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Non Raceday Inquiry RIU v S Lucock and S Gillespie - Penalty Decision dated 22 July 2018 - Chair, Mr G Jones

Created on 24 July 2018

NON RACEDAY INQUIRY RIU V S LUCOCK AND S GILLESPIE – PENALTY DECISION DATED 22 JULY 2018 - CHAIR, MR G JONES

BEFORE A JUDICIAL COMMITTEE

HELD AT AUCKLAND

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

BETWEEN Mr O Westerlund (Investigator for the Racing Integrity Unit)

Informant

AND

Mr S Lucock and Ms S Gillespie (Licensed Trainers)

Respondents

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

VENUE: Alexandra Park, Auckland

PRESENT: Mr O Westerlund (representing the Informant), Mr S Lucock and Ms S Gillespie (The Respondents)

DATE OF HEARING: 20 July 2018

DATE OF ORAL DECISION: 20 July 2018

DATE OF REASONS FOR DECISION and PENALTY: 22 July 2018

DECISION OF THE JUDICIAL COMMITTEE

The Charge

[1] The training partnership of Mr Scott Lucock and Ms Sally Gillespie (“the Respondents”) are holders of a Class ‘A’ Trainers Licence issued by New Zealand Thoroughbred Racing (NZTR).

[2] On Tuesday 15 May 2018 the horse MISS CAMPBELL who is trained by the Respondents started and finished in 3rd place in Heat 1 of the Avondale Jockey Club Trials held at the Avondale Racecourse.

[3] MISS CAMPBELL was randomly selected for a post-race swab and on analysis the sample was found to contain the Prohibited Substance Meloxicam.

[4] By way of memorandum dated 26 June 2018, Mr Godber, the General Manager: Racing Integrity Unit (RIU) authorised the filing of a charge against the Trainers, Mr Lucock and Ms Gillespie alleging a breach of Rule 804(2) of the Rules of Racing.

[5] The particulars of the charge are that:

On the 15th day of May 2018, at Avondale, being the registered trainers for the time being in charge of the horse MISS CAMPBELL, which was brought to the Avondale Jockey Club Trials held at the Avondale Racecourse for the purpose of engaging in, and did engage in Heat 1, conducted by the Avondale Jockey 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.

[6] Information number A8467 which sets out the particulars of the charge was served on the Respondents, on behalf of the Informant, by RIU Investigator Mr Westerlund on 2 July 2018.

[7] The Information has been endorsed by the Respondents “I do admit a breach of the rule.”

The Rule

[8] 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.

The Hearing and Preliminary Matters

[9] The charge was heard on Friday 20 July at Alexandra Park, Auckland.

[10] As a precursor to the hearing the Judicial Committee (“the Committee”) was provided with and perused all of the relevant Documents. These included

 Notice of appointment

 Signed Information No A8467

 Charge Rule and Penalty Provisions

 RIU letter of authorisation to lodge charge dated 26 June 2018

 RIU sample Identity Record 108251

 NZRLS Certificate of Analysis dated 29 May 2018

 RIU Summary of Facts

 RIU Penalty Submissions dated 2 July 2018

 Service of Information Confirmation dated 2 July 2018

[11] Both Respondents appeared in person and at the commencement of the hearing they confirmed receipt of the documents referred to above. They also confirmed their admission of the breach.

[12] The Respondents advised the Committee that they have read and fully accept the Summary of Facts and the Penalty Submissions filed by Mr Westerlund on behalf of the RIU.

Summary of Facts (Salient points)

[13] The training partnership of Scott Cregene Lucock and Sally Maree Gillespie are holders of a Class ‘A’ Trainers Licence issued by New Zealand Thoroughbred Racing (NZTR).

[14] On Tuesday 15 May 2018 the horse MISS CAMPBELL, a 4 year old mare, was correctly entered and started in Heat 1 of the Avondale Jockey Club Trials at the Avondale Racecourse. MISS CAMPBELL finished 3rd of the four starters in the trial.

[15] MISS CAMPBELL was randomly selected for a post-race swab. The horse was accompanied by Mr Lucock. A blood sample was obtained approximately 10 minutes after the trial commenced at 10.30am.

[16] Both Mr Lucock and the RIU Veterinarian Dr Jordana Del La Varis reported that there were no difficulties or irregularities with the collection of the blood from the horse MISS CAMPBELL.

[17] 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.

[18] On 29 May 2018, 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 MISS CAMPBELL had been analysed and contained the Prohibited Substance Meloxicam.

[19] Meloxicam is a nonsteroidal anti-inflammatory drug commonly used to treat short term pain and fever in horses and has a withholding period of 4.2 days.

[20] Meloxicam is 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.

[21] On Wednesday 6 June 2018 Mr Lucock and Ms Gillespie were interviewed at their stable.

[22] They both stated that the horse MISS CAMPBELL has joint issues and that they monitor her condition. They have used Meloxicam on their horses for a long time because it is a lot kinder on their stomachs.

[23] They are both well aware of the withholding period for Meloxicam.

[24] Ms Gillespie stated that she cannot recall if she gave MISS CAMPBELL the dose except that it was just an error on her part.

[25] Mr Lucock stated that he cannot recall giving MISS CAMPBELL the dose and if he did it was an honest mistake and it was not deliberate.

[26] A search of the locked medicine cabinet at the stables located 3 x jars of Meloxicam 230ml - Oral Paste for Horses. Also located was the diary that recorded the day to day activities of all the race horses. There was no entry showing that Meloxicam was given to the horse MISS CAMPBELL before it trialled.
[27] Mr Lucock has been training for 32 years in New Zealand and has not previously appeared. Ms GILLESPIE has been training for 30 years in New Zealand and has not previously appeared.

Note

[28] Prior to Mr Lucock and Ms Gillespie providing a response to the Committee, Mr Westerlund highlighted the fact that the Respondents have been very cooperative throughout the investigation progress.

The Respondents Response

[29] In their opening remarks the Respondents said they were a “couple of battling horse trainers who always take pride in their professionalism”. They both said they are extremely embarrassed and remorseful by the charge against them.

[30] Mr Lucock told the Committee they regularly use Meloxicam, as opposed to other substances which tend to be harsher on their horses.

[31] Having reflected on the positive result during the passage of time between their interviews with Mr Westerlund and now, the Respondents believe that they would have used Meloxicam on MISS CAMPBELL on the Saturday morning preceding the trial (Tuesday). They accepted this was an error and they simply overlooked the withholding period.

[32] The Respondents added that they had nothing to gain by deliberately trying to improve MISS CAMPBELL’s performance as she is a 4-year-old mare with limited residual value.

RIU Penalty Submissions

The written submission of the RIU are summarised as follows:

[33] The RIU submit they are seeking a monetary fine of $3000.

Offending

[34] The Respondents train in partnership and are Licensed Class ‘A’ Trainers under the New Zealand Rules of Thoroughbred Racing.

[35] Mr Lucock and Ms Gillespie have admitted a charge of entering, presenting and racing a horse in a trial at the Avondale Jockey Club Trials, within its body a Prohibited Substance namely Meloxicam.

[36] The circumstances are detailed in the summary of facts which have been agreed to by the Respondents.

Sentencing Principle

[37] The RIU submits four principles of sentencing which are summarised as follows:

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.

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

3) A penalty should also reflect the disapproval of the JCA for the type of offending in question.

4) The need to rehabilitate the offender should be taken into account.

[38] The first three principles have relevance in this matter.

Precedent Cases

[39] The RIU submit the following precedent cases for the consideration of the Committee.

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.

RIU 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.

RIU 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 disqualified.

Mitigating Factors

[40] The RIU submit the following mitigating factors for the consideration of the Committee.

a. That the Respondents have admitted the breach at the first opportunity.

b. That the Respondents have been fully co-operative throughout the process.

c. That the Respondents have been involved in the racing industry for a combined period of sixty two years.

d. That the Respondents have a blemish free record of offending against or breaching the rules of Racing.

e. That this is not a situation where the drug in this case ‘Meloxicam’ was given to enhance performance. This is a case where Mr Lucock and Ms Gillespie have made an error of judgement.

f. That although careless in their actions Mr Lucock and Ms Gillespie have acted without intent and have made a regrettable mistake.

Aggravating factors

[41] The RIU submit the following as an aggravating factor for the consideration of the Committee.

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

Conclusion

[42] The 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.

[43] None of the ‘B’ samples have been tested and the RIU is seeking no costs.

[44] An order for the disqualification of the horse ‘Miss Campbell’ from the trial is sought pursuant to Rule 804(8).

Respondents Penalty Submissions

[45] The Respondents provided the Committee with detailed information regarding their personal circumstances which included the necessity for them to work extremely long hours to make ends meet. In addition, their two vehicles have recently broken down causing not only considerable inconvenience, but also financial hardship.

[46] The Respondents advised they have 14 horses on their books with 5 currently spelling. They intend to hand in their Trainers License at the end of the current racing season (31 July 2018) and will be taking up new positions in a training establishment based in Matamata.

[47] In finalising their submissions the Respondents advised they deeply regretted the breach and showed genuine remorse.

[48] The Respondents presented a reference from fellow Horse Trainer Mr L Reid. He advised that he has known the Respondents for over 10 years and was highly complimentary about their professionalism and care for their horses. Mr Reid said that their attention to detail was extraordinary. Mr Reid verified that during the past few months they have worked long hours and have had transport problems which he believes may have contributed to their current situation.

Penalty

[49] 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

[50] In our determination of an appropriate penalty the Committee fully considered all of the relevant facts as well as the submissions lodged by the Informant and Respondents. The Committee’s decision making framework was guided by the JCA Penalty Guidelines and precedent cases. We applied those to the circumstances of this case and our assessment of the Respondents’ respective culpability as well as their personal circumstances.

[51] The JCA Guidelines establish a starting point of $8000 fine for a first breach of this rule. In relation to fixing a starting point we have taken guidance from the decision of the Appeals Tribunal R DUNN and J DUNN v RIU, dated 1 June 2018, notwithstanding the various points of difference between that case and this one. For example DUNN and DUNN was a Harness Racing NZ decision involving four horses and the issue of starting point discount was applied having regard to the totality principle.

[52] In DUNN and DUNN the Tribunal adopted a $6000 starting point and applied a third discount. The precedent cases, notably RIU v L HALL (19.08.17), RIU v G F BRICK (15.09.16) and RIU v M FRASER-CAMPIN and C CAMPIN (1.04.16) all closely match the circumstances of this case in that they relate to presentation offences detected during trials, as opposed to raceday. The prohibited substance detected in HALL was Meloxicam, whereas the prohibited substance detected in BRICK and FRASER-CAMPIN and CAMPIN was Phenylbutazone and Oxyphenbutazone. Each of those cases resulted in a $3000 fine and the horses concerned disqualified.

[53] The Respondents acknowledged they have used Meloxicam on their horses for a long time because “it is a lot kinder on their stomachs”. They are also well aware of the required withholding period. When first interviewed by the RIU Investigator, neither could recall using Meloxicam on MISS CAMPBELL proximate to the trial date. However, they subsequently realised they used the substance on the Saturday prior to the trial.

[54] The stable diary notes do not record the fact the substance was applied on the Saturday concerned, but other entries do corroborate regular use of Meloxicam on MISS CAMPBELL. The Respondents advise this was an oversight and perhaps a symptom of their current situation.

[55] The Respondents accept using the substance was an honest mistake on their part. There is no evidence before the Committee to the contrary nor is there any suggestion of aberrant behaviour. Accordingly we accept that this breach is the result of nothing more than an honest mistake.

[56] Whilst it is never acceptable to present a horse to race at trials or on raceday with a prohibited substance we assess this breach to be at the low end. On that basis we have adopted a starting point of $6000 and applied a $2000 discount, thus arriving at $4000.

[57] We have had due regard for and agree with the mitigating factors highlighted by the RIU in their submissions; namely:

 The Respondents’ admission of the breach and their full cooperation with the investigation

 The Respondents’ unblemished record after a combined 62 years industry participation

[58] 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 it was an error of judgement. We earlier alluded to the fact that this breach occurred at a trial meeting as opposed to raceday. We are well aware that a good performance at a trial could result in lucrative overseas interest. Given the circumstances of this case, i.e. in finishing 3rd in the 4 horse trial, we are satisfied its performance was not artificially enhanced nor was there any intent to deceive.

[59] We also had due regard for the Respondents’ submissions, namely:

 Their personal circumstances

 Their exemplary record

 Their genuine contrition; and

 The complimentary comments from Mr L Reid.

[60] In DUNN and DUNN the Tribunal determined that “In considering an appropriate allowance for mitigation the Tribunal considers that there might properly have been greater recognition of the position arrived at by the RIU and the Dunns’ advisors, Dr Molloy and Mr Dale. The extent to which the Appellants cooperated with RIU and the extent to which the RIU endeavoured to follow up the Appellants’ concerns is a situation for which both parties should receive recognition. That level of cooperation is seen all too infrequently within harness racing and the other two codes over which the JCA has authority. An appropriate figure to measure mitigation in the circumstances outlined would have been 40 per cent”.

[61] Therefore, in consideration of the relevant mitigating factors specific to this case we believe a further 30% is appropriate. This is slightly less than the 40% applied in DUNN and DUNN and that is because of the somewhat different circumstances between the two cases. Applying this formula to our $4000 starting point we arrive at a further $1200 discount. This is $200 less that the fine submitted by the RIU and $200 less than the precedent cases referred to. It does however accord with the principles established by the DUNN and DUNN Appeal Decision and the circumstances of this case.

[62] We assess each of the respondents as being equally culpable with each liable to a 50% share of the fine.

Decision

[63] We impose a fine of $2800 to be shared equally between each of the Respondents, namely; Mr Lucock’s share is $1400 and Ms Gillespie’s share is $1400.

[64] Pursuant to Rule 804 (8) we direct that MISS CAMPBELL is disqualified from Heat 1 of the trial run at the Avondale Jockey Club on Tuesday 15 May 2018.

[65] No costs were sought from the RIU and this matter was heard on a raceday. On that basis we make no order for costs.

G R Jones

Chair

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