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Non Raceday Inquiry RIU v S & K Alexander - Penalty Decision dated 20 April 2020 - Chair, Mr G Jones

Created on 22 April 2020

NON RACEDAY INQUIRY RIU V S AND K ALEXANDER – PENALTY DECISION DATED 20 APRIL 2020 - CHAIR, MR G JONES

BEFORE A JUDICIAL COMMITTEE

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

BETWEEN Mr Cruickshank (Investigator) for the Racing Integrity Unit (RIU)

Informant

AND

Mr S Alexander and Mrs K Alexander (Licensed Trainers)

Respondent

JUDICIAL COMMITTEE: Mr G Jones (Chair) and Mr A Dooley (Committee Member)

PRESENT: The penalty was determined ‘on the papers’

DATE OF REASONS FOR DECISION AND PENALTY: 20 April 2020

DECISION OF THE JUDICIAL COMMITTEE

The Charge

[1] This is the penalty decision arising from the charge filed against the training partnership of Mr Simon Alexander and Mrs Katrina Alexander (“the Respondents”).

[2] The Respondents are holders of a Class ‘A’ Trainers Licence issued by New Zealand Thoroughbred Racing (NZTR).

[3] By way of memorandum dated 5 March 2020, Mr Godber, the General Manager: Racing Integrity Unit (RIU) authorised the filing of this charge against the Respondents alleging they breached Rule 804(2) of the Rules of Racing. More specifically the charge alleged that on the 11th of February 2020 the Respondents entered an unnamed (Dream Ahead – Our Josephina) 2-year-old Filly in Heat 22 of the Whakatane Racing Club Trials, held at the Te Teko Racecourse. The unnamed filly finished first (1st) of the 8 runners in the trial heat. Post-race the filly was randomly swabbed and on analysis the sample was found to contain the prohibited substances Phenylbutazone and Oxyphenbutazone.

[4] Information number A8711 which sets out the full particulars of the charge which was served on the Respondents, on behalf of the Informant, by RIU Investigator Mr Cruickshank on 5th March 2020.

[5] The particulars of the charge are that:

On the 11th day of February 2020, at Te Teko, being the registered trainers for the time being in charge of the 2 year old Filly by ‘Dream Ahead’ – ‘Our Josephina’, which was brought to the Whakatane Racing Club Trials for the purpose of engaging in, and did engage in Heat 22, conducted by the Whakatane Racing Club, when the said horse was found to have in its metabolism a Prohibited Substance, namely Phenylbutazone and Oxyphenbutazone in breach of New Zealand Thoroughbred Racing Rule 804(2) and are therefore subject to the penalty or penalties which may be imposed pursuant to Rules 804(6) and 804(7) of the said Rules.

The Rules

[6] Rule 804(2) provides that:

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.

Preliminary Matters

[7] This charge was originally set down to be heard on Wednesday 25 March prior to the race meeting at the Matamata Racing Club. However, after the various relevant documents were circulated and as a result of COVID-19 constraints, by consent of all parties and for the sake of expediency, it was agreed the penalty decision would be determined ‘on the papers'.

[8] The Judicial Committee (“the Committee”) was provided with and perused all of the relevant Documents. These included

 Notice of appointment

 Signed Information No A8711, Charge Rule and Penalty Provisions

 RIU letter of authorisation to lodge charge and Service of Information Confirmation, both dated 5 March 2020

 RIU Summary of Facts

 Penalty Submissions RIU and Respondents

[9] The Committee was advised that when the charging papers were served on the Respondents, they entered ‘no plea’. However, prior to considering penalty the Committee was advised the charge was admitted by the Respondents.

[10] The facts and RIU penalty submissions are not disputed. This penalty decision was therefore determined on that basis.

Summary of Facts (Salient points)

[11] Although the Respondents’ training partnership is newly established; Mrs Alexander has trained on her own account since 1997.

[12] On the 11th of February 2020 the unnamed 2-year-old filly started in, Heat 22 of the Whakatane Racing Club Trials.

[13] The filly finished first 1st in the 8-horse trial and was randomly selected for a post-race swab. There were no difficulties or irregularities with the collection of the blood from the ‘Dream Ahead’ Filly.

[14] The samples were checked by a Racecourse Investigator and placed in a tamper proof security bag along with other samples taken that day and forwarded to the New Zealand Racing Laboratory in Auckland.

[15] On the 20th February 2020, the Official Racing Analyst at the New Zealand Racing Laboratory, reported that the sample taken from the ‘Dream Ahead’ Filly had been analysed and contained the Prohibited Substance Phenylbutazone and Oxyphenbutazone.

[16] Phenylbutazone is a nonsteroidal anti-inflammatory drug commonly used to treat short term pain and fever in horses. Oxyphenbutazone is a metabolite of Phenylbutazone.

[17] Phenylbutazone is used for the following purposes: (1) pain relief from infections and musculoskeletal disorders including sprains; (2) overuse injuries, tendinitis, arthritis and laminitis. Further, it acts directly on musculoskeletal tissue to control inflammation, therefore reducing secondary inflammatory damage, alleviating pain and restoring range of motion.

[18] Phenylbutazone is a Prohibited Substance within the Rules of Racing. The presence of Phenylbutazone at a race day or trial is therefore prima facie, a breach of the Rules.

[19] The Respondents were interviewed on the 24th February 2020. Mrs Alexander advised that she had treated the horse with 8ml of Phenylbutazone on the 10th February after she detected inflammation on the horse’s back. This is confirmed by Mrs Alexander’s diary notes.

The Respondents Response

[20] The facts are not disputed by the Respondents.

RIU Penalty Submissions

The written submissions of the RIU are summarised as follows:

[21] The charge is readily admitted; the facts are not disputed and the Respondents have been fully co-operative throughout the investigative process.

[22] The RIU submit that this breach can be dealt with by way of monetary penalty and a fine of $3,000 is sought. In addition, none of the ‘B’ samples have been tested and the RIU do not seek costs.

Precedent Cases

[23] In support of this penalty the following precedent decisions were submitted for the consideration of the Committee:

RIU v G.F. BRICK (15.09.16) – which related to a positive test to Phenylbutazone and Oxyphenbutazone at a trial meeting at Te Teko on 2 August 2016. The penalty imposed was a fine of $3,000 and the horse disqualified.

RIU v S. MUNRO (16.04.16) – which related to a positive test to Phenylbutazone and Oxyphenbutazone at the Matamata Trials on the 9 February 2016. Mr MUNRO had previously been disqualified in New South Wales for drug administration. The penalty imposed was a fine of $4,000 and the horse disqualified.

RIU v M. FRASER-CAMPIN and C. CAMPIN (1.04.16) – which related to a positive test to Phenylbutazone and Oxyphenbutazone at the Matamata Trials on 9 February 2016. The penalty imposed was a fine of $3,000 and the horse disqualified.

[24] It was further submitted that this is not a situation where the drug in question, ‘Phenylbutazone’ was administered deliberately or to enhance performance. This was said to be an oversight by Mrs Alexander who treated the horse for an inflamed skin condition, unknown to Mr Alexander who later nominated the horse for the trial.

[25] The Respondents have a clear record.

Respondents Penalty Submissions

The written submissions of the Respondents are summarised as follows:

[26] The Respondents accept the facts and penalty submissions lodged by the RIU. They add that their filly was treated with Phenylbutazone due to a skin infection at 5.30 am on the morning of 10 February 2020 by Mrs K Alexander and this was not communicated to Mr S Alexander who, was totally unaware of the treatment, and therefore erroneously nominated the filly to run at the trials the next day.

[27] The Respondents fully acknowledge there was a communication breakdown. They submitted that although the welfare of their filly was a primary consideration it was an oversight on their part to allow the filly to be nominated and race at the trials. To this end they advise that they have introduced procedures to prevent a reoccurrence in the future.

[28] The Respondents submitted that Mrs Alexander’s impeccable training record, spanning over 12 years, in both New Zealand and Australia be taken into account.

Penalty Provisions

[29] The breach is admitted and therefore is therefore proved.

[30] Pursuant to Rule 920(1) and (2) on finding a breach proved the Committee may impose any penalty provided by the Rules.

[31] Rule 804(7) provides that 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.

Reasons for Decision

[32] In our determination of penalty, the Committee fully considered all of the relevant facts as well as the submissions lodged by both the Informant and Respondents. Our decision-making framework was informed by the JCA Penalty Guide and precedent cases which we applied those to the circumstances of this case and our assessment of the Respondents’ respective culpability as well as their personal circumstances.

[33] There is no evidence before the Committee to suggest a deliberate intent to deceive or gain an advantage on the part of the Respondents. We accept that this breach is the result of nothing more than an honest mistake due to a communication breakdown between the training partners. The day before the filly was due to trial Mrs Alexander treated it with the prohibited substance and she, as we have been told, was unaware Mr Alexander had entered the filly to trial, and similarly he was unaware of the treatment. Moreover, there was clearly no hiding of the fact the substance was used to treat the filly, because the RIU found that the treatment was recorded in Mrs Alexander’s diary notes.

[34] Had appropriate checks and balances been in place this breach could have been avoided. In the main, the breach was the result of the failure to adequately communicate the treatment (between partners); and whilst this is not an aggravating factor in itself, it does appear to be at the root cause of the nonconformance. The breakdown in communication between the partners is a salient lesson for them and other trainers who operate in similar circumstances. This breach therefore highlights the need for sound communication practices as well as robust control systems to be in place and adhered to. It that regard we take note that the Respondents advise they have now put in place procedures to prevent a breach of this nature reoccurring.

[35] The JCA Guide establishes a starting point of a $8,000 fine for a first breach of this Rule. Historical cases show that where the breach occurs in a trial and not on a raceday a reduction from the starting point is applied. The RIU in their submissions highlighted 3 precedent cases where they submit offending was virtually identical to this breach. In those cases, fines ranged between $3,000 and $4,000. We identified that 2 of those cases, namely Brick and M Fraser-Campin and C. Campin, were of particular relevance in that they more closely matched the circumstances of this case and it is noteworthy they resulted in fines of $3,000 respectively. Therefore, in keeping with these 2 cases and based on our own assessment of the facts we have determined this breach to be at the lower end and adopt $3,000 as our starting point before consideration of aggravating and mitigating factors.

[36] The are no particular aggravating factors and we assess each of the Respondents to be equally culpable.

[37] The training partnership has a clear record, albeit it has only recently been established. Mrs Alexander however, has held a Class A Trainers License for many years and she has an unblemished record. The fact that the Respondents readily admitted the breach and cooperated with the RIU investigation are mitigating factors that we have taken into account.

[38] Earlier in this decision we alluded to the fact that the Respondents agreed to this matter being dealt with on the papers. The charge was originally scheduled to be heard at the Matamata Racecourse on the day COVID-19 restrictions came into force. It is therefore to their credit that the Respondents elected to have this matter dealt with expeditiously, thus saving the industry the costs that a hearing of this nature would ordinarily incur. For that, as well as what we perceive to be the extraordinary times currently being endured by the Respondents and the Racing Industry as a whole at this time it is incumbent on us to show some compassion and in the exercise of our discretion we therefore apply a further 20% discount from our $3,000 starting point.

[39] These are unprecedented times and in normal circumstances the discount is of no precedent value.

Decision

[40] In the final result we impose a fine of $2,400 to be shared equally between the Respondents.

[41] Pursuant to Rule 804(8) we direct that the unnamed (Dream Ahead – Our Josephina) 2-year-old Filly is disqualified from 1st place in Heat 22 of the Whakatane Racing Club Trials at the Te Teko on 11 February 2020.

Costs

[42] The B samples have not been tested and the RIU have made no application for costs. On that basis and due to the fact, this matter was determined ‘on the papers’ we make no order for JCA costs.

Dated at Auckland this 20th day of April 2020

G R Jones

Chair

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