug excretion times.

The list does not however, account absolutely for the possibility that an individual horse may have a delayed elimination period for a substance because of the slow metabolism of that animal, delayed hepatic conjugational renal clearance, the interaction of more than one treatment use concurrently, the “stepping” of multiply (sic) treatments over days accumulating to high body levels, or the normal statistical variations seen in individuals.

… adherence by veterinarians to the administration guidelines in the NZEVA Prohibited Substance Recommended Withholding List will ensure that their obligations under the NZEVA Professional Code of Conduct are being met.”

6. Aggravating Features –

Mr Townley cannot categorically confirm how the Ketoprofen came to be in the horse’s system on raceday but believes that the gelding may have been given the recommended 10ml dose for a 450kg horse outside the 4.2 day withholding time. WELL DEFINED is only a small horse weighing approximately 355kg and should be given a smaller dose of 7.9mls. By giving a larger dose this may lead to an increase in the withholding and detection time which may result in the horse returning a positive swab.

A bottle was found on the property with the recommended dose rate of 10mls written on it. This bottle was not purchased for a specific horse but was to be used on any horse in the stable that showed signs of muscle soreness or tie up.

Mr Townley cannot confirm what day he may have treated or when WELL DEFINED was last treated with Ketoprofen. Mr Townley keeps a diary but admits that he does not always record treatments.

Mr Townley kept Ketoprofen on the premises in an unlocked area.

Mr Townley has a clear record in New Zealand however was charged with a breach in 2003 for Clenbuterol in Australia.

7. Mitigating Factors –

Mr Townley admits full liability as the trainer and admitted the breach at the first opportunity and has cooperated fully throughout the investigation.

Mr Townley has been training for over 30 years and has trained over 460 winners.

8. Conclusion –

The Racing Integrity Unit seeks a monetary penalty of a fine of $6,000.

The reason for this figure is that the JCA guidelines, 1st May 2015, have a starting point of $8,000 for a first offence of presenting a horse with a drug in its system.

Mr Townley has to be given credit for the manner in which he has conducted himself during this enquiry and 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.

We also seek the disqualification of WELL DEFINED under Rule 1004(8).

9. The R.I.U. is not seeking to recover any costs in this matter.

Respondent’s Submissions

[11] Mr Townley presented to the hearing the following written submissions:

I was shocked and dismayed to hear that a horse of mine had received a positive swab. Although I had not written it down I must have given it to WELL DEFINED but I am very sure I did not administer it to him inside the guidelines as I am extremely aware and careful when I have horses racing.

The vet’s sticker label wraps around the bottle and it said to give it 10 ml, 4.2 day withholding. When it is needed, I have always done it as directed.

After giving the situation a lot of thought I wonder if the very small size of WELL DEFINED could have anything to do with it. On looking into further I found that a 10 ml dose was recommended for a 450 kg horse. No vet I have ever had has ever said to vary the dose so I do as per label.

I then weighed the horse and he was found to be 355 kg with a cover on. Perhaps he should have had a smaller dose?

Although I know I am responsible, I offered this to Mrs Williams as an explanation who emailed Dr Grierson for his opinion.

Mrs Williams will have his reply (see para [9]) which does indicate that this could be the trouble. I am sure that this is what went wrong.

I understand the seriousness of this, both for myself and our industry and have already taken steps to make sure it never happens again.

Although not relevant to this case, I know I should have had my medications locked up and to that end I have now purchased a safe.

Reasons for Decision

[12] Mr Townley has admitted a charge of presenting WELL DEFINED, trained by him, to race at the Geraldine Trotting Club’s meeting at Orari on 3rd February 2018 not free of prohibited substances. Ketoprofen, a non-steroidal analgesic and anti-inflammatory agent and a prohibited substance under the New Zealand Rules of Harness Racing, was detected in a post-race urine sample taken from the gelding.

[13] The facts, as set out in paragraph 7 above, are not disputed by the Respondent.

[14] It was established that the source of the Ketoprofen was “Key Injection”, a bottle of which was found at Mr Townley’s stables.

[15] Mr Townley, initially, could offer no explanation for the presence of Ketoprofen in the urine sample and was unable to say when WELL DEFINED had last been treated with the product, “Key Injection”. During the hearing before the Committee, he admitted that he was responsible for it, having treated WELL DEFINED with a 10ml injection of “Key Injection” on the Tuesday prior to the Geraldine race on the Saturday.

[16] In doing so, Mr Townley said, he was cognisant of the 4.2 days withholding period for the product. However, he had used a dose of 10ml, the stated recommended dose for a 450kg horse. He attributes the positive swab to this – the quantity of the dose was possibly, in hindsight, greater than ought to have been given to a horse of WELL DEFINED’s weight which, he claimed, was only 355 kg with a cover on.

[17] The Committee is satisfied that the most likely cause of the positive swab returned by WELL DEFINED was indeed the “Key Injection” administered by Mr Townley on the Tuesday morning prior to the race. It does Mr Townley little credit that it was only as an afterthought that he realised that the dosage may have been excessive for a smaller horse – on the product’s box it was stated that the appropriate dosage was 10ml per 450kg body weight. Furthermore, it seems to the Committee that it was fraught with risk to use the product a bare 4 days before the horse was to race, leaving little margin for error, the recommended withholding period being 4.2 days. Finally, the Committee notes that Mr Townley kept the “Key Injection” in an unlocked and insecure area. The Committee finds that Mr Townley was negligent in each of these respects and has identified them as aggravating factors.

[18] We note that Mr Townley conducted himself well during the investigation and admitted the breach at the first opportunity. We regard Mr Townley’s record as being a good one and, in this respect, we have not had regard to the breach in Australia in 2003, which is historical. These are mitigating factors.

[19] The Penalty Guide suggests a starting point of an $8,000 fine for a mid-range breach of presenting under the Prohibited Substance Rule. We have taken that as a starting point for determining penalty in this case. The aggravating factors referred to in para [17], in the view of the Committee, call for an uplift in that starting point and we have fixed that uplift at $1,000.

[20] For the mitigating factors referred to in para [18], we have allowed Mr Townley a discount of $2,000 from the starting point of $9,000 arrived at.

[21] The Committee is satisfied that a fine of $7,000 will suffice to satisfy the general purposes of sentencing which are well-established – to hold the offender accountable for his actions, to promote in the offender a sense of responsibility, to denounce the conduct of the offender and to deter the offender or other persons from committing the same or a similar offence. The Committee has also had regard, as always, to the important consideration of the need to maintain integrity and public confidence in Harness Racing.

Penalty

[22] Mr Townley is fined the sum of $7,000.

Disqualification of the Horse

[23] The disqualification of WELL DEFINED from Race 2, Michael Jones Geraldine Butchery / Team Teal Trot, at the meeting of Geraldine Trotting Club on 3rd February 2018 was earlier ordered by a Minute of this Committee dated 2nd March 2018.

Costs

[24] No order for costs was sought by the Informant and, since the hearing of the information took place on a raceday, there will be no order for costs in favour of the JCA.

R G McKenzie

(Chair)

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