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Non Raceday Inquiry RIU v S J Hale - Reserved Decision dated 15 August 2018 - Chair, Mr S Ching

Created on 16 August 2018

BEFORE A JUDICIAL COMMITTEE

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A6426

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

Informant

AND STEPHEN JOHN HALE of Christchurch, Licensed Trainer

Respondent

Date of Hearing: 12 August 2018

Venue: Rangiora Racecourse, Rangiora

Judicial Committee: Mr SC Ching (Chair)

Mr G Clapp (Member)

Present: Mrs KR Williams, the Informant

Mr SJ Hale, the Respondent

Mr C DeFilippi, Licensed Trainer

Date of Decision: 15 August 2018

RESERVED DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A6426 alleges that:

On the 13 May 2018, Stephen John HALE, being the registered trainer of the standardbred MATAU GEM presented the horse to race in Race 3, the SOUTH FUELS BULK FUEL SPECIALISTS MOBILE PACE, at the Timaru Harness Racing Club’s meeting with a prohibited substance, namely Cobalt (greater than 100 micrograms per litre), 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:

(1) 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.

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

The Plea

[4] Mr Hale had signed the Statement by the Respondent at the foot of the information form indicating that he admitted the breach of the Rule. He confirmed this at the hearing.

Agreed Summary of Facts

[5]

1. The facts are as follows: MATAU GEM is a 5-year-old Brown mare and is trained by Mr Stephen John HALE. MATAU GEM is owned by Mrs M Morrison-Palmer, P B Palmer and Mrs H M Browne. MATAU GEM has raced 14 times for 3 seconds and 1 third and lifetime stakes of $7,260 as at 24 July 2018.

2. MATAU GEM was correctly entered and presented to race by trainer Mr Hale at the Timaru Harness Racing Club meeting on 13 May 2018. MATAU GEM was driven in Race 3, the SOUTHFUELS BULK FUEL SPECIALISTS MOBILE PACE by Mr D Dunn, finishing in second place winning a stake of $1,330. This stake has not been paid out.

3. Following the race, the Stipendiary Stewards ordered that MATAU GEM be post-race swabbed. MATAU GEM provided a urine sample at 12.20pm in the presence of the trainer and Swabbing Steward Ms M Orr. The race was programmed to start at 12.00pm. The urine samples were recorded with the Sample number 133672. Mr Hale does not contest the taking of the sample.

4. On the 31st May 2018 the New Zealand Racing Laboratory reported that swab 133672 had a Cobalt screening level in excess of 100 micrograms per litre of urine. The sample was forwarded to Racing Analytical Services, Victoria, for confirmation. On 12 June 2018 Racing Analytical Services confirmed a level of 120 micrograms per litre. HRNZ set the level of 100 micrograms per litre of urine on 1 June 2017.

5. Racecourse Investigator Mrs Kylie Williams and Stipendiary Steward Mr Scott Wallis advised Mr Hale of the screened result on 2 June 2018. A number of samples were taken from the property for testing and a urine sample was taken from MATAU GEM.

6. Mr Hale could not offer an explanation for the elevated level of Cobalt in the urine sample taken from MATAU GEM.

7. The exhibit urine sample taken from MATAU GEM returned a level of 40 micrograms per litre.

8. Mr Hale advised that he had been feeding a multi mineral salt block that he was unaware contained Cobalt. This mineral salt block was in the horse’s feed bin with the horse eating it at will when stabled.

9. A sample of the multi mineral salt block was taken for testing which confirmed cobalt at a level of 60mg/kg. The packaging on the salt block clearly showed Cobalt as an ingredient at 65mg/kg.

10. Mr Hale did not make any enquiries regarding the amount of Cobalt in the mineral mix.

11. Dr Andrew Grierson, Chief Veterinary Advisor to HRNZ confirmed that there is enough Cobalt in a mineral salt block to return a positive and that there have been Cobalt positives in Australia from them.

12. Mr Hale has been training since 1986/87. Mr Hale has trained 31 winners.

13. Mr Hale has not previously been charged with a breach of the prohibited substance rule.

Submissions of Informant on Penalty

[6]

1. Mr Hale has pleaded guilty to a breach of Rules 1004(1A) (3) and (4) after presenting MATAU GEM at the races with a prohibited substance in its system, namely Cobalt at a level greater than 100mg/l, at the Timaru HRC meeting on the 13th May 2018.

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. The rules also require the mandatory disqualification of the horse: Rule 1004(8) states:

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.

Rule 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 J.C.A 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 the following precedents:

RIU v G RICHARDSON & G PARKER - 13 July 2018
Subject: One charge of presenting horses with Cobalt level over the threshold - $6,000 fine. Level of: 198

RIU v G DIXON - 10 April 2018
Subject: One charge of presenting horses with Cobalt level over the threshold - $6,500 fine. Level of: 293

RIU v R BROSNAN - 13 February 2018
Subject: Three charges of presenting horses with Cobalt levels over the threshold - $19,200 fine. Levels of: 143, 136, 522

RIU v C DALGETY – 16 May 2017
Subject: Five charges of presenting horses with Cobalt levels over the threshold - $32,000 fine. Levels of: 245, 300, 250, >600, 584, (prohibited level was 200mg/l).

6. Aggravating Features –

Mr Hale has a vast knowledge of feeding and supplementation in horses as part of his employment has been for a company selling supplements.

Mr Hale failed to read the ingredients in the multivitamin salt block and seek professional advice when introducing a new product into his horses’ feeding regime. It is clearly stated on the packaging that it contained cobalt and the amount.

By using a block that horses have access to without monitoring how much they consume is risky. Feed supplements are better given in measured proportions so the trainer is aware of exactly how much is consumed.

There has been much publicity and discussion about Cobalt in both Harness Racing and Thoroughbred Racing. All Licence Holders should be aware to check when using any new feed or supplements.

Mr Hale is well aware of Cobalt being a prohibited substance under the Rules and how positive swabs can be as a result of feeding supplements as he is employed by Mr C Dalgety.

7. Mitigating Factors –

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

The low level returned by the horse, 120mg/L. The prohibited level was dropped from 200mg/L to 100mg/L by HRNZ on 1 June 2017.

Mr Hale has been training for over 30 years and has trained 31 winners and has never breached this rule before.

8. Conclusion –

The Racing Integrity Unit seeks a penalty of a fine of $5,000.

The JCA guidelines of 1st May 2015 detail a starting point of $8,000 for a first offence of presenting a horse with a drug in its system. This is Mr Hale’s first offence after many years of training.

Mr Hale 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 MATAU GEM under Rule 1004(8).

9. The RIU are seeking costs of $77.63 for transcripts typed up as requested by Mr Hale.

Respondents submissions on Penalty

[7] Mr Hale gave lengthy submissions on Penalty as follows;

He said that Mrs Williams is suggesting a fine of $5000 as penalty in his case, which he stated was very high compared to the four cases in the RIU’s Penalty submissions. The Richardson /Parker penalty of $6000 was with a reading of 198. He said his mare returned readings of 113 and 116 with the Australian Lab returning a reading of 120. He said, if you work out their fine per point, it calculates out to $61.22 per point. The Dickson case was a level of 293 and the fine being $6500 which works out to $33.67 per point. The Brosnan case, he said, worked out at $47.78 per point, with 3 positives and fine of $19,200. The Dalgety case with 5 positives and a $32,000 fine worked out to $46.48 per point. Mr Hale said that his highest reading was 120, only 10 over the 110 allowance, allowing for a margin of error. He said that if he was fined $5000, as suggested by the RIU, that would calculate out to $500 per point, which is 10 times higher per point than any of the penalties above. This, he said, seems very unfair.

Mr Hale continued by stating a horse, on average, doing a bit of work like a show or race horse requires 60grams of salt per day. He said that each of these salt blocks have 2.5kgs in them which is 41 days of use by a horse. Mr Hale said he had no idea the horse was using that much of the salt block until after the positive when cleaning out the feed bins for all his horses. He spoke to Dominion Salt saying to them that a warning needed to be put on the packaging stating that if a horse over indulged in the salt block, a positive swab may follow. Mr Hale produced the packaging for the salt, mineral block which clearly stated its ingredients, one of them being Cobalt.

Mr DeFilippi was called as a character witness and stated that this was not the first case where this has happened, and the only penalty imposed was loss of the stake, one being the S Walkinshaw case, 2 years ago. Mr DeFilippi stated that Mr Hale, in his opinion has done nothing wrong, he hasn’t made a mistake, he hasn’t been careless, he hasn’t slipped up, he has done nothing wrong. He has done nothing different to any other trainer in he country. He said that the salt block used was probably the most popular salt block on the market. Mr DeFilippi said he held Mr Hale in the highest regard and reiterated he had done no more with his horses in relation to the salt block than any other trainer in the country.

Mrs Williams, in reply, stated that in that particular case, being the Walkinshaw case, the labelling on the packaging was incorrect and the amount was 100 times stronger than advertised on the box, a manufacturing error. She said in this case the mineral block sample was analysed and was analysed back with less cobalt than actually advertised on the box, so not manufacturer’s error.

Mr Hale stated that he had found out how the salt blocks were produced which is in a 20-ton cycle. He said that the company had told him that no 2 x 20kg blocks are exactly the same, but are as humanly possible, using machinery to mix the ingredients. He said that if that was the case there was a possibility that the levels of cobalt could be at different levels, one may be at a level of 60 with another maybe a level of 80. Mr Hale stated that Cobalt stores up in a horse’s system and MATAU GEM could have been going through a lot more of the product due to her trialling and getting prepared to race. He said that after removing only the salt block from the mare’s preparation, her next reading was 2.1 which showed the salt block was probably the culprit. Mrs Williams added that the natural reading of cobalt in most horses is under 4.

Mr Hale put forward a theory forward why his horse was over on the day. He said that the 2 sawdust urinals at Timaru were unusable as one was empty of sawdust with the other, the sawdust piled into a corner. He said his horses usually use the sawdust urinals on course once they arrive at the track. On this occasion MATAU GEM did not take advantage of the urinal and did not urinate prior to the race. This, he believed, concentrated the sample as normally this horse will urinate prior to it starting. In the swab box, he said, the mare gave only a strong, small sample but afterwards urinated heavily in the car park. Had the mare been able to urinate as she normally does in a horse urinal prior to starting, her reading on cobalt would have been lower, well under 100.

Mr Hale objected to the RIU’s submission that he should have consulted a vet for advice in regard to the salt blocks due to the ingredients. Mr Hale also attempted to discuss another case where the trainer only got a warning for an elevated reading. He said that the RIU’s submission for a $5000 fine was ridiculous. He stated that he has already lost the owners stake, his percentages and did not charge training fees for the horse for 2 months while this case was being investigated. Mr Hale said he could not take a horse to the races for approximately 7 weeks while waiting for the tests on the salt blocks to come back. He said he is in a strange financial situation at the moment and here he is getting slammed possibly $5000 for a $3.50 salt block. Mr Hale said it has already cost him $3000 plus hundreds of toll calls and emails he has had to send and receive and costs to get the transcript of his interview. He said that he worked in the feed industry and this charge was an embarrassment to him, which could also cost him his job.

Mr Hale produced 5 character references including a letter from Richard Turner, the vet who has been attending to Mr Hale’s horses over the past 2 years.

Disqualification of the horse

[8] Mrs Williams referred to Rule 1004D of the Rules of Harness Racing which provides:

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 any prohibited substance shall be disqualified from the race.

[9] Mrs Williams said that the place stake has not been paid out. Mrs Williams sought disqualification of MATAU GEM.

[10] The Committee ordered that MATAU GEM be disqualified from Race 3, the Southfuels Bulk Fuel Specialists Mobile Pace, at the meeting of Timaru Harness racing Club held at Timaru on 13 May 2018, effective Monday 13 August 2018. As a consequence of the disqualification, the amended result for the Race is as follows:

1st - Firstjoy

2nd - With The Band

3rd - Reklaw’s Gem

4th - Trompeur

5th - She’s Outstanding

6th - Silent Shadow

The Committee ordered that stakes for the Race be paid in accordance with that amended result.

Reasons for Penalty

[11] The relevant penalty Rule is Rule 1004 (7) which provides:

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.

[12] The principal mitigating factors, to which the Committee has had regard in determining penalty, are Mr Hale’s early admission of the breach, his full cooperation and the way in which he has conducted himself throughout the enquiry. In addition, Mr Hale’s record in regard to this rule is excellent with this breach being his first, in over 30 years of training.

[13] We find that Mr Hale’s character is not in question here and the support of other industry participants, including Mr DeFilippi, provided glowing oral and written references which this Committee have also taken into consideration.

[14] 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 others from offending in a similar manner in the future.

[15] Mr Hale’s submissions on what happened to MATAU GEM by over indulgence of the Mineral Salt Block, on the balance of probabilities, seems to be the only logical explanation for this positive result. However, it will probably never be established, to the degree of certainty required, that the Mineral Block was the culprit.

[16] The Informant has not alleged that Mr Hale had deliberately administered the prohibited substance to MATAU GEM and the Committee has no basis for any finding that he did so.

[17] Nevertheless, the Committee finds that Mr Hale was negligent to a degree in a number of respects, as submitted by Mrs Williams. Mr Hale has a vast knowledge of feeding and supplementation in horses as part of his employment. With this vast knowledge we find it implausible that he was not more vigilant with the supplements being given to his horses. We find that he was negligent to a degree in failing to read the ingredients on the packaging for the Mineral Salt Block where it clearly shows that it contains among other ingredients, Cobalt. By using a Mineral Block that horses have literally unlimited access to with a product that includes a prohibited substance, even at low levels, is risky to say the least. We have concluded that the above are aggravating factors to be taken into consideration.

[18] The JCA Penalty Guide provides a starting point for a first breach of this rule with an $8,000 fine. We determined that this starting point of $8000 would be for a mid-range breach of the rule. This particular case, we concluded, was low range with the positive reading of Cobalt being 120, just over the limit. After consideration we adopted a starting point of $6000 for this breach. Whilst we have found there are some aspects of Mr Hale’s actions, are to a degree negligent, the need for an uplift for aggravating factors, we determined was not warranted. There are however, strong mitigating factors worthy of consideration, being Mr Hale’s early admission of the breach, his full cooperation throughout the investigation, in conjunction with his excellent record over the past 30 years and the high regard he holds within the industry as evidenced by his character references. For these factors, Mr Hale is deserved of a combined discount which we determined would be at 25%. This discount we set at $1500.

[19] Having regard to all of the matters referred to above, the Committee is satisfied that a fine of $4,500 is an appropriate penalty in this case. We believe that such a penalty will satisfy the principal requirements of sentencing – that is to say, to punish the offender, to deter others in the industry and the need to maintain integrity and public confidence in harness racing.

Penalty

[20] Mr Hale is fined the sum of $4,500.

Costs

[21] Mrs Williams did seek the award of costs in favour of the Racing Integrity Unit being the cost of transcripts as requested by Mr Hales being $77.63, which is so awarded.

[22] As this hearing was heard at a race meeting there was no order for costs to the JCA.

SC Ching

Chair

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