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Non Raceday Inquiry RIU v JJ Alford - Reserved Decision dated 10 May 2021 - Chair, Mr A Harper

Created on 11 May 2021

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL
AUTHORITY
UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand
Rules of Harness Racing

SIMON ANDREW IRVING, Racing Investigator for Racing Integrity Unit (“RIU”)
Informant

JESSE JAMES ALFORD, Licensed Trainer
Respondent

Information Nos: A14131 – A14133

Judicial Committee: Mr A Harper, Chairman - Mr R McKenzie, Member

Counsel: Mr M Hodge, for Informant
               Mr K Cook, for Respondent

In Attendance: Mr J Alford, Respondent
                        Mr N Grimstone, Manager Integrity Assurance for RIU
                        Mr S Irving, Registrar

 RESERVED PENALTY DECISION OF JUDICIAL COMMITTEE DATED 10 MAY 2021

 Background

1. On 25 February 2021, the New Zealand Metropolitan Trotting Club conducted a meeting at Addington Raceway.

2. The Respondent, Jesse James Alford is a Licensed Public Trainer and a Junior Driver under the Rules of New Zealand Harness Racing (“Rules”). He has been a Harness Trainer for two seasons.

3. The Respondent had three horses engaged for that race meeting. They were:

(a) Race 1 – Jimmy Cannon;
(b) Race 5 – Johnny Nevits; and
(c) Race 5 – Motor Mouth.

4. As a result of information which had been received, the RIU conducted a surveillance operation of the Respondent’s stable during the day of the race meeting.

5. As a result of that surveillance operation, all three horses were scratched from their engagements that evening, and three Informations were filed against the Respondent. In addition all three horses were ordered to be transported to Addington Raceway for the purposes of swabbing.

6. By letter dated 11 March 2021, the General Manager of the RIU authorised the lodging of these Informations pursuant to Rule 1108(2) of the Rule of Harness Racing New Zealand.

7. Counsel for the Respondent has indicated all three Informations are admitted.

Informations

1. Information Number A14131 alleges:
“That on 25 February 2021 at Woodend Beach, North Canterbury…did administer to Jimmy Cannon which was entered in race 5 at the New Zealand Metropolitan Trotting Clubs Meeting at Addington that evening, a prohibited substance by way of hypodermic syringe, in breach of the New Zealand Harness Racing Rule 1004(l) and subject to the penalties pursuant to Rule 1001(2)”.

2. Information Number A14132 alleges:
“That on 25 February 2021 at Woodend Beach, North Canterbury…did administer to Johnny Nevits which was entered in race 5 at the New Zealand Metropolitan Trotting Clubs Meeting at Addington that evening, a prohibited substance by way of hypodermic syringe, in breach of the New Zealand Harness Racing Rule 1004(I) and subject to the penalties pursuant to Rule 1001(2)”.

3. Information Number A14133 alleges:
“That on 25 February 2021 at Woodend Beach, North Canterbury…did attempt to administer to Johnny Nevits which was entered in race 5 at the New Zealand Metropolitan Clubs Meeting at Addington that evening, a prohibited substance by way of nasal gastric tube in breach of the New Zealand Harness Racing Rule 1004(I) and subject to the penalties pursuant to Rule 1001(2)”.

Summary of Facts

1. As a result of information which had been received, the RIU conducted a surveillance operation of the Respondent’s training premises at Woodend Beach, North Canterbury. This was on the day the New Zealand Metropolitan Trotting Club was conducting a meeting at Addington Raceway. The date was 25 February 2021.

2. At 3.10pm on that day, the Respondent arrived at his stables and all three horses were brought into the tie up area of the stables.

3. At 3.21pm the Respondent was observed coming out of the feed room with a syringe. While another person held the horse Jimmy Cannon by its headcollar, the Respondent injected the horse in the neck with 10mls of “Formalin”.

4. The Respondent then returned to the feed room and placed the empty syringe in a rubbish bin.

5. The Respondent then emerged from the feed room shaking a plastic container containing bicarbonate of soda and water mix. This is more commonly referred to as “milkshake”.

6. On removing tubing gear from the feed room, the Respondent blew out the tube and applied a twitch to Johnny Nevits. Another party held the twitch.

7. The Respondent attempted to insert the nasal tube at which point Johnny Nevits became fractious. The tubing was abandoned and the gear was taken back into the feed room.

8. On returning from the feed room with a syringe in his hand, and while holding Johnny Nevits with his left hand, the Respondent injected the horse in the neck with Formalin.

9. The cap was replaced on the syringe and returned to the feed room.

10. Investigators entered the property and spoke to both the Respondent and the other party who was present.

11. They located in the feed room a plastic bucket containing tubing gear, including a rubber hose and plastic funnel, several empty syringes in a wheelie bin and a 2 litre plastic container containing Formalin. The labelling on the plastic container had been removed.

12. There was also located in a closed drawer in the feed room, a third syringe loaded with Formalin.

13. All horses were scratched from their engagements at Addington Raceway that night and were transported for the purposes of swabbing and blood testing.

14. Betting analysis indicated there had been a number of unusual bets placed on the day prior to race day. Analysis confirmed fixed odds for Motor Mouth opened at $9 and reduced to $2.80.

15. Tubing is the process of inserting a rubber or plastic tube through a horse’s nose into its oesophagus for the purposes of administering a liquid substance. A funnel is usually attached to the tube and the liquid poured into the funnel by using gravity. This forces the liquid into the horse’s stomach.

16. Needling or to needle is the process of injecting intravenously into the neck of the horse.

17. Formalin is a ready to use solution for fixation of histological samples and may also be used for treating footrot and scald in animals. Its active ingredient is 10% formaldehyde. The side effects from injecting a concentrated solution of Formalin into the vein can affect the cardiovascular system thus making it a prohibited substance under the Rules when administered in this manner.

18. The concentrated Formalin is very corrosive to live tissue. No studies have been conducted as to the effects of intravenous Formalin as no Ethics Committee in the world would approve a trial on welfare grounds.

Respondent’s Statement

1. On questioning, the Respondent made a statement to investigators. Comments made in the statement included:

(a) He admitted to injecting Jimmy Cannon with a “bleeder shot” and attempting to tube Johnny Nevits with a mixture of bicarbonate of soda and water.
(b) He denied injecting Johnny Nevits stating that he went to inject the horse, but then his conscience got the better of him and he did not proceed.
(c) He initially confirmed the injection consisted of 2mls vodka and 10mls of sodium chloride, but later acknowledged it was Formalin.
(d) These admissions were forthcoming only when he became aware his actions had been observed, or when challenged.
(e) When loading his horses to transport to Addington Raceway for swabbing, the Respondent stated “what made you guys come out here today, was it the betting that…. It must have been the betting”.

Informant Penalty Submissions

1. The Informant makes reference to two recent decisions in this jurisdiction being an Appeal Tribunal Decision in RIU v Lawson and also the decision in RIU v Kerr.

2. It is the position of the Informant these two cases, together with consideration of animal welfare issues, should guide the Committee when determining penalty.

3. It is submitted the penalty must be a period of disqualification given there are three serious racing offences.

4. The JCA Penalty Guide suggests a starting point of 18 months disqualification for a first administration offence, followed by periods of 3 years and 5 years disqualification for second and third offences respectively.

5. The RIU maintains the starting point must be significantly higher given:

(a) Prohibited substances were successfully administered to two horses within a period of hours before they were due to race.
(b) The Respondent may well have also administered a prohibited substance to a third horse being Motor Mouth if investigators had not arrived when they did.
(c) The Respondent also attempted to administer a second prohibited substance to Johnny Nevits, and was only prevented from doing so due to the horse’s distress and becoming fractious.
(d) Investigators located a number of empty syringes which may be seen as demonstrating a pattern of this type of offending.
(e) There are serious animal welfare consequences of the offending.
(f) Another party was involved, although the Respondent was clearly the primary offender.
(g) This offending has caused significant reputational damage to the Industry.

6. Reference was also made to the recent case of RIU v McGrath.

7. Mr McGrath attempted to administer a prohibited substance by way of nasal gastric tube. However, it was noted:

(a) Mr McGrath’s only intention could have been to enhance the horse’s performance and therefore the motivation for the offending must have been financial.
(b) Another Licence Holder was involved, although that is not the case in this instance.
(c) The most likely substance to be administered was an alkalising agent designed to improve the horse’s performance.
(d) The conduct had a significant impact on the Racing Industry’s reputation for high standards of animal welfare.

8. In the McGrath case a starting point of 10 years disqualification was adopted. Having regard to some mitigating factors, the Committee ultimately determined a penalty of 8 years disqualification.

9. RIU submissions suggest:

(a) The Respondent’s offending is more serious than Mr McGrath given there were two and potentially three horses involved and two successful and one attempt at administration of prohibited substances.
(b) There is direct evidence of the substance which has been administered and this gives rise to very serious animal welfare concerns. The substance which was likely to have been administered by Mr McGrath carries less severe welfare consequences.
(c) The prohibited substance is Formalin and the dose administered is an aggravating factor.
(d) The motivation can only have been financial as evidenced by the Respondent making reference to betting.
(e) Weight has to be given to the impact on not only the owners of the horses, but also the Racing Community as a whole.
(f) A serious impact on animal welfare concerns given the very high standards which are now demanded by not only the public at large, but also the Industry.

10. The Informant therefore submits a starting point of 12 years disqualification as appropriate, but having regard to mitigating factors being:

(a) An admission of guilt quickly; and
(b) His cooperation with Authorities; and
(c) It is his first breach;

Then a final disqualification of 8.5 – 9 years is sought.

Respondent’s Submissions on Penalty

1. The Respondent has admitted his guilt to the three Informations and understands a condign response is necessary. He acknowledges a period of disqualification is inevitable, but submits a disqualification that is “sufficient but no more than is necessary to achieve its purpose” is called for. It is submitted a penalty must be “proportionate”. The reference is RIU v Lawson.

2. The issue therefore becomes what is an appropriate period of disqualification.

3. The Respondent submits the penalty which the Informant seeks is manifestly excessive. It is unjustified when having regard to the JCA Penalty Guide.

4. The Respondent submits a starting point in the range of three years disqualification is appropriate.

5. We were referred to a recent Court of Appeal decision Zhang v R (2019) NZCA 507 when referencing Penalty Guidelines. The underlying principle and justification for guidelines is to promote consistency and to ensure like cases are treated in a like manner.

6. However, the case also confirms that consistency is not an absolute determinant.
“The Guidelines judgements are just that, “guidelines” and must not be applied in a mechanistic way”.

7. Reference was also made to the recent Appeals Tribunal decision in Orange v RIU where it was stated:
“The Guide does stress the need for consistency, but recognises the need to retain the Judicial Committees discretion to be exercised within readily ascertainable and transparent parameters”.

8. Mr Cook on behalf of the Respondent then deals with the starting point, having regard to the Penalty Guidelines. He submits a three-year disqualification is an appropriate starting point

9. It is accepted that given the Respondent has pleaded guilty to three Informations an uplift from the suggested starting point of a first offence being 18 months disqualification is appropriate.

10. There is a further submission that as the three offences are of a similar kind and are connected in time, they should be treated as concurrent offences.

11. Mr Cook has set out in some detail the personal circumstances of the Respondent. He has a partner and together they have one child with another child due later this year. The Respondent has been the primary income earner, but since the interim suspension of his trainer’s licence, he has found it difficult to earn an income.

12. There has been adverse media publicity which has impacted the Respondent. Any disqualification will have a significant impact on the Respondent both during the period of disqualification and subsequent to that.

13. There are also clear indicators the Respondent is extremely embarrassed and remorseful.

14. Concern is expressed by the Respondent to submissions by the Informant that we should be attracted to a starting point which had been adopted in the McGrath case. It is suggested the uplift in starting point was not adopted by the Committee because of the administering offence, but due to subsequent behaviours of Mr McGrath.

15. We were referred to a 2015 decision of RIU v Lynch. This case involved three charges of administration on three different dates. This is as opposed to the situation with the Respondent where there are three charges in respect of offences which took place on the same day and within minutes of each other.

16. In the RIU v Lynch case the Committee applied a separate penalty in respect of each charge. The RIU sought a penalty of five years disqualification, but in that instance the Committee determined a four-year disqualification in respect of one charge and that penalty was to be served concurrently with the other two.

17. Mitigating factors submitted on behalf of the Respondent include:

(a) An early guilty plea;
(b) His very clear embarrassment and remorse;
(c) His previous good record;
(d) The harm which he will suffer both during the period of disqualification and subsequent; and
(e) His previous good character.

18. A discount is therefore sought in the range of 30% from the initial starting point as being appropriate.

Penalty Decision

1. Both parties are agreed the appropriate penalty is one of disqualification. Under Rule 1001(2) the penalty provisions for a person who commits a serious racing offence are:

(a) A fine not exceeding $30,000.00; and/or
(b) Suspension from holding or obtaining a licence for any specific period or for life; and/or
(c) Disqualification for a specific period or for life.

2. The issue for this Committee is therefore what is an appropriate term of disqualification.

3. Compelling submissions as to penalty were filed on behalf of both parties.

4. Mr Hodge on behalf of the Informant maintained the offences were at the top end of offending under Harness Racing New Zealand Rules and were extremely damaging to the Industry and public confidence.

5. Mr Cook on behalf of the Respondent submitted we should be guided by the JCA Penalty Guide. We can deliver a stern response, but the penalty should be no more than necessary.

6. There is an obvious gulf between the parties as to the appropriate level of disqualification. That is the matter currently in front of the Committee to determine.

7. We noted the Appeals Tribunal decision in RIU v Habraken where it was stated:

“The lifeblood of racing depends upon millions of dollars wagered in New Zealand. Loss of confidence with punters and the community and the integrity of the sport/industry, inevitably carries grave risk to its wellbeing.”

8. There are a number of aggravating issues we have considered. These are:

(a) There are two admitted charges of administration and one admitted charge of attempted administration. Parties all agree the attempt was so close to the administration they should all be treated in like manner.

(b) The Respondent involved another party who although not a licence holder, may well have been exposed to charges as well.

(c) The offences occurred on the same day as a Race Meeting where the horses were engaged and therefore the only motivation could have been financial.

(d) There are serious animal welfare issues arising from the administration of Formalin. This has a significant impact on the Racing Industry’s reputation for high standards of animal welfare. The Industry cannot maintain its social licence in order to continue to operate without maintaining a high standard of animal welfare.

(e) The actions have brought the whole Industry into disrepute and challenges the integrity of the sport which could potentially have a devastating effect from any lack of confidence from the wagering public.

9. Matters of mitigation include:

(a) Although initially in a denial the Respondent quickly admitted the inevitable.

(b) A guilty plea was entered early on, although again having regard to the circumstances of the surveillance, a finding of guilt was inevitable.

(c) An agreed summary of facts was put before the Committee.

(d) The Respondent is remorseful for his actions, even though this remorse came after apprehension. However, the manner in which the Respondent spoke to the Committee both during the hearing and at the conclusion, leads us to believe there is now genuine remorse.

(e) A clear record within the Industry, even though he has been licenced for only a relatively short period of time.

(f) A number of favourable character references.

10. Sentencing principles were detailed in the Appeals Tribunal decision in RIU v Lawson:

“Proceedings under the Rules are designed not simply to punish the transgressor, but crucially are to protect the profession/public/industry and those who are to deal with the profession…

The Harness and Thoroughbred Racing Industry is a profession where key participants are required to be licenced in order to practice in various ways within that sphere. Comprehensive Rules of practice behaviour procedure and the like are set down in extensive detail in the Rules which govern the codes and behaviour. As with most professions a careful internal disciplinary and regulatory process is set up. Those who practice within the professions…are subject to sanctions for breaches of standards of conduct or rules designed to protect members of profession as well as the public. Such sanctions can be at the highest end, include removal from a profession for serious breaches of professional rules and standards involving dishonest or immoral conduct. Such behaviour if unchecked may greatly harm the reputation of the profession and bring it into disrepute – that is the public loses confidence in it”.

11. Given the aggravating features to the offending, together with the very serious concerns on matters of animal welfare, the interests of the Industry and Profession must take a higher priority than the personal interests of the Respondent.

12. In RIU v Lynch which was referred to by Mr Cook, there was a penalty of four years disqualification imposed. This was in response to three administrations, but over a period of time rather than simultaneously as we have on this occasion.

13. However, that decision was in 2015 and since that time there has been a significant shift in attitudes in matters of animal welfare. On that basis alone, we see comparisons with Lynch not compelling.

14. Equally we do not see the Penalty Guide as being any more than a guide only in these circumstances. The penalties referred to in the Guide even with the uplift suggested by Mr Cook would clearly result in our view, in a manifestly inadequate penalty.

15. We have considered RIU v McGrath. In that case a starting point of ten years was adopted. There was one administration charge and two other charges which were not matters of administration. The Committee in the McGrath case did however state the starting point of ten years disqualification included a small uplift for previous breaches of the Rules and further offending in 2020. From those comments we assume the starting point would have been slightly less than ten years disqualification, but for these other matters.

16. There are some difficulties in directly comparing the McGrath case and this present one. These include:

(a) A case of one administration and second offence in respect of Mr McGrath.

(b) Two administrations and one attempted administration, but no previous breaches in the case of Mr Alford.

17. Even aside from those differences when looking at a totality by means of comparison, we have determined an appropriate starting point to be nine years disqualification.

18. We will give an allowance for the mitigating factors which we have referred to, although the allowance cannot be to the extent sought by Mr Cook.

19. Having regard to the mitigating factors we reduce the period of disqualification to a period of seven years and that penalty is to be concurrent in respect of all three charges. In assessing this penalty, we do take into account the fact Mr Alford had his Licence suspended from 25 February 2021. The disqualification will take effect from the date of this decision that is from 10 May 2021 to 9 May 2028.

Costs

1. Mr Hodge at the hearing advised the Committee the Informant would not seek costs. That is a generous position to take but in recognition of the early guilty plea and the acceptance of an agreed summary of facts.

2. The JCA is entitled to costs. We fix those at $2,000.00. This is significantly less than the actual costs actually incurred.

 

Alan Harper
Chairman

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