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Non Raceday Inquiry - HRNZ v TW Mitchell - 29 July 2010 - Decision

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1004(1) and (3)

NON-RACEDAY JUDICIAL COMMITTEE DECISION

 

 

Informant: Thomas Rodney Carmichael – Chief Racecourse Inspector

Defendant: Todd William Mitchell – Public Trainer

Information: 6879

Meeting: Auckland Trotting Club

Date: 7th May 2010

Venue: Alexandra Park Raceway

Race: 5

Rule No: 1004 (1) and (3) – Penalty provisions 1004 (7) and (8)

Judicial Committee:  B. Rowe, Chairman – B. Scott, Committee Member

Plea:   Admitted

Hearing: Cambridge Raceway 29th July 2010

Also Present: Mr R. Lawson, Lay Advocate, representing Mr Mitchell.

 

 

CHARGE(S):

On the 7th day of May 2010 at Alexandra Park, Todd William Mitchell was the person for the time being in charge of the horse VI ET ANIMO which had been presented to race in the Dawson Harford New Zealand Messenger Championship at a race meeting conducted by the Auckland Trotting Club when a pre-race blood sample taken from VI ET ANIMO was found upon analysis to have a TC02 level of 37.2 mmol/L. 

 

FACTS:

Mr Carmichael produced a letter from the General Manager of Harness Racing New Zealand (HRNZ) authorising the filing of the information.  He also produced a summary of facts.  He said Mr Mitchell was a public trainer and an open horseman and was the person in charge of/caretaker trainer of VI ET ANIMO from about the 8th April 2010 due to the ill health of the usual trainer Mr G. Shirley.  He said VI ET ANIMO was correctly entered for and started in the Group 1 Dawson Harford Messenger Championship at the Auckland Trotting Club’s meeting on the 7th May 2010, was 7/7 in the betting and finished unplaced. A pre-race blood sample was taken from the horse.  The sample was taken, processed and analysed in accordance with HRNZ protocols.  The analysis showed a TC02 level of 37.2 millimoles per litre in plasma.  He said the maximum allowable level under the rules is 36.2 mmol/L.

 

Mr Lawson presented written submissions. He accepted the summary of facts presented by Mr Carmichael. He said VI ET ANIMO had performed well below expectations in the race in question. The horse was scoped by Mr Mitchell’s veterinary surgeon on Tuesday 11th May and found to have an upper respiratory infection. Antibiotics were prescribed. Mr Lawson said VI ET ANIMO had probably been in ill health for some days prior to 11th May. Mr Lawson said TCO2 testing is often considered to be an inexact science and he suggested it was not unreasonable to conclude that the elevated TCO2 level was in some way due to the ill health of the horse.

 

SUBMISSION(S) ON PENALTY:

Mr Carmichael referred to the relevant penalties provided in Rule 1004(7) namely a fine not exceeding $10,000.00 and/or disqualification or suspension from holding or obtaining a licence for a period not exceeding five years.  He applied for the disqualification of VI ET ANIMO pursuant to Rule 1004(8) – disqualification being mandatory given the admitted breaches of Rules 1004 (1) and (3).  Mr Carmichael referred the Committee to the standard submission of HRNZ in a case such as this, namely “where the level was between 36.3 mmol/L and 37.2 mmol/L, and the person charged with the breach promptly admitted the charge and has a good record, the case can appropriately be dealt with, after giving credit for all mitigating factors, by a fine of not less than $500”.  He said that there was no corroborative evidence that Mr Mitchell administered or caused to be administered anything other than normal feed to VI ET ANIMO on the morning of the races.  He said that Mr Mitchell had co-operated fully during the course of the investigation and consented to the matter being determined by the JCA on a raceday thus eliminating costs to the industry and himself.  Mr Carmichael also referred to the JCA penalty guidelines, the Group 1 status of the race and the provisions of rule 1114 (2) (a) which entitles a Judicial Committee to take the status of the race into account when determining penalty.  He submitted the mid point for penalty should be a fine of $750.00.  He made no application for costs. 

 

Mr Lawson said there were no aggravating factors but several mitigating factors, namely, the early admission of the breach, the full co-operation of Mr Mitchell, it was Mr Mitchell’s first breach of the drug rules and that VI ET ANIMO was a sick horse.  He did not dispute the relevance of rule 1114 (2) (a). He submitted a fine in the range $500 - $750 was appropriate. He accepted VI ET ANIMO had to be disqualified.

 

REASON(S):

In fixing penalty the committee takes into account the early admission of the breach, the submissions of Mr Carmichael and Mr Lawson and Mr Mitchell’s clear record in relation to the drug rules. Mr Lawson submitted the respiratory infection VI ET ANIMO was found to be suffering from on 11th May may have contributed to the elevated TCO2 level.

 

Mr Carmichael said there was no scientific data to confirm or refute the proposition that such an infection could affect the TCO2 level. In addition of course no expert evidence was put before the committee to establish that VI ET ANIMO had the respiratory condition at the time of the race in question.  We therefore place no weight on this submission.

 

The committee considers the relevant JCA guidelines on penalty to have in effect been superceded by the more appropriate HRNZ policy of the starting point penalty being based on the TCO2 level involved. However that policy does not take into account the status of the race. The committee accepts that if this was not a “status race” Mr Mitchell meets the criteria for a fine of not less than $500. The race in question was of Group 1 status. The importance of horses racing drug free cannot be over-emphasised.  It is particularly important in status races because of the stake money involved, the potential effect on the value of horses placed in such races and also because breaches of the drug rules in such races invariably attracts greater media attention resulting in adverse affects on the public perception of the integrity of harness racing.

 

For those reasons the committee takes into account the provisions of rule 1114 (2) (a) – the status of the race – and accordingly considers the appropriate starting point for penalty in this case should be a fine of not less than $800. This approach is consistent with that taken in the case HRNZ v S which involved races of Group 1 status.

 

PENALTY:

Balancing all of the above matters and with emphasis on the Group 1 status of the race, a fine of $800 is    imposed. VI ET ANIMO is disqualified from the race pursuant to the mandatory provisions of rule 1004 (8). Mr Mitchell is ordered to pay costs of $250 to the JCA as a contribution to the costs involved in the hearing.   

 

 

 

B. Rowe                                                                     B. Scott

CHAIRMAN                                                                COMMITTEE MEMBER

6879

 

 

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