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Non Raceday Inquiry RIU v P Pertab - Reasons and Penalty Decision dated 6 May 2019 - Chair, Mr A Dooley

Created on 07 May 2019

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

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

BETWEEN THE RACING INTEGRITY UNIT (RIU)

Informant

AND MR P PERTAB

Class B – Licensed Trainer

Respondent

Information No: A8475

Date of hearing: 4 May 2019

Date of oral decision: 4 May 2019

Date of reasons for decision and penalty: 6 May 2019

Venue: Te Rapa Racecourse

Appearing: Mr O Westerlund - Investigator, Racing Integrity Unit

Mr P Pertab – Licensed Class B Trainer

Judicial Committee: Mr A Dooley, Chairman

Mr N McCutcheon, Committee Member

Charge

1] The Informant Mr O Westerlund, Racing Investigator, alleged that on Tuesday the 19th of March 2019, at Matamata, being the registered trainer for the time being in charge of the horse “2g Rock ‘n’ Pop (AUS) – Nicole Amy”, which was brought to the Matamata Racing Club Trials held at the Matamata Racecourse for the purpose of engaging in, and did engage in Heat 6, conducted by the Matamata Racing Club, when the said horse was found to have in its metabolism a Prohibited Substance, namely ‘Meloxicam’ 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.

2] Rule 804(2) states:- 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.

Penalty Provisions

3] Rule 804(7) states:-

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.

4] As a precursor to the hearing the Judicial Committee was provided with and read all of the relevant Documents. These included

 Notice of appointment
 Signed Information No A8475
 Charge Rule and Penalty Provisions
 RIU letter of authorisation to lodge charge dated 10 April 2019
 RIU sample Identity Record 108346
 NZRLS Certificate of Analysis dated 25 March 2019
 RIU Summary of Facts
 RIU Penalty Submissions dated 18 April 2019
 Service of Information Confirmation

5] Mr Pertab said that he understood the Rules and confirmed he admitted the breach. Mr Pertab acknowledged that all the relevant documents from the RIU had been disclosed to him. Mr Pertab said he accepted the contents of the documents and consented to them being admitted as evidence. The proposed procedure for this hearing was explained to Mr Pertab and he had no concerns or objections.

Summary of Agreed Facts by the Informant

6] Mr Paul Anthony PERTAB is the holder of a Class B Trainers Licence issued by New Zealand Thoroughbred Racing (NZTR).

7] On Tuesday the 19th March 2019 the horse “2g Rock ‘n’ Pop (AUS) – Nicole Amy” was correctly entered and started in Heat 6 of the Matamata Racing Club Trials at the Matamata Racecourse. The two year old gelding “Rock ‘n’ Pop (AUS) – Nicole Amy” finished 2nd of the seven horse trial.

8] The horse “Rock ‘n’ Pop (AUS) – Nicole Amy” was randomly selected for a post-race swab. The horse was accompanied by Parish Young. A blood sample was obtained at 11.40am approximately 10 minutes after the trial commenced at 11.30am. Both Miss Young and the RIU Veterinarian Dr Holly Richardson reported that there were no difficulties or irregularities with the collection of the blood from the two year old gelding. At the conclusion of the Trials the samples were checked by a Racecourse Investigator and then placed in a tamper proof security bag with other samples taken that day and forwarded to the New Zealand Racing Laboratory in Auckland.

9] On the 25th March 2019, a Certificate of Analysis signed by Mr Rob Howitt, the Official Racing Analyst at the New Zealand Racing Laboratory advised that the sample taken from the horse “Rock ‘n’ Pop (AUS) – Nicole Amy” had been analysed and contained the Prohibited Substance ‘Meloxicam’.

10] Meloxicam is a nonsteroidal anti-inflammatory drug commonly used to treat short term pain and fever in horses and has a withholding period of 4.2days. Meloxicam is therefore a Prohibited Substance within the Rules of Racing. The presence of Meloxicam at a race day or trial is therefore prima facie, a breach of the Rules.

11] On Friday the 29th March 2019 Mr PERTAB was interviewed at his property in Matamata. He could offer no explanation for the positive test result on the horse. He further stated that another horse he is training was prescribed ‘Meloxicam’ by his local Vet. It is possible that a cross contamination has occurred.

12] The Racing Integrity Unit conducted an investigation and noticed that the area in which “Rock ‘n’ Pop (AUS) – Nicole Amy” was kept is next to the horse that was being treated. ‘Meloxicam’ is a liquid which is administered orally with a syringe. Great care is imperative when handling medication near other horses. We believe that the likely cause is cross contamination through carelessness when handling or administering medications. “Rock ‘n’ Pop (AUS) – Nicole Amy” was not given ‘Meloxicam’ at any stage. Located in the Stable Block was the ‘Meloxicam’ tube that was prescribed.

13] Mr PERTAB has been involved in the Thoroughbred Racing Industry all his adult life and has been a Class B Trainer for 4 years. He is 44 years of age and has not previously appeared on a Breach.

Submissions by the Respondent

14] Mr Pertab advised that he was not in the business of racing horses. He said he principally concentrated on pre training and educating Ready to Run horses. He said that he did not know how “Meloxicam” got into his horse's system but the likely cause was cross contamination. He added that he would not have presented the Rock N Pop 2 year old to the trials if he had known the gelding's condition.

15] In response to a question from the Committee, Mr Pertab said that he did not have a diary for recording medications prescribed for his horses. He added that since this breach occurred he has implemented a log book.

Decision

16] As Mr Pertab admitted the breach the Committee found the charged proved.

Submissions on Penalty by Informant

17] The Respondent Paul Anthony PERTAB is a Licensed Class ‘B’ Trainer under the New Zealand Rules of Thoroughbred Racing. The Respondent has been involved in the racing industry all his adult life and has been a Class B Trainer for 4 years. Mr PERTAB is 44 years of age.

18] The Racing Integrity Unit are seeking a monetary penalty of $3000.

19] Mr PERTAB has admitted a breach of the rules in relation to a charge of entering, presenting and racing a horse in a trial at the Matamata Racing Club Trials at the Matamata Racecourse on the 19th March 2019 when that horse had within its body a Prohibited Substance namely Meloxicam.

20]The facts are detailed in the Summary of Facts which have been agreed to.

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

22] The four principles of sentencing can be summarised briefly:

22.1} 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.

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

22.3} A penalty should also reflect the disapproval of the JCA for the type of offending in question.

22.4} The need to rehabilitate the offender should be taken into account.

23] The first three principals have relevance in this matter.

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

24.1} RIU v LUCOCK & GILLESPIE (22.07.18) – related to a positive test to Meloxicam at the Avondale Jockey Club Trials on the 15th May 2018. The penalty imposed was a fine of $2800 and the horse disqualified.

24.2} RIU v L HALL (19.08.17) – related to a positive test to Meloxicam at the Waipa Racing Club Trials on the 30th May 2017. The penalty imposed was a fine of $3000 and the horse disqualified.

24.3} R.I.U v G F BRICK (15.09.16) – related to a positive test to Phenylbutazone and Oxyphenbutazone at the Whakatane Trials on the 2 August 2016. The penalty imposed was a fine of $3000 and the horse disqualified.

24.4} R.I.U v M. FRASER-CAMPIN and C. CAMPIN (1.04.16) -related to a positive test to Phenylbutazone and Oxyphenbutazone at the Matamata Trials on 9 February 2016. The penalty imposed was a fine of $3000 and the horse was disqualified.

25] The mitigating factors are:-

25.1} That the Respondent has admitted the breach at the first opportunity

25.2} That the Respondent has been fully co-operative throughout the process

25.3} That the Respondent has been involved in the racing industry all his adult life

25.4} That the Respondent has not previously appeared on breaching the rules of Racing.

26] The aggravating features are:-

26.1} That legal precedent provides that ‘Trainers’ have an absolute liability for presenting their horses free of Prohibited Substances

26.2} That the Respondent should have taken extreme care when treating a horse with ‘Meloxicam’ so as not to cross contaminate other horses.

26.3} That carelessness in his actions is not an excuse.

27] In conclusion, he RIU believe that this breach can be dealt with by way of a fine. It is submitted that a fine of $3000 should be imposed. The RIU is seeking no costs.

28] An order for the disqualification of the horse “Rock ‘n’ Pop (AUS) – Nicole Amy” from the trial is sought pursuant to Rule 804(8).

Submissions of Penalty by Respondent

29] Mr Pertab made no submissions on penalty.

Reasons for Penalty

30] The Committee carefully considered all the evidence and submissions presented. The JCA Penalty Guide recommended starting point for presentation offences with a Prohibited Substance is an $8,000 fine. However, the Committee was conversant with the 4 precedent decisions referred to by the RIU and they all closely match the circumstances of this case. It is important to note that in all 4 precedent cases the starting point adopted was significantly reduced. The key reason was that all of those breaches occurred at the trails and not at a race meeting. We have no evidence placed before us to deviate from the reduced starting point. Any penalty however has to be of a sufficient level to ensure that Trainers do not become complacent or assume that trials meetings are different to race meetings in regard to Prohibited Substance use.

31] The Committee was mindful that trials differ from race days as there is no betting and stake money involved. However the integrity of the Industry is paramount and even in the case of trials there can be significant financial rewards for Owners and Trainers. Authorised trials are generally used to educate young horses and provide the opportunity to get horses of all ages fit and ready for race day assignments. It is also accepted that many young horses are sold based on their potential shown at trials meetings. It is imperative that, regardless of race day or trials meetings, all horses competing run free of any Prohibited Substances. The safety of horse and rider is the same regardless and remains paramount.

32] The Committee were of the view that Mr Pertab needs to be more vigilant when treating horses with medications.

33] The mitigating factors were Mr Pertab’s admission of the breach, clear record and co–operation with the RIU during their investigation. We have also had regard for the RIU submission that this is not a situation where the Prohibited Substance ‘Meloxicam’ was given to enhance performance, but rather the likely cause was cross contamination.

Penalty

34] After taking into account all of the above factors the Committee deemed that a fine in line with the comparable precedent cases was an appropriate penalty. Accordingly, Mr Pertab was fined $3,000.

35] Further the Committee order the disqualification, under the provisions of the Rule 804 (8), of the unnamed “Rock ‘n’ Pop (AUS) – Nicole Amy” 2 year old gelding from Heat 6 at the trails held at the Matamata RC trials on 19 March 2019.

Costs

36] The RIU made no application for costs. As this charge was heard on a race day, there was no order for JCA costs.

Adrian Dooley

Chair

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