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Non-Raceday Inquiry - TS Chmiel



1004.1
1004.1.2
1004.7.a

The defendant is charged with one breach of Rule 1004(1), (2) and (4) of the Rules of Harness Racing.  The charge (Information 67201) preferred by Racecourse Inspector Kitto

DECISION OF THE JUDICIAL COMMITTEE

 

The defendant is charged with one breach of Rule 1004(1), (2) and (4) of the Rules of Harness Racing.  The charge (Information 67201) preferred by Racecourse Inspector Kitto reads as follows –

 

          “I, the above named informant allege that the above named Defendant

committed a breach of Rule 1004(1),(2) and (4) in that Terence Siegfried CHMIEL, being the Trainer of the Registered Standardbred horse “VC AND BAR” on the 25th day of January 2008,  did take the said horse to a racecourse, namely Addington Racecourse  for the purpose of engaging in a race, namely, Race 3, “THE EUREKA TRUST MOBILE PACE” held by the New Zealand Metropolitan Trotting Club, and did fail to present the horse free of prohibited substances, namely, Caffeine, Theobromine, Paraxanthine and Theophylline.”

 

Rule 1004(1)(2) and (4) Penalty provision 1004 (7)(a)(b), (8) and 1004D.”

 

          The Rules referred to above, which come under the Prohibited Substance Rule, read as follows –

 

          “(1) A horse shall be presented for a race free of prohibited substances.

 

(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose

of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.

 

(4) A breach of these rules under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.”

 

Mr Chmiel had previously indicated that he admitted this breach of the Rules,

and he confirmed this at the hearing.

 

Mr Kitto produced written authority from the General Manager of Harness Racing New Zealand (“HRNZ”) to file this Information.

 

Summary of Facts:  

 

Mr Kitto presented a “Summary of Facts” which is attached to this decision.  “VC And Bar” was correctly entered for and started in Race 3, the Eureka Trust Mobile Pace, at the New Zealand Metropolitan Trotting Club’s meeting on 25 January 2008. The horse finished second winning a stake of $1865-00.  “VC And Bar” was swabbed after the race and on analysis tested positive to caffeine, theobromine, paraxanthine and theophylline, which are prohibited substances as set out in the “Prohibited Substance” Regulation.

 

Mr Chmiel was interviewed about this matter and was at a loss to explain the positive swab.  An inspection of the training property revealed that Mr Chmiel and Mr B. Buchanan train from the same property.  They have separate gear rooms, but they shared the same feed room which was a converted steel container.

 

An examination of this area located a 10 litre container of “Blue Tonic” in the tea room with a 21 day withholding time warning on it.  It was established that this belonged to Mr Buchanan and had been purchased through a Veterinarian.  Mr Buchanan said that he had not used “Blue Tonic” for quite some time, and Mr Chmiel said that he had never used it.  It was surmised that Mr Chmiel had used a feed bucket which had previously had “Blue Tonic” in it, and it was accepted by HRNZ that this incident occurred because Mr Chmiel and Mr Buchanan did not have separate feed rooms.

 

          A later analysis of “Blue Tonic” revealed that it contained both caffeine and etamiphylline, and it is presumed that this is where the prohibited substances detected in “VC And Bar’s” positive swab came from.

 

          Mr Chmiel did not dispute the Summary of Facts.

 

Submissions on Penalty: 

 

Mr Kitto’s written submissions on penalty are also attached to this decision.  Rule 1004(7)(a), (b), and (8) of the New Zealand Rules of Harness Racing provide for the following penalties in this case.

 

“(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

(a) a fine not exceeding $10,000;  and/or

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

 

(8)             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.”

 

Mr Kitto advised that Mr Chmiel has no previous convictions and has a reputation for honesty and integrity.  HRNZ believed that this matter could be dealt with by means of a monetary penalty.

 

It was also established that Mr Chmiel was married with a young family, and that he was a professional trainer and horseman.

 

Mr Chmiel said that he would prefer a fine, and that his belief was that it should be in line with a fine imposed on Mr M. House, which he believed was $500-00.  Mr Kitto said that his recollection was that the fine in this case was $2000-00.

 

Decision on Penalty:

 

There have been a number of appeal cases dealing with drug administration charges, and some of these are Coulson (1993) Racing Appeal Reports 605,       Nicholson (1994) Racing Appeal Reports 943 and Lamb (1998) Racing Appeal Reports. These cases have all stated words to the effect that there is nothing that is more likely to bring down the integrity of the racing industry generally than the fact that horses perform at meetings when they have been administered, whether innocently or for some ulterior motive, a prohibited substance.

 

          When considering an appropriate penalty in this case we have looked at penalties imposed in other similar cases, and we list these as follows.  In all listed cases the administration was found to be accidental. 

 

NZTR v. Wenn (2007), a fine of $4000-00 – (Heptaminol).

 

HRNZ v. Price  (2007), a fine of $2500-00 confirmed on appeal – (Heptaminol).

 

HRNZ v. Law (2006), a fine of $2000-00 – (Heptaminol).  This was a case where it was deemed there were exceptional personal circumstances warranting a lower than usual fine.

 

HRNZ v. B. Kerr (2005) a fine of $4000-00 – (3 –Hydroxylignicaine).

 

HRNZ v. Clementson (2001) a fine of $2250-00 – (Caffeine).

 

HRNZ v. House (1999) a fine of $2000-00 – (Caffeine)

 

          The fines imposed in the Clementson and House cases were some time ago, and the penalties imposed in the other four cases listed above give a more realistic indication of the range of fines for a breach of this Rule.

 

Taking all the above matters into account we are satisfied that a fine of between $3000-00 and $4000-00 would, in normal circumstances, be appropriate in this case.

There are no aggravating factors in this case.  To his credit we take into account Mr Chmiel’s early guilty plea, his co-operation during the investigation, and his good character.

 

For all the above reasons we have decided that Mr Chmiel will be fined the sum of $3000-00.

 

Costs: 

 

Mr Kitto advised that no costs were being sought by HRNZ as this matter was heard on a race night.  For this same reason no costs are being sought by the JCA.  There will be no order for costs.

 

Disqualification:   

 

Rule 1004D of the New Zealand Rules of Harness Racing provides as follows.

 

“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.”

 

Accordingly it is mandatory to disqualify “VC And Bar” from its 2nd place in the race.  “VC And Bar” is therefore disqualified from 2nd place in the Eureka Trust Mobile Pace at the New Zealand Metropolitan Trotting Club’s meeting on 25 January 2008 and the stake money is to be refunded to HRNZ and paid according to the amended places.  The amended places are as follows.

 

1st  Our Jane (11)

          2ndSuzys Delight (6)

          3rd  Woodlea Jem (2)

          4th  Bigtime Blue Jean (9)             

          5th  Hint Of A Tint (1)

          6th  Village Ike (5)

 

 

 

­­_____________

J.  M. Phelan

Chairman. 

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