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Non-Raceday Inquiry - MP Daly



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Information No 62105 has been laid by Racecourse Inspector Mr R. D. Scott, and alleges a breach of Rule 1004(2) of the Rules of Racing by the defendant, Licensed Trainer Mr M. P. Daly.

JUDICIAL COMMITTEE'S DECISION ON PENALTY AND COSTS

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Information No 62105 has been laid by Racecourse Inspector Mr R. D. Scott, and alleges a breach of Rule 1004(2) of the Rules of Racing by the defendant, Licensed Trainer Mr M. P. Daly.  The charge reads as follows.

 

“I, the abovenamed informant allege that the abovenamed Defendant committed a breach of Rule 1004(2) IN THAT the horse Belmont Cat was brought to the Racecourse at Riccarton for the purpose of engaging in the New Zealand Bloodstock Air Freight Listed Stakes Race at the meeting of Canterbury Racing on Saturday the 19 April 2008, (in which said race such horse started) AND THAT such horse had had administered to it a prohibited substance, namely Phenylbutazone and Oxyphenbutazone, capable of affecting its speed, stamina, courage or conduct in breach of Rule 1004(2) AND THAT you were the Trainer of the horse  AND THAT by virtue thereof you are liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1004(3) of the New Zealand Rules of Racing unless you satisfy the Committee that you had taken all proper precautions to prevent the administration of such prohibited substance.”

Rule 1004(2) provides as follows.

 

“(2)    When a horse which has been brought to any racecourse or similar racing facility for the purpose of engaging in any race or trial to which the Fifth Appendix hereto applies is found by any tribunal conducting an enquiry to have had administered to it or have had present in its metabolism any prohibited substance, capable of affecting its speed, stamina, courage or conduct, the Trainer and any other person  who in the opinion of any Tribunal conducting an inquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfied the Tribunal that he had taken all proper precautions to prevent the administration or presence of such prohibited substance.”

 

Chief Racecourse Inspector Mr J. W. McKenzie represented New Zealand Thoroughbred Racing (”NZTR”) at this hearing, and he produced an authority to prosecute from the Chief Executive of NZTR.

 

At the start of the hearing Mr Daly confirmed that he admitted this breach of the Rules, and he also agreed that he understood the charge and the Rule it was brought under.

 

Mr McKenzie presented and read a “Summary of Facts” relating to this charge,

and this is attached to this decision. 

 

          “Belmont Cat” was entered for and started in the New Zealand Bloodstock Air Freight Stakes at Canterbury Racing’s meeting at Riccarton Park on 19 April 2008.

The horse finished 2nd in the race earning stake money of $10,000-00.  In line with NZTR’s policy the first three horses in the race were routinely swabbed.

 

          On 30 April 2008 the NZTR official Racing Analyst issued a certificate of analysis stating that the urine sample taken from “Belmont Cat” had tested positive for phenylbutazone and its metabolite oxyphenbutazone, which is a prohibited substance as defined in the New Zealand Rules of Racing.

 

          On 1 May 2008 Mr Scott and Racecourse Inspector Mr B. McKenzie interviewed Mr Daly at his stables in Timaru.  A full written statement was obtained from Mr Daly who was shocked by the news of the positive test.  Mr Daly said that there was “bute” at his stables, but that he had not administered it to any of his horses for a considerable time to his knowledge.  An inspection of the stables located four empty sachets of “bute” and six unopened sachets.  A partly used syringe of “bute” paste was also located.

 

          During the investigations both Mr Daly and part owner (and Veterinarian) Ms Williamson strenuously denied that “Belmont Cat” had been treated with “bute” in recent times, and also were quite clear that this horse was in good health and had no need for any medication.  The Racecourse Inspectors did however find that the state and condition of the containment of substances on a table in the stables was unacceptable, and also that there was no evidence of any security or controls in place with regards to the storage of medications and substances at the stables.

 

          Mr Daly, Ms Williamson and Mr Mayne agreed that the Summary of Facts was accurate.  On behalf of Mr Daly the co-owners present at the hearing (Ms Williamson and Mr Mayne) said that he was honest and reliable and that they continued to support him.  They did not believe that Mr Daly had done anything deliberate to cause the positive test.

 

Submissions on Penalty: 

 

Mr McKenzie presented and read submissions on penalty, and a copy of these submissions are also attached to this decision.

 

 

It was clear that Mr Daly had no previous convictions for a breach of this Rule, and that he co-operated fully with the Racecourse Inspectors when they made their enquiries.  We also need to take into account that this was a listed race for a stake of $55,000-00.

 

Mr McKenzie provided helpful information about previous penalties imposed under this Rule and its predecessor.  In particular Mr McKenzie mentioned the very recent case of NZTR v. I where the facts were very similar to this case.  In that case Mr I had been fined $4,500-00, which is what Mr McKenzie recommended as the appropriate penalty in this case.

 

Mr Daly had little to say regarding penalty, except that he thought that the amount of the fine recommended was harsh.

 

Decision as to Penalty:

 

          The penalty provisions in relation to a breach of Rule 1004(2) are contained in Rule 1004(3) which provides as follows.

 

          “(3) Every person who commits a breach of sub-Rule (2) or (2A) or (2B)

or (2C) shall be liable to:

(a) Disqualification for a period not exceeding five years; or

(b) Suspension from holding or obtaining a licence, permit, certificate or registration for a period not exceeding five years.  If a licence, permit, certificate or registration is renewed during a term of suspension,

then the suspension shall continue to apply to the renewed licence, permit,

certificate or registration; and/or

(c) A fine not exceeding $15,000.”

 

          It is of great concern to the racing industry that horses compete when they have prohibited substances in their systems.  The reasons for this is obvious, and in HRNZ v.  S(2005) the Appeals Tribunal [in relation to the administration of a prohibited substance] quoted with approval the following statement made by the Judicial Committee.

 

“It is serious because it is detrimental to the image of the industry and has the very real potential to affect the confidence of the public that supports harness racing by investing on the outcome of races. It is therefore in the best interests of the industry that Judicial Committees, in imposing penalties, ensure that the confidence of the betting public is maintained. In addition, there needs to be a “level playing field” on which all competitors can compete on a fair and equal footing, with no competitor having any unfair advantage over its rivals as the result of having a prohibited substance in its system.  These principles have been widely reported in previous cases.”

Although the HRNZ v S case was more serious than the present case (it involved administering a prohibited substance) the effects on the racing industry are basically the same.

          Mr McKenzie reminded us of the four principles of sentencing that should be followed in a case such as this.  These principles are as follows.

 

-         Firstly the penalty imposed must punish the offender for his wrongdoing. 

There is a need to maintain integrity and public confidence in racing and to this end the sentence must be a realistic punishment but not excessively retributive.

 

-    Secondly the sentence must deter other persons in the racing industry from committing like offences.  Put in another way persons involved in the racing industry should be given a clear signal that offending in this way will not be tolerated.  The penalty must deter the person charged from re-offending and it must also deter others.

 

-         Thirdly there is a preventative element in the sentence in those cases where

the defendant is effectively prevented from offending by the imposition of a suspension of his or her licence or through disqualification.

 

-    Finally there is the rehabilitation of the defendant.  The aim of imposing an

appropriate sentence is to induce the defendant to abide by the rules in the future.  The relevance of attempting to rehabilitate the defendant depends largely on his or her history of offending.  That is to say a repeat offender would not receive the same consideration as a first offender.

 

          To apply the above principles to Mr Daly we make the following findings.  We agree that the penalty imposed must be seen to punish, and must also be a deterrent to others. 

 

In this case Mr Daly has no history of offending and the preventative element is therefore not relevant.  As to the rehabilitation of Mr Daly it has been quite clear to us that he has received quite a shock because of this incident, and he and his co-owners recognise that the security of the substances at the stables was not up to standard.  We do not believe that the rehabilitation of Mr Daly is a major factor that needs to be taken into account when making our decision on penalty.

 

          In determining an appropriate penalty we have taken into account the following matters which are to Mr Daly’s credit.

 

1.                 He has a clear record.

2.                 He admitted the breach.

3.                 He co-operated fully in the enquiry.

4.                 He has accepted that his security at the stables was not up to standard.

 

The main aggravating feature in this case is that it was acknowledged by Mr

Daly that the state and condition of the containment of substances in the stables was unacceptable.  We also take into account (Rule 1122(2)) the status of the race and the stake payable.

 

          Taking all the above matters into account we have decided that Mr Daly will be fined the sum of $4,500-00.  This is in line with the penalty imposed in the NZTR v I case.

 

Request For a Ruling:

 

          Information No. 41752 has been laid by Racecourse Inspector Mr R. D. Scott seeking the disqualification of “Belmont Cat”.  The Information reads as follows.

 

“I the abovenamed informant hereby apply to the judicial committee and seek a ruling on the following matters:  THAT the horse Belmont Cat was brought to the Racecourse at Riccarton and started in the New Zealand Bloodstock Air Freight Listed Stakes race at the meeting of Canterbury Racing on Saturday the 19 April 2008, AND THAT such horse had had administered to it a prohibited substance, namely Phenylbutazone and Oxyphenbutazone capable of affecting its speed, stamina, courage or conduct AND THAT by virtue thereof and of the provisions of Rule 1004(1) of the New Zealand Rules of Racing the said horse shall be disqualified from the said race.”

 

Rule 1004(1) provides as follows.

 

“(1) Any horse which has been brought to any racecourse or similar racing facility and which is found by any tribunal conducting an inquiry to have had administered to it or have had present in its metabolism any prohibited substance, capable of affecting its speed, stamina, courage or conduct shall be disqualified for any race or trial to which the Fifth Appendix hereto applies in which it has started on that day.”

 

Mr McKenzie sought the disqualification of “Belmont Cat” under the provisions

of this Rule.  This matter was discussed between all parties and there was agreement that the disqualification of “Belmont Cat” was mandatory.  Accordingly “Belmont Cat” is disqualified from 2nd placing in the New Zealand Bloodstock Air Freight Listed Stakes race at the meeting of Canterbury Racing held on Saturday 19 April 2008.  The amended places are now as follows.

 

1st  The Pearler (11)

2ndDream By Day (5)

3rd  Anzali (1)

4th  Copy Book (4)

5th  Fleur De’Here (6)

6th  Catching Pigeons (3)

7th  Our Lily Belle (9)

8th  Thimble (12)

9th  Summer Heights (10)

 

The $10,000-00 stake payable in respect of “Belmont Cat” is to be recovered by NZTR and is to be dealt with in accordance with Rule 1109.

 

Costs: 

 

Mr McKenzie advised that costs of $1,500-00 were being sought, and there will be an order that Mr Daly pay costs of $1,500-00 to NZTR.  There will also be an order that Mr Daly pay costs of $250-00 to the JCA.

 

 

 

_______________                    

J.      M. Phelan                            

Chairman                          

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