Appeal – Decision dated 31 March 2023 – Philip Benjamin Burrows

Background

1. On 8 November 2022 the New Zealand Metropolitan Trotting Club held its Cup Day Meeting at Addington Raceway.

2. The Appellant was the Trainer of RAKERO REBEL and had entered the horse in Race 7 on that day. He had also entered MILLWOOD INDIE on the day.

3. As a result of information received and investigative actions by Racing Integrity Board Investigators, the Appellant was charged with (three) 3 breaches of the New Zealand Harness Racing Rules.

4. The Appellant pleaded guilty to all 3 charges and the Adjudicative Committee by written decision dated 7 February 2023, disqualified him from racing for a period of ten (10) years on one charge, and for three (3) years on each of the other two (2) charges with those latter disqualification penalties to be served concurrently.

5. The Appellant filed a Notice of Appeal against both the finding and penalty of the Adjudicative Committee, however at a conference call he confirmed the Appeal was as to penalty only. It was also determined this Appeal would be dealt with on the papers.

6. The Appellant filed written submissions which were responded to by the Respondent. The Appellant then filed further submissions in response to the Respondent’s written submissions.

7. The charges to which the Appellant pleaded guilty were:

(a) Together with Matthew Jason Anderson, then a “prohibited person”, administered to RAKERO REBEL which was entered in Race 7 at the New Zealand Metropolitan Trotting Club’s meeting at Addington Raceway that day, a prohibited substance by way of hypodermic syringe in breach of New Zealand Harness Racing Rule 1004I(1) and subject to the penalties pursuant to Rule 1001(2). This is in respect of Information A16901.

(b) Together with Mr Anderson then a “prohibited person”, did administer to RAKERO REBEL which was entered in Race 7 at the New Zealand Metropolitan Trotting Club’s meeting at Addington Raceway that day, a substance by way of nasal gastric tube in breach of New Zealand Harness Racing Rule 1004C(1)(a) and is subject to the penalties pursuant to Rule 1004D. This was in respect of Information A16902.

(c) He being a Licenced person associated with a “prohibited person” Mr Anderson for the purposes of the Race Day preparation of two (2) registered horses, RAKERO REBEL and MILLWOOD INDIE in breach of New Zealand Harness Racing Rule 1001(1)(zd) and is subject to the penalties pursuant to Rule 1001(2). This is in respect of Information A16903.

8. In determining penalty, the Adjudicative Committee adopted a starting point of nine (9) years disqualification in respect of Information A16901, and having regard to seven (7) aggravating factors uplifted that starting point by two (2) years. Allowing for mitigation the Adjudicative Committee reduced the penalty by one (1) year resulting in the ultimate penalty of ten (10) years disqualification.

Appellant’s Submissions

9. One of the grounds for uplift was a previous breach of the Rules by the Appellant for which he was initially disqualified for a period of six (6) months. That penalty decision was appealed and was substituted with a fine of $2,000 on appeal.

10. The Appellant went to some lengths to point out the Adjudicative Committee in considering an uplift was under the mistaken impression he had been disqualified for the previous breach, when in fact on appeal, a disqualification was reduced to a fine.

11. He also submitted the previous breach should not have been given the weight it was in applying an uplift in penalty due to the length of time from the breach to the current breach. That breach took place in 2004 and he referenced a recent matter RIB v Smolenski which was dealt with in 2021, where the Judicial Committee (as it was then known as) rendered as neutral previous matters from 2004 and 2011.

12. On that basis the Appellant submits there should be no uplift in respect of any previous breaches.

13. There are further submissions regarding the facts which took place on the day of the breach, and the Appellant has endeavoured to give further explanation as to the circumstances surrounding that breach. However, they are matters which should probably have been placed before the Adjudicative Committee in the first instance. Some of the matters raised by the Appellant go to matters of guilt, and due to the guilty plea are irrelevant to the penalty Appeal before us. Given this Appeal is as to penalty only, we have placed little weight on those further submissions as to facts.

14. The Appellant refers to other cases, particularly RIB v Alford where a penalty of seven (7) years disqualification was imposed. In that case, a mitigating factor was the previous clear record, and given the lapse of time from the previous breaches to now, the Appellant submits he should also have been given credit for a clear record. This Tribunal is very familiar with that decision.

Respondent’s Submissions

15. The Respondent acknowledges the Appellant did not serve a disqualification for a period of six (6) months for the breach in 2004. There is an acknowledgement the penalty was reduced on appeal to a fine of $2,000.

16. Although the Adjudicative Committee did make an error regarding the earlier penalty imposed on the Appellant, it is the submission of the Respondent, this did not have a material impact on the ultimate penalty which has been imposed.

17. The Respondent seeks to distinguish RIB v Smolenski. Two earlier matters involved deliberate administration of prohibited substances, but the most recent one involved the accidental administration which amounted to negligence on Mr Smolenski’s part rather than any deliberate action. It is submitted the difference rests with the most recent offence being presenting a horse with a prohibited substance rather than administration of a prohibited substance.

18. The Respondent also notes the previous breach was one of seven (7) aggravating factors which the Adjudicative Committee relied on in reaching an uplift of two (2) years disqualification.

19. It is submitted the Adjudicative Committee did consider the time between the previous breach and the current breach; however, the Respondent submits, this did not amount to a mitigating factor.

Discussion

20. The facts surrounding these three (3) charges, and the reasoning for coming to the conclusion they did are set out in full in the Adjudicative Committee’s decision.

21. This Appeal is being conducted by way of a re-hearing. The Appeals Tribunal procedure is set out in Rule 1206 of the New Zealand Harness Racing Rules. The Fifth Schedule to the Rules sets out the actual procedure to follow.

22. Paragraph 44 confirms the Appeal is to be by way of a re-hearing and the Appeals Tribunal has adopted that procedure. The Appeals Tribunal should however not lightly interfere with the decision of the Adjudicative Committee.

23. The Appeals Tribunal has carefully read the Adjudicative Committee’s decision, and also all submissions which have been filed. The Appeals Tribunal has also carefully considered the comments made by the High Court in the recent Wigg v RIB (2023) NZHC497 a decision delivered on 14 March 2023. The Appeals Tribunal has noted the comments of Her Honour Peters J regarding appropriate penalties and comparisons with other penalties which may have been imposed for similar types of offending. However the Appeals Tribunal is of the view the charges which the Appellant faced are more serious in nature then those which were referred to by Her Honour in her decision. In that case, the Licence Holder was charged under Rule 1004C(1)(b) with the administration of an anti-inflammatory product on Raceday. The product was not considered performance enhancing. In the case of the Appellant the administration was of a prohibited substance which was acknowledged to be performance enhancing. This goes to the integrity of the Industry.

24. The Appeals Tribunal also gave consideration as to whether this Appeal should have been heard together with the Appeal which has been filed by Matthew Jason Anderson against the decision of the Adjudicative Committee as to penalty, having regard to the fact both faced charges arising from the same circumstances. The Appeals are however quite separate and therefore the Appeals Tribunal determined they should proceed to be heard by the Tribunal as separate matters.

25. The Appeal is as to penalty only. The Appeals Tribunal has considered the reasoning of the Adjudicative Committee in adopting a nine (9) year starting point and cannot find fault with that reasoning. That starting point was consistent with that adopted in RIB v Alford, which as the Adjudicative Committee confirmed, was of a similar fact scenario to the present. The Appeals Tribunal also considered the well-known sentencing principals detailed in RIU v L and also the starting points adopted in RIU v Kerr and RIU v McGrath.

26. The Appeals Tribunal therefore agrees with the starting point of a nine (9) year disqualification in respect of Information A16901. The Appeals Tribunal notes this was a most egregious breach of the Rules that strikes at the heart of the credibility and honesty of the Industry. It was very serious offending.

27. The Appeals Tribunal therefore turns to the matter of the uplift. The Adjudicative Committee’s decision adopted an uplift of two (2) years disqualification, having regard to seven (7) matters of aggravation. For clarity, these aggravated matters are set out in paragraph 32 of the Adjudicative Committee’s decision. There is no need for this Tribunal to repeat those factors.

28. The Appeals Tribunal agrees all of the seven (7) factors are relevant. However considerable weight was given to the previous breach in 2004, where the Adjudicative Committee mistakenly referenced a six (6) month disqualification being imposed. Whether or not the Adjudicative Committee would have altered their uplift had it been aware of the subsequent Appeal which reduced that penalty to a $2,000 fine is a matter the Appeals Tribunal is not able to determine. The Appeals Tribunal also notes the Appellant was a secondary party only to the earlier offence.

29. The Appeals Tribunal does not accept no weight at all should be given to the previous offending by the Appellant. Although the penalty was imposed some sixteen (16) years ago, the Appeals Tribunal still considers it relevant. The lapse of time from a previous offence will be one of the factors which will be taken into account when determining the extent of any uplift in penalty for a previous breach.

30. However, as an Appeals Tribunal we must form our own decision based on the matters which have been placed before us, and we have come to the conclusion, the uplift of two (2) years disqualification was not warranted. An immediate acknowledgement of wrongdoing is a significant mitigating factor.

31. However, for the reasons which are set out in the Adjudicative Committee’s decision, an uplift from the starting point is warranted. Taking into account the correct penalty for the previous offending, the somewhat secondary role of the Appellant and the time that has passed since that previous offending, the Appeals Tribunal sets the uplift at one (1) year.

32. The Adjudicative Committee then gave what it described as “a small discount” of one (1) year disqualification, having regard to the Appellant’s co-operation. No allowance was given for pleading guilty to the charges, as any defence would have been futile, and the Appeals Tribunal agrees with that.

Decision

33. For the reasons set out, the Appeals Tribunal believes the starting point of nine (9) years disqualification on Information A16901 is appropriate, with an uplift of one (1) year for aggravating matters, together with a discount of one (1) year for mitigating factors. On this Information the penalty imposed by the Adjudicative Committee is quashed and is substituted with a disqualification for a period of nine (9) years, commencing 1 February 2023.

34. The penalties which were imposed concurrently by the Adjudicative Committee on Information’s A16902 and A16903, being periods of disqualification for three (3) years on each Information are to remain. These periods are to be served concurrently with the disqualification imposed on Information A16901.

35. The Appeal is allowed to this extent.

Costs

36. There will be no order as to costs given the Appeal has been conducted on the papers.