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Non Raceday Inquiry - NZTR v JG Sargent - 28 October 2010 - Decision

Created on 16 November 2010

Rules:
804(2)
Information Number:
61911
Informant
Mr R D Scott
Repondent(s)/Other parties:
Mr J G Sargent
Name(s):
Mr JW McKenzie, representing NZTR, Mr BF McKenzie, Registrar
Decision:

 

Mr Sargent appeared before the Committee to answer a charge filed against him by Racecourse Inspector Mr RD Scott such charge being pursuant to Rule 804(2) of the New Zealand Rules of Racing and being lodged by Mr Scott under Information number 61911.
 
The charge read as follows:
 
“That the horse KIWI HUSSLER was brought to the Racecourse at Ashburton for the purpose of engaging in the Champion 2YO Edenwold At Berkley Stud Handicap 1400 Rating 75 race at the meeting of the Ashburton Racing Club on Friday 3 September 2010, (in which said race such horse started) AND THAT KIWI HUSSLER had had administered to it a prohibited substance, namely 3-Hydroxylignocaine, capable of affecting its speed, stamina, courage or conduct in breach of Rule 804(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 804(6) 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 804(2) states:
 
“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, capable of affecting its speed, stamina, courage or conduct, 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 unless he satisfies the Tribunal that he had taken all proper precautions to prevent the administration or presence of such Prohibited Substance.”
 
Rule 804(6) states:
 
“A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) 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 $25,000.00.
 
Mr Scott also lodged pursuant to Information no: 41754 a Request for a Ruling as follows:
 
“That the horse KIWI HUSSLER was brought to the Racecourse at Ashburton and started in the Champion 2YO Edenwold at Berkley Stud Handicap 1400 Rated 75 race at the meeting of the Ashburton Racing Club on Friday 3 September 2010 AND THAT such horse had had administered to it a prohibited substance, namely 3-Hydroxylignocaine, capable of affecting its speed, stamina, courage or conduct AND THAT by virtue thereof and of the provisions of Rule 804(7) of the New Zealand Rules of Racing the said horse shall be disqualified from the said race”.
 
Rule 804(7) states:
 
“Any horse connected with a breach of sub-Rule (2) or (3) or (4) or (5) of this Rule shall be, in addition to any other penalty which may be imposed, disqualified from any Race or trial to which the Third Appendix hereto applies and/or be liable to a period of disqualification not exceeding five years.”
 
Mr Sargent was present and acknowledged that he had been served with the charge and at the time of service was also provided with copies of both of the above Rules and a notification of the time and date of Hearing.
 
Mr Sargent also advised this Committee that he admitted the charge but that in doing so he did not admit to any administration of a prohibited substance to KIWI HUSSLER by himself or his staff.
 
Mr Sargent as the administrator of the owners of KIWI HUSSLER acknowledged service of the Information Request for a Ruling and advised this Committee that he represented the owners of the horse.
 
Mr John McKenzie advised the Committee that although Racecourse Inspector Mr Robin Scott was the Informant that at this Hearing he was representing NZTR.
 
 
SUMMARY OF FACTS presented by Mr J McKenzie:
 
1.         Mr McKenzie presented to this Committee the appropriate Authority from NZ Thoroughbred Racing Inc to proceed with the charge against Mr Sargent and to request a Ruling that the horse KIWI HUSSLER be disqualified from the Race in question.
 
2.         KIWI HUSSLER is a 5 yr bay gelding which is trained by Licensed Trainer Jonathon (Jon) Sargent.   Mr Sargent holds a Class A Trainers License.   Mr Sargent operates two training venues, his home stable is at Matamata and as from the 15 August 2010 he has had a satellite stable based at Riccarton Racecourse.   Mr Andrew Carston is the stable foreperson at Christchurch for Mr Sargent.
 
3.         The horse has ten (10) owners and the registered racing Administrator is Mr Sargent.   A copy of the NZTR ownership records were produced to the Committee and acknowledged by Mr Sargent.
 
4.         KIWI HUSSLER was started in the Champion 2YO Edenwold at Berkley Stud Handicap 1400 Rating 75, Race 7, carded horse No. 9 at Ashburton Races on Friday 3 September 2010.
 
5.         KIWI HUSSLER won the race.   NZTR race result records were produced to this Committee.
 
6.         KIWI HUSSLER was selected for a routine swab, and was accompanied to the swab box by Mr Andrew Carston.
 
7.         The swabbing was carried out in accordance with the directives of NZTR with the collection of the urine sample and the relevant documentation attended to before the sealing of the samples for dispatch to New Zealand Racing Laboratory Services, at the end of the day, together with the other horses’ samples that had been collected during the day’s racing.
 
8.         The urine sample collected from KIWI HUSSLES was issued with a NZTR swab card with the unique No. 14404.   This card was produced and acknowledge by Mr Sargent.
 
9.         On the 15 September 2010, the NZTR official racing analyst, by way of a Certificate of Analysis identified that the urine sample NZTR No. 14404 was received in the laboratory, on the 7 September 2010 with all the seals intact and was given a laboratory number 10/5375.   The Analyst reported that the urine sample contained 3-Hydroxylignocaine, which is a metabolite of Lignocaine.
 
            The control sample was negative and a copy of this Certificate was produced and acknowledge by Mr Sargent.
 
10.       Lignocaine is a prohibited substance as defined under Rule 104 of the NZ Rules of Racing.   Dr Andrew Grierson, New Zealand Veterinary Consultant for New Zealand Thoroughbred Racing, has prepared a written opinion that Lignocaine and its metabolites are as defined, are Prohibited Samples.   Dr Grierson also stated Lignocaine has a withholding period of 3 days.   This Certificate was also produced to the Committee.
 
11.       On the 17 September 2010 Racecourse Inspector RD Scott accompanied by Stipendiary Steward Mr Jeff McLaughlin went to Mr Sargent’s stables at Riccarton Park, Christchurch.   Mr Carston was located there and advised of the positive finding and was given a copy of the Certificate of Analysis issued by the analysts, referring to NZTR swab card No. 14404.
 
12.       Mr Carston’s initial reaction was one of disbelief.   He claimed that there was no Lignocaine or similar product in the stables and none of the stable horses had been treated with it.
 
13.       Extensive inquiries and questioning of Mr Carston and his staff failed to identify the source for KIWI HUSSLER’S urine returning a positive swab to the metabolite of Lignocaine, 3-Hydroxylignocaine.
 
14.       Mr Sargent who at that time was located in Matamata, was also spoken to by telephone and later faxed a copy of the Certificate of Analysis.   Mr Sargent and Mr Carston appeared quite dumb founded and were not able to explain how this positive swab happened.
 
15.       The only products that Mr Carston referred to that had been used on his horses were, Cetrisol V4 and a homemade remedy for mud fever, supplied to Mr Carston by a fellow Trainer.   These samples were sent to the Laboratory for analysis under the explanatory report produced and shown to this Committee.
 
16.       The Laboratory analysed the material and reported back to NZTR in a Certificate produced to this Committee.
 
17.       In summary the two exhibits taken from the stable, both tested negative to Lignocaine and or it’s metabolites.
 
18.       On the first day NZTR staff called at the Riccarton Park stables, following initial inquiries, Mr Robin Scott took a written statement from Mr Carston.   In his statement, Mr Carston confirmed that he was the foreman for the Jon Sargent Racing Stable based at Riccarton Park.   He also said that if there was a need for a veterinarian to attend to any of the horses he would normally contact the local firm but would also advise Mr Sargent.   He said he was in regular contact with Mr Sargent.
 
Mr Carston said he had no problem with the swabbing procedures on the day.
 
Mr Carston said that the only treatment for KIWI HUSSLER was for mud fever and this involved applying an antiseptic cream named Cetrisol and a homemade mix given to him by another local Trainer.   He confirmed that he was very cautious with the homemade mix.   Mr Carston said that the horse had had nothing else and he had made a diary entry as to what substances had been given to the horse and he had shown the diary to Mr Scott.   This statement was produced to this Committee.
 
19.       On the 21 September Mr Scott had a further interview with Mr Carston and again obtained a written statement.   Mr Carston confirmed that when he moved into the old visitors stables at Riccarton Park he converted one box in the stable for the gear room.   He said that the box was completely sealed to prevent any person gaining unauthorised entry and he had a large padlock on the door.   He said that if any person gained unauthorised entry it would be obvious and that had not happened.
 
Mr Carston also said that his feed room was opposite the gear room and it contained only the bag of feed that he was using at the time.   Any other feed is in three lockable sheds just outside the stable and these are locked when not in use.
 
Mr Carston said that the stable drug cabinet consists of a new heavy plastic toolbox with a padlock and this is kept inside the locked gear room.   He said that he had the only key to this box and he makes a diary entry in a book when he uses any of the drugs.   He said that any swabable drug in the box remained unopened until the 4th of September 2010.
 
He confirmed that he was only treating KIWI HUSSLER for mud fever.
 
Mr Carston said that prior to his team moving into the stables they had been used as visitors’ stables for the Grand National Meeting.   He said that when he moved in he scrubbed the feed bins and generally tidied up but he did not scrub the walls.   This statement was also produced to this Committee.
 
20.       As a result of there being no satisfactory explanation, or presence of a substance containing Lignocaine the reserve sample of urine taken on the Race Day relating to KIWI HUSSLER was forwarded by the New Zealand Racing Laboratory Services to the Australian Racing Forensic Laboratory in Queensland for confirmatory testing.
 
21.       On the 6 October 2010 the Australian Laboratory, of the Queensland Government, Racing Science Centre, confirmed that the reserve sample, with NZTR documentation card No. 14404 had tested positive to 3-Hydroxylignocaine.   This confirmation was produced to this Committee.
 
22.       On Monday the 11 October 2010 a further interview took place with all staff at Riccarton Park; initially at the stables of Mr Sargent and then in the Judicial Room in the main stand.
 
23.       The purpose of this interview was to ensure all possible information had been considered, and to address all possible causes for the positive swab from KIWI HUSSLER.   The detection of the presence of the metabolite 3-Hydroxylignocaine was explained that it was the result of having had Lignocaine pass through the metabolism of the horse.   It was not a case of stable or clinical contamination.   It was as a result of the substance having been ingested or administered into the metabolism of the horse.
 
24.       The administration of the Lignocaine by injection was discussed.   The administration of using a product such as paraderm, by way of applying it onto a part of the horse’s exterior (eg legs) was discussed.   Neither proposition resulted in any information that might assist the inquiry.
 
25.       What did come to light was the finding by stable rider David Walsh, some two weeks earlier (approximately the 27 September 2010) of a needle with a plastic cover in the vicinity of the wash bay and outside stable sheds.   It was a small needle but not inconsistent with one that could have been used for the administration of a substance such as Lignocaine.   A photograph was taken of this exhibit which was sent for analysis by NZRLS and it was produced to this Committee.
 
26.       The result of this analysis sent under separate cover is contained in a Certificate from NZRLS and this also was produced.
 
27.       This inquiry has been frustrating for the staff of Mr Sargent who operate the stable at Riccarton Park.   Every effort has been made by them to assist the inquiry.
 
28.       Stable records were perused by NZTR staff and they are indeed a credit to Mr Carston who had been responsible for the management of the stable in Christchurch.   A copy of these records was produced for the information of the Committee.
 
29.       It is not often that some form of explanation is not found as to the cause of the administration.   This in itself causes huge suspicion in areas that can not offer any assistance.
 
30.       It is acknowledged that the location of this stable block in the grounds of Riccarton Park, at the Racecourse, is subject to considerable foot traffic, not only by those involved in the industry but others who use the thoroughfare as a means of access from one part of the Racecourse to gain access to another.   Many of those people will be purely recreational, although others could have nefarious intent.
 
31.       Trainers have reported damage to rails on the track and surrounding stable paddocks.   The course’s irrigation system has been vandalized.
 
32.       Regardless of whatever one might speculate, it is a fact that very few stables have twenty four hour surveillance and therefore there is the opportunity for miscreants to make their mark.
 
33.       To his credit Mr Sargent who was not present during the days before the race meeting when the administration of Lignocaine took place but has accepted that he is at all time vicariously responsible for his horses, wherever they might be stabled.
 
34.       It is very difficult for horses, or for that matter, for any animal to be under constant surveillance and control at all times.
 
35.       There is nothing in the investigation of the NZTR Investigators that has determined the cause of the administration.
 
36.       The plea of guilty by Mr Sargent is to his credit and in accord with many before him who operate a big training operation where many horses are involved, numerous staff are in attendance.   The positive swab is of huge concern to Mr Sargent mainly because a source of the administration has not been determined, despite due diligence by his staff at a satellite stable, and the impeccable bookkeeping records of the stable activities.
 
37.       This positive swab remains a mystery for which Mr Sargent has accepted vicarious responsibility while having no part in the administration.
 
Mr Sargent acknowledged the Summary of Facts presented by Mr McKenzie and said that the summary presented a fair assessment of the facts.
 
SUMMARY OF FACTS presented by Mr JG Sargent:
 
1.         Mr Sargent advised this Committee that he had been a Licensed Trainer for approximately 30 years and during that period had also trained in Singapore/Malaysia for five years.  
 
2.         Mr Sargent told this Committee that in those 30 years he had not faced a drug or prohibited substance charge.
 
3.         Mr Sargent says that he prides himself on the setup and operation of his stable.   He said that on the 23 August 2010 Mr Brian McKenzie (Racecourse Inspector) undertook a random inspection of his stables at Matamata.   Mr Sargent has 84 horses in his stables at Matamata and nothing irregular was found as a result of the random inspection.
 
4.         He further said that on the 31 August 2010 Mr Robin Scott (Racecourse Inspector) undertook a random inspection of Mr Sargent’s Riccarton stables and again did not find anything irregular and in particular did not find any evidence of Lignocaine.
 
            Mr Sargent said that the only horse being treated at his Riccarton stable was Young Centaur and that this horse was being treated by his vet Mr Murfitt.
 
5.         Mr Sargent produced to this Committee a letter from his Matamata vet Mr Keenan from Matamata Veterinary Services.   Mr Keenan confirmed his position as the primary veterinarian for the stable and that he interacts with Jon Sargent or his forepersons.   He went on to state “when medication of horses that are close to racing is required the issue of detection times is always discussed and considered prior to treatment.   The Medication Detection List as supplied to the members of the New Zealand Equine Veterinarian Association is the guideline used.   At all times the treatment of racehorses is done within the confines of these guidelines.”
 
6.         Mr Sargent also produced a letter from his Christchurch veterinarian Dr CG Murfitt and in that letter Dr Murfitt confirmed that his practice had served as veterinarians to Mr Sargent’s Riccarton stables since operations began in August 2010.   Dr Murfitt confirmed that at the time of the positive drug test returned by KIWI HUSSLER that the only horse his practice was treating at the stable was Young Centaur.
 
7.         Dr Murfitt advised that after having had a discussion with Racecourse Inspector Mr Scott that he visited Mr Sargent’s stables and could not find any evidence of Lignocaine or any product containing Lignocaine and he confirmed that he was at a loss to determine how KIWI HUSSLER had returned a positive test to Lignocaine.
 
8.         Mr Sargent confirmed that his foreman Mr Andrew Carston only started with him on the 1August 2010.   Prior to that Mr Carston had been stable foreman for another very large and successful stable for about 10 years.   Mr Sargent said that during that time that stable had no drug problems.
 
9.         Mr Sargent also pointed out that Mr Carston was absolutely meticulous with his record keeping as had been shown by the copies of the records that had been produced to the Committee by Mr McKenzie.
 
10.       Mr Sargent at that stage asked Mr McKenzie what the strength of the Lignocaine was.   Mr McKenzie said that most laboratories do not do a quantative analysis but rather advise whether the substance is present or not.   Mr McKenzie did say that the substance had become a metabolite towards the end of its withholding period.   Mr Sargent then said that this would show that the horse was not got at on race day and this was acknowledged by Mr McKenzie.
 
11.       Mr Sargent said that in respect to the stables at Riccarton that they are presently located in a larger Stable Barn used for visiting racehorses to race meetings at Riccarton.   The stable complex had been used at the recent Grand National Meeting for this purpose.   Mr Sargent was waiting for and hoping to obtain a more secure stabling area at Riccarton Racecourse.
 
            He said that his stables were located right beside a popular walkway through Riccarton Racecourse which is used on a daily basis and he said that it was hard to keep the Stable Complex secure during the daytime.   He did say however that despite this every possible care was taken by his staff.
 
12.       Mr Sargent said that his horse wears a tongue tie but that was not the cause of the problem.
 
13.       Mr McKenzie was given the opportunity to ask questions of Mr Sargent and he said that he had no challenge to the integrity of Mr Sargent.
 
 
REQUEST FOR A RULING
 
Prior to making submissions as to penalty, Mr McKenzie requested this Committee to disqualify KIWI HUSSLER pursuant to Rule 804(7) from the race in question and so this Committee therefore orders that KIWI HUSSLER be disqualified from the Champion 2YO Edenwold at Berkley Stud Handicap 1400 Rating 75 race at the meeting of the Ashburton Racing Club on Friday 3 September 2010.
 
PENALTY SUBMISSIONS presented by Mr J McKenzie:
 
Mr J McKenzie submitted as follows:
 
1.         NZTR has a robust protocol relating to the post-race testing of horses, usually involving the winners and stake placed horses.
 
2.         During the course of a racing season, NZTR sends for analysis approximately 3000 samples.   It is a matter of record that very few samples return a positive result.
 
3.         It is important to qualify that almost without exception a positive swab is generated as a result of negligence rather than by a wilful administration where a person sets out to dope a horse to gain an unfair advantage.
 
4.         Drug Testing of horses commenced in New Zealand around 1950.   The initial results were confirmation of the need for drugs to be eliminated from horses that are racing in New Zealand, to ensure that all competitors were competing on a transparent and fair playing field.
 
5.         The detection of a prohibited substance, as they are known now, sends an immediate reaction throughout the Racing Industry that a horse has won with the assistance of an unfair advantage, not apparent to other competitors, or equally important, to the punters who expect as much information and transparency as one can get before investing on the totalisator.
 
6.         The concept of unfair advantage was clearly explained in a in a ruling by Mr Justice Shortland in the High Court decision of Taka in 1955 and it was further endorsed in the Appeal decision in the “Tough Call” inquiry.
 
7.         Mr McKenzie submitted that he raised these issues because it is important that regardless of how a horse, is found to have had administered to it a drug or prohibited substance that is capable of affecting speed, stamina, courage or conduct, it is deemed to have had an unfair advantage.
 
8.         As stated in the Summary of Facts, Mr Sargent and his staff have been totally co-operative in every way and have assisted the Investigators in all facets of this inquiry.
 
9.         It was evident that when told of the analyst’s findings Mr Andrew Carston, the stable foreman at the South Island stables of Mr Jon Sargent, was totally amazed and at a loss to understand how KIWI HUSSLER could have returned a positive swab.
 
10.       It is accepted by NZTR and its Investigators that Mr Sargent was not present in the South Island stable at any time immediately prior to the race in question, where KIWI HUSSLER raced and won.
 
11.       For practical reasons, and the intention of those who drafted the Rules, the Trainer is at all times vicariously responsible for the well being of his horses, and that they race “drug free”.
 
12.       While negligence can result in a number of ways it was not through poor administration, within the stable, by the Trainer on this occasion.   The training establishment is very well presented, it is clean, well groomed and a separate feed room was tidy.  
 
13.       Further reference is made to the operational documentation of the South Island stable.   Mr Carston has kept impeccable records, previously produced as an exhibit and was solely responsible for the security of both the gear room and the drug cabinet.
 
14.       NZTR accepts it was not a wilful administration by the Trainer, and exactly how the administration occurred may never be determined.   The opportunity for a person to administer a prohibited sample does exist in almost every stable in New Zealand, and with horses left unattended in yards and paddocks, this will always remain a risk.
 
15.       The Guidelines for sentencing are set out in decisions of NZTR v P 1994, and NZTR v C 2009.   They have been recognised as an appropriate way to arrive at a penalty.   Each case will have a slightly different set of circumstances but in most cases, for breaches of Rule 1004 in the previous Rules and now amended Rule 804, (the drug negligence/prohibited substance rule) a fine has to date been the penalty deemed to be appropriate.   The quantum of fine has tended to increase for obvious reasons.
 
16.       The Rules of Racing were updated and came into effect in October 2009.   Maximum penalty provisions were increased to reflect what was appropriate for today’s standards as set out in Rule 804.
 
17.       It is submitted, there is nothing in this case that warrants a departure from a fine being imposed.   It is however the intention of NZTR to maintain drug free racing, and if a penalty of a substantial fine is not a deterrent, then strong submissions will be made for periods of suspension or disqualification to be imposed.
 
18.       It is a matter of fact that it is often the owner/s who suffer the greatest loss.   They celebrate the horses winning.   They receive public accolades and then through no fault of their own, are notified of the horses disqualification and associated penalties.
 
19.       In making submissions on the quantum of penalty, NZTR has taken into consideration the following issues:
 
            (a)        The training facility was presented at the highest level.
(b)        The conduct and co-operation of Mr Sargent and his staff was totally professional, and quite understandably a real piece of shocking news on the advice of the analyst.
(c)        The person who administered Lignocaine to KIWI HUSSLER has not been determined.   It is not likely they will be.
(d)        Lignocaine is primarily administered to relieve pain.   There is no history of KIWI HUSSLER having any injury that required pain relief.
(e)        Mr Sargent without default accepted he was vicariously responsible for his training operation and the horses he trains.
 
20.       It is submitted that each and every case should be determined on its merits.   Each case has factors that are often unique.   In most cases the cause of the positive swab is determined.   The fact that such cause is not, is not a defence for the Defendant.   It in essence leaves considerable concern for them not knowing why and will it happen again.
 
21.       Many of the facts in this case are similar to that of the recent case of NZTR v N.   In that case the source of the positive swab was determined.   The person who administered the drug was never determined but it was substantiated it was not Mr N.   Similarly in this case it is a fact that Mr Sargent did not administer the Lignocaine.
 
22.       However both trainers have pleaded guilty and accepted they are vicariously responsible for having their horse race drug free.
 
23.       It is submitted the appropriate penalty is a fine of $6,000.00 consistent with that handed down to Mr N.


 
 
PENALTY SUBMISSIONS presented by Mr JG Sargent:
 
1.         Mr Sargent advised this Committee that he was going to have to account to the owners for the loss of stake money.   He also said that even though he runs a large operation any fine will impact on him and he asked for that to be taken into account.
 
2.         Mr Sargent is aware of the decision earlier this year in NZTR v N and he understands that as Trainer he is vicariously liable for the penalty imposed today and he wishes this Committee to take into account all of the facts and circumstances that gave rise to the positive test.
 
3.         Mr Sargent is also relying on his excellent record, excellent stable management and excellent staff and also on the fact that the source of the prohibited substance could not be found.   Mr McKenzie had told this Committee that it was the first time for a long time that the Investigators have not found the source of the substance.
 
 
COMMITTEE QUESTIONS OF MR McKENZIE
 
Mr McKenzie was asked if NZTR has a policy on public access to stables.   Mr McKenzie did not think that there was such a policy and that security of the stables was the responsibility of each Trainer.
 
Mr McKenzie was also asked if NZTR use public access to a stable as being the basis for negligence on the part of the Trainer and he answered that that was a job for this Committee to determine.
 
 
PENALTY REASONS
 
1.         The Integrity of Racing is paramount and all participants in the Racing Industry need to always be aware of this.   An industry that is reliant upon the gambling dollar needs to always uphold its integrity to retain the Public’s confidence.  
 
2.         Regardless of how they got there the existence of drugs in a horse in a race attacks the very core of this integrity.
 
3.         Racing competes for the gambling dollar and the increase in penalties under the new Rules of Racing that became effective from the 5 October 2009 expresses NZTR’s concern about the impact on the integrity of Racing that drug offences can have.   Judicial Committees need to be mindful of this.
 
4.         Mr McKenzie in his submissions has told us that racing has a robust protocol relating to the post-race testing of horses.   It is important that NZTR continues to develop its post-race testing techniques.
 
5.         Mr McKenzie has told us that almost without exception positive swabs result from negligence rather than by wilful administration of a prohibited substance to a horse.
 
6.         Mr McKenzie has further in his submissions, quite correctly pointed out that regardless of how a horse is found to have had administered to it a drug or prohibited substance that is capable of affecting speed, stamina, courage or conduct, it is deemed to have had an unfair advantage.   NZTR’s objective is to have a level playing field for all those who participate in racing.
 
7.         Mr McKenzie has drawn our attention to the sentencing principles in previous cases in NZTR v P and NZTR v C and this Committee is well aware of those principles.   A penalty for deliberate administration will obviously be greater than that imposed in the case of negligence and indeed there are degrees of negligence.   Penalties imposed for negligence need to be of sufficient level to make other Trainers look at their operations and take all proper steps to ensure that a negligent administration does not occur.
 
8.         The position facing this Committee today is that we are dealing with a Trainer whose integrity is not challenged by Mr McKenzie, who has an unblemished record, who runs a first class operation with high quality staff at two different training centres and yet one of his horses has returned a positive swab.
 
9.         We are mindful of two cases this year involving positive swabs arising from post-race testing.   Those being NZTR v N and NZTR v W.   The first case was one where Mr N admitted the charge on the basis that he was vicariously responsible for the actions of an unidentified staff member.   In that case Mr N was fined the sum of $6,000.00 and the horse concerned was disqualified from the race and Mr N was also ordered to pay certain costs.   In the case of NZTR v W, the Committee found that to be a case of gross negligence on the part of Mrs W herself and accordingly a higher penalty was imposed.
 
10.       In the present case Mr Sargent has told us that every possible care was and is taken in respect to his horses.   This is also clearly borne out by the facts presented to us.  
 
11.       It has been put to us that this is a case of negligence but the Investigators have had some difficulty establishing negligence on the part of Mr Sargent and/or his Staff.   It may finally come down to the stabling arrangements at Riccarton.
 
12.       Mr Sargent has admitted the charge and accordingly it is proven but Mr McKenzie has put to us a number of mitigating factors.   The most telling factor from our point of view is both Mr Sargents’ and Mr Carston’s reactions when first confronted with the news of the positive swab from KIWI HUSSLER.   NZTR’s Investigators are well used to reading body language and they have conveyed to us the reaction of amazement and disbelief from both Mr Sargent and Mr Carston when confronted with the news.
 
13.       We are also told that Mr Sargent and Mr Carston and their staff have been fully cooperative with the Investigators and clearly on the facts presented to us no one can establish how or when the Lignocaine got into KIWI HUSSLER’s system.
 
14.       We as a Committee are also mindful of the unblemished record of Mr Sargent and he has to be given credit for this.   Training is his lifelong career and notwithstanding the fact that he has a large number of horses under his care, he runs a well organized and excellent operation.
 
15.       Mr Sargent will have to face a financial penalty but apart from that he has to endure the embarrassment resulting from the publication of a positive swab for one of his horses.   He is a Trainer of integrity who is a credit to the Racing Industry and the embarrassment he suffers as a result of the positive swab and appearing before us today is a penalty of itself.
 
16.       Mr McKenzie has submitted that a fine of $6,000.00 is appropriate and we are aware that the range of fines for cases similar to this are in the $7,500 - $10,000 range.   Bearing in mind previous penalties for this type of offence and also the increased penalties set out in the Rules, a fine in this range could have been justified.   In imposing a fine in that range we would have to however ignore the mitigating factors in this particular case and also the somewhat unusual facts in that the Investigators were unable to find the source of the Lignocaine nor able to establish who did it and how it entered into KIWI HUSSLER’s system.   The only certain matter is that Mr Sargent himself did not do it.
 
17.       Taking all of the matters into account we will impose a fine on Mr Sargent and because this is also a case of vicarious responsibility we believe that any fine should be similar to that imposed in NZTR v N.
 
 
Penalty:
PENALTY
 
1.         The Committee therefore imposes a fine of $6,000.00 on Mr Sargent and in addition to that orders him also to pay the sum of $1,223.00 being the cost of the analysis of the reserve sample and further this Committee orders that he pays costs of $1,000.00 to NZTR and $650.00 to the JCA.
 
2.         There is also an Order that the owners of KIWI HUSSLER repay the full stake money earned by the horse from the race that is subject to the charge.   The Committee has been advised that the stake money minus the Trainer’s percentage and the Jockey’s fee has been retained by NZTR and therefore the owners need to repay those amounts so that the full stake money is then available for distribution in terms of the amended placings for the race.
 
3.         This Committee has today disqualified KIWI HUSSLER from the first placing in the Champion 2YO Edenwold At Berkley Stud Handicap 1400 Rating 75 race at the meeting of the Ashburton Racing Club on Friday 3 September 2010 and the amended placings will now be:
 
1st        Princess Shyla
2nd       Midilans
3rd       Ishiaroyal
4th       Miss Holland
5th       Will I am
 
 
 
 
 
 
 
                                                                                                                                   
BJ Scott                                                                       Mrs N Moffatt
Chairman                                                                    Committee
                                   
 
 
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