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Non Raceday Inquiry RIU v R G M Burrows - Decision as to Penalty dated 4 September 2020 - Chair, J Lovell-Smith

Created on 10 September 2020

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 ROBERT GEORGE MCKAY BURROWS

Licensed Stablehand

Respondent

Information No: A7199

Judicial Committee: J Lovell-Smith, Chair

T Utikere, Member

Representing the RIU: Mr S Irving

Respondent: Mr RGM Burrows

DECISION AS TO PENALTY OF THE JUDICIAL COMMITTEE DATED 4 SEPTEMBER 2020

[1] The Respondent faces one charge of attempting to administer a prohibited substance which the Judicial Committee found proven in its decision dated 21 August 2020. The hearing was conducted on the papers as the Respondent chose not to participate.

[2] The Committee requested submissions as to penalty in writing which we have received from the Informant and the Respondent.

RIU Submissions

[3] The Informant submits that a disqualification of a period of at least 6 years should be imposed together with an order that the Respondent pay 20% of the Informant’s costs amounting to $2,381.00 and the usual JCA costs.

[4] The Informant refers to the JCA Penalty Guide which recommends a starting point of 3 years disqualification for a second offence of administering a prohibited substance. The Respondent appeared before a Judicial Committee on 29 November 2019 in respect of a breach of Rule 1004AA(1), namely administering a substance in breach of the “One Clear Day Rule” and was fined $800. (RIU v A Edge & G Burrows 17 December 2019).

[5] In both cases, the Respondent was assisting two different licensed trainers with administering an alkalising substance to horses prior to racing in an attempt to enhance their performance. In respect of this charge the Informant submits that “although Mr Burrows is undoubtedly the secondary offender in this case, he is complicit and equally culpable in the full offence, indicative of his actions when covertly taking the backpack from the house to the shed and therefore a lengthy harm of disqualification is required.”

[6] The Informant submitted that the Respondent’s continued disregard for the Rules included his withdrawal from these proceedings as he had advised the Informant by email prior to the teleconference on 28 July 2020 that he would accept a penalty and costs but that he no longer wished to participate in the process.

[7] In the Informant’s submission “it is concerning that an experienced licence holder has excused himself from facing up to the consequences of his actions through the Judicial process, denouncing responsibility as if resigning himself to the fact that he will not be licenced in the industry again.”

The Respondent’s Submission

[8] The Respondent submitted that as a result of being charged he lost his job and therefore could not afford legal representation. He did not hold up the “trial process” but prioritised his wife and his family’s wellbeing. He stated that “at no time have I wanted to make it any harder for people involved and I apologise it has been the case.”

[9] The Respondent is very concerned that his wife's work as a trainer will suffer as a result of his “stupidity”. Further, if disqualified he would have no ability to earn an income and would be unable to pay any financial penalty including costs.

Aggravating Factors

[10] The attempt to deliberately administer a prohibited substance to a horse that is about to race three hours later is a significant breach of the high standard of animal welfare required by the industry. This is the Respondent's second breach in less than a year in relation to the administration of a substance in breach of the "One Clear Day Rule", he having been fined $800 in December 2019. We regard this breach as more serious given the nature of the substance and the manner in which it was attempted to be administered.

[11] We do not regard the Respondent as culpable as Mr McGrath. Mr McGrath was a licensed trainer who clearly involved the Respondent in this breach of the Rules, provided the equipment and the substance and arranged to conceal the horse and their actions. Mr McGrath's motive was financial. However, the Respondent did endeavour to retract his admissions to the Informant at a later date in a second statement we found to be unconvincing and self-serving.

[12] We do not regard the Respondent’s decision not to take part in these proceedings as an aggravating factor as submitted by the Informant. We accept the Respondent’s explanation that he was unable to afford the cost of legal representation and he has not sought to delay these proceedings.

Mitigating Factors

[13] There are none relating to this offending.

[14] In relation to the Respondent personally, we accept his submissions regarding his loss of employment, his financial position and the stress he and his family are suffering as a result of his actions.

Conclusion

[15] The starting point for this offence, before allowance is made for mitigating factors, must be sufficient to reflect the gravity of the offending, the interests of the industry, the profession of Harness Racing as a whole and the need for deterrence both specific and general.

[16] This is the second breach of the Rules for similar offending by the Respondent in less than a year. We accept the Informant’s submission that this demonstrates “a complete disregard for the Rules and the bodies that enforce them and as such he ought not to be able to continue in the industry”.

[17] This is a case where clearly the interests of the professional code/industry participants and the sport outweigh mitigating factors in deciding that disqualification is necessary.

[18] Taking into account the submissions of the Informant and the Respondent, we adopt a starting point of 4 years disqualification which includes an uplift for the previous similar breach of the Rules in 2019.

[19] We have taken into account the Respondent’s submissions as to his precarious financial position and the very significant effect on his and his family’s wellbeing as a direct result of any suspension or disqualification.

[20] Taking into account all aggravating and mitigating factors, we order that the Respondent be disqualified for 3 years from the date of this decision until 3 September 2023.

[21] The RIU is entitled to costs of these proceedings. We order that the Respondent pays $1,000 to the Informant and $500 to the JCA.

J Lovell-Smith

Chair

4 September 2020

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